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Planet Debate September PF Release (volume 1) – Security & Liberty
Sponsored by Open Society Foundations & IDEA
1
FYI – Many Post 9-11 Security Measures ........................................................................................... 8
FYI – Key Supreme Court cases – Detention/”Enemy Combatants” ................................................. 9
FYI – The Government’s Role in Airport Security............................................................................ 10
FYI – Airport Security Legislation .................................................................................................... 13
FYI -- Post 9-11 Airport Security Regulations .................................................................................. 14
FYI – The Fourth Amendment ........................................................................................................... 15
FYI -- The Fourth Amendment .......................................................................................................... 16
FYI – Consent and Administrative Searches ..................................................................................... 20
*** Pro – General Rights Answers *** ............................................................................................. 21
General Rights Answers ..................................................................................................................... 22
General Rights Answers ..................................................................................................................... 23
General Rights Answers ..................................................................................................................... 24
General Rights Answers ..................................................................................................................... 25
General Rights Answers ..................................................................................................................... 26
AT: “Petro – Freedom is Absolute” ................................................................................................... 27
Rights not Absolute ............................................................................................................................ 28
Rights Not Absolute ........................................................................................................................... 29
Rights not Absolute ............................................................................................................................ 30
Rights Not Absolute ........................................................................................................................... 31
Rights Not Absolute ........................................................................................................................... 32
Rights Not Absolute ........................................................................................................................... 33
Rights Not Absolute ........................................................................................................................... 34
Rights Not Absolute ........................................................................................................................... 35
Rights Not Absolute ........................................................................................................................... 36
Privacy Rights Not Absolute .............................................................................................................. 37
Rights Threaten Community .............................................................................................................. 38
Rights Threaten Community .............................................................................................................. 39
Procedural Rights Threaten Community ............................................................................................ 40
Procedural Rights Threaten Community ............................................................................................ 41
Rawls Answers ................................................................................................................................... 42
Extensions -- Security Important........................................................................................................ 43
Privacy Answers ................................................................................................................................. 44
Privacy Answers ................................................................................................................................. 45
Privacy Answers ................................................................................................................................. 46
Privacy Answers ................................................................................................................................. 47
Levinas Answers – Util ...................................................................................................................... 48
*** Pro – Torture *** ........................................................................................................................ 49
AT: “Torture Never Justified” ............................................................................................................ 50
*** Pro -- Civil Liberties Protections Risk Terrorism/Status Quo Policies Justified *** ................ 51
Protecting Civil Liberties Risks Terrorism ........................................................................................ 52
Increasing Due Process Protections Risks Terrorism ........................................................................ 53
Strong Detention Critical to Fight Terrorism ..................................................................................... 54
Strong Detention Critical to Fight Terrorism ..................................................................................... 55
Strong Detention Critical to Fight Terrorism ..................................................................................... 56
Strong Detention Critical to Fight Terrorism ..................................................................................... 57
Strong Detention Critical to Fight Terrorism ..................................................................................... 58
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Planet Debate September PF Release (volume 1) – Security & Liberty
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Strong Detention Critical to Fight Terrorism ..................................................................................... 59
“Probable Cause” Protections Increase Terrorism Risks ................................................................... 60
“Probable Cause” Protections Increase Terrorism Risks ................................................................... 61
Due Process Protections Increase Terrorism Risk ............................................................................. 62
Due Process Protections Increase Terrorism Risk ............................................................................. 63
Due Process Protections Increase Terrorism Risk ............................................................................. 64
Guantanamo Bay Critical to Fight Terrorism .................................................................................... 65
Guantanamo Bay Critical to Fight Terrorism .................................................................................... 66
Roving Wiretaps Fight Terror ............................................................................................................ 67
Preventative Detention Fights Terror ................................................................................................. 68
“Sneak-N-Peak” Warrants Links Fight Terror ................................................................................... 69
Detainees Should Not Be Given Prisoner of War Status ................................................................... 70
Detainees Should Not Be Given Prisoner of War Status ................................................................... 71
Detainees Should Not Be Given Prisoner of War Status ................................................................... 72
Geneva Convention Protections Should Not Apply to Detainees ...................................................... 73
PATRIOT Act Critical to Fight Terrorism ......................................................................................... 74
PATRIOT Act Critical to Fight Terrorism ......................................................................................... 75
Status Quo Patriot Act Provisions Deter Terrorism ........................................................................... 76
Status Quo PARIOT Act Provisions Deter Terrorism ....................................................................... 77
Terrorism Shouldn’t Be Treated Like a Law Enforcement Problem ................................................. 78
Immigration Rights Increase Terrorism ............................................................................................. 79
Renditions Critical to the War on Terror............................................................................................ 80
Information Technology Restrictions Critical to War on Terror ....................................................... 81
Reducing Visa Restrictions Increases Terrorism ............................................................................... 82
Data Mining Critical to the War on Terror ........................................................................................ 83
Restrictions on Military Tribunals Critical to the War on Terror ...................................................... 84
Restrictions on Court Orders/ Subpoenas Risk Terror ....................................................................... 85
Strong Executive Power Necessary in the War on Terror.................................................................. 86
Internet Search Restrictions Undermine the War on Terror............................................................... 87
Reduced Wiretap Authority Risks Terror .......................................................................................... 88
Sneak-and-Peak Searches Critical to the War on Terror .................................................................... 89
Sneak-and-Peak Searches Critical to the War on Terror .................................................................... 90
FISA’s Collapse of the Intelligence/Criminal Surveillance Wall Doesn’t Threaten Rights .............. 91
Collapse of the Intelligence/Criminal Surveillance Wall Critical to the War on Terror .................... 92
Collapse of the Intelligence/Criminal Surveillance Wall Critical to the War on Terror .................... 93
Collapse of the Intelligence/Criminal Surveillance Wall Critical to the War on Terror .................... 94
FISA’s Collapse of the Intelligence/Criminal Surveillance Wall Doesn’t Threaten Rights .............. 95
Detaining Terrorists as “Material Witnesses” Critical to the War on Terror ..................................... 96
Searching Library Records Critical to Fight Terrorism ..................................................................... 97
Surveillance Critical to Fight Terrorism ............................................................................................ 98
Strong Law Enforcement Critical to Fight Terrorism ........................................................................ 99
AT: Military Deterrence Solves ....................................................................................................... 100
AT: War on Terror Bad .................................................................................................................... 101
AT: War on Terror Bad-2/2 ............................................................................................................. 102
Airport Searches Generally Justified................................................................................................ 103
Airport Searches Generally Justified................................................................................................ 104
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Planet Debate September PF Release (volume 1) – Security & Liberty
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Airport Searches Generally Justified................................................................................................ 106
Airport Searches Generally Justified................................................................................................ 107
Heavy Airport Security Generally Effective .................................................................................... 108
Airport Privacy Expectations Low ................................................................................................... 109
Racial Profiling Reasonable/Effective ............................................................................................. 110
Racial Profiling Reasonable/Effective ............................................................................................. 111
Racial Profiling Reasonable/Effective ............................................................................................. 112
Racial Profiling Reasonable/Effective ............................................................................................. 113
Racial Profiling Prevents Terrorism ................................................................................................. 114
Racial Profiling Prevents Terrorism ................................................................................................. 115
Racial Profiling Prevents Terrorism ................................................................................................. 116
Racial Profiling Prevents Terrorism ................................................................................................. 117
AT: Justifies Korematsu ................................................................................................................... 118
SPOT/Behavioral Profiling Boosts Security .................................................................................... 119
STOP Searches Don’t Threaten Rights ............................................................................................ 121
AT: People Don’t Consent to Searches ............................................................................................ 122
AT: Consent to Search Should Be Required .................................................................................... 123
AT: Rights Abuses ........................................................................................................................... 124
Full Body Scanners Don’t Violate Liberty Interests ........................................................................ 125
Passengers Aren’t Removed Based on Race .................................................................................... 126
Passenger Removals Reasonable...................................................................................................... 127
Passenger Removals Reasonable...................................................................................................... 128
Full Body Scans Don’t Threaten Rights .......................................................................................... 129
Full Body Scans Don’t Threaten Rights .......................................................................................... 130
*** Pro – Terrorism Risk & Impacts *** ........................................................................................ 131
Terrorist Threat Increasing ............................................................................................................... 132
High Risk of Nuclear Terror Attack ................................................................................................. 133
AT: Bin Laden Killing Reduces Terror Risks .................................................................................. 134
AT: Bin Laden Killing Reduces Terror Risks .................................................................................. 135
AT: Bin Laden Killing Reduces Terror Risks .................................................................................. 136
AT: Bin Laden Killing Reduces Terror Risks .................................................................................. 137
Terrorism Results in Rights Violations ............................................................................................ 138
Terrorism Results in Rights Violations ............................................................................................ 139
Nuclear Terrorism Impacts............................................................................................................... 140
Nuclear Terror Attack Destroys the Global Economy ..................................................................... 141
Nuclear Terror Attack Destroys the Global Economy ..................................................................... 142
AT: “Terrorists Won’t Use Nukes” .................................................................................................. 143
AT: Terrorists Don’t Want to Kill A Lot of People ......................................................................... 144
AT: Terrorists Can’t Build a Bomb .................................................................................................. 145
AT: Terrorists Can’t Build a Bomb .................................................................................................. 146
AT: Terrorists Can’t Build a Bomb .................................................................................................. 147
AT: Terrorists Couldn’t Build a Trigger Device .............................................................................. 148
AT: Nukes Too Expensive for Terrorists ......................................................................................... 149
AT: “Small Cells Couldn’t Produce/Detonate a Nuke” .................................................................. 150
AT: “Terrorists Don’t Have a Large Sanctuary to Produce a Nuke” .............................................. 151
AT: Countries Won’t Transfer Nukes to Terrorists ......................................................................... 152
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AT: No Documented Theft Risks..................................................................................................... 153
Terrorism Can Be Defined ............................................................................................................... 154
Terrorism Can Be Defined ............................................................................................................... 155
Terrorism Can Be Defined ............................................................................................................... 156
Condemning Terror Good ................................................................................................................ 157
Condemning Terror Good ................................................................................................................ 158
*** Con – Terrorism Answers *** .................................................................................................. 160
Terrorism Risk Low – Post Osama .................................................................................................. 162
Terrorism Risk Low – Post Osama .................................................................................................. 163
Terrorism Risk Low – Post Osama .................................................................................................. 164
Terrorism Risk Very Low ................................................................................................................ 165
Terrorism Risk Very Low ................................................................................................................ 166
Terrorism Risk Very Low ................................................................................................................ 167
Terrorism Risk Very Low ................................................................................................................ 168
Terrorism Risk Very Low ................................................................................................................ 169
Middle East Terrorism Risk Generally Exaggerated ....................................................................... 171
Bioterrorism Answers ...................................................................................................................... 172
Bioterrorism Answers ...................................................................................................................... 173
No Terror/Large Attacks .................................................................................................................. 174
No Nuke Terror – Laundry List Cards (Short Frontline) ................................................................. 175
Nuclear Terrorism Frontline (Long) ................................................................................................ 177
Nuclear Terrorism Frontline (Long) ................................................................................................ 178
Nuclear Terrorism Frontline (Long) ................................................................................................ 180
A2 Pakistan Loose Nukes ................................................................................................................ 183
A2 Russian Loose Nukes ................................................................................................................. 185
A2 Russian Loose Nukes ................................................................................................................. 186
A2 Russian Suitcase Nukes .............................................................................................................. 188
A2 NK Loose Nukes ........................................................................................................................ 189
A2 Iran Nukes .................................................................................................................................. 190
A2 Iran Nukes .................................................................................................................................. 191
A2 Black Market Nukes ................................................................................................................... 192
A2 Theft ........................................................................................................................................... 193
A2 Theft ........................................................................................................................................... 194
A2 Theft – PALS Check .................................................................................................................. 195
Cyberterrorism Answers .................................................................................................................. 196
Cyberterror Answers ........................................................................................................................ 197
No Motivation for Cyberterror ......................................................................................................... 198
*** Con – Specific War on Terror Policies Fail/Are Bad *** ......................................................... 199
Airport Security Measures .......................................................................................................... 200
List of Airport Prohibitions ............................................................................................................. 201
Airport Security Measures Generally Fail ....................................................................................... 202
Airport Security Measures Generally Fail ....................................................................................... 203
Airport Security Measures Generally Fail ....................................................................................... 204
Security Measures Not Justified ....................................................................................................... 205
Security Measures Threaten the Airline Industry ............................................................................ 206
No Risk of a Small Aircraft Being a WMD ..................................................................................... 207
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* Airport Screening Involves Racial Profiling ................................................................................. 208
Racial Profiling Fails ........................................................................................................................ 209
Racial Profiling Fails ........................................................................................................................ 210
Racial Profiling Fails ........................................................................................................................ 211
Racial Profiling Fails ........................................................................................................................ 212
Racial Profiling Fails ........................................................................................................................ 213
Racial Profiling Fails ........................................................................................................................ 214
Racial Profiling Increases Terror Risks ........................................................................................... 215
AT: Government Prohibits Racial Profiling..................................................................................... 216
AT: Government Uses Behavioral, Not Racial Profiling ................................................................. 217
AT: Government Uses Behavioral, Not Racial Profiling ................................................................. 218
AT: Government Uses Behavioral, Not Racial Profiling ................................................................. 219
AT: Government Uses Behavioral, Not Racial Profiling ................................................................. 220
AT: Government Uses Behavioral, Not Racial Profiling ................................................................. 221
AT: Abusive Racial Profiling is Prohibited ..................................................................................... 222
Profiling Bad: Immoral .................................................................................................................... 223
Profiling Bad: Psychological Pain p. 1/2 ........................................................................................ 224
Profiling Bad: Violates Civil Liberties/Equal Protection ................................................................. 226
Racial Profiling Violates Core of 4th Amendment Protections p. 1/2 ............................................. 227
Profiling Bad: Slavery ...................................................................................................................... 229
Racial Profiling Bad Law Enforcement Strategy ............................................................................. 230
* Airport Screening Involves SPOT/Behavioral Screening ............................................................. 231
* Airport Screening Involves SPOT/Behavioral Screening ............................................................. 232
SPOT Explained ............................................................................................................................... 233
SPOT Program Fails......................................................................................................................... 235
SPOT Program Fails......................................................................................................................... 237
SPOT Program Fails......................................................................................................................... 238
SPOT Program Involves Racial Profiling ........................................................................................ 239
AT: Profiling/Screening Works in Israel ......................................................................................... 240
AT: Courts Check Abuses ................................................................................................................ 241
* Airlines Removal Passengers At-Will........................................................................................... 243
No Limit on Discrimination in Removal Decisions ......................................................................... 244
No Limit on Discrimination in Removal Decisions ......................................................................... 245
* Airport Screening Uses MALINTENT ......................................................................................... 246
* Airport Screening Involves Air Marshals ..................................................................................... 247
Airport Screening Involves Air Marshals ........................................................................................ 248
Airport Screening Uses Full Body Scanners .............................................................................. 249
Airport Screening Uses Full Body Scanners .............................................................................. 250
Full Body Scanners Invade Privacy ................................................................................................. 251
Full Body Scanners Invade Privacy ................................................................................................. 253
Full Body Scanners Invade Privacy ................................................................................................. 254
Full Body Scanners Violate First Amendment Rights ..................................................................... 255
Full Body Scanners Unconstitutional ............................................................................................... 256
AT: People Have to Walk Through Scanners Now ......................................................................... 257
AT: People Experience Pat-Downs Now ......................................................................................... 259
Full Body Scans Threaten Health..................................................................................................... 260
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AT: Full Body Scans Are Just Administrative Searches .................................................................. 261
AT: You Give Up Your Rights When You Fly ............................................................................... 262
AT: TSA Full Body Scanner Regulations Solve .............................................................................. 263
Full Body Scanners Fail ................................................................................................................... 264
* DC Flight Restrictions ................................................................................................................... 265
Small Aircraft Not a Threat .............................................................................................................. 266
DC Flight Restrictions Bad .............................................................................................................. 267
* Personal Identity Verification System ........................................................................................... 268
Personal Identity Verification System Violates Rights .................................................................... 269
* “Enemy Combatant” Still US Law ................................................................................................ 272
* FISA Enables Warrantless Wiretaps ............................................................................................. 273
AT: Courts Check FISA ................................................................................................................... 275
FISA Searches Invade Privacy ......................................................................................................... 276
Warrantless Wiretaps Destroy Liberty ............................................................................................. 278
Warrantless Wiretaps Destroy Liberty ............................................................................................. 280
Intelligence/Criminal Surveillance Wall Did Not Hinder Terror Investigations ............................. 281
Intelligence/Criminal Surveillance Wall Did Not Hinder Terror Investigations ............................. 283
Intelligence/Criminal Surveillance Wall Did Not Hinder Terror Investigations ............................. 284
Spying on Domestic Opposition Groups .......................................................................................... 285
Millions of Intercepts ....................................................................................................................... 286
Millions of Intercepts ....................................................................................................................... 287
Answers to: “Only Foreign Calls Are Monitored” .......................................................................... 288
Answers to: “Other Presidents Act Outside the Court” .................................................................. 289
Answers to: “Warrantless Wiretaps Pre 9-11” ................................................................................. 290
Alien/Immigrant Detention – Government Targets ................................................................... 291
Alien/Immigrant Detention – Government Targets ................................................................... 292
Unauthorized Detention Threatens Rights ....................................................................................... 293
Government Has Widespread Detention Authority ......................................................................... 294
Answers to: “The Courts Have Prohibited Detention Without Charge” ......................................... 295
PATRIOT Act Allows Detention Without Charge .......................................................................... 296
INS Has Extensive Detention Without Charge Authority ............................................................... 297
Precedent for Future Rights Abuses ................................................................................................. 298
Detention Threatens Core Liberty Interests ..................................................................................... 299
Fourth Amendment Violations ......................................................................................................... 300
Fourth Amendment Violations ..................................................................................................... 301
General Rights Extensions........................................................................................................... 303
Answers to: “Illegals Don’t Have Constitutional Protections” ........................................................ 304
Advantage: Detention Without Charge Threatens Due Process ..................................................... 305
Detention Without Charge Threatens Due Process .......................................................................... 306
Torture ........................................................................................................................................ 307
Torture at Guantanamo Bay ............................................................................................................. 308
Torture Bad ...................................................................................................................................... 309
Gitmo Policies Create Environment Conducive to Torture ............................................................. 310
US Refusal to Apply International Prohibitions on Torture to Gitmo Causes Torture .................... 311
*** Con – Rights Good *** ............................................................................................................. 312
Rights Critical to Freedom/Freedom Absolute ................................................................................ 313
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Freedom Necessary to Stop Tyrannical State Power and Nuclear War ........................................... 314
Privacy Necessary to Prevent Tyranny ............................................................................................ 315
Rights Critical to Human Dignity .................................................................................................... 316
AT: Rights Undermine Community ................................................................................................. 317
AT: Rights Undermine Community ................................................................................................. 318
AT: Terrorists Don’t Have Rights .................................................................................................... 319
AT: Terrorists Don’t Have Rights .................................................................................................... 320
Constitution Must Always Be Followed .......................................................................................... 321
Rule Of Law Is Good ....................................................................................................................... 322
Rule of Law Is Good ........................................................................................................................ 323
Rule of Law Is Good ........................................................................................................................ 324
*** Related – Internment Still Possible ........................................................................................... 325
*** Additional Bibliographic Resources *** .................................................................................. 328
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FYI – Many Post 9-11 Security Measures
Many post 9-11 laws to fight terrorism
Robert Power, Associate Dean for Faculty Research and Development and Professor of Law,
Widener University School of Law, Winter 2010, Pace Law Review, “Intelligence" Searches and
Purpose: A Significant Mismatch Between Constitutional Criminal Procedure and the Law of
Intelligence-Gathering,” p. 677-8
The emphasis of the USA-PATRIOT Act, on the other hand, was in expanding investigative
powers and techniques. In addition to allowing the use of FISA for investigations in which
foreign intelligence is a significant, but not primary, purpose, the law included provisions that
eased restrictions on the use of pen registers and access to internet communications, loosened
grand jury secrecy in the foreign intelligence area, and expanded the scope of subpoenas for
records and tangible evidence. Other laws, including a series of laws intended to permit
greater executive use of electronic surveillance, have been passed since 2001. These and
other statutes have provided various legal tools, such as executive orders, to designate
organizations as terrorist organizations and to freeze assets of such groups. Before this great
expansion of both federal criminal jurisdiction and civil and criminal vehicles for fighting
terrorism, it was reasonable to think of foreign intelligence as primarily directed to
international politics, diplomacy, and war, with criminal prosecution an ancillary part of the
government's efforts against foreign espionage and terrorism. Now criminal prosecution is
clearly a major part of a very big toolbox. The cost of making criminal prosecution such a
central part of the government's efforts in this area is that, where prosecution rather than
intelligence-gathering is the primary purpose of electronic surveillance or physical searches, it
may well be that the government has to follow the procedures laid down by the Constitution
for the investigation and prosecution of criminal cases.
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FYI – Key Supreme Court cases – Detention/”Enemy Combatants”
David Harris, law professor, Missouri Law Review, Winter, 2011, On the Contemporary Meaning
of Korematsu: "Liberty Lies in the Hearts of Men and Women", p. 26-7
A plausible objection to this thesis is that today's Supreme Court would not validate a
Korematsu-like internment again, even in the event of another attack. The Supreme Court has
faced four cases in which the executive branch asserted unprecedented powers to detain
people in the pursuit of post-9/11 terrorism: Rasul v. Bush, Hamdi v. Rumsfeld, Hamdan v.
Rumsfeld, n140 and Boumediene v. Bush. In each of these cases, the government argued that
the executive's power under the Constitution allowed the President to take extraordinary
actions against "enemy combatants" in U.S. custody in order to secure the nation. Critics
would surely point out that the Supreme Court rebuffed the government in all four cases,
often in sweeping language that, at the very least, suggests hostility to the government's
assertions of the power to incarcerate persons in the name of national security. In Rasul, the
Court denied the government's claim that the U.S. Naval Base at Guantanamo Bay amounted
to a zone free from any judicial oversight. On the contrary, the Court said federal courts had
jurisdiction to test the claim of presidential power over individuals incarcerated there. In
Hamdi, Justice O'Connor, writing for a plurality, said that Guantanamo detainees have the
right to due process, finding that "a state of war is not a blank check for the President." In
Hamdan, the Court dismissed the idea that enemy combatants enjoyed no protections under
the Geneva Convention when tried in military commissions. In Boumediene, the Court
preserved the availability of habeas corpus for those incarcerated at Guantanamo. Thus, critics
might argue that these cases show that, whatever the legal status of Korematsu in the abstract,
a majority of today's Supreme Court would not accept a Korematsu-style internment in the
event of an attack. Despite these criticisms, Americans cannot depend on these cases to tell
them what a court would do if faced with another attack and a plan for internment. None of
the Guantanamo cases relied upon, or even expressed any relation to, the law of equal
protection; doctrinally, they rested on the President's executive and wartime powers. And
perhaps more important than what these cases struck down is what they did allow. The best
example is Hamdi, in which Justice O'Connor famously refused to grant the executive
virtually unlimited constitutional power in wartime. Hamdi actually allows the executive to
hold American citizens indefinitely, without charges or trial, as enemy combatants. While
some minimal degree of process is due, the bottom line is that the Court conceded this power
to the President with very little in the way of checks or balances. Similarly, in Hamdan, the
Court ruled that only Common Article Three of the Geneva Conventions, the most basic set of
protections available, applied to enemy combatants at Guantanamo. Hamdan also found that
it would be procedurally adequate for military commissions, if modified, to try these
prisoners.
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FYI – The Government’s Role in Airport Security
History and explanation of the federal role in airport security
Moira Bergin, Catholic University Law Review, Fall, 2009, COMMENT: PACKING HEAT?
DEFINING THE SCOPE OF THE TRANSPORTATION SECURITY
ADMINISTRATION'S AUTHORITY TO PROTECT AMERICA'S AIRPORTS, p. 207-11
The history of federal aviation law provides important insight into the basis, purpose, and scope of
TSA's authority. Since the inception of commercial aviation, the federal government has viewed the
aviation sector as a fundamental mode of American commerce. Federal regulation of the aviation
industry began in 1926 when Congress passed the Air Commerce Act. While the legislation included
some security provisions, Congress's primary goal was to provide a framework of federal regulations
that would enable the American economy to fully exploit the potential of aviation. Under the Air
Commerce Act, the Secretary of Commerce could regulate air traffic and pilot licensing in civil
aviation, but municipalities retained control over airports and landing fields as long as local rules did
not interfere with interstate commerce. Over the next thirty years, the structure of federal aviation
regulation changed, but the encouragement of air commerce remained its goal. Following two widely
publicized airplane crashes, Congress passed the Federal Aviation Act of 1958, which established the
Federal Aviation Agency--an independent agency which reported directly to the president. Despite its
aggressive approach in imposing federal regulation on the aviation industry, Congress continued to
leave the operation of civil airports to local government operators subject to compliance with federal
statutes and inspection by the Federal Aviation Agency administrator. In response to an onslaught of
terrorist airline hijackings beginning in the 1960s, the Federal Aviation Administration (FAA) further
expanded its authority over aviation security to reduce risks of terrorist hijackings. Congress
continued to aggressively expand the FAA's role in airport security through the 1990s. By 2001, the
FAA had the authority to oversee air carriers' passenger screening procedures, respond to threats to
civil aviation, and demand that foreign airports meet certain security standards. Despite its growing
role in aviation security, FAA regulations issued pursuant to federal law provided only patchwork
protections that were insufficient to counter emerging threats to aviation security. The terrorist
attacks of September 11, 2001, ushered in a new era of aviation regulation. n54 In a sweeping
effort to federalize airport security, Congress established TSA within the Department of
Transportation (DOT). Congress's goal in creating TSA was to establish one federal entity with
the authority to monitor threats to national transportation infrastructure and to implement a
uniform transportation security protocol. TSA, therefore, consolidated the security functions of
numerous transportation agencies. In aviation, Congress shifted all airport security functions
previously overseen by the FAA to TSA. The language in the ATSA delegated plenary authority
over airport security to TSA and enumerated a list of specific security responsibilities to be
implemented. Specifically, the ATSA stated that TSA "shall be responsible for security in all
modes of transportation, including . . . civil aviation security" and shall "oversee the
implementation, and ensure the adequacy, of security measures at airports." Additionally, the
ATSA charged TSA with federalizing airport security screening programs. In that respect,
TSA's authority to regulate airport activity is more robust than the authority that the FAA had
previously enjoyed. While the FAA merely approved the screening programs carried out by air
carriers, TSA now directly promulgates screening procedures and employs the screeners.
In addition to the directives relating to the federalization of airport screening personnel and the
oversight of daily airport security operations, TSA inherited the FAA's expansive administrative
authority to issue regulations in pursuit of its security mission. Further, under the ATSA, TSA
was instructed to "develop policies, strategies, and plans for dealing with threats to
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transportation security," n67 to "carry out such other duties, and exercise such other powers,
relating to transportation security as the Under Secretary considers appropriate, to the extent
authorized by law," n68 and to "take necessary actions to improve domestic air transportation
security by correcting any deficiencies in that security." Indeed, Congress directed TSA to
ensure proper security measures were in place at airports even "before entry into a secured
area." Recognizing that aviation security is critical to federal domestic security programs,
Congress shifted TSA from the DOT to the Department of Homeland Security (DHS) in the
Homeland Security Act of 2002. At that time, it was well-documented that nearly one-third of
terrorist strikes throughout the world involved attacks against a segment of the transportation
infrastructure. By shifting TSA from the DOT to the DHS, Congress emphasized its vision of
transportation security as an essential component of homeland security that should fall under
federal control. C. TSA Defines Its Authority by Issuing Comprehensive Regulations to Improve
Airport Security
Regulations promulgated by TSA further illuminate its authority and demonstrate its role in
developing and controlling airport security. Under the Code of Federal Regulations section
entitled "Airport Security," TSA requires every airport to submit an Airport Security
Program to the Under Secretary for approval. To earn TSA's approval, airport operators'
security plans must [p]rovide[] for the safety and security of persons and property on an aircraft
operating in air transportation or intrastate air transportation against an act of criminal
violence, aircraft piracy, and the introduction of an unauthorized weapon . . . onto an aircraft."
Airport Security Programs can be modified at TSA's discretion when it determines that "safety
and the public interest" necessitate amendment, or when an airport operator requests a
modification that TSA finds will promote "safety and the public interest." In addition to
approving and implementing airport security plans, TSA requires all airport operators to
establish clearly marked security checkpoints to prevent unauthorized entry into secured areas.
All passengers are required to undergo TSA screening at these designated checkpoints. nAll
weapons are barred in secured areas, and TSA imposes a fine of up to $ 6000 on any individual
interfering with or undermining its security measures. These detailed airport security
regulations form a comprehensive, nationally uniform framework of security requirements with
which all airport operators must comply.
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FYI – Airport Security Legislation
History of post 9/11 airport security legislation
Behany Gulley, JD Candidate, University of Arkansas at Little Rock Law Review, Spring, 2009,
NOTE: CRIMINAL LAW - NO RIGHT TO REVOKE AND AVOID SEARCH - NINTH CIRCUIT
RULES THAT CONSENT TO AIRPORT SCREENING CANNOT BE REVOKED IN AN
ADMINISTRATIVE SEARCH. UNITED STATES V. AUKAI, 497 F.3D 955 (9TH CIR. 2007), p.
521-2
The attacks on the United States on September 11, 2001, exposed the flaws with current
airport security enforcement-stories of people with false identification boarding planes,
people with firearms walking right through security-outraging the public. n50 The media
attention pressured Congress to make new improvements in both legislation and enforcement.
In reaction to the attacks, Congress passed the Aviation and Transportation Security
Act in November of 2001. The conferees noted that the terrorist hijackings on September 11,
2001 "required a fundamental change in the way we approach[] the task of ensuring the safety
and security of the civil air transportation system." Under this legislation, Congress
established the Transportation Security Administration (TSA). The TSA is responsible
for passenger security at airports and has the added responsibility of detecting and
thwarting prospective terrorists through passenger screening by training employees and
by placing federal law enforcement officers at screening locations. The Under Secretary,
who heads the TSA, has the authority to create regulations for aircraft and passenger
security. In addition, under 49 U.S.C. $ S 44902, the Under Secretary requires airports to
refuse to transport passengers who are not subject to a search to discern if they are carrying "a
dangerous weapon, explosive, or other destructive substance . . . ."The new legislation
required an increase in security regulations; with this increase, courts must determine
whether the new search measures conform with constitutional standards for a reasonable
search.
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FYI -- Post 9-11 Airport Security Regulations
Post 9-11 security regulations
John W. Heck, Major, USAFR, JD, Journal of Air Law and Commerce, Spring, 2009, ARTICLE:
PUSHING THE ENVELOPE: WHY WASHINGTON, DC AIRSPACE RESTRICTIONS DO NOT
ENHANCE SECURITY, p. 340-3
B. The Aviation and Transportation Security Act of 2001
Despite these regulatory efforts, airport and airway security remained relatively porous,
allowing nineteen hijackers to commandeer four commercial airliners in 2001 with disastrous
results. The public demanded the government take a more active role in aviation security, and
in response to this demand, on November 19, 2001, Congress passed the Aviation and
Transportation Security Act (ATSA). The ATSA changed many features of the aviation
security landscape - it federalized airport security functions, mandated background checks
on airport employees, and required impenetrable cockpit doors. Noting that the FAA
historically had been slow to implement its wishes, Congress created perhaps the ATSA's
most enduring legacy - the Transportation Security Administration (TSA). The TSA assumed
the responsibility for aviation security from the FAA and shifted the focus from an emphasis
on aircraft accidents to identifying infrastructure weaknesses that could be used by terrorists.
To accomplish this task, Congress authorized the TSA to gather intelligence, assess threats,
and consult with other governmental agencies as required to accomplish its mission. Further,
in the event of a national emergency, the TSA is permitted to take control of all modes of
transportation - presumably shutting down the entire transportation network if necessary.
Since its creation, the TSA has implemented several far-reaching policies seemingly within
the scope of its mandate. The TSA has promulgated regulations requiring an Airport
Security Coordinator and the establishment of an Airport Security Program at each
commercial airport, specific procedural safeguards throughout the airport, and criminal
history checks and mandatory identification systems for employees. Additionally, the TSA
exercises considerable control over smaller, non-commercial airports and flight schools,
mandating annual employee security awareness training to recognize suspicious activities of
flight school applicants or participants. TSA's Alien Flight Student Program requires
extensive background checks and threat assessments for non-U.S. citizens seeking flight
training. In 2002, Congress passed the Homeland Security Act and transferred the TSA from
the Department of Transportation to the newly-minted Department of Homeland Security
(DHS). In forming the DHS, Congress created a unified agency designed to prevent future
domestic terrorist attacks by absorbing twenty-two existing agencies comprised of 170,000
employees and a combined budget of forty billion dollars. Among those agencies assimilated
into the DHS were several tasked with airport and airline passenger safety and security,
including the Customs Service, Immigration and Naturalization Service, the Animal and Plant
Inspection Service of the Department of Agriculture, and the TSA.
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FYI – The Fourth Amendment
Fourth Amendment text
Behany Gulley, JD Candidate, University of Arkansas at Little Rock Law Review, Spring,
2009, NOTE: CRIMINAL LAW - NO RIGHT TO REVOKE AND AVOID SEARCH NINTH CIRCUIT RULES THAT CONSENT TO AIRPORT SCREENING CANNOT BE
REVOKED IN AN ADMINISTRATIVE SEARCH. UNITED STATES V. AUKAI, 497 F.3D 955
(9TH CIR. 2007), p. 516
The Fourth Amendment gives people the right to be free from unreasonable searches and
seizures. The Amendment states the following: The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to
be seized.
How the Fourth Amendment is interpreted
Behany Gulley, JD Candidate, University of Arkansas at Little Rock Law Review, Spring,
2009, NOTE: CRIMINAL LAW - NO RIGHT TO REVOKE AND AVOID SEARCH NINTH CIRCUIT RULES THAT CONSENT TO AIRPORT SCREENING CANNOT BE
REVOKED IN AN ADMINISTRATIVE SEARCH. UNITED STATES V. AUKAI, 497 F.3D 955
(9TH CIR. 2007), p. 516
The United States Supreme Court articulated that protection under the Fourth Amendment
applies when a person "can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of
privacy' that has been invaded by government action." The analysis, as Justice Harlan stated
in his concurring opinion in Katz v. United States, consists of two inquiries. The first is
whether the person had an expectation of privacy, and the second is whether the person's
expectation of privacy is one society has accepted as reasonable -whether the expectation is
justifiable under the circumstances. This analysis from Katz is commonly adopted as the
definition for a "search." Thus, Katz creates a threshold test for the Fourth Amendment: if
there is no reasonable expectation of privacy, the Fourth Amendment is not a consideration,
which would make the search or seizure presumably permissible. If there is a reasonable
expectation of privacy, however, the Government must show that the intrusion was justifiable
under the Fourth Amendment. Once the Fourth Amendment is implicated, the question
becomes whether the search or seizure is reasonable. If the search or seizure is not
reasonable, then it is prohibited.
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FYI -- The Fourth Amendment
History of the Fourth Amendment and relevant exceptions
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 294-5
A. A Brief History of the Fourth Amendment
Royal authorities conducted unreasonable searches at will during the colonial period while
the colonies were still under British rule. Indeed, hostilities over this unchecked search power
spurred the enthusiasm for independence. When the Revolutionary War was finally over, the
writers of the newly formed United States Constitution realized that the Government needed
to be checked; personal privacy needed to be preserved. Thus, the Fourth Amendment was
drafted to protect against the arbitrary searches and seizures so commonly executed before the
war: "The notion that "a man's house [is] his castle' became "a part of our constitutional law in
the clauses prohibiting unreasonable searches and seizures.'" As the Founding Fathers
envisioned, searches and seizures must meet two conditions to fall under the Fourth
Amendment prohibitions: (1) the searches cannot occur when the person who is searched has
an expectation of privacy, (2) that expectation must be reasonable. If these conditions are met,
the authority conducting the search must have a warrant. Yet, the Supreme Court has also
ruled that warrants are not required in every circumstance. Warrantless searches that satisfy
"some fundamental requirements embodied in the Warrant Clause also can be constitutional."
Probable cause is one of those important requirements. Since the inception of the Fourth
Amendment, however, the Court has increasingly allowed several exceptions to cut into its
strict adherence to the constitutional mandate of probable cause. Indeed, the Court has
decided that probable cause may be "irrelevant for judging the reasonableness of many
government searches and seizures." Some governmental searches fall outside the need for a
warrant, "and when a warrant is not required (and the Warrant Clause therefore not
applicable), probable cause is not invariably required either." Thus, probable cause is no
longer necessary to judge the reasonableness of a search. The reasonableness of a search is
now "judged by balancing its intrusion on the individual's Fourth Amendment interests of
reasonable searches and seizures against its promotion of legitimate governmental interests."
B. The "Stop & Frisk" Exception
The Supreme Court solidified this movement away from mandatory probable cause in Terry
v. Ohio, the first Supreme Court case to legalize a new exception to the probable cause
requirement. In Terry, a long-time beat cop, Officer McFadden, watched two men walk back
and forth in front a store window about twenty-four times. The officer followed them where
he saw them join a third man. The officer approached them and asked their names. The men
"mumbled something" prompting McFadden to spin Terry around and pat down his outside
clothing where he found a pistol. He ordered them into a store where he completed a pat down
of the other suspects and retrieved all the guns. The men were charged with carrying
concealed weapons; they moved to suppress.
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Now commonly known as "stop and frisk" (or a "Terry" stop n38), the exception in Terry
arose out of the nebulous parameters surrounding police encounters outside of a formal arrest.
n39 No real guidelines existed to assist police on how far they could pursue an "on-the-street"
encounter n40 when attempting to prevent a crime. However, this overwhelming interest in
preventing a crime permitted, in the eyes of the Court, a "limited" stop. In Terry, Chief
Justice Warren and seven other members of the Court, held that it is "not a violation of the
Fourth Amendment for an officer to detain and search a man's person for a weapon in absence
of a search warrant, so long as the officer acts upon a reasonable belief based upon objective
factors that the man is armed and dangerous." "Reasonableness" is key: "something in the
activities of the person being observed or in his surroundings must affirmatively suggest
particular criminal activity, completed, current, or intended." Over the years since the Terry
decision, "stop and frisk" encounters between police and potential suspects have become a
widely accepted exception to the prohibition against warrantless searches. The first pressure
point with a stop and frisk is the legality of the initial stop. If the stop is "bad" (illegal), so is
everything that follows from it (a frisk or search, detention, or even an arrest). This inquiry
into whether the stop (and any subsequent search) was legal is a two-pronged test: was the
officer's action justifiable "at its inception" and was it reasonably "related in scope to the
circumstances which justified the interference in the first place." Yet it should be noted that
not every dialogue between police and citizen constitutes a stop (or seizure): "only when the
officer, by means of physical force or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a "seizure' has occurred." In other words, a person
has been "seized" only if a reasonable person in the same circumstance would have believed
"that he was not free to leave." For example, in United States v. Mendenhall, the Court
pointed out that the respondent was not seized when the DEA agents asked her for her airline
ticket and identification. As long as the respondent had no objective reason for thinking that
she could not leave, she had not been seized. If at any point a respondent feels that she cannot
simply walk away and leave, she has been seized for purposes of the Fourth Amendment. At
that point when the intercourse between officer and citizen becomes a stop, the officer must
be able to articulate the factors leading to a reasonable suspicion of criminal activity. In fact,
the stopping officer must be able to demonstrate he had a reasonable suspicion for the stop
before the stop occurred. However, since a stop is less intrusive than a frisk, the
constitutional requirements for a stop are less restrictive than for a frisk: the officer must
merely demonstrate a governmental interest in preventing a crime. An actual crime need not
be committed. In the airport, TSA agents play the role of the police officer. The agents are
the enforcement authority of the airports, given the task of preventing terrorists from boarding
aircrafts. TSA BDOs look for suspicious behavior, and when they spot such behavior, they
exercise the discretion of police officers who encounter such behavior on city streets. They
have the legal right to detain and question the suspicious person as long as it stays within the
confines of a Terry stop (or they have probable cause for an arrest). Thus, as with police stops
on the street, TSA agent seizures or stops of a person in an airport must fulfill a legitimate
government interest. nTo assess the general reasonableness of this stop, the ensuing analysis
must focus on the governmental interest to see if the interest truly justifies the intrusion upon
personal privacy; "there is "no ready test for determining reasonableness other than by
balancing the need to search [or seize] against the invasion which the search [or seizure]
entails.'" Without argument, preventing would-be terrorists from blowing up an airplane is an
overwhelming and exigent governmental interest. Inconveniencing a person for a few minutes
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to ask them questions about their travel plans is certainly a justified intrusion on personal
privacy considering the overwhelming governmental interest in domestic safety and the
prevention of another catastrophic air disaster. Clearly, the government's interest easily
outweighs the minor intrusions thrust upon passengers as they pass through airport security.
Under Terry, the reasonableness for these stops (when balanced against the need for these
stops) passes constitutional scrutiny. However, individual stops must be justified as
reasonable given the circumstances leading to the stop. In other words, just because BDOs
can stop passengers in airports due to the government's interest in stopping terrorists does not
mean they can stop just anybody. They still must articulate the objective factors which led
them to stop a particular individual. "Inarticulate hunches" or "simple good faith" are not
enough to warrant a stop. In addition, the stop must satisfy the two-pronged test: n68 the stop
must be reasonable at its inception and as conducted. The totality of the circumstances should
be considered when evaluating the reasonableness of the "stop factors." n69 A "series of acts"
when taken together may be enough to warrant the stop even though each of those acts is
"innocent in itself." If this series of acts would lead a reasonably prudent person to stop the
offender, then the stop at its inception is good. If the BDO merely identifies himself or
herself as a TSA agent and then questions the suspect about his behavior, including asking
his name and travel destination (without doing anything more intrusive), the stop has also
been conducted reasonably. If the stop is legal, the court can then turn its attention to the
more intrusive frisk. As a frisk of an individual is much more invasive than mere questioning,
the factors prompting the frisk must serve a greater interest. Accordingly, an officer may
constitutionally stop someone even though he has no constitutional grounds to frisk him. No
longer is the governmental interest in the prevention or detection of crime enough; now the
interest rises to the preservation of the police officer who initiated the stop. If an officer
reasonably believes that the detainee is "armed and presently dangerous to the officer or to
others," the officer clearly may take the necessary steps "to determine whether the person is in
fact carrying a weapon and to neutralize the threat of physical harm." Since, however, the
intrusion upon the sanctity of personal privacy is so great, even with a brief pat down, the
circumstances which are articulated to justify the search must meet the "exigencies" of
preserving the safety of the officer and those in the surrounding area. The officer does not
have to "know" that the detainee is armed; the standard is whether a "reasonably prudent man
in the circumstances would be warranted in the belief that his safety or that of others was in
danger." Since the stop and frisk are two separate events under the Constitution, n81 the
officer must again meet the two-pronged test for the frisk even if it has already been met for
the stop. If the officer can articulate factors to meet the "reasonably prudent man" test, the
search in its inception is good. When conducting the search, the scope "must be "strictly tied
to and justified by' the circumstances which rendered its initiation permissible." If the search
is limited to a pat down of areas on the detainee from which he could conceivably reach a
concealed weapon, the search has been conducted reasonably. The frisk must be limited to
finding a weapon. "General exploratory searches" to find any "evidence of criminal activity"
are strictly prohibited.
C. The Administrative Search Exception
The Court of Appeals for the Ninth Circuit has defined administrative searches as "searches
conducted as part of a general regulatory scheme in furtherance of an administrative purpose,
rather than as part of a criminal investigation to secure evidence of crime..." While the need
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for probable cause applies to "any government intrusion on private property," the type of
probable cause required for administrative searches is much less than in standard criminal
searches: "where considerations of health and safety are involved, the facts that would justify
an inference of "probable cause' to make an inspection are clearly different from those that
would justify such an inference where a criminal investigation has been undertaken." Prior to
Terry, the Supreme Court decided two key administrative search cases: Camara v. Municipal
Court and See v. City of Seattle. In these cases, the Court balanced the interests of regulatory
enforcement against the Fourth Amendment's demand for individual privacy. The rulings in
those cases stated that officials who conduct administrative searches may practice a lesser
standard of probable cause than that required in criminal cases "because the inspections are
neither personal in nature nor aimed at the discovery of evidence of crime[;] they involve a
relatively limited invasion of the urban citizen's privacy." As the Court would soon decide in
Terry, "traditional Fourth Amendment protections" become impractical in certain search and
seizure situations. Thus, "the Court had to find a middle ground to accommodate the weighty
competing public and private interests."
The Ninth Circuit found that "middle ground" when it ruled in United States v. Aukai n96 that
airport searches are indeed administrative searches. The Supreme Court has not definitively
ruled upon this issue but has suggested that airport searches are indeed a form of
administrative search. "Where a Fourth Amendment intrusion serves special governmental
needs, beyond the normal need for law enforcement, it is necessary to balance the individual's
privacy expectations against the Government's interests to determine whether it is impractical
to require a warrant or some level of individualized suspicion in the particular context.” In
other words, if the government's interest outweighs an individual's expectation of privacy, the
ensuing search and seizure may commence without a warrant. Passenger screening in an
airport is obviously part of an overall regulatory mandate to control aviation safety; stopping a
terrorist attack using an aircraft as a weapon is a very real and overwhelming government
concern. However, as Judge Friendly notes in United States v. Edwards, the search must be
conducted in good faith and must be tailored to prevent the searches goal: to prevent air
piracy, hijacking or damage to passengers or the aircraft.
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FYI – Consent and Administrative Searches
Warrants are not required for consent and administrative searches
Behany Gulley, JD Candidate, University of Arkansas at Little Rock Law Review, Spring, 2009,
NOTE: CRIMINAL LAW - NO RIGHT TO REVOKE AND AVOID SEARCH - NINTH CIRCUIT
RULES THAT CONSENT TO AIRPORT SCREENING CANNOT BE REVOKED IN AN
ADMINISTRATIVE SEARCH. UNITED STATES V. AUKAI, 497 F.3D 955 (9TH CIR. 2007), p. 518
The majority of searches and seizures must be based on probable cause, unless consent is
given. In addition, courts have generally held that searches conducted without a warrant
supported by probable cause are per se unreasonable. As the National Treasury Employees
Union v. Von Raab Court stated, however, "neither a warrant nor probable cause, nor,
indeed, any measure of individualized suspicion, is an indispensable component of
reasonableness in every circumstance."In particular, there are four generally recognized
exceptions to the warrant requirement. The exceptions implicated in the remainder of this
section are consent and administrative searches.
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*** Pro – General Rights Answers ***
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General Rights Answers
1. Constitutional Rights are not trump cards; policy goals can outweigh the interests of rights
& no rights are absolute under the Constitution
Harvey, J.D., Yale Law School, ‘02 (Philip Harvey, “Human Rights and Economic Policy
Discourse: Taking Economic And Social Rights Seriously”, Spring, 2002, 33 Colum. Human Rights
L. Rev. pp. 370-1)
A view frequently expressed by human rights advocates is that valid rights should "trump' other
policy goals, but I argue that this prescription, if taken at face value, is inadequate. A genuine trump
outweighs even the highest valued card in another suit, but rights-based claims are rarely treated
that way. They are given added weight, but not a genuinely trumping value. For example, in
American constitutional jurisprudence, even fundamental rights may be infringed; however, a
"compelling state interest' is required to justify such actions. What I argue is needed, therefore, is
not a social choice methodology that treats rights as absolute trumps, but one that treats them with
appropriate deference. The level of deference owed a particular right may vary with the importance
of the ultimate interests it protects and with the nature of the countervailing interests that oppose it.
Whether the balance between human rights protection and other policy goals is struck appropriately
in particular instances may not be easy to determine. It certainly will not be demonstrable with the
mathematical precision to which welfare economics aspires. The most we can expect is persuasive
argument.
2. Turn -- Absolutism hurts rights – we get lost in moral constraints rather than being moved
by real concern
Waldron, Jeremy, 1993 (Liberal Rights, Collected Papers: Cambridge Univ. Press)
I have some sympathy with this, but, as I also argue in Chapter 9, the insistence on absolutism does
not make the conflicts go away; it doesn't make the situations that appear to call for trade-offs
disappear. Those situations are not some-thing that consequentialists and their fellow travelers have
perversely invented in order to embarrass moral absolutists. It is not the theorist's fault that there are
sometimes several drowning people and only one lifeguard. As I said earlier, the world turns out not
to be the sort of place to which absolute moral requirements are an apt response. If we insist on the
absoluteness of rights, there is a danger that we may end up with no rights at all, or, at least, no
rights embodying the idea of real concern for the individuals whose rights they are. At best, we will
end up with a set of moral constraints whose absoluteness is secured only by the contortions of
agent-relativity, that is, by their being understood not as concerns focused on those who may be
affected by our actions but as concerns focused on ourselves and integrity.
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General Rights Answers
3. Turn -- One must divert to utilitarianism when the alternative is to let everyone die
Kateb, Professor of Politics, 1992 (George, Prof of Politics, Princeton Univ., The Inner Ocean:
Individualism and Democratic Culture; Cornell University Press, p. 12)
The main point, however, is that utilitarianism has a necessary pace in any democratic country's
normal political deliberations. But its advocates must know its place, which ordinarily is only to
help to decide what the theory of rights leaves alone. When may rights be overridden by
government? I have two sorts of cases in mind: overriding a particular right of some persons for the
sake of preserving the same right of others, and overriding the same right of everyone for the sake
of what I will clumsily call "civilization values." An advocate of rights could countenance, perhaps
must countenance, the state's overriding of rights for these two reasons. The subject is painful and
liable to dispute every step of the way. For the state to override is, sacrifice—a right of some so that
others may keep it. the situation must be desperate. I have in mind, say, circumstances in which the
choice is between sacrificing a right of some and letting a right of all be lost. The state (or some
other agent) may kill some (or allow them to he killed), if the only alternative is letting every-one
die. It is the right to life which most prominently figures in thinking about desperate situations. I
cannot see any resolution but to heed the precept that "numbers count." Just as one may prefer
saving one's own life to saving that of another when both cannot be saved, so a third parry—let us
say, the state—can (perhaps must) choose to save the greater number of lives and at the cost of the
lesser number, when there is otherwise no hope for either group. That choice does not mean that
those to be sacrificed are immoral if they resist being sacrificed. It follows, of course, that if a third
party is right to risk or sacrifice the lives of the lesser for the lives of the greater number when the
lesser would otherwise live, the lesser are also not wrong if they resist being sacrificed.
4. You are responsible for outcomes that are caused by others when you cause the others to do
the outcome
Uniacke (University of Wollongong, NSW, Australia) ’99
(Suzanne, Jun99, International Journal of Philosophical Studies, “Absolutely Clean Hands?
Responsibility for What’s Allowed in Refraining from What’s Not Allowed,” Vol. 7 Issue 2, p189,
21p)
We bear responsibility for the outcome of another’s actions, for instance, when we provoke these
actions (Iago); or when we supply the means (Kevorkian), identification (Judas), or incentive (Eve);
or where we encourage another to act as he [or she] does (Lady Macbeth). Despite his disclaimer,
Pilate cannot acquit himself entirely of the outcome of what others decide simply by ceding the
judgment to them. In these examples agents are indirectly, partly responsible for the outcomes of
what others do in virtue of something they themselves have done. But indirect, partial responsibility
for what another person does can also arise through an agent’s non-intervention and be grounded in
intention or fault; for example, when Arthur does not prevent Brian killing Catherine, because Arthur wants Catherine dead, or because
Arthur simply cannot be bothered to warn her or call the police. Of course attributions of indirect, partial responsibility can be dif cult. And as far as
absolutism is concerned, the relevant sense of ‘brings about’, outlined earlier, will sometimes be quite stretched where an agent is attributed with
responsibility for what someone else does. All the same,
by our non-intervention we can help bring about some things
that are directly and voluntarily caused by others.
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General Rights Answers
5. Turn -- Consequentialism affirms the unconditional value of rational beings as equals – its is
the best framework; Kantian ethics faces the same dilemma of kill to save
Cummiskey, Associate Professor of Philosophy, Bates College, ‘96 (David, Kantian
Consequentialism, New York: Oxford University Press, p. 150-1)
On the other hand, in practice, consequentialists do not defend the sacrifice of the innocent as a
principle of public policy. In practice, of course, a Kantian consequentialist can and should appeal
to good consequentialist reasons for limiting the use of coercion and maintaining a sphere of
personal liberty. There are good consequentialist reasons for secondary principles that constrain a
direct appeal to the more basic consequentialist principle. Just as honesty is typically the best
policy, protecting individual rights really does advance the common good. In addition, the demands of duty are
such that, as Kant would say, finite rational beings cannot be expected to fully satisfy them. We must distinguish what one should do if one can from
what we should expect or demand of ourselves and others. Although consequentialists reject moral complacency and self-satisfaction, they also
provide a justification for a distinction between extraordinary and ordinary compliance with duty. Thus, the Kantian consequentialist should follow
"human law" should externally legislate only the more
harmful vices and should set its demands at a level a normally virtuous person can satisfy. Full
virtue is indeed best left to the internal legislation of finite rational beings. Consequentialism thus
provides an indirect justification for our intuitive conviction that we should not demand that the
innocent sacrifice themselves, and also that we should not sacrifice the innocent. Kant's moral
theory, however, simply does not provide a more direct and indefeasible justification for deontological constraints. In principle, a conscientious Kantian moral agent may be required to kill one
in order to save two. Nonetheless, if someone is unable to do so, this may well not be grounds for reproach. Similarly, if I cannot amputate
the tradition, going back at least to Aquinas," that recognizes that
a leg to save a life-either my own or that of another-I may not be blameworthy for my failure, although it is true that I should have done the nasty
deed. Still, in such a situation I must try to force my attention on the good I am doing and thereby enable myself to act. Similarly, in the highly
unusual case where it would truly be best to kill some to save others,
a good person should also try to focus on the lives to
be saved rather than becoming fixated exclusively on those who will be killed. Nonetheless, even though
sacrificing some to save others is sometimes the right thing to do, one should still feel regret and mourn the people who are lost. After all, the goal is
to save each and every person; thus, one should indeed feel the loss of even one. According to Kant ,
the objective end of moral
action is the existence of rational beings. Respect for rational beings requires that in deciding what
to do, one must give appropriate practical consideration to the unconditional value of rational beings
and to the conditional value of happiness. Since agent-centered constraints require a non-valuebased rationale, the most natural interpretation of the demand that one give equal respect to all
rational beings leads to a consequentialist normative theory. We have seen that there is no sound
Kantian reason for abandoning this natural consequentialist interpretation. In particular, a
consequentialist interpretation does not require sacrifices that a Kantian ought to consider
unreasonable, and it does not involve doing evil so that good may come of it. It simply requires an
uncompromising commitment to the equal value and equal claims of all rational beings and a
recognition that in the moral consideration of conduct, one's own subjective concerns do not have
overriding importance.
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General Rights Answers
Security is a fundamental economic and social right
HARVARD CIVIL RIGHTS CIVIL LIBERTIES LAW REVIEW, Summer 1995, p. 589-90
The Pratt decision and continuing litigation typifies the way in which strict adherence to classical
liberalism's understanding of freedom creates an incomplete balance between fundamental rights and the
basic needs imperative to realize those rights. The court's formalistic adherence to a classical liberal view
of civil and political rights obscured the public housing residents' underlying social and economic rights.
By privileging the civil and political rights of residents, Pratt ignores their basic need for security. The
legal parameters in which the Pratt case was decided forced public housing residents to pay
for one of their most fundamental constitutional rights, the right to be free from governmental
intrusion, with their basic need for security.
7. The risk of extinction via nuclear war outweighs all - ethics demands you evaluate
consequences
Robert A. Seeley, Central Committee for Conscientious Objectors, 1986, The Handbook of NonViolence, p. 269-70
In moral reasoning prediction of consequences is nearly always impossible. One balances the risks
of an action against its benefits; one also considers what known damage the action would do. Thus a
surgeon in deciding whether to perform an operation weighs the known effects (the loss of some
nerve function, for example) and risks (death) against the benefits, and weighs also the risks and
benefits of not performing surgery. Morally, however, human extinction is unlike any other risk. No
conceivable human good could be worth the extinction of the race, for in order to be a human good
it must be experienced by human beings. Thus extinction is one result we dare not-may not-risk.
Though not conclusively established, the risk of extinction is real enough to make nuclear war
utterly impermissible under any sane moral code.
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General Rights Answers
Anti-terror measures won’t lead to authoritarianism and security is a precondition for
freedom
Paul Rosenzweig, Heritage Senior Legal Research Fellow, 2004
["Preventive Detention and Actionable Intelligence," 9/16, w/ James Jay Carafano,
http://www.heritage.org/Research/HomelandDefense/lm13.cfm]
The response to this criticism is threefold: First, the criticism blinks reality. We already have
incomplete and irregular forms of preventive detention because it is a necessity. We advance liberty
when we regularize the practice, cabin it to narrow circumstances, and use it sparingly. Second, as
detailed above, other countries (such as the United Kingdom) have managed to adopt very limited
forms of preventive detention without becoming noticeably “unfree” or “authoritarian.” Adoption of
similar legal forms in the United States will not render us an authoritarian regime either. Finally,
and most important, to reject preventive detention in those rare circumstances in which it is
necessary is to exalt liberty at the expense of security. The founding of the American Republic was
for the purpose of constructing a political system of ordered liberty. It simply cannot be right to
unilaterally prefer liberty. Liberty is not an absolute value; it depends upon security (both personal
and national) for its exercise. As Thomas Powers has written: “In a liberal republic, liberty
presupposes security; the point of security is liberty.” The growth in danger from the consequences
of the failure to stop terrorism necessitates altering our tolerance for governmental order. More
fundamentally, our goal should be to maximize both order and liberty.
THE FOUNDATION OF RIGHTS IS THE PROMOTION OF THE PUBLIC GOOD
John Hasnas, professor of Business Ethics, Georgetown, NORTHWESTERN UNIVERSITY LAW
REVIEW, 1995, p. 916
Rights are conferred (and their correlating duties imposed) with the direct or immediate purpose of
promoting the general good; (as, for example, tie rights of judges and other political subordinates):
and rights are conferred indirectly to the same extensive purpose, although their proximate end be
the advantage of the parties entitled, or of other determinate parties for whom the are conferred in
trust.
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AT: “Petro – Freedom is Absolute”
Freedoms contradict – freedoms can’t be absolute because freedoms contradict
Roberto Unger, CRITICAL LEGAL STUDIES, Ed. Hutchinson, 1984, p. 26
The theory of formal freedom suffers from the same dilemma as the morality of reason, of which it is the
political equivalent. Take Kant’s universal principle of right, “Every action is right that in itself or in its
maxim is such that the freedom of the will of each can coexist together with the freedom of the will of
everyone according to a universal law.” When this proposition is left in its abstract from, it seems impossible
to derive from it definitive conclusions about what precisely the laws should command, prohibit, or
permit…But, as soon as we try to reach the level of concrete regulation of conduct, we are force to prefer
some values to others. This, however, is just what the formal theory of freedom was meant to avoid. Like
the morality of reason, the formal doctrine of freedom has to choose between being unworkable and being
incoherent.
Freedom can’t be absolute because it is grounded in the social
Roberto Unger, THE CRITICAL LEGAL STUDIES MOVEMENT, 1986, p. 104
The other available answer to the question- what lies on the other side of arbitrary constraint –
might be called existentialist. This is the answer that modernists themselves often give and that,
lacking any other alternative to the Aristotelian view, they must give. It sees nothing on the other
side but the purse and purely negative experience of freedom itself. The aim becomes to assert the
self as freedom and to live freedom as rebellion against whatever is partial and facititious in the
established social or mental structures. The existentialist position seems unsatisfactory for reasons
of its own It fails to acknowledge that endureing social and mental orders may differ from one
another in the extent to which they display the truth about human freedom. Consequently, it is also
powerless to deal adequately with a basic objection: freedom, to be real, must exist in lasting social
practices and institutions; it cannot effectively exhaust itself in temporary acts of context smashing.
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Rights not Absolute
An appropriate moral theory considers both rights and outcomes
Thomas Nagel, Professor of Philosophy, New York University, 'READING NOZICK, Jeffrey Paul,
ed., 1981, p200. (PDNSS1716)
A political theory that reflected these moral complexities would assign society the function of
promoting certain goods and preventing certain evils, within limits set by the differing constraints of
different individual rights. It would not judge processes and procedures solely by the their tendency
to produce certain outcomes, nor would it judge outcomes solely by the processes that had produced
them. Social institutions and the procedures defining them would be assessed by reference both to
their respect for individual rights and liberty, and to their tendency to promote desirable ends like
the general welfare.
Rights carry different weights
Thomas Nagel, Professor of Philosophy, New York University, READING NOZICK, Jeffrey Paul,
ed., 1981, p199. (PDNSS1717)
There is no reason to think that either in personal life or in society the force of every right will be
absolute or nearly absolute, i.e., never capable of being overridden by consequential considerations.
Rights not to be deliberately killed, injured, tormented, or imprisoned are very powerful and limit
the pursuit of any goal. More limited restrictions of liberty of action, restrictions on the use of
property, restrictions on contracts, are simply less ecerious and therefore provide less powerful
constraints.
Rights can be overridden
Thomas Nagel, Professor of Philosophy, New York University, READING NOZICK, Jeffrey Paul,
ed., 1981, p 196. (PDNSS1718)
The sources of morality are not simple but multiple; therefore its development in political theory
will reflect that multiplicity. Rights limit the pursuit of worthwhile ends, but they can also
sometimes be overridden if the ends are sufficiently important.
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Rights Not Absolute
Nozickian rights must be weighed against other interests
Jeffrey Paul, Professor of Philosophy, Bowling Green State University, READING NOZICK, 1981,
p13. (PDNSS1719)
Moreover, Nagel argues, the desirability of living a meaningful life cannot by itself imply as Nozick
suggests it does, an absolute right against interference by others. For the effect of such noninterference upon those others who must, according to Nozick, forbear from intrusive activity has to
he weighed against the interests of persons whose alleged rights are transgressed.
Rights aren’t absolute
Ronald Dworkin, New York University Law School, TAKING RIGHTS SERIOUSLY, 1978, p354
(PDNSS1720)
I conceded, moreover, that even the grand individual rights are not absolute, but will yield to
especially powerful considerations of consequence, which I called, too dramatically, 'emergencies'.
The argument of principle that establishes the individual right as an abstract right must recognize, in
more concrete circumstances, negative arguments of principle from which it may follow, for
example, that no one has a right to speak his mind freely when the result would be to cripple the
defense capacity of the nation.
Rights can be overridden
C.E. Harris, philosopher, Texas A&M, APPLYING MORAL THEORIES, 1986, p137-38
(PDNSS1721)
Our first inclination might be to argue that we should never override the rights of others, but the
preceding considerations have shown us that sometimes we must. In situations that involve criminal
activity or a conflict of obligations, someone's freedom or well-being must be overridden.
Rights vary in importance
Ronald Dworkin, New York University Law School, TAKING RIGHTS SERIOUSLY, 1978, p366
(PDNSS1722)
The theory of rights I offer does not deny that some rights are more important than others. No
alleged right is a right (on my account) unless it overrides at least a marginal case of a general
collective justification; but one right is more important than another if some especially dramatic or
urgent collective justification, above that threshold, will defeat the latter but not the former.
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Rights not Absolute
It’s permissible to risk rights violations
Charles Fried, Harvard Law School, RIGHT AND WRONG, 1978, p82 (PDNSS1723)
If my right against you to the security of my property means that you do me wrong if you take even
a chance at damaging my property in pursuit of some other end, then that is right is too intrusive,
potentially barring you from the pursuit of any goals--since everything carries some minuscule risk
of producing the untoward result.
Rights aren’t totally deontological
Ronald Dworkin, New York University Law School, TAKING RIGHTS SERIOUSLY, 1978, p313
(PDNSS1724)
Few people hold a rigidly deontological theory of rights. So most judges will think that, even when
moral and political rights are in question, consequentialist arguments will play a role in defining the
dimensions of these rights.
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Rights Not Absolute
Abstract rights are meaningless
Mark Tushnet, Georgetown Law School, TEXAS LAW REVIEW, May 1 1984, p1364
(PDNSS1725)
It does not advance understanding to speak of rights in the abstract. It matters only that some
specific right is or is not recognized in some specific social setting. It is, for example, literally
incoherent to claim that women in neolithic societies ought to have had the right to choose not to
bear children. Such a claim would have been meaningless to them.
Rights conflicts are irresolvable
Alan Hutchinson and Patrick Monehan, New York University Law School, TEXAS LAW
REVIEW, May 1 1984, p1484-5 (PDNSS1726)
In any actual dispute, however, both parties can express their claims in the language of rights.
Unless some meta-theory enables the adjudicator to choose between competing rights, a rights
scheme will be meaningless. But liberalism possesses no such meta-theory. The various
argumentative techniques lawyers commonly employ provide equally plausible justifications for
opposite results, depending on whether the initial emphasis is on freedom or on security.
Individual interests must be balanced with community interests
Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF
COMMUNITY, 1993, p.26-7 (PDNSS1727)
When Communitarians argue that the pendulum has swung too far toward the radical individualistic
pole and it is time to hurry its return, we do not seek to push it to the opposite extreme, of
encouraging a community that suppresses individuality. We aim for a judicious mix of self-interest,
self-expression, and commitment to the commons--of rights and responsibilities, of I and we. Hence
the sociological recommendation to move from 'I' to 'we' is but a form of shorthand for arguing that
a strong commitment to the commons must now be added to strong commitments to individual
needs and interests that are already well ensconced. Balancing the domestic forces with a fair
measure of resumed wellness will bring our society closer to a balanced position, without a
significant tilt toward either side, a society able to steer a stable course.
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Rights Not Absolute
Individual rights and social needs must be balanced
Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF
COMMUNITY, 1993, p.182 (PDNSS1728)
At one extreme is the Radical Individualist position that no changes may be made whatsoever in
Miranda, as if this legal measure, which did not take effect until 1966, was part of the Bill of Rights
or carried the endorsement of the Founding Fathers. On the other hand, Authoritarians argue that
Miranda, in toto, is but one of those many rights that accord criminals greater constitutional
protection than is accorded to their victims. Indeed, former attorney general Edwin Meese wanted to
do away with reading Miranda rights altogether. He believed that 'it provides incentives for
criminals not to talk' and 'only helps guilty defendants.' The Office of Legal Policy of the US
Attorney General under the Reagan administration issued a position paper that called for a
wholesale overturning of Miranda. Here, as in many other matters, social wisdom and justice may
well lie in third, intermediate positions, which balance individual rights with social needs.
Individual rights must inherently be balanced against public saftety
Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF
COMMUNITY, 1993, p.264 (PDNSS1729)
The American moral and legal tradition has always acknowledged the need to balance individual
rights with the need to protect the safety and health of the public. The Fourth Amendment, for
example, guards against unreasonable searches but allows for reasonable ones.
Responsibilities need to be prioritized over rights
Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF
COMMUNITY, 1993, p. 4 (PDNSS1730)
Correcting the current imbalance between rights and responsibilities requires a four-point agenda: a
moratorium on the minting of most, if not all, new rights; reestablishing the link between rights and
responsibilities; recognizing that some responsibilities do not entail rights; and most carefully,
adjusting some rights to the changed circumstances.
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Rights Not Absolute
Individual rights and social needs must be balanced
Amitai Etzioni, Ge:orge Washington University Government Professor, THE SPIRIT OF COMMUNITY, 1993, p.182
At one extreme is the Radical Individualist position that no changes may be made whatsoever in Miranda, as if this legal meas ure, which did not
take effect until 966, was part of the Bill of Rights or carried the endorsement of the Founding Fathers. On the other hand, Authoritarians argue
that Miranda, in toto, is but one of those many rights that accord criminals greater constitutional protection than is accorded to their victims.
Indeed, former attorney general Edwin Meese wanted to do away with reading Miranda rights altogether. He believed that 'it pr ovides incentives
for criminals not to talk' and 'only helps guilty defendants.' The Office of Legal Policy of the US Attorney General under the Reagan
administration issued a position paper that called for a wholesale overturning of Miranda. Here, as in many other matters, so cial wisdom and
justice may well lie in third, intermediate positions, which balance individual rights with social needs.
Individual rights must inherently be balanced against public safety
Amaitai Etzioni, George Washington Universiry Government Professor, THE SPIRIT OF
COMMUNITY, 1993, p.264
"The American moral and legal tradition has always acknowledged the need to balance individual rights with the need to protect the safety and
health of the public. The Fourth. Amendment, for example, guards against unreasonable searches but allows for reasonable ones .
Community needs prioritization over individual freedom
Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF COMMUNITY, 1993, p.25
The eighties was a decade in which 'I' was writ large, in which the celebration of the self became a virtue. (Th e period was not unique, however,
since such tendencies run far and deep in our national tradition.) Now is the time to push back the pendulum. The times call for an age of
reconstruction, in which we put a new emphasis on 'we' on values we share, an the spirit of the community.
Responsibilities need to be prioritized over rights
Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF COMMUNITY, 1993, p.4
Correcting the current imbalance between rights and responsibilities requires a four-point agenda: a moratorium on the minting of most, if not all,
new rights; reestablishing the link between rights and responsibilities; recognizing that some responsibilities do not entail rights; and most
carefully, adjusting some rights to the changed circumstances.
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Rights Not Absolute
Individual rights and social needs must be balanced
Amitai Etzioni, Ge:orge Washington University Government Professor, THE SPIRIT OF COMMUNITY, 1993, p.182
At one extreme is the Radical Individualist position that no changes may be made whatsoever in Miranda, as if this legal measure, which did not
take effect until 966, was part of the Bill of Rights or carried the endorsement of the Founding Fathers. On the other hand, Authoritarians argue
that Miranda, in toto, is but one of those many rights that accord criminals greater constitutional protection than is accorded to their victims.
Indeed, former attorney general Edwin Meese wanted to do away with reading Miranda rights altogether. He believed that 'it pr ovides incentives
for criminals not to talk' and 'only helps guilty defendants.' The Office of Legal Policy of the US Attorney General under th e Reagan
administration issued a position paper that called for a wholesale overturning of Miranda. Here, as in many o ther matters, social wisdom and
justice may well lie in third, intermediate positions, which balance individual rights with social needs.
Individual rights must inherently be balanced against public safety
Amaitai Etzioni, George Washington Universiry Government Professor, THE SPIRIT OF
COMMUNITY, 1993, p.264
"The American moral and legal tradition has always acknowledged the need to balance individual rights with the need to protec t the safety and
health of the public. The Fourth. Amendment, for example, guards against unreasonable searches but allows for reasonable ones.
Community needs prioritization over individual freedom
Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF COMMUNITY, 1993, p.25
The eighties was a decade in which 'I' was writ large, in which the celebration of the self became a virtue. (The period was not unique, however,
since such tendencies run far and deep in our national tradition.) Now is the time to push back the pendulum. The times call for an age of
reconstruction, in which we put a new emphasis on 'we' on values we share, an the spirit of the community.
Responsibilities need to be prioritized over rights
Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF COMMUNITY, 1993, p.4
Correcting the current imbalance between rights and responsibilities requires a four-point agenda: a moratorium on the minting of most, if not all,
new rights; reestablishing the link between rights and responsibilities; recognizing that some responsibilities do not entail rights; and most
carefully, adjusting some rights to the changed circumstances.
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Rights Not Absolute
Rights are not trump cards; policy goals can outweigh the interests of rights
Harvey, J.D., Yale Law School, ‘02 (Philip Harvey, “Human Rights and Economic Policy
Discourse: Taking Economic And Social Rights Seriously”, Spring, 2002, 33 Colum. Human Rights
L. Rev. 363, l/n) (PDCL1057)
A view frequently expressed by human rights advocates is that valid rights should "trump' other
policy goals, 15 but I argue that this prescription, if taken at face value, is inadequate. A genuine
trump outweighs even the highest valued card in another suit, but rights-based claims are rarely
treated that way. They are given added weight, but not a genuinely trumping value. For example, in
American constitutional jurisprudence, even fundamental rights may be infringed; however, a
"compelling state interest' is required to justify such actions. 16 What I argue is needed, therefore, is
not a social choice methodology that treats rights as absolute trumps, but one that treats them with
appropriate deference. The level of deference owed a particular right may vary with the importance
of the ultimate interests it protects and with the nature of the countervailing interests that oppose it.
Whether the balance between human rights protection and other policy goals is struck appropriately
in particular instances may not be easy to determine. It certainly will not be demonstrable with the
mathematical precision to which welfare economics aspires. The most we can expect is persuasive
argument.
Rights are not trump cards; policy goals can outweigh the interests of rights
Harvey, J.D., Yale Law School, ‘02 (Philip Harvey, “Human Rights and Economic Policy
Discourse: Taking Economic And Social Rights Seriously”, Spring, 2002, 33 Colum. Human Rights
L. Rev. pp. 370-1) (PDNSS1703)
A view frequently expressed by human rights advocates is that valid rights should "trump' other
policy goals, 15 but I argue that this prescription, if taken at face value, is inadequate. A genuine
trump outweighs even the highest valued card in another suit, but rights-based claims are rarely
treated that way. They are given added weight, but not a genuinely trumping value. For example, in
American constitutional jurisprudence, even fundamental rights may be infringed; however, a
"compelling state interest' is required to justify such actions. 16 What I argue is needed, therefore, is
not a social choice methodology that treats rights as absolute trumps, but one that treats them with
appropriate deference. The level of deference owed a particular right may vary with the importance
of the ultimate interests it protects and with the nature of the countervailing interests that oppose it.
Whether the balance between human rights protection and other policy goals is struck appropriately
in particular instances may not be easy to determine. It certainly will not be demonstrable with the
mathematical precision to which welfare economics aspires. The most we can expect is persuasive
argument.
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Rights Not Absolute
Once a counter-rights claim is established, rights are simply voided from consideration
John Hasnas, professor of Business Ethics, Georgetown, NORTHWESTERN UNIVERSITY LAW
REVIEW, 1995, p. 932 (PDNSS1704)
But when fundamental rights conflict, as they can under the contemporary conception, the
government will resolve the conflict on the basis of what will be most beneficial for society as a
whole. In other words, it will employ precisely the same decision procedure as it would if there
were no rights involved. Thus, when rights conflict, they play no substantive role. They simply drop
from consideration.
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Privacy Rights Not Absolute
Privacy is not an absolute right- government must violate it to function
Robert Gerstein, Professor of Political Science, UCLA, PHILOSOPHICAL DIMENSIONS OF
PRIVACY, Ferdinand Schoeman, ed., 1984, p.247-8. (PDCL1058)
If privacy is a constitutional right it is immediately apparent that it cannot be an absolute right.
Governments have always compelled people to disclose some sorts of information about
themselves, and it is hard to see how they could get along effectively without the ability to do so. If
the argument for privacy is made so broadly as to sweep away tax returns, accident reports, and the
capacity to compel testimony on personal matters in civil cases, for example, it must surely be
rejected. The right of privacy cannot be understood as embodying the rule that “privacy may never
be violated.”
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Rights Threaten Community
Rights talk undermines community responsibility
Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF
COMMUNITY, 1993, p.7-8 (PDNSS1876)
To put it differently, we all now on one level that our liberties are limited by those of others and that
we can do what we want only as long as we do not harm others. Rights talk, however, pushes us to
disregard this crucial qualification, the concern for one another and for the community. Soon 'l: can
do what I want as long as I do not hurt others' becomes 'I can do what I want, because I have a right
to do it.'
Individual rights theory views humans atomistically
Charles Taylor, McGill University Philosopher, POWERS, POSSESSIONS AND FREEDOM, Ed.
Alkis Kontos, 1979, p.41 (PDNSS1877)
Why do we even begin to find it reasonable to start a political theory with an assertion of individual
rights and to give these primacy? I want to argue that the answer to this question lies in the hold on
us of what I have called atomism. Atomism represents a view about human nature and the human
condition which (among other things) makes a doctrine of the primacy of rights plausible; or to put
it negatively, it is a view in the absence of which this doctrine is suspect to the point of being
virtually untenable.
Rights can conflict with the value of community
Charles Taylor, McGill University Philosopher, POWERS, POSSESSIONS AND FREEDOM, Ed.
Alkis Kontos, 1979, p.143 (PDNSS1878)
But just as the demands of utility and rights may diverge, so those of the citizen republic may
conflict with both. For instance, the citizen republic requires a certain sense of community, and
what is needed to foster this may go against the demands of maximum utility. Or it may threaten to
enter into conflict with same of the rights of minorities.
Rights talk exaggerates conflict
Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF
COMMUNITY, 1993, p.7 (PDNSS1879)
Even if lawyers and judges realize among themselves that individual rights are limited by the rights
of others and the needs of the community, as the language of rights penetrates into everyday
discourse, the discourse becomes impoverished and confrontational. It is one thing to claim that you
and I have different interests and see if we can work out a compromise; or, better yet, that we both
recognize the merit or virtue of a common cause, say, a cleaner environment. The moment,
however, that I claim a right to the same piece of land or property or public space as you, we start to
view one another like the Catholics and Protestants in Northern Ireland or the Palestinians and
Israelis in the
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Rights Threaten Community
Rights talk undermines democratic compromise
Amitai Etzioni, George Washington University Government Professor, THE SPIRIT OF
COMMUNITY, 1993, p.6-7 (PDNSS1880)
Moreover, the expression of ever more wants, many quite leg aimate, in the language of rights
makes it difficult to achieve compromises and to reach consensus, processes that lie at the heart of
democracy. A society that is studded with groups of true believers and special- interest groups, each
brimming with rights, inevitably turns into a society overburdened with conflicts. Columnist John
Leo of US NEWS AND WORLD REPORT declares: 'Rights talk polarizes debate; it tends to
suppress moral discussion and consensus building. Once an agenda is introduced as a right sensible
discussion and moderate positions tend to disappear.
Rights undermine communitarian values
Roberto Unger, Harvard Law School, THE CRITICAL LEGAL STUDIES MOVEMENT, 1986,
p36 (PDNSS1881)
The established system of rights presents another, less familiar obstacle to the aims of this
institutional program: the absence of legal principles and entitlements capable of informing
communal life--those areas of social existence where people stand in a relationship of heightened
mutual vulnerability and responsibility toward each other.
Rights undermine communitarian values
Roberto Unger, Harvard Law School, THE CRITICAL LEGAL STUDIES MOVEMENT, 1986,
p36-37 (PDNSS1882)
For one thing, our dominant conception of right imagines the right as a zone of discretion of the
rightholder, a zone whose boundaries are more or less rigidly fixed at the time of initial definition of
the right. The right is a loaded gun that the rightholder may shoot at will in his corner of town.
Outside that corner the other licensed gunmen may shoot him down. But the give-and-take of
communal life and its characteristic concern fcr the actual effect of any decision upon the other
person are incompatible with this view of right and therefore, if this is the only possible view, with
any regime of rights.
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Procedural Rights Threaten Community
The procedural republic undermines community and democracy
Michael J. Sandel, Professor of Government-Harvard University„ LIBERALISM AND THE
LIMITS OF JUSTICE, 1982, p.93 (PDNSS1883)
A full account of this transition would take a detailed look at the changing shape of political
institutions, constitutional interpretation, and the terms of political discourse in the broadest sense.
But I suspect we would find in the practice of the procedural republic two broad tendencies
foreshadowed by its philosophy; first a tendency to crowd out democratic possibilities; second, a
tendency to undercut the kind of community on which it nonetheless depends.
The procedural republic is the alternative to community
Michael J. Sandel, Professor of Government-Harvard University,. LIBERALISM AND THE
LIMITS OF JUSTICE, 1982, p.93 (PDNSS1884)
But this project failed. By the mid-or late twentieth century, the national republic had run its course.
Except for extraordinary moments, such as war, the nation proved too vast a scale across which to
cultivate the shared self-understandings necessary to community in the formative, or constitutive
sense. And so the gradual shift, in our practices and institutions, from a public philosophy of
common purpose to one of fair procedures, from a politics of good to a politics of right, from the
national republic to the procedural republic.
Rights talk undermines community responsibility
Amitai Etzioni, George Washington University Government Professor, THE ,SPIRIT OF
COMMUNITY, 1993, p.7-8
To put it differently, we all now on one level that our liberties are limited by those of others and that
we can do what we want only as long as we do not harm others. Rights talk, however, pushes us to
disregard this crucial qualification, the concern for one another and for the community. Soon 'I can
do what 1 want as long as I do not hurt others' becomes 'I can do what I want, because I have a right
to do it.'
Individual rights theory views humans atomistically
Charles Taylor, McGill University Philosopher, POWERS, POSSESSIONS AND FREEDOM,
Ed. Alkis Kontos, 1979, p.41
Why do we even begin to find it reasonable to start a political theory with an assertion of
individual rights and to give these primacy? I want to argue that the answer to this question lies
in the hold on us of what I have called atomism. Atomism represents a view about human nature
and the human condition which (among other things) makes a doctrine of the primacy of rights
plausible; or to put it negatively, it is a view in the absence of which this doctrine is suspect to
the point of being virtually untenable.
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Procedural Rights Threaten Community
Rights can conflict with the value of community
Charles Taylor, MeGill University Philosopher, POWERS, POSSESSIONS AND FREEDOM,
Ed. Alkis Kontos, 1979, p.143
But just as the demands of utility and rights may diverge, so those of the citizen republi c may
conflict with both. For instance, the citizen republic requires a certain sense of community, and
what is needed to foster this may go against the demands of maximum utility. Or it may threaten
to enter into conflict with some of the rights of minorities.
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Rawls Answers
Can’t determine equality or the value of the risk in the original position
Ralph Ellis, philosophy professor, Florida, JUST RESULTS: ETHICAL FOUNDATIONS FOR
POLICY ANALYSIS, p. 22
The most serious problem with the argument as Rawls originally proposed it is that there is no way
to determine how safe or daring the person in the original position would want to be in her risktaking behavior. As Kaye (1980) and other critics to be discussed later have shown, a very daring
risk taker in the original position might be willing to risk the loss of some very necessary kinds of
goods for the chance of gaining a very large amount of less necessary goods. We, therefore, cannot
determine how much equality or inequality would be tolerated in a society from the standpoint of
the original position.
The norms Rawls uses to justify the “original position” are utilitarian
Leonard Rattner, law professor, UCLA, HOFSTRA LAW JOURNAL, Spring 1984, p. 760-1
Despite his explicit rejection of utilitarian thought, Rawls intimates a utilitarian foundation for his
equal-treatment conclusions by noting a sense of justice, moral feelings, and altruistic reciprocity
may have evolutionary origins and by designating scarce resources, conflicting resource claims, and
resulting collaborative arrangements as “circumstances of justice.”
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Extensions -- Security Important
Security is an elemental human need
HARVARD CIVIL RIGHTS CIVIL LIBERTIES LAW REVIEW, Summer 1995, 591-2
While the Pratt Court's decision falls squarely within the confines of existing Fourth Amendment cases
such as Skinner or Silverman which govern an individual's privacy interest), the level of abstraction
employed in the decision ignores, and thereby devalues, the realities of public housing residents. Those
unfortunate enough to inhabit the "other side of town" do not enjoy a level of security comparable to
residents of "Gold Coast high-rises." That individuals must, in addition to civil liberties, have basic needs
met is well established. Security and freedom from fear are among the most elemental of human needs,
and they must be acquired before social or moral needs may be actualized. Abraham Maslow argues that
an individual cannot begin to concern herself with higher social and moral needs until her very basic
material needs of life are met. A good society, in Maslow's view, is one that permits the highest purposes
of human existence to emerge by satisfying all basic needs. As evidenced by the Pratt litigation, negative
notions of the content of freedom can impede the realization of basic human needs.
Without security you can’t experience more traditional freedom
HARVARD CIVIL RIGHTS CIVIL LIBERTIES LAW REVIEW, Summer 1995, pp. 591-2
The Pratt Court ignores the reality that poor people's ability to exercise and enjoy rights is severely
curtailed by the conditions under which they live. Society's failure to meet basic economic and social
rights or needs diminishes poor citizens' capacity to exercise the civil and political rights Pratt strains to
protect. Social and economic needs are inextricably linked to civil and political rights and require
concurrent fulfillment. By focusing first and fundamentally on what the residents of public housing have a
right to be free from, namely governmental intrusion, the court neglected precisely what public housing
residents are entitled to, freedom to flourish. The lack of one of life's most basic necessities -- security -prevents residents of public housing from experiencing substantive freedom.
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Privacy Answers
Privacy is not an absolute right – government must violate it to function
Robert Gerstein, Professor of Political Science, UCLA, PHILOSOPHICAL DIMENSIONS OF
PRIVACY, Ferdinand Schoeman, ed., 1984, p.247-8.
If privacy is a constitutional right it is immediately apparent that it cannot be an absolute right.
Governments have always compelled people to disclose some sorts of information about
themselves, and it is hard to see how they could get along effectively without the ability to do so. If
the argument for privacy is made so broadly as to sweep away tax returns, accident reports, and the
capacity to compel testimony on personal matters in civil cases, for example, it must surely be
rejected. The right of privacy cannot be understood as embodying the rule that “privacy may never
be violated.”
Philosophers disagree over the vallue of privacy
Silas Wasterstrom, law professor, GEORGETOWN LAW JOURNAL, October 1998, pp. 59-60
But there are serious obstacles to using moral philosophy to justify fourth amendment law. First, a
growing number of philosophers have come to doubt that the techniques of moral philosophy can
ever succeed in providing neutral ground that will allow us to escape our own beliefs and desires or,
indeed, that this is even a coherent goal. Second, even if philosophers themselves were more selfconfident, judges still would have to decide which philosophers to listen to. Unfortunately, moral
philosophers who have thought about privacy do not speak with one voice. On the contrary, they are
hopelessly divided about what privacy is; about whether it is a value in itself, or whether it is only
valuable because of its consequences; about whether respect for privacy is a facet of respect for
personhood; about what claims the word privacy encompasses; and even about whether it describes
a coherent concept at all. A judge who is determined to make use of what moral philosophy has to
offer would have to evaluate and choose between these conflicting positions. Moral philosophy may
offer ways to think about the choice more clearly. But it does not offer a technique for making the
choice "objectively" or in a fashion uncontaminated by the viewpoint of the person doing the
choosing.
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Privacy Answers
FOURTH AMENDMENT AND LEGAL INTERESTS ARE DIFFERENT THAN
PHILSOPHICAL PRIVACY INTERESTS
Silas Wasterstrom, law professor, GEORGETOWN LAW JOURNAL, October 1998, p. 60-1
Moreover, even if we overlook the disagreements that divide moral philosophers and assume that
judges could separate good moral philosophy from bad without reference to their own preferences,
it still is doubtful that the writings of moral philosophers provide much that is useful to settle
contemporary disputes about the meaning of the fourth amendment. Most of these writings are on
an extremely high level of generality. Philosophers have argued at length about what "privacy"
means, and about the justifications for treating it as a value or a right. In contemporary legal
discourse, however, it is uncontroversial that some value should be attached to privacy. The
important issue in most fourth amendment cases is the balance that should be struck between that
value and competing concerns, such as interests in effective law enforcement and in decisionmaking
based upon full information. Beyond the injunction to take privacy seriously, moral philosophers
have little to say about this crucial question.
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Privacy Answers
The Fourth Amendment does not protect a strong privacy right
Silas Wasterstrom, law professor, GEORGETOWN LAW JOURNAL, October 1998, pp. 61-2
Unfortunately, however, a rights-based approach does not mesh very well with the structure of the
fourth amendment. The amendment, as commonly understood, does not provide an absolute shield
against even the most extreme invasions of privacy and liberty. It does not establish a right to
privacy that trumps competing policy concerns. Instead, the fourth amendment prohibits searches
only when the likelihood that the invasion will be productive fails to justify the cost. In its most
general form, this translates into an insistence that the search be reasonable. When the Court
attempts to give the requirement a somewhat more determinate content, it insists that the search be
supported by "probable cause" or "reasonable suspicion." In either case, however, the amendment
requires no more than that the invasion be cost-justified in some sense.
Fourth Amendment rights and privacy claims are not absolute
Silas Wasterstrom, law professor, GEORGETOWN LAW JOURNAL, October 1998, p. 62
In this respect, the fourth amendment is crucially different from other constitutional guarantees, such as the
freedom of speech, press, and religion, which may be more compatible with rights-based Kantian
approaches. Of course, the rights protected by these provisions, as commonly understood, also may on
occasion give way to especially compelling countervailing interests. But first amendment analysis does begin
from the premise that there is a right to free speech, press, and religious worship, with a strong burden of
proof on the party wishing to overcome the right. There is no comparable premise concerning a right to
personal privacy built into the fourth amendment and no presumption against the validity of reasonable
privacy invasions.
The fourth amendment outlaws much government behavior that could protect against privacy
invasions
Silas Wasterstrom, law professor, GEORGETOWN LAW JOURNAL, October 1998, p. 66
Current fourth amendment doctrine is inconsistent with this normative theory of privacy in two ways. First,
the fourth amendment imposes no constitutional obligation on the government to intervene when privacy
values are at risk. Victims of private violence would be laughed out of court if they suggested that the
government's failure to protect them stated a constitutional claim. Even the Brandeis of the Harvard article
did not argue that the failure to recognize an invasion-of-privacy tort was unconstitutional. Second, even if
the government voluntarily chooses to act in order to control private invasions, the fourth amendment may
obstruct those efforts. By outlawing the most effective techniques for controlling burglars, rapists, and
muggers, the amendment, in at least some situations, results in an overall reduction in personal privacy.
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Privacy Answers
Privacy rights are necessarily limited
Charles Fried, former Professor of Law, Harvard, PHILOSOPHICAL DIMENSIONS OF
PRIVACY, Ferdinand Schoeman, ed., 1984, p.213.
In concrete situations and actual societies, control over information about oneself, like
control over one’s bodily security or property, can only be relative and qualified. As is true for
property or bodily security, the control over privacy must be limited by the rights of others. And as
in the cases of property and bodily security, so too with privacy the more one ventures into the
outside, the more one pursues one’s other interests with the aid of, in competition with, or even in
the presence of others, the more one must risk invasions of privacy.
THE RIGHT TO PRIVACY CAN’T BE ABSOLUTE
Robert Gerstein, Professor of Political Science, UCLA, PHILOSOPHICAL DIMENSIONS OF
PRIVACY, Ferdinand Schoeman, ed., 1984, p.247-8.
If privacy is a constitutional right it is immediately apparent that it cannot be an absolute
right. Governments have always compelled people to disclose some sorts of information about
themselves, and it is hard to see how they could get along effectively without the ability to do so. If
the argument for privacy is made so broadly as to sweep away tax returns, accident reports, and the
capacity to compel testimony on personal matters in civil cases, for example, it must surely be
rejected. The right of privacy cannot be understood as embodying the rule that “privacy may never
be violated.”
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Levinas Answers – Util
Vote to save lives—The existence of endangered 3rd parties makes responsibility impossible to
determine
David Campbell, professor of international politics at the University of Newcastle, Moral Spaces:
Rethinking Ethics and World Politics, ed. by Campbell and Shapiro, 1999, p. 35-36
Levinas's thought is appealing for rethinking the question of responsibility, especially with
respect to situations like the Balkan crisis, because it maintains that there is no circumstance
under which we could declare that it was not our concern. As Levinas notes, people can
(and obviously do) conduct their relationship to the Other in terms of exploitation, oppression,
and violence. But no matter how allergic to the other is the self, "the relation to the other,
as a relation of responsibility, cannot be totally suppressed, even when it takes the form of
politics or warfare." In consequence, no self can ever opt out of a relationship with the other:
"[I]t is impossible to free myself by saying, 'It's not my concern.' There is no choice, for it
is always and inescapably my concern. This is a unique 'no choice,' one that is not slavery."
This unique lack of choice comes about because in Levinas's thought ethics has been
transformed from something independent of subjectivity—that is, from a set of rules and
regulations adopted by pregiven, autonomous agents—to something insinuated within and
integral to that subjectivity. Accordingly, ethics can be understood as something not ancillary
to the existence of a subject; instead, ethics can be appreciated for its indispensability to the
very being of the subject. This argument leads us to the recognition that "we" are always
already ethically situated, so making judgments about conduct depends less on what sort of
rules are invoked as regulations and more on how the interdependencies of our relations with
others are appreciated. To repeat one of Levinas's key points: "Ethics redefines subjectivity as
this heteronomous responsibility, in contrast to autonomous freedom." Suggestive though it is
for the domain of international relations where the bulk of the work on ethics can be located
within a conventional perspective on responsibility — Levinas's formulation of
responsibility, subjectivity, and ethics nonetheless possesses some problems when it comes
to the implications of this thought for politics. What requires particular attention is the
means by which the elemental and omnipresent status of responsibility, which is founded in
the one-to-one or face-to-face relationship, can function in circumstances marked by a
multiplicity of others. Although the reading of Levinas here agrees that "the ethical exigency
to be responsible to the other undermines the ontological primacy of the meaning of being,"
and embraces the idea that this demand "unsettles the natural and political positions we have
taken up in the world and predisposes us to a meaning that is other than being, that is
otherwise than being:" how those disturbances are negotiated so as to foster the maximum
responsibility in a world populated by others in struggle remains to be argued. To examine
what is a problem of considerable import given the context of this essay, I want to consider
Levinas's discussion of "the third person," the distinction he makes between the ethical and
the moral, and—of particular importance in a consideration of the politics of international
action—the role of the state in Levinas's thought.
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*** Pro – Torture ***
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AT: “Torture Never Justified”
Rights have thresholds – when many can be saved it is okay to sacrifice the rights of a few
UNIVERSITY OF PENNSYLVANIA LAW REVIEW, 1998, p. 903
Rights must clearly give way in catastrophic cases, where harms of colossal proportion will be
suffered unless some right is violated. For example, if stopping a terrorist from launching a salvo of
nuclear missiles against China required killing several innocent hostages, it would be undeniably
morally permissible – though nevertheless unfortunate – to sacrifice the hostages for the greater
good. Even a health respect for the hostages’ rights cannot suffer consequences of such magnitude.
Catastrophic cases do not fundamentally challenge the notion that rights protect us from being
sacrificed for the public good. Such cases merely reveal that rights have thresholds.
If Many Can Be Saved, Torture Is Permissible
Larry Alexander, law professor, Sand Diego, SAN DIEGO LAW REVIEW, 2000, p. 893
There are some acts that are morally wrong despite producing a net positive balance of
consequences; but if the positive balance of consequences becomes sufficiently great – especially if
it does so by averting horrible consequences as opposed to merely making people quite well off –
then one is morally permitted, and perhaps required, to engage in those acts that are otherwise
morally prohibited. Thus, one may not kill or torture an innocent person in order to save two or
three other innocent people from death or torture – even though purely consequentialist
considerations might dictate otherwise. However, if the number of innocent people who can be
saved from death or torture gets sufficiently large, then what was morally proscribed – the killing or
torture of an innocent person – becomes morally permissible or mandatory. At a certain number of
lives at risk – the Threshold – consequentialist moral principles override deontological ones.
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*** Pro -- Civil Liberties Protections Risk Terrorism/Status Quo
Policies Justified ***
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Protecting Civil Liberties Risks Terrorism
Protecting civil liberties risks terrorism
Paul Rosenzweig, Heritage Senior Legal Research Fellow, 2004
["The Patriot Act Reader," w/ Alane Kochems & James Jay Carafano, 9/20,
http://www.heritage.org/Research/HomelandDefense/loader.cfm?url=/commonspot/security/getfile.
cfm&PageID=69895]
When assessing civil liberty questions, it is important not to lose sight of the underlying purpose of
government: personal and national security. The balance between civil liberties and security is not a
zero-sum game. Thus, it is vital to realize that there are significant factors weighing on both the
civil liberty and national security sides of the scale. That is why, for example, the courts have
recognized that in the national security context, the requirements of the Fourth Amendment apply
somewhat differently than they do in the context of domestic law enforcement. Suppressing
terrorism will not be achieved by military means alone. Effective law enforcement and intelligencegathering activities are key to avoiding new terrorist attacks. The traditional law enforcement model
is highly protective of civil liberty in preference to physical security. However, September 11th
changed this traditional calculus —our failure to prevent terrorism can be catastrophic.
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Increasing Due Process Protections Risks Terrorism
Requiring due process protections will undermine the war on terrorism
Louis Klarevas, City University of NY, 2004
[Harvard International Review, Fall, pg. 18-23]
First, the "due process" model fails fully to take into account the magnitude of the challenge
involved in convicting terrorists as criminals by demonstrating culpability beyond a reasonable
doubt. The obstacles include not only the risk to the prosecution of revealing sources and methods,
which is likely to be much greater than in an ordinary criminal trial, but also the limitations imposed
by criminal law on means of obtaining evidence. Means commonly employed overseas in covert
operations, unauthorized wiretaps, for example, may render their fruits inadmissible in domestic
criminal proceedings. Moreover, prosecutors are likely to find it difficult to persuade witnesses to
come forward to testify, given the heightened danger of retaliation.
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Strong Detention Critical to Fight Terrorism
Strong detention and search authority is critical to preventing terrorism
Amitai Etzioni, GWU Sociology Prof, 2002
[USA Today, "Throw Book at Terrorists Who Act as Civilians," 7/3,
http://www.gwu.edu/~ccps/etzioni/B395.html]
What the USA faces today are a bunch of freelancers and self-appointed warriors whose leaders
hide in caves or remote villages. Civilian clothes, as my experience highlights, greatly benefit the
attacker, an advantage we as a country must deal with by almost any means necessary, or our
homeland protection will come to naught. In fact, many of the indignities we must contend with
these days when we travel by air or enter numerous public buildings are a direct result of the threat
of terrorists hiding behind civilian clothing. We would not have to show photo IDs or be randomly
searched if they abided by long-established and widely observed rules of warfare. In other words, if
they fought us like upstanding soldiers. The British had every right to throw the book at me then,
just as the United States today has the same right to deal forcefully with terrorists who masquerade
as civilians, such as potential "dirty bomber" Jose Padilla and other al-Qaeda operatives. Legally,
there's a big difference between an enemy wearing a soldier's uniform representing his country and
a terrorist in civilian's clothing. The soldier, under the Geneva Convention, has certain rights. But a
terrorist -- foreign or American born -- who tries to harm innocent people has next to none, in my
mind. The U.S. Justice Department argued this very point in a brief to an appeals court about
enemy combatants. U.S. officials said these prisoners have no right to a lawyer and can be held
indefinitely and that civilian courts cannot intervene. Similar authority will likely be used against
Padilla, also declared an enemy combatant. Or take Richard Reid, the would-be shoe bomber. The
only way to deter this kind of assault (worse than mine, because he attacked civilians, not as
unavoidable collateral damage, but as his sole target) is to severely punish such terrorists,
something the Justice Department has attempted to do with Reid. We are also quite justified in
monitoring his conversations with his lawyer for security reasons, to ensure that the lawyer will not
be used to transmit messages to other terrorists ready to strike. Moreover, lawyers should be chosen
from a list of those cleared to see some classified information. Lawyers, including Reid's public
defenders, draw numerous fine distinctions: among unlawful combatants, prisoners of war and visa
over-stayers; between airplanes and "mass transportation vehicles." But my concerns are much
more basic. For Reid (and for his ilk), we need to establish the fundamental facts that he is the guy
who tried to set off the bomb on that flight -- two witnesses will do -- and that he is not insane.
(That he planned the attack for months is proof positive.) As I see it, under no circumstance should
we endanger our national security, whether our agents or foreign sources, to accommodate some
legalistic notion of a supposedly fair trial. When terrorists attack as civilians and seek to kill
civilians, they put themselves far outside the protection of the law -- national and international.
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Strong Detention Critical to Fight Terrorism
Huge risks involved in releasing a potential terrorist
Louis Klarevas, City University of NY, 2004
[Harvard International Review, Fall, pg. 18-23]
Second, no one questions that the costs of releasing a potential terrorist are likely to be greater than
those that ordinarily accrue in the event of an accused's discharge for lack of evidence or procedural
error. The adage that it is better for a hundred guilty persons to go free than for one innocent person
to be incarcerated takes on a different hue in the age of high-technology terror.
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Strong Detention Critical to Fight Terrorism
Detainments increase protection against terrorist attacks— they are justified.
Kentucky Law Journal, 2002
[Whitney Frazier, “The Constitutionality of Detainment in the Wake of September 11th,” LN]
Although reasons for detainment raise constitutional questions, these detainments must be upheld
and supported by our nation as an effort to defeat terrorism and prevent a major public health crisis,
despite the perceived lack of constitutionality of the laws and acts under our current definitions of
reasonableness. The boundaries of probable cause and reasonableness must not be rigidly set.
Instead, they must be adapted to circumstances facing our nation. While civil libertarians question
the validity of the detainments and question the need for such emphatic secrecy, the nation must
stand behind our law enforcement agencies and trust that their actions will maintain the best
interests of the nation. The detainments resulting from the investigation into the events of
September 11th should not be perceived by the public as unreasonable or unconstitutional seizures.
The tragedy of that day has forced citizens of the United States to redefine our patriotism, to
question the vulnerability of our nation's borders, and to be willing to allow a slight encroachment
into individual civil liberties so that America may be free from terror. The security of the United
States has been penetrated by terrorists and the government must have power under the Constitution
to take all measures to restore a sense of security to the population of the United States. Our current
definition of reasonableness does not include the length and types of detentions resulting from the
investigation into the attacks of September 11th; it is the current lawmakers' and judiciary's
responsibility to redefine what is reasonable. Although these seizures are unconstitutional under
traditional notions of reasonableness, such detainments are imperative in the wake of the
vulnerable and shifting state of the nation.
Preventative detention of terrorists is essential
Paul Rosenzweig, Heritage Senior Legal Research Fellow, 2004
["Preventive Detention and Actionable Intelligence," 9/16, w/ James Jay Carafano,
http://www.heritage.org/Research/HomelandDefense/lm13.cfm]
The response to this criticism is threefold: First, the criticism blinks reality. We already have incomplete and
irregular forms of preventive detention because it is a necessity. We advance liberty when we regularize the
practice, cabin it to narrow circumstances, and use it sparingly. Second, as detailed above, other countries
(such as the United Kingdom) have managed to adopt very limited forms of preventive detention without
becoming noticeably “unfree” or “authoritarian.” Adoption of similar legal forms in the United States will
not render us an authoritarian regime either. Finally, and most important, to reject preventive detention in
those rare circumstances in which it is necessary is to exalt liberty at the expense of security. The founding of
the American Republic was for the purpose of constructing a political system of ordered liberty. It simply
cannot be right to unilaterally prefer liberty. Liberty is not an absolute value; it depends upon security (both
personal and national) for its exercise. As Thomas Powers has written: “In a liberal republic, liberty
presupposes security; the point of security is liberty.” The growth in danger from the consequences of the
failure to stop terrorism necessitates altering our tolerance for governmental order. More fundamentally, our
goal should be to maximize both order and liberty.
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Strong Detention Critical to Fight Terrorism
Detention under section 412 is necessary to ensure the terrorist shows-up at the deportation
hearing
NEW YORK LAW SCHOOL REVIEW, 2003
[Fall, P. 415, LN]
Finally, 412 ensures that the terrorist suspect will be present at future deportation hearings. In the
months following September 11th, over 1,000 people were detained for possible connections to the
attacks. Many of these individuals are being held in custody based on a violation of immigration
status - they have violated the law. Attorney General John Ashcroft states that the Department of
Justice must have the ability to keep them in jail and not have them bonded out. Statistical studies
show high recidivism rates for released aliens. One Government Accounting Office study, cited by
Congress in floor debates on the Antiterrorism and Effective Death Penalty Act of 1996, put the
figure as high as seventy-seven percent. This means that over three-quarters of those aliens that
have an immigration hearing fail to appear. This must not be allowed to happen with potential
terrorists. "Illegal aliens who have links to those who are part of a terrorist network, pose an
increased risk and must be kept off the streets."
Detention of terrorist suspects justified – critical to effort to prevent future attacks.
George C. Harris, Attorney, 2003
[Loyola of Los Angeles International & Comparative Law Review, p. 36]
Secretary Rumsfeld and other administration spokespersons articulate two main prongs to the prevention
rationale. First, preventing future attacks requires gathering intelligence from the suspect. Treating the
detainee as a criminal suspect, including the requirements of probable cause for continuing detention and
advice of right to counsel, would interfere with this effort. Second, the government asserts the general
prisoner of war (POW) rationale - detention prevents the suspect from rejoining the enemy and replenishing
the enemy's ranks. Implicit in the prevention rationale is the conclusion that principles fundamental to our
criminal justice system (including due process, the presumption of innocence, and the right to counsel) are
inconsistent with, and encumber too much, the goal of preventing future acts of terrorism.
Detention is important to preventing new attacks.
Tracey Topper Gonzalez, Clerk to Richard Eaton, US Court of International Trade, 2003
[INTERNATIONAL AND COMPARATIVE LAW REVIEW, p. 96-7]
[Detention] is vital to preventing, disrupting, or delaying new attacks. It is difficult for a person in jail or
under detention to murder innocent people or to aid and abet in terrorism. In 1996, the AEDPA and the
IIRIRA extended mandatory detention to persons convicted of any of an additional five major categories of
crime, including noncitizens inadmissible or deportable on terrorist grounds. Also, subject to some narrow
exceptions, arriving passengers whom immigration inspectors find inadmissible must be detained pending a
full removal hearing (the results of which, under the AEDPA, are not subject to judicial review).
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Strong Detention Critical to Fight Terrorism
INDEFINITE DETENTION BOLSTERS TERRORIST CRIMINAL INVESTIGATIONS
NEW YORK LAW SCHOOL REVIEW, 2003
[Fall, P. 414, LN]
The first justification behind 412 of the Patriot Act is that it allows the Department of Justice to
continuously investigate individuals it reasonably believes may have involvement in terrorism. In
essence, mass detention of terrorist suspects will assist authorities in the largest criminal
investigation in U.S. history. The complexity of the case requires officials to hold on to anyone who
may have information, especially if that person already is living illegally in the United States.
HUGE RISKS INVOLVED IN RELEASING A POTENTIAL TERRORIST
LOUIS KLAREVAS, Professor of Political Science at City University of New York, Harvard
International Review, Fall 2004, p. 18-23 (DRGCL/T011)
Second, no one questions that the costs of releasing a potential terrorist are likely to be greater than
those that ordinarily accrue in the event of an accused's discharge for lack of evidence or procedural
error. The adage that it is better for a hundred guilty persons to go free than for one innocent person
to be incarcerated takes on a different hue in the age of high-technology terror.
Detention preserves resources, reduces errors, and deters – three critical components to
preventing terrorism
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, p. 412-3 (DRGCL/T0148)
First, mandatory detention saves money because it avoids the expense of individualized hearings.
The government has limited resources and cannot afford to do a case-by-case adjudication of each
noncitizen who is suspected of being a terrorist. Second, mandatory detention diminishes the
possibility of errors that arise when a detention determination is done on a case-by-case basis.
Predictions about the threat of a person to the public's safety or the individual's likeliness to
disappear are inherently risky. Often in the course of an individualized hearing, not all the evidence
will be discovered or presented and the findings of fact may not be accurate. In essence, mandatory
detention, by eliminating the risk of prosecutorial error, protects the public more thoroughly.
Finally, mandatory detention deters further immigration violations.
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Strong Detention Critical to Fight Terrorism
Indefinite detention is critical to investigations
NEW YORK LAW SCHOOL REVIEW, Fall 2003, P. 414 (DRGCL/T015)
The first justification behind 412 of the Patriot Act is that it allows the Department of Justice to
continuously investigate individuals it reasonably believes may have involvement in terrorism. In
essence, mass detention of terrorist suspects will assist authorities in the largest criminal
investigation in U.S. history. The complexity of the case requires officials to hold on to anyone
who may have information, especially if that person already is living illegally in the United
States.
DETENTION WITHOUT CHARGE FACILITATES INTERROGATION AND
INCAPACITATION
The Committee on Federal Courts, The Record of The Association of The Bar of the City of New
York, 2004, 59 The Record 41, p. 41 (HARVCL3571)
Padilla and Hamdi have been held by the Department of Defense, without any access to legal
counsel, for well over a year. No criminal charges have been filed against either one. Rather, the
government asserts its right to detain them without charges to incapacitate them and to facilitate
their interrogation. Specifically, the President claims the authority, in the exercise of his war power
as "Commander in Chief" under the Constitution (Art. II, § 2), to detain persons he classifies as
"enemy combatants": - indefinitely, for the duration of the "war on terror"; - without any charges
being filed, and thus not triggering any rights attaching to criminal prosecutions; - incommunicado
from the outside world; - specifically, with no right of access to an attorney; - with only limited
access to the federal courts on habeas corpus, and with no right to rebut the government's showing
that the detainee is an enemy combatant.
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“Probable Cause” Protections Increase Terrorism Risks
IN TIMES OF WAR IT IS UNREASONABLE TO EXPECT THE GOVERNMENT TO
FURNISH ENOUGH EVIDENCE FOR PROBABLE CAUSE FOR EACH POTENTIAL
TERRORIST
NEW YORK LAW SCHOOL REVIEW, 2003
[Fall, p. 419, LN]
The Patriot Act provides that the Attorney General may detain an alien if he has reasonable grounds
to believe he is either a threat to national security or is involved in an activity related to terrorism or
government overthrow. Critics maintain that the reasonable grounds standard is subject to abuse
because it is too subjective. In times of war, it is unreasonable to expect the Department of Justice
to furnish evidence amounting to probable cause for each suspected terrorist. Terrorists operate on a
variety of levels. As the hypothetical presented in section (IV)(B)(1) illustrates, some activities by
aliens raise serious concern. However, this concern may not reach the level of probable cause - at
least not without further investigation.
TERRORIST INVESTIGATIONS JUSTIFY LESS THAN PROBABLE CAUSE
STANDARD FOR SEARCHES
Honorable Ronald M. Gould & Simon Stern, Circuit Judge, Ninth Circuit, and Attorney, Southern
California Law Review, May, 2004, 77 S. Cal. L. Rev. 777, p. 777-8 (HARVCL0974)
We propose that, because of the potential harms posed by catastrophic threats, courts should come
to recognize that a fresh look at the probable-cause standard is necessary. We contend that, if
properly conducted, large-scale searches undertaken to prevent horrific potential harms may be
constitutionally sound even when the search of each particular location does not satisfy the
traditional probable-cause requirement that such search have a "fair probability" or a "substantial
chance" of yielding the object sought. As we discuss at more length below, established Fourth
Amendment doctrine requires "individualized suspicion" for each person or place to be searched.
We argue, however, that even where that element is lacking, the government's search for a weapon
of mass destruction n4 may be permissible if the Supreme Court's "special needs" exception to the
probable-cause requirement is extended. Specifically, such a search should be permissible if (1) the
search is justified by special needs that go beyond routine police functions; (2) the search program
is reasonably designed to be as effective as is practical with the aim of preventing or minimizing
harm to the public; (3) the procedure will give law enforcement constrained discretion in executing
the search, and the search is not discriminatory in application; and (4) weighing the total
circumstances, the balance between the governmental and societal need to search, weighed against
the infringed-upon privacy of individuals, favors search.
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“Probable Cause” Protections Increase Terrorism Risks
PROBABLE CAUSE INSUFFICIENT CHECK IN WAR ON TERRORISM—NOT A
STABLE STANDARD
Whitney D. Frazier, Law Student, Kentucky Law Journal, 2001 / 2002, 90 Ky. L.J. 1089, p. 1123
(HARVCL3340)
Further, the USA PATRIOT Act's expansion of probable cause in the terrorist investigation may
even be supported by Supreme Court dicta. In Illinois v. Gates , the Court commented that
"probable cause is a fluid concept--turning on the assessment of probabilities in particular factual
contexts--not readily, or even usefully, reduced to a neat set of legal rules." The circumstances of
the "war" on terror on both American and foreign soil justify the extension of this safeguard to
allow such a thorough and widespread investigation.
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Due Process Protections Increase Terrorism Risk
Requiring due process protections will undermine the war on terrorism
LOUIS KLAREVAS, Assistant Professor of Political Science at City University of New York,
Harvard International Review, Fall 2004, p. 18-23 (DRGCL/T002)
First, the "due process" model fails fully to take into account the magnitude of the challenge
involved in convicting terrorists as criminals by demonstrating culpability beyond a reasonable
doubt. The obstacles include not only the risk to the prosecution of revealing sources and methods,
which is likely to be much greater than in an ordinary criminal trial, but also the limitations imposed
by criminal law on means of obtaining evidence. Means commonly employed overseas in covert
operations, unauthorized wiretaps, for example, may render their fruits inadmissible in domestic
criminal proceedings. Moreover, prosecutors are likely to find it difficult to persuade witnesses to
come forward to testify, given the heightened danger of retaliation.
Small infringements on civil liberties now are necessary for long term success against
terrorism and overall protection of civil liberties
Michael Walzer, co-editor, Dissent, DISSENT MAGAZINE, Winter 2002, p.
http://www.dissentmagazine.org/menutest/archives/2002/wi02/walzer.shtml, accessed 5/11/2005.
(DRGCL/T008)
Police work is the first priority, and that raises questions, not about justice, but about civil liberties. Liberals and libertarians leap to the defense of liberty, and they are
right to leap; but when they (we) do that, we have to accept a new burden of proof: we have to be able to make the case that the necessary police work can be done, and can be done effectively, within
If we can’t make that case, then we have to be ready to
consider modifying the constraints. It isn’t a betrayal of liberal or American values to do that; it is in
fact the right thing to do, because the first obligation of the state is to protect the lives of its citizens
(that’s what states are for), and American lives are now visibly and certainly at risk. Again,
prevention is crucial. Think of what will happen to our civil liberties if there are more successful
terrorist attacks.
whatever constraints we think are required for the sake of American freedom.
Right to counsel undermines intelligence gathering – deprivation of due process rights is
necessary to save lives
Thomas J. Lepri, Law Student, Fordham Law Review, May, 2003, 71 Fordham L. Rev. 2565, p.
2589 (HARVCL3332)
The most common objection to giving suspected terrorists the full constitutional protection of civilian courts
hinges on the issue of secrecy. Granting suspects unfettered access to counsel may allow them to pass
coded information to other operatives on the outside. According to the government, access to counsel
also may "interfere with - and likely thwart - the efforts of the United States military to gather and
evaluate intelligence about the enemy, its assets, its plans, and its supporters." This logic relies on the
notion that one of the main functions of counsel is to clamp down on the government's aggressive
questioning of criminal suspects, and it is likely correct - that is, a competent attorney will thwart the sort
of unconstitutional interrogation techniques that the government might be tempted to use against a
suspect it believes has information that could save lives.
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Due Process Protections Increase Terrorism Risk
Access to council derails interrogations – crushing investigations
The Committee on Federal Courts, The Record of The Association of The Bar of the City of New
York, 2004, 59 The Record 41, p. 127 (HARVCL3361)
Here is one forceful expression of this concern: The prime source of intelligence [concerning
anticipated terrorist attacks] will be captured combatants; and lawyers, alas, will inevitably turn off
that flow of time critical information. Any lawyer worth his salt will deliver standard form advice to
a client: Keep your mouth shut. Don't talk. Not in court and not in military interviews.
Access to counsel undermines legitimate interrogation efforts – significant time required for
successful interrogations
David B. Rivkin, Jr. et al, Attorney, former Department of Justice Official, Enemy Combatant
Determinations and Judicial Review, The Federalist Society for Law and Public Policy Studies,
2004, http://www.fed-soc.org/Laws%20of%20war/enemycomb.pdf, p. 15 (HARVCL3703)
Captured enemy combatants are lawfully subject to interrogation, in an effort to obtain information
to be use in fighting the war. Permitting access to counsel, who may provide expertise but must, as
an ethical matter, also assume the role of advocate, interposing him or herself between the
government and the detainee, undermines the interrogation process—a carefully structured process
that, ultimately, is dependent upon psychological pressure since torture is forbidden. As explained
by the United States in a recent submission to the District Court in Padilla’s case” ”The military’s
efforts to obtain intelligence information through interrogation rely in large part on developing and
maintaining an atmosphere of trust and dependence. The objective is to produce a relationship in
which the subject perceives that he is reliant on his interrogators for his basic needs and desires.
Achieving that objective can take a significant amount of time… Because of the delicate nature of
the relationship between the subject and his interrogators and the significant time frequently
required to achieve the necessary dependence and trust, interposing counsel into the relationship—
even if only for a limited duration of for a specific purpose—can irreparably damage efforts to
obtain vital intelligence through interrogation. Any manner of external influence can compromise
the ability to conduct effect interrogations.”
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Due Process Protections Increase Terrorism Risk
Padilla proves, access to counsel reduces cooperation
David B. Rivkin, Jr. et al, Attorney, former Department of Justice Official, Enemy Combatant
Determinations and Judicial Review, The Federalist Society for Law and Public Policy Studies,
2004, http://www.fed-soc.org/Laws%20of%20war/enemycomb.pdf, p. 16 (HARVCL3704)
Indeed, commenting specifically on the Padilla case, Vice Admiral Lowell E. Jacoby, Director of
the Defense Intelligence Agency, observed in January 9, 2003, declaration (submitted as part of the
government’s Motion for Reconsideration In Part addressed to the District Court): “Permitting
Padilla any access to counsel may substantially harm our national security interests. As with most
detainees, Padilla is unlikely to cooperate if he believes that an attorney will intercede in his
detention. DIA’s assessment is that Padilla is even more inclined to resist interrogation than most
detainees. DIA is aware that Padilla has had extensive experience in the United States criminal
justice system and had access to counsel when he was being held as a material witness. These
experience have likely heightened his expectations that counsel will assist him in the interrogation
process. Only after such time as Padilla has perceived that help is not on the way can the United
Stats reasonably expect to obtain all possible intelligence information from Padilla.”
Granting enemy combatants right to counsel undermines intelligence gathering
Brief for the Respondents, Hamdi v Rumsfeld, 2003 U.S. Briefs 6696, March 29, 2004, p. 43
(HARVCL3709)
This critical source of information would be gravely threatened if this Court held that the moment a
next-friend habeas petition is filed on behalf of a captured enemy combatant, a right of access to
counsel automatically attaches with respect to the detainee. As Colonel Woolfolk stressed in this
case, "disruption of the interrogation environment, such as through access to a detainee by counsel,
undermines this interrogation dynamic" and, "should this occur, a critical resource may be lost,
resulting in a direct threat to national security." Colonel Woolfolk further explained that, during the
proceedings below, the military had determined that granting Hamdi access to counsel would have
"disrupted the secure interrogation environment that the United States has labored to create" with
respect to Hamdi, and would "thwart any opportunity to develop intelligence through this detainee."
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Guantanamo Bay Critical to Fight Terrorism
Closing Guantaname Bay lets hundreds of dangerous terrorists free
Jonah Goldberg, National Review Online Editor, 2005
["Gitmo by Any Other Name…" 6/15,
http://www.nationalreview.com/goldberg/goldberg200506150748.asp]
Of course, we could close Guantanamo, but if you actually support the war on terror you must
recognize that we would still need someplace like it. A rose by any other name and all that. We
can’t summarily execute every al Qaeda member we capture. Not just because that would raise
legitimate moral and legal problems, but because we can’t win unless we interrogate these guys.
Senator Joe Biden said that while we should close Gitmo and release the occupants, we should also
“keep those we have reason to keep.” Huh? This is the logical equivalent of Solomon saying, “Hey,
let’s cut the baby in half after all.” Imagine if, instead of Gitmo, the issue was the death penalty.
“The death penalty should be abolished, but let’s execute the folks there’s a reason to execute.” If
we kept the ones “we have reason to keep” — which would probably mean all 500 or so current
detainees — but closed Gitmo, we could bring them to the United States. But this would be a legal
quagmire, as it isn’t clear what their rights would be on U.S. soil. And it would be a disaster to treat
them like common criminals with all of the usual constitutional rights. Nobody read these murderers
their rights when they were seized in Afghanistan, and it’s not like the cast of “CSI: Kabul” or
“Kandahar PD Blue” collected all the necessary forensic evidence to build a case against them.
Does that mean we should just let them go? We certainly can’t set them free on American soil. And
if we send them back to Afghanistan or Pakistan, it would be like giving them a do-over.
Giving rights to Guantanamo bay detainees ensures catastrophic terrorism
Michelle Malkin, Washington Times Columnist, 2005
[“Debunking another Gitmo myth,” June 24,
http://www.washingtontimes.com/functions/print.php?StoryID=20050623-084159-4767r]
Gitmo-bashers attack the Bush administration's failure to abide by the Geneva Conventions. But as
legal analysts Lee Casey and Darin Bartram told me, "The status hearings are, in fact, fully
comparable to the 'Article V' hearings required by the Geneva Conventions, in situations where
those treaties apply, and are also fully consistent with the Supreme Court's 2004 decision in the
Hamdi v. Rumsfeld case." Treating foreign terrorists like American shoplifters -- with full access
to civilian lawyers, classified intelligence, and all the attendant rights of a normal jury trial -- is a
surefire recipe for another September 11. That is why the Bush administration fought so hard to
erect an alternative tribunal system -- long established in wartime -- in the first place.
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Guantanamo Bay Critical to Fight Terrorism
History proves that releasing Guantanamo prisoners ensures terror
William Bennett, Empower America Co-Director, 2004
["The Patriot Act Reader," 9/20,
http://www.heritage.org/Research/HomelandDefense/loader.cfm?url=/commonspot/security/getfile.
cfm&PageID=69895]
We have not, as Franklin Delano Roosevelt and the great liberal Earl Warren did, established
internment camps for over 100,000 U.S. citizens whose only crime was looking like people we were
at war with in another country. Nonetheless, the rhetoric is in some instances more heated about our
response to 9/11 than it ever was in the 1940s. So-called conservative libertarians and liberal
libertarians from the American Conservative Union and Bob Barr to the ACLU and John Kerry
have at times made it sound like we live under Mitchell Palmer’s Red Scare tactics or J. Edgar
Hoover or I guess, one might say, Franklin Delano Roosevelt and Earl Warren. But we don’t live
like that and we don’t profile like that. We have given trials to those who claim abuses of our post–
9/11 system. We have even released prisoners from Guantanamo to our detriment, as we now learn
that four of those that we released have re-joined al-Qaeda in Afghanistan.
Guantanamo bay is critical in the war on terror
Viet Dinh, G-Town Law Prof, 2004
[USA Today, "Detentions are appropriate," 12/19,
http://www.usatoday.com/news/opinion/editorials/2004-12-19-detainees-oppose_x.htm]
The detention of enemy combatants at Guantanamo fully comports with the U.S. Constitution and
Supreme Court precedent. A foreign terrorist who would harm U.S. soldiers and civilians is an enemy
combatant and should be incapacitated from inflicting such harm. By implementing procedures to ensure that
only enemy combatants are detained, the government reaffirms that law prevails even in war. A year ago, I
expressed public reservations about detaining U.S. citizens as enemy combatants without any legal process.
The Supreme Court took the same view and ordered that U.S. citizens be given a military hearing to contest
their detention. The Defense Department has gone further and instituted such hearings even for foreign
combatants held at Guantanamo. If these procedures are adequate for U.S. citizens on U.S. soil, then they
amply protect whatever rights foreign fighters have in Guantanamo. Under the Geneva Conventions,
countries at war may detain enemy prisoners until active hostilities end. Hostilities with al-Qaeda continue.
Even though al-Qaeda is not a party to the conventions — terrorist organizations that target civilians tend not
to sign such treaties — the U.S. has given the detainees Geneva-style process. They have multiple levels of
review to evaluate their combatant status, access to information justifying their detention and an opportunity
to rebut the cases against them in a neutral hearing. If a person is not an enemy combatant but an innocent
bystander mistakenly captured in the fog of war, then he is released. In addition, there is an annual review to
see whether a detainee still poses a danger to the United States. If he does, then he should be locked up. If
not, he is released. The legal authority to detain enemy combatants has always extended beyond active
terrorists. The people who plan their operations, buy their guns, cook their food or give them shelter with the
intent to support their war against the United States are as complicit as those who pull the trigger. The
Constitution does not require the government to be blind to the dangers facing the U.S. and its people. The
Supreme Court has said Guantanamo detainees may present their cases in court. That does not mean their
cases, in light of the recent review procedures, have legal merit. They do not.
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Roving Wiretaps Fight Terror
Roving wiretaps reduce terrorism
James Carafano and Paul Rosenweig, Heritage Foundation, WINNING THE LONG WAR, 2005,
pp. 104-6
Other aspects of the Patriot Act are also worth preserving. Section 206, for
example, authorizes the use of "roving wiretaps" in terrorist investigations that
is, wiretaps that follow an individual and are not tied to a specific telephone or location. America's original electronic surveillance laws (the For eign
Intelligence Surveillance Act and Title III of the Omnibus Crime Control Act of 1968) stem from a time when phones were the only me ans of
electronic communications and all phones were connected by hard wires to a wall outlet. Roving wiretaps have arisen over the past twenty years for
use in the investigation of many crimes (e.g., drug transactions or organized crime activ ities) because modern technologies (cell phones,
B1ackBerries, and Internet telephony) allow those seeking to evade detection the ability to change com munications devices and locations at will.
Here is an outline of the general structure of laws governing when law en forcement or intelligence agents may conduct electronic surveillance relat ing to suspected foreign intelligence or terrorism activity. Title III of the Omnibus Crime Control Act of 1968 (which govern s electronic surveillance
for domestic crime) allows a court to enter an order authorizing electronic surveillance if "there is probable cause for belief that an individual is com mitting, has committed or is about to commit" one of a list of several specified crimes. The Foreign Intelligence Surveillance Act (or FISA-the statute
governing intelligence and terrorism surveillance) has a parallel requirement: A war rant may be issued if there is probable cause to believe that the
target of the surveillance is a foreign power or the agent of a foreign power. FISA also requires that the government establish probable cause to
believe that "each of the facilities or places at which the surveillance is directed is being used, or is about to be used" b y the foreign power or the
agent of the foreign power who is the target of surveillance. Thus, FISA court warrants are issued by federal judges upon a showing of probable
cause, and they describe the things to be seized with particularity -the traditional requirement contained in the Fourth Amendment. Thus, no one
can argue that these FISA warrants violate the Constitution. To the contrary, as the Foreign Intelligence Surveillance Court of Review recently made
clear, the FISA warrant structure is "a reasonable response based on a balance of the legitimate need of the govern ment for foreign intelligence
information to protect against national security threats with the protected rights of citizens." This is so because, as the court recognized, there is a
difference in the nature of "ordinary" criminal prosecution and that directed at foreign intelligence or terrorism crimes. The main purpose of ordinary
criminal law is twofold-to punish the wrongdoer and to deter other people from committing crimes. The govern ment's concern with respect to foreign
Roving
wiretaps (whether used in foreign intelligence or domestic criminal
investigations) are a response to changing technologies. Phones are no
longer fixed in one place and can move across state borders at the speed of
flight. Sophisticated terrorists and criminals can change phones and
communications devices constantly in an attempt to thwart interception.
intelligence crimes, on the other hand, is overwhelmingly to stop or frustrate the immediate criminal activity before it happens.
In
response to these changes in technology, in 1986 Congress authorized a change in the requirement for the investigation of drug offenses. Under the modified law, the a uthority to intercept an individual's electronic
communication was tied to the individual who was the suspect of criminal activity (and who was attempting to "thwart" surveillance), rather than to a particular communications device. Section 206 of the Patriot Act
authorized the same techniques for foreign intelligence investigations. As the Department of justice has noted: "This pro vision has enhanced the government's ability to monitor sophisticated international terrorists
One
important safeguard is that the FISA court may authorize such roving
wiretaps only if it makes a finding as to the terrorist's actions-that "the
actions of the target of the application may have the effect of thwarting the
identification" of a terrorism suspect. With that safeguard, this tool (already
in use for drug crime investigations) is perfectly appropriate for terrorism
investigations as well.
and intelligence officers,
who are trained to thwart
surveillance by rapidly
changing hotels, cell phones,
and internet
accou nts, just before important meetings
or
communications."
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Preventative Detention Fights Terror
Preventative detention is necessary to fight terrorism
James Carafano and Paul Rosenweig, Heritage Foundation, WINNING THE
LONG WAR, 2005, pp. 116One of the most glaring shortfalls in the American response to the terrorist attacks of 9/11 is that we have not yet undertaken the difficult task of defining a
legal regime in which actionable intelligence may, in fact, be acted upon. The hearings of the 9/11 Commission have, despite their sometimes rancorous tenor,
there were systematic problems that prevented
appropriate coordination among various intelligence agencies and between the
intelligence community and law enforcement. Fixing that problem is a long and
difficult task. The simple fact is that a lot of good intelligence information has no
place in a court of law. As those who are involved in intelligence collection know,
much intelligence information, even the best and most accurate information that
is directly actionable, is not suitable for use in our existing legal system. Consider:
made one thing clear: Prior to September 11,
Highly accurate information may have been provided by a foreign government, but only on the condition that the information never be publicly disclosed, or
indeed, that the fact of the government's cooperation with us never be disclosed. Using this information, even in the controlled setting of a criminal trial
.
Information of unquestioned veracity may have been gathered through sources
and methods that are not known to the public or to foreign powers and
terrorists. Public disclosure that the information is in the possession of the
United States would compromise the source or method and render it useless.
There is some anecdotal evidence that this has already occurred. During the first World Trade
governed by the procedures of the Classified Information Procedures Act (CIPA),23 would dry up the source of information for all future events
Center bombing trial, the government disclosed that it had the capacity to intercept Osama bin Laden's satellite phone calls. It is reported that, naturally, he
stopped using satellite phones.z5 Rules requiring disclosure of evidence can conflict with national security needs. One need only look at the difficulties crea ted
by the trial of Zacarias Moussaoui (the so-called twentieth hijacker) to recognize this problem. Criminal trial rules require that he have access to al-Qaeda
operatives (reported to be Khalid Sheik Muhammad and Ramsi Binalshibh) as potential witnesses with allegedly favorable evidence. Yet allowing Moussaoui
(or his lawyers) access to Muhammad and Binalshibh while they are still being interrogated would be a foolhardy compromise of vital intelligence assets. The
rules of evidence in a court of law strictly limit the admissibility of various bits of information. Documents and photographs must be authenticated. Hearsay
is not allowed. Yet often the best, most useful, intelligence information cannot meet these legal requirements. A stolen document (or one intercepted by
electronic means) often cannot be authenticated. The individual who surreptitiously took a photograph may not be available in an American court to
Finally, one must
confront the new reality posed by the "problem" of interrogation. Virtually every
practitioner of interrogation will tell you that one of the most successful means
of productive interrogation is isolation. As the courts have said, interruption of
the interrogation process may "have devastating effects on the ability to gather
information" from those who have been captured.=8 Of course, the inability to
gather information of this sort could well result in the failure to prevent future
terrorist attacks. However, isolation of a terrorist suspect-that is, the denial of access to him by anyone-is inconsistent with existing
authenticate it. Sometimes the best oral intelligence ("At a meeting last week, Osama said ...") is rank hearsay.
practices, including rules relating to the provision of counsel. These are but a few examples of the ways in which the intelligence-gathering function does not
mesh with our conception of law enforcement and the lega system. Of course, not all intelligence information is as substantial as that required in the legal
system. Certain intelligence may be enough to raise substantial suspicion, but it may fall far short of information that would establish someone's terrorist intents in
a forum requiring proof beyond a reasonable doubt. Thus the question: What do we do? If, indeed, our law enforcement and intelligence agencies have solid,
actionable intelligence of a terrorist threat, and if that intelligence is sufficient to allow the identification of an individual or group of individuals, what should be our
Under the existing legal system, as we have noted, it may be impossible to
arrest suspected terrorists without unacceptable risks and costs. Yet detention
outside the existing legal structures is also unacceptable. 'What then?
response?
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“Sneak-N-Peak” Warrants Links Fight Terror
“Sneak and peak” warrants critical to fight terrorism
James Carafano and Paul Rosenweig, Heritage Foundation, WINNING THE LONG WAR, 2005,
pp. 106-7
The same is true of another section of the Patriot Act that has engendered great criticism. Section 213 authorizes the issuance of delayed notification search warrants, which critics call "sneak and peek" warrants. Traditionally,
when the courts have issued search warrants allowing the government's forcible entry into a citizen's home or office, they have requ ired that the searching officers immediately notify the individual whose home or office has been
entered. Prior to September 11, some courts permitted limited delays in notification to the owner when immediate notification would hinder the ongoing investig ation. Section 213 codifies that common law tradition and extends it
, the fears of abuse seem to outstrip
reality. Delayed notification warrants are long-standing crime fighting too!
upheld by courts nationwide for decades in instances of organized crime, drug
cases, and child pornography. For example, Mafia don Nicky Scarfo maintained
the records of his various criminal activities on a personal computer, protected
by a highly sophisticated encryption technology. Law enforcement knew where
the information was-and thus had ample probable cause to seize the computer.
Yet the seizure would have been useless without a way of breaking the
encryption. Therefore, using a delayed notification warrant, the FBI secretly
placed a keystroke logger on Scarfo's computer. The logger recorded Scarfo's
password, which the FBI then used to examine Scarfo's records of various drug
deals and murders. It would, of course, have been fruitless for the FBI to have
secured a warrant to enter Scarfo's home and place a logger on his computer,
if, at the same time, it had been required to notify Scarfo that it had done so. The
to terrorism investigations. Critics see this extension as an unwarranted expansion of authority. Yet here, too
courts have approved this common law use of delayed notification. More than twenty , years ago, the Supreme Court held that the Fourth Amendment does
not require law enforcement to give immediate notice of the execution of a search warrant. The Court emphasized "that covert entries are constitutional in
some circumstances, at least if they are made pursuant to a warrant." In fact, the Court stated that an argument to the contr ary was "frivo l o u s . In an
earlier case-the seminal case defining the scope of privacy in contemporary America-the Court said that "officers need not announce their purpose before
conducting an otherwise [duly] authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence."
Section 213 of the Patriot Act thus attempts to codify the common law authority given to law enforcement for decades. Now, under Section 213, courts can
delay notice if there is "reasonable cause" to believe that immediate notification may have an adverse result, such as allowing a suspect to flee. The
"reasonable cause" standard is consistent with pre-Patriot Act case law for delayed notice of warrants. The law goes further, narrowly defining "reasonable
cause" for the issuance of a court order. Courts are, under Section 213, allowed to delay notice only when immediate notification may result in an
individual's death or physical harm, flight from prosecution, evidence tampering, witness intimidation, or might otherwise seriously jeopardize an
investigation. In short, Section 213 is really no change at all: It merely clarifies that a single uniform standard applies and that terrorist offenses are
included. Nor does section 213 promise great abuse. As under common law, the officer seeking authority for delayed entry must get authorization for that
action from a federal judge or magistrate-under the exact same standards and procedures that apply to getting a warrant to enter a building in the first
place. The law makes clear that in all cases, law enforcement must ultimately give notice that property has been searched or seized. The only difference
from a traditional search warrant is the temporary delay in providing notification. Her e, the presence of oversight rules seems strong, certainly strong
the delayed notification standards
have performed a useful function and are a critical aspect of the strategy of
prevention: detecting and incapacitating terrorists before they are able to
strike.
enough to prevent the abuse that some critics fear. Nor can it be doubted that
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Detainees Should Not Be Given Prisoner of War Status
Al-Qaeda can’t be charged with POW status because they are a sub-state group
Daryl L. Hecht, Judge, Iowa Court of Appeals, 2005, South Dakota Law Review, 50 S.D. L. REV.
78, Lexis, p. 94-5
It must be conceded at the outset that the United States can legitimately refuse POW status to al
Qaeda members. Because "al Qaeda is not a state, nation, belligerent, or insurgent, the United States
cannot be at war with al Qaeda as such (or with "terrorism' generally)." As adherents to a
clandestine multi-national organization "dedicated to advancing certain political and religious
objectives by means of terrorist acts," al Qaeda members are not entitled to claim combatant
status under the GPW. Like prisoners of war, they are subject to prosecution for war crimes. The
appropriate refusal of the United States to recognize al Qaeda detainees as combatants entitled to
GPW protection did not, however, justify the withholding of such recognition from other prisoners.
"One does not become an "unlawful combatant' merely because other members of the armed forces
or unit to which one belongs commit war crimes." Some members of the Taliban, the Islamic
group controlling Afghanistan prior to September 11, 2001, were reportedly among the
Guantanamo detainees. At the time of their capture, they arguably represented the "effective
government of Afghanistan," a party to the GPW. As members of Afghanistan's armed forces,
Taliban combatants have a colorable claim of entitlement to prisoner of war status under Article 4
paragraph A.(1) of the GPW.
Al-Qaeda detainees not eligible for POW status – not a nation party to the Geneva convention
Charles I. Lugosi, Assistant Professor of Law, St. Thomas University School of Law, American
Journal of Criminal Law, Spring, 2003, 30 Am. J. Crim. L. 225, p. footnotes (HARVCL2582)
n103. See Press Release, Office of the White House Press Secretary, Status of Detainees at
Guantanamo, February 7, 2002, available at
http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html "The President has
determined that the Geneva Convention applies to the Taliban detainees, but not to the al-Qaida
detainees. Al-Qaida is not a state party to the Geneva Convention; it is a foreign terrorist group. As
such, its members are not entitled to POW status. Although we never recognized the Taliban as the
legitimate Afghan government, Afghanistan is a party to the Convention, and the President has
determined that the Taliban are covered by the Convention. Under the terms of the Geneva
Convention, however, the Taliban detainees do not qualify as POWs. Therefore, neither the Taliban
nor al-Qaida detainees are entitled to POW status. Id. Cf. Katherine Q. Seelye, A Nation
Challenged: Captives; Detainees Are Not P.O.W.'s, Cheney and Rumsfeld Declare, January 28,
2002, N.Y. Times, at A6. See also Michael C. Dorf, What Is An "Unlawful Combatant," And Why
It Matters: The Status Of Detained Al Qaeda And Taliban Fighters, Writ FindLaw's Commentary,
January 23, 2001, available at http://writ.news.findlaw.com/dorf/20020123.html.
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Detainees Should Not Be Given Prisoner of War Status
Al Qaeda members are clearly unlawful belligerents
Lee A. Casey et al, Attorney, former Department of Justice Official, Unlawful Belligerency and its
Implications Under International Law, Federalist Society Papers, 2003, http://www.fedsoc.org/Publications/Terrorism/unlawfulcombatants.htm (HARVCL2661)
There is little doubt that the members of al Qaeda are unlawful combatants under both the Hague
Regulations and Geneva Conventions of 1949, as well as customary international law. Although al
Qaeda has undertaken military-style attacks, against the United States and others, i.e., it has
engaged in "belligerency," its fighters do not operate under a "responsible" command structure, do
not wear uniforms, do not carry arms openly, and do not conduct their operations in accordance
with the laws and customs of war. Failure to meet any one of these requirements would be sufficient
to cast al Qaeda's operatives into the category of unlawful combatant. They meet none of them.
Al Qaeda fighters clearly are unlawful combatants
David B. Rivkin, et al, Attorney, former Department of Justice Official, Treatment of Al Qaeda and
Taliban Detainees Under International Law, February 27, 2002, http://www.fedsoc.org/Publications/Transcripts/Belligerents1.PDF (HARVCL2670)
Let me jus say one thing about Al Qaeda, and then I’ll get into a little more detail about Taliban. As
far as I’m concerned, l Qaeda is an easy question. They’re classic unlawful combatants. The
Administration is absolutely right. Geneva Conventions do not apply to them. Geneva Convention
basically is a contract among state parties and their successors, and al Qaeda has nothing more to do
with it. Al Qaeda members are covered only by customary international law, which guarantees only
that they be treated “humanely.”
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Detainees Should Not Be Given Prisoner of War Status
Authority to detain enemy combatants is normal and necessary to fight terrorism
Wiggins, J. Michael; Deputy Associate Attorney General United States Department of Justice;
Testimony to Committee on Senate Judiciary; 15 June 2005
http://web.lexisnexis.com/universe/document?_m=5a0f78fcd55cf3dd43005cfe0e800990&_docnum
=1&wchp=dGLbVtb-zSkVb&_md5=313617bf381fb9867db46b290e9b34cb
As in virtually every other armed conflict in the Nation's history, the military has determined that
many of those individuals should be detained during the conflict as enemy combatants. Such
detention is not for criminal justice purposes and is not part of our Nation's criminal justice system.
Rather, detention of enemy combatants serves the vital military objectives of preventing captured
combatants from rejoining the conflict and gathering intelligence to further the overall war effort
and to prevent additional attacks. The military's authority to capture and detain such combatants is
both well-established and time-honored. See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2640 (2004)
(plurality opinion); Ex parte Quirin, 317 U.S. 1, 26 (1942); Duncan v. Kahanamoku, 327 U.S. 304,
313-14 (1946).
Released GITMO detainees are a threat to US security
Agence France Presse; 6 June 2005
http://web.lexisnexis.com/universe/document?_m=ccba93e5384732d16340975d008ca951&_docnu
m=11&wchp=dGLbVlz-zSkVA&_md5=a5ac97520b0819144a47ea4e09dee04c
Closing Guantanamo would be a US government decision, not a military one, but most of the
prisoners would have to go through the justice system rather than be freed, he said. Myers [General
Richard, America’s top military officer] said the US had erred on the side of "taking a little bit more
risk" by already releasing 284 detainees and that some had returned to battlefields to fight
Americans. "Some of the people held in Guantanamo still have great intelligence value that could
possibly contribute to stopping further attacks and we should not underestimate their intelligence
value," he added.
Al Qaeda and Taliban fighters don’t meet criteria for POWs
Law Professors et al, Amici Brief, Rasul v Bush, 2003 U.S. Briefs 334, March 3, 2004, p. 8-9
(HARVCL2847)
As Commander-in-Chief, President Bush has determined that the al Qaeda and Taliban fighters
detained at Guantanamo Bay are "unprivileged" or "unlawful" combatants. Because of this
determination, the detainees are not entitled to the full rights and privileges of prisoners-of-war
("POWs") under the Geneva Conventions. The President properly based this conclusion on the
traditional prerequisites of lawful belligerency, as recognized by the Geneva Conventions. Al Qaeda
is "an international terrorist group and cannot be considered a state party to the Geneva
Convention," and both al Qaeda and the Taliban have failed to satisfy the traditional four-part test
of having a responsible commander, wearing a uniform or distinctive insignia, carrying arms
openly, and conducting military operations "in accordance with the laws and customs of war." See
Ari Fleischer, White House Spokesman, Special White House Announcement Re: Application of
Geneva Conventions in Afghanistan (Feb. 7, 2002), at LEXIS, Legis Library, Fednew File.
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Geneva Convention Protections Should Not Apply to Detainees
Application of the Geneva Convention condones terrorism and causes global warfare
Michael H. Hoffman, Attorney, 2005
[Parameters, " Rescuing the Law of War: A Way Forward in an Era of Global Terrorism," Summer,
http://www.carlisle.army.mil/usawc/parameters/05summer/hoffman.htm]
Since the Geneva Conventions don’t apply to private warfare (again, they apply during interstate
conflict and to a limited extent during civil conflicts only), any decision to apply them during
warfare with unlawful belligerents would be a policy choice, not something required by the law
itself. This would be a mistake. Such application would have the effect of re-legalizing private
warfare. It took centuries for states to successfully abolish private, independently operating military
forces that fought for their own ends, and their last legal vestiges vanished 150 years ago. It’s not
clear why it would be in the interests of a more just, peaceful world to facilitate their return now by
bestowing on them the same status and protections that are granted combatants acting on behalf of,
and answering to, sovereign states. We would move from a world where fewer than 200 actors
(sovereign states) hold the authority to maintain military forces and deploy them for warfighting
purposes, to one where there are potentially thousands of actors with real or imagined grievances
(or criminal economic motives), possessed of an infinite range of objectives, who could attain
lawful warfighting status by the simple expedient of crossing international boundary lines to kill or
destroy by military means. According these private warriors the full protections of the Geneva
Conventions would also have the perverse effect of encouraging insurgents in internal rebellions to
take their warfare abroad, crossing into other states and international waters and airspace in order to
attain the same newly exalted legal status accorded unlawful belligerents. This is a formula for
chronic chaos and bloodshed in the 21st century. If current thinking prevails, however, our choice is
limited to this profoundly troubling Geneva Convention option on one hand or, on the other,
abandonment of the law of war altogether to resolve these issues in a peacetime context.
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PATRIOT Act Critical to Fight Terrorism
The PATRIOT ACT offers critical tools to battle terrorism – Specifically, delayed notice
search warrants and collapsing the wall between foreign and domestic law enforcement
Asa Hutchinson, Undersecretary for Border & Transportation Security, 2004
["The Patriot Act Reader," 9/20,
http://www.heritage.org/Research/HomelandDefense/loader.cfm?url=/commonspot/security/getfile.
cfm&PageID=69895]
Jim correctly articulated that the tools that are given to fighting terrorism have been commonly used
by us in fighting drugs and other organized crime elements for the past 20 to 35 years. I was just
going to outline some important messages in the Patriot Act. First, it gives old tools to use against a
new threat, and that is critical for us. When I was the United States Attorney we used the delayed
notification procedures for search warrants. It was absolutely essential, not just to go into the
storage unit and find the drugs but also to delay notifying the owner of that storage unit so that you
can know when they come to get into that locker that would have the cocaine there in that storage
facility. So, we’re updating that, giving that capability to law enforcement and in our national
security efforts. The second thing that it does is break down the wall dividing information. To me,
it’s the most essential thing that the Patriot Act does. It says that if you’re collecting intelligence for
national security purposes you can also, if there’s a violation of law, share that information; if
you’re collecting it for law enforcement purposes and find out information that they ought to know
in the counterterrorism arena, you can share that information. Previously, there were cultural walls
and legal impediments. Those were broken down in the Patriot Act. It is absolutely essential for the
information to flow to the people who need it every day in a very quick fashion. The third thing that
it does is update our laws to the age of the Internet. When I was in Congress, we held hearings in
the Crime Subcommittee in 1998 or 1999 about how our electronic surveillance statutes really did
not fit the Internet age. The Patriot Act updates our laws to include more sophisticated means of
communications in a lot of different ways that are important for us in fighting crime.
PATRIOT ACT is key to solve terror funding – financial investigation tools
Asa Hutchinson, Undersecretary for Border & Transportation Security, 2004
["The Patriot Act Reader," 9/20,
http://www.heritage.org/Research/HomelandDefense/loader.cfm?url=/commonspot/security/getfile.
cfm&PageID=69895]
Finally I would mention that the Patriot Act gives us new abilities in the financial arena.
Immigration and Custom Enforcement has been a part of the Department of Homeland Security
since January of 2003. Using the tools given to them under the Patriot Act, customs investigators
have made 13,000 arrests, gotten 720 indictments and 560 convictions, and seized approximately
$150 million through financial investigations of illegal activity. The new financial investigation
tools have been very important to breaking the cycle of terrorist funding.
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PATRIOT Act Critical to Fight Terrorism
The PATRIOT ACT is key to fight terrorism- 9/11 commission proves
Paul Rosenzweig, Heritage Senior Legal Research Fellow, 2004
["A Patriotic Day: 9/11 Commission Recognizes Importance of the Patriot Act," 4/15, w' James Jay
Carafano, http://www.heritage.org/Research/HomelandDefense/wm480.cfm]
Nothing is more important than preventing another catastrophic terrorist attack on Americans.
Nothing. That is why the 9/11 Commission’s work—a comprehensive, objective review of how our
law enforcement and intelligence operations can be improved to prevent a recurrence—is so vital.
Whenever a team loses the game, it always reviews the videotape to see how it can improve.
During a recent public hearing of the 9/11 Commission, present and former government officials
and even the Commissioners themselves emphasized the importance of one new tool adopted after
September 11: the USA Patriot Act. They all agreed that the Patriot Act is an essential weapon in
the nation’s global war on terrorism. Congress should take note and, as President Bush called for in
the State of the Union Address, act now to reauthorize provisions in the law due to expire next year.
Any change to the PATRIOT Act will effect EVERY investigation. No change key to
continued success.
Comey (Deputy Attorney General United States Department of Justice) 2005
James, Testimony, Committee on House Judiciary, FDHC, June 8 – LN
In enacting the USA PATRIOT Act, the Intelligence Authorization Act for Fiscal Year 2002, and
the Intelligence Refonn and Terrorism Prevention Act of 2004, Congress provided the government
with tools that it has used regularly and effectively in its war on terrorism. The reforms in those
measures affect every single application made by the Department for electronic surveillance or
physical search authorized regarding suspected terrorists and have enabled the government to
become quicker and more flexible in gathering critical intelligence information on suspected
terrorists. It is because of the key importance of these tools to winning the war on terror that the
Department asks you to reauthorize those USA PATRIOT Act provisions scheduled to expire at the
end of this year.
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Status Quo Patriot Act Provisions Deter Terrorism
Patriot Act measures are key to acting proactively to prevent catastrophic attacks.
Comey (Deputy Attorney General United States Department of Justice) 2005
James, Testimony, Committee on House Judiciary, FDHC, June 8 – LN
I will never forget, as I know the Members of this Committee will not forget, the thousands of our
fellow citizens that were murdered at the World Trade Center, the Pentagon and a field in rural
Pennsylvania. Nearly four years have passed since that tragic day and, in large part due to the
tremendous efforts of our federal, state and local law enforcement as well as the Intelligence
Community, our country has been spared another attack of that magnitude. But our success presents
a new challenge. How do we bring voice to victims that were never murdered, to family members
who have not lost a loved one? How do we explain to Congress and the American people these
"ghost pains?" This is the continuing challenge of law enforcement in our country. When we are
faced with rising crime and victimization rates, it is easy to point to those in need of our protection
to justify our requests for tools to protect our citizens. But when we are successful in our efforts,
when our hard work and relentlessness pays off, it becomes more difficult to convince the people to
let us keep those tools. Mr. Chairman, as a career prosecutor and now in my role as Deputy
Attorney General, I have heard many times the question of when will we next break up a terror cell
moments before implementation of a devastating plot. But let me tell you, as a prosecutor, you don't
want to be there. You want to catch a terrorist with his hands on the check instead of his hands on
the bomb. You want to be many steps ahead of the devastating event. The way we do that is through
preventive and disruptive measures, by using investigative tools to learn as much as we can as
quickly as we can and then incapacitating a target at the right moment. Tools such as enhanced
information sharing mechanisms, roving surveillance, pen registers, requests for the production of
business records, and delayed notification search warrants, allow us to do just that.
Detaining on less serious charges deters and incites cooperation for future prevention of
terrorism.
Comey (Deputy Attorney General United States Department of Justice) 2005
James, Testimony, Committee on House Judiciary, FDHC, June 8 – LN
Proactive prosecution of terrorism-related targets on less serious charges is often an effective
method of deterring and disrupting potential terrorist planning and support activities. Moreover,
guilty pleas to these less serious charges often lead defendants to cooperate and provide information
to the Government - information that can lead to the detection of other terrorism- related activity.
For example, the material support statutes are the cornerstone of our prosecution efforts. Prior to the
attacks of 911 1, 17 persons in four different judicial districts were charged with offenses relating to
material support to terrorists and terrorist organizations. Since then, however, 135 people in at least
25 different judicial districts have been charged with material support-related offenses. Of the 152
people charged both before and since 911 1, so far 70 have been convicted or pleaded guilty, and
many more are still awaiting trial.
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Status Quo PARIOT Act Provisions Deter Terrorism
PATRIOT Act provisions key to successes in war on terror.
Comey (Deputy Attorney General United States Department of Justice) 2005
James, Testimony, Committee on House Judiciary, FDHC, June 8 – LN
Allow me to share a few recent examples of our successes. On April 27,2005, a New Jersey federal
jury convicted Hemant Lakhani, a United Kingdom national, of attempting to provide material
support to terrorists for his role in trying to sell an antiaircraft missile to a man whom he believed
represented a terrorist group intent on shooting down a United States commercial airliner. On April
22,2005, in the Eastern District of Virginia, Zacarias Moussaoui pled guilty to six counts of
conspiracy, acknowledging his role in assisting al Qaeda. Also on April 22,2005, a jury convicted
Ali Al-Timimi, a speaker and spiritual leader in Northern Virginia, in the second phase of the
Northern Virginia jihad case involving a group of individuals who were encouraged and counseled
by Al-Timimi to go to Pakistan to receive military training from Lashkar-e-Taiba, which has ties to
the al Qaeda terrorist network, in order to be able to fight against American troops. The first phase
of the prosecution involved convictions under the material support statutes; Al- Timimi's firearms
convictions were predicated, in part, on the material support statutes. There are many more
examples than this due to our continuing efforts to ensure the safety of the American people.
Status quo authority key to preventing and deterring terrorism because terrorists observe
U.S. policy.
New York Times, April 28, 2005 – LN
''This authority is too important,'' Mr. Goss said. ''We don't want to lose it, we don't want to
abuse it.'' Mr. Goss said that while he was mindful of broad concerns about the privacy and
civil liberties of Americans, intelligence officials needed the far-reaching and often secretly
employed powers granted under the law to track and deter terrorist threats. “'I know right
now,'' he said, ''that there are people who have terrorist concerns, terrorist plots maybe
associated with terrorists, actually people maybe in terrorist organizations, who are probably
watching this discussion.'' And while members of the public might be reassured to learn ''how
wisely we're employing these tools, it would not be helpful to tell the terrorists that,'' he said.
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Terrorism Shouldn’t Be Treated Like a Law Enforcement Problem
Applying law enforcement model to terrorism fails. History proves.
Mylroie (adviser on Iraq to the 1992 Clinton campaign) 2004
Laurie, National Review, April 5, 2004 – LN
Clarke's tenure as America's top counterterrorism official is essentially contemporaneous with the
Clinton administration. Bill Clinton took what had been considered a national-security issue, in
which the U.S. focused on punishing and deterring terrorist states, and turned it into a lawenforcement issue, focused on arresting and convicting individual perpetrators. That was certainly
an easier response, but it was completely ineffectual. In fact, it had created a very serious
vulnerability long before September 11, 2001. Clarke's book, Against All Enemies is, essentially, an
attempt to blame the Bush administration for 9/11, while exonerating Clinton (and therefore
Clarke). The reality is quite the reverse.
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Immigration Rights Increase Terrorism
Deporting potential aliens terrorists helps the war on terrorism
Jan Ting, Temple Law Prof, 2003
[TEMPLE INTERNATIONAL AND COMPARATIVE LAW REVIEW, Fall, p. 507]
So there is nothing per se wrong with simply enforcing U.S. immigration laws regardless of whether
those removed are terrorist suspects or not. Such removals indirectly serve the war on terrorism by
reducing the number of illegal aliens and the resulting culture of fraudulent documents among
whom and in which foreign terrorists can conceal themselves. That the U.S. government lacks the
resources to remove all of the estimated ten million illegal aliens from the United States at once
ought not preclude the United States from removing some of them. To the allegation of selective
enforcement, Justice Antonin Scalia has said: An alien unlawfully in this country has no
constitutional right to assert selective enforcement as a defense against his deportation ... . When an
alien's continuing presence in this country is in violation of the immigration laws, the Government
does not offend the Constitution by deporting him for the additional reason that it believes him to be
a member of an organization that supports terrorist activity.
Immigrants are terrorist threats
Michell Malkin, Fellow at the Competitive Enterprise Institute, 2003
[“THE WALL STREET JOURNAL: BORDERING ON IDIOCY,” March 22,
http://www.townhall.com/columnists/michellemalkin/mm20020322.shtml]
What does combating illegal immigration have to do with combating Middle Eastern terrorists in
America? Well, duh. Let's review: Three of the 19 Sept. 11 hijackers were illegal visa overstayers.
Seven of the 19 obtained fraudulent ID cards with the help of illegal alien day laborers in Virginia.
Two of the 1993 World Trade Center bombers were illegal aliens. At least two bin Laden-linked
bomb plotters attempted to cross illegally through our land borders. More than 115,000 people from
Middle Eastern countries are here illegally. More than 1,000 of them were smuggled through
Mexico by convicted global crime ringleader George Tajirian. And some 6,000 Middle Eastern men
who have defied deportation orders remain on the loose. The connection between illegal
immigration reform and homeland security is now fantastically obvious to most Americans, but the
loose-and-open borders crowd is as blind and dumb as ever. Leading the senseless is the Wall Street
Journal editorial page, which I admired in the past for its stalwart promotion of the rule of law and
abhorrence of race-card demagoguery. On March 18, the paper betrayed both principles with
disturbing flippancy. "So Atta got his visa. That's no reason to kick out Mexican workers," poohpoohed an online summary of an editorial titled "Immigrants and Terrorists." In it, the Journal's
unrepentant open borders proponents approve of bipartisan efforts -- foolishly embraced by
President Bush and favored by Mexican president Vicente Fox -- to extend partial amnesty to
hundreds of thousands of illegal aliens who have been in the country since 1998.
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Renditions Critical to the War on Terror
Renditions are an important intelligence tool
New York Times, March 6, 2005, p. 11 (HARVCL4177)
In an interview, the senior official defended renditions as one among several important tools in
counter-terrorism efforts. “The intelligence obtained by those rendered, detained and interrogated
have disrupted terrorist operations,” the official said. “It has saved lives in the United States and
abroad, and it has resulted in the capture of other terrorists.”
Rendition has been successful against terrorism
Michael Scheuer, former CIA official, The New York Times, March 11, 2005, p. A23
(HARVCL4182)
Second, the rendition program has been a tremendous success. Dozens of senior Qaeda fighters are
today behind bars, no longer able to plot or participate in attacks. Detainee operations also netted an
untold number of computers and documents that increased our knowledge of Al Qaeda’s makeup
and plans.
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Information Technology Restrictions Critical to War on Terror
Information technology is essential to identify terrorists
Paul Rosenzweig, Heritage Senior Legal Research Fellow, 2004
["What the 9/11 Commission's Report Should Contain: Four Recommendations for Making
America Safer," w/ James Jay Carafano, July 13,
http://www.heritage.org/Research/HomelandDefense/bg1778.cfm]
One of the cornerstones of the Administration's homeland security efforts concerns employing
information technology (IT) to identify high-risk people and cargo. The intent is to focus scarce
intelligence and law enforcement assets on likely terrorist activities while preserving civil liberties
and offering the minimum impediment to legitimate trade and travel. Initiatives include several
ambitious IT programs, including efforts to strengthen border and transportation security like the
US-VISIT (United States Visitor and Immigrant Status Indicator Technology) program; CAPPS II
(Computer Assisted Passenger Prescreening System); and ACE (Automated Commercial
Environment). It is likely that terrorists preparing for an attack would leave an electronic trail of
interactions with the government, both outside and within the United States, through purchases,
travel, and other activities, just as anybody else living in the modern world does. These new IT
programs are part of America's competitive advantage over the terrorists. The technology can be
used to sift through a wide array of data and establish links between terrorist suspects. While these
programs are potentially powerful instruments for fighting terrorism, however, they have raised
significant concerns over violating privacy rights.
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Reducing Visa Restrictions Increases Terrorism
Changing visa policy risks catastrophic terrorism
James Jay Carafano, Heritage Senior Research Fellow, 2003
["Better Intelligence Sharing for Visa Issuance and Monitoring: An Imperative for Homeland
Security," 10/27, w/ Ha Nguyen,
http://www.heritage.org/Research/HomelandDefense/BG1699.cfm]
In the global war waged by terrorists, visas can be deadly weapons. One ready means available to
enemies wishing to enter the United States is the nonimmigrant visa, which can be obtained from
any of the 211 American consulates around the world. The length of stay varies depending on the
type of visa. Travelers holding nonimmigrant visas represent the overwhelming majority of
individuals entering the U.S. During fiscal year 2000, a record 33.7 million visitors, students, and
temporary workers passed through U.S. borders. Nonimmigrant visas are ideal for supporting
attacks that require brief or repeated trips to the United States.1In fact, all of the September 11
hijackers entered the United States in this manner. The 19 terrorists received a total of 23 visas from
five different consular posts over a four-year period. Entry can be more difficult for individuals on a
terrorist watch list or from countries with suspected terrorist ties, but these safeguards have been far
from perfect. For example, Sheik Omar Abdel Rahman, convicted of conspiracy in the 1993
bombing of the World Trade Center, was on the State Department watch list but managed to obtain
a tourist visa under an assumed name. Terrorists can also enter the United States through the
permanent immigration system, obtaining a "green card" to live in the country or become a
naturalized citizen. Each year, approximately 900,000 foreigners enter the U.S. in this manner
because they have a relative in the United States, possess a specialized job skill, are seeking asylum
as a refugee, or have won a visa lottery4 that admits about 50,000 a year. One study of 28 known
militant Islamic terrorists found that 17 of them were in the country legally, either as permanent
residents or as naturalized citizens. The prevalent use of identity theft and false travel documents
makes the current system particularly vulnerable to abuse. In 2001, officials at border crossing
points seized over 100,000 falsified documents. Over 50 percent of these documents were border
crossing cards, alien registration cards, and fraudulent visas and passports.6 Such materials have
been used by terrorists. For example, one of the perpetrators of the 1993 World Trade Center
bombing entered the country with a doctored passport.7 Thus, intelligence is critical not only to
keep suspected terrorists from legitimately obtaining and using passports, but also to prevent them
from easily using falsified documents to travel into the United States.
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Data Mining Critical to the War on Terror
Data mining is a critical technology in the fight against terrorism
James Jay Carafano, Heritage Senior Research Fellow, 2003
["Better Intelligence Sharing for Visa Issuance and Monitoring: An Imperative for Homeland
Security," 10/27, w/ Ha Nguyen,
http://www.heritage.org/Research/HomelandDefense/BG1699.cfm]
Data-mining technology is a potentially powerful tool and should be explored. Data-mining
technologies could be particularly useful for the TTIC and the TSC in developing terrorist watch
lists. In the 2004 Defense Appropriations bill, Congress cut all funding for research and
development of the Defense Advanced Research Projects Agency's Terrorism Information
Awareness program, but concerns that data-mining technology will be abused are based on
speculation. Existing oversight and implementation structures could be modified to control the use
of such new technology.
If successfully developed and applied within the confines of the law, these technologies could offer
numerous benefits to U.S. counter-terrorism efforts. Data-mining research and development should
be encouraged, and Congress should support and closely monitor the study of this potential
technological breakthrough.
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Restrictions on Military Tribunals Critical to the War on Terror
Military tribunals are critical to protecting antiterrorist intelligence
Amitai Etzioni, GWU Sociology Prof, 2003
["Better Safe Than Sorry," The Weekly Standard, 7/21,
http://www.gwu.edu/~ccps/etzioni/B425.html]
Military Tribunals. There is a clear need to avoid disclosing our intelligence sources and methods in
open court--so much so that in several instances, an American charged with espionage has been
allowed to bargain down the sentence to avoid his pleading not guilty, which would necessitate a
public trial. Terrorists should not be allowed to benefit from a right to demand a public trial.
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Restrictions on Court Orders/ Subpoenas Risk Terror
The unrestricted use of grand jury subpeonas, court orders, and search warrants are critical
to the war on terror
Barbara Comstock, DOJ Public Affairs Director, 2003
[National Review, "Rhetoric vs. Reality: The Department of Justice defends the Patriot Act," 9/3,
http://www.nationalreview.com/comment/comment-comstock090303.asp]
REALITY: Yes, we do believe that subpoenas issued by grand juries comprised of United States
citizens, and search warrants issued by a judge upon a showing of probable cause, allow us to make
progress in the war on terror. The use of subpoenas and warrants has long been a standard
investigative technique in virtually every type of criminal investigation. Justice Department
prosecutors have done no more than make use of these centuries-old legal tools to fight a 21stcentury war. In order to effectively fight terrorism, we must gather information about the terrorists'
plots. In the aftermath of 9/11, thousands of subpoenas and court orders were issued so we could
learn about the 19 hijackers' travels, the places they lived or stayed, their associates, the people they
encountered, the phones, banks, or rental stores they used. Without the use of grand-jury subpoenas
and judicially approved search warrants, we would not have the wealth of information that we have
about the 19 hijackers and their associates today. Far more important, however, is the use of
subpoenas and court orders to prevent terrorists from launching future attacks. Subpoenas and court
orders are used to follow up on the hundreds of pieces of valuable intelligence information we have
obtained from our investigations and battles overseas and elsewhere. They are also used to track the
activities of alleged terrorist cells in this country in communities as diverse as Buffalo, Seattle,
Detroit, and Portland. Mr. Lynch appears to believe that Americans can acclimate themselves to
intermittent terrorism. As he explains in the introduction to his study, "Breaking the Vicious Cycle:
Preserving Our Liberties While Fighting Terrorism": "The American people can accept the reality
that the president and Congress are simply not capable of preventing terrorist attacks from
occurring." We profoundly disagree. The fact is that we have disrupted, detected, and dismantled
hundreds of terrorists and their networks worldwide as well as in this country — and we must
continue to do so. Terrorism will remain a threat to this country, but there are legal tools and
methods that can assist us in making every effort to prevent further acts of terrorism. We can — and
will — attack the terrorist threat legally and consistent with a free society.
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Strong Executive Power Necessary in the War on Terror
A strong executive is essential to stop terrorism
Paul Rosenzweig, Heritage Senior Legal research Fellow, 2004
[Duquense University Law Review, "Civil Liberty and the Response to Terrorism," Summer, LN]
More fundamentally, those who fear the expansion of executive power in the war on terrorism offer
a mistaken solution - prohibition. While we could afford that solution in the face of traditional
criminal conduct, we cannot afford that answer in combating the threat of terror. In the context of
current circumstances, vigilance and oversight, enforced through legal, organizational and technical
means, are the answer to potential abuse - not prohibition. We must keep a watchful eye to control
for the risk of excessive encroachment, but if we do, the likelihood of erosion of civil liberties can
be substantially reduced.
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Internet Search Restrictions Undermine the War on Terror
The internet is a critical tool for terrorists
Lee Kaplan, Frontpagemag.com Editor, 2004
[FronPageMagazine.com, 8/10, "Islamist Terror Via the American Internet,"
http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=14586]
When the Internet was created in the early 1990s, almost everyone was excited. This would become
the new media, a true marketplace of ideas, where unlimited freedom of speech was possible and
political correctness was thrown out the window. Still, few people would have thought that in less
than a decade the Internet would become a security nightmare.
Today, perhaps because of the very nature of a truly free marketplace of ideas itself, the Internet has
become a propaganda and recruiting tool for terror groups like Al Qaeda – a place where they can
discuss their activities, raise funds and spread their malignant ideology around the world. Perhaps
even more disturbing is the fact that American Internet companies are helping the enemy in the
‘War on Terror’ by providing Web hosting and other services to overseas terrorist groups and the
Department of Homeland Security and the FBI appear to be incapable or unwilling to act on the
matter. The number of such Websites operating with the collusion of U.S. Internet companies,
knowingly or otherwise, is truly alarming.
Terrorist groups like Al Qaeda, Hamas, Hezbollah and the PFLP like to use American Web hosting
companies because the prices are cheaper than found overseas and US firms have the greatest
bandwidth -- that is, the power to reach the maximum audience over phone lines and cable. And of
course, the US has the largest Internet population in the world.
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Reduced Wiretap Authority Risks Terror
The use of roving wiretaps is an indispensable tool in the war on terror
James J. Comey, Deputy Attorney General, 2004
["The Patriot Act Reader," 9/20,
http://www.heritage.org/Research/HomelandDefense/loader.cfm?url=/commonspot/security/getfile.
cfm&PageID=69895]
First example: roving wiretaps. In the 1980s drug dealers, like most good folks, started using cell
phones. Toward the mid-1980s they started to realize that we in government could track their drugrelated conversations by getting wiretaps on those cell phones. So they started dumping their cell
phones, swapping them with others, trading them out, getting new ones to stay ahead of law
enforcement. Then, in the late 1980s, Congress gave drug investigators a tool. They allowed us to
go to a federal judge, make the same showing that we need to obtain a wiretap —that is, probable
cause to believe that a crime is being committed on this telephone—and with the making of an
additional showing—that is, that the drug dealer is swapping phones to avoid surveillance—obtain
an order that allows the government not just to intercept the conversations on a particular instrument
but to intercept the conversations of that drug dealer no matter what phone he’s on. Why does that
matter? If you know he’s committing crimes on the phone, you could just go get another new order
for the new phone. That’s absolutely right, but that causes a period of darkness, in which the drug
dealer gets rid of a phone, we then figure out he’s on a new phone, write up a new order, and find a
new federal judge. That can be done sometimes in six or seven hours—but in that period of time
we’ve lost six or seven hours of important drug-related phone calls. Why do I tell you that? What
the Patriot Act did was take that tool and allow it to be used by foreign intelligence and foreign
counterterrorism investigators. They can go to a federal judge on the Foreign Intelligence Surveillance Act (FISA) Court. (People often forget that there are federal judges all over this program.)
They can file a sworn affidavit that lays out probable cause to believe that a person is an agent of a
foreign power or foreign terrorist organization and that that person is changing telephone
instruments in an effort to avoid surveillance, and get an order that allows that foreign
counterterrorism investigator to intercept the conversations of that individual no matter what phone
he’s using. That’s a tool we’ve used to lock up drug dealers since 1986. Since the fall of 2001, it’s a
tool we can use to track al-Qaeda—and anybody who thinks that al-Qaeda is less clever than drug
dealers is kidding themselves. Could we do without this tool? Theoretically, we could, and we did
without it before the fall of 2001. But that means a period of darkness—six hours, seven hours,
eight hours, sometimes 24 hours—before we’re able to get back up on the new phone. All of us
learned, to the extent that we didn’t know before, that those hours of darkness can be a time of great
peril for America. We simply cannot afford to run that risk. We cannot afford to allow that tool to
sunset.
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Sneak-and-Peak Searches Critical to the War on Terror
Sneak-and-peak searches are a tried and true method for investigating terrorists
James J. Comey, Deputy Attorney General, 2004
["The Patriot Act Reader," 9/20,
http://www.heritage.org/Research/HomelandDefense/loader.cfm?url=/commonspot/security/getfile.
cfm&PageID=69895]
Second example: so-called sneak and peek search warrants. Again, that bumper sticker sounds bad.
“Sneak and peek” sounds like we’re going through your sock drawer late at night while you’re
sleeping. Let me explain what that is. Delayed notification search warrants are what we in law
enforcement call that tool. We’ve been using it since before I was born to protect people and to
protect evidence in our most sensitive investigations. Let me give you a personal example. When I
was in Richmond, Virginia, a violent gang of crack dealers from New York was looking to muscle
in on the Richmond drug market. The Drug Enforcement Administration didn’t quite have a handle
on them, but they had one informant who told them that the gang had an apartment in the west end
of Richmond where they had just delivered 5 kilos of cocaine. We then had a choice to make. Do
we go and seize those 5 kilos, risk the informant’s life, and blow the investigation so that we can
never identify the leaders, or do we let 5 kilos of cocaine walk onto the streets of Richmond so that
we can preserve our investigation? We didn’t have to make that choice. A judicially created
mechanism called a delayed notification search warrant gave us the ability to conduct a search and
delay telling the bad guys about it. We went to a federal judge in Richmond and laid out in a sworn
affidavit just what I’ve told you. Upon that showing of probable cause and that disclosure would
risk lives and endanger evidence in a very important investigation, the federal judge gave the DEA
permission to conduct the search and to make it look like a burglary. So the DEA agents broke into the
apartment. They took the TV, the stereo, and 5 kilos of cocaine, and in a little rhetorical flourish they poured some beer down the
sink and left the beer cans around. They also broke a window from the outside in. Two leaders of this drug gang came to the
apartment not long after the agents left and they called the cops. A uniformed officer was sent (who had been briefed on what was
happening) and he asked seemingly routine questions: “Who are you?” “Your date of birth, sir, and this is your apartment?” “Can I
see your driver’s license?” “And your buddy, here, is this his apartment too? And his name is?” He identified the leaders and tied
them to the apartment. He asked them what had been taken, and they said, the TV, the stereo and they drank our beer. “Anything else
taken?” “Nothing else taken.” No mention of the drugs, which won’t surprise you. And so law enforcement took the drugs off the
street, and was able to follow up on the information that the officer collected and identify all the rest of the members of this drug
gang. Two months later, after they were locked up, disclosure was made that the search had been conducted. The DEA offered, to
anyone who would claim them, to return the TV and the stereo, and they paid the landlord for the fixing of the window. When people
take the time to listen to that example, their opinion changes dramatically. No one wants law enforcement to have to choose between
endangering lives and letting kilos of cocaine walk onto the streets of a city in America. That’s why judges created that
the delayed notification search warrant. That’s why judges on the Supreme Court concluded in 1979
that it was reasonable under the Fourth Amendment to use this tool. All the Patriot Act did was put
it in black letter law of a statute so there would be a uniform standard across this country. It’s now
available for counterterrorism investigations and the standard is set out for any federal prosecutor or
federal agent that wants to use it in a drug or organized crime investigation. It is a tool that is much
too important to the security of the United States—and frankly to the security of people who are
plagued by drug gangs and by Mafia bosses—to be allowed to sunset.
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Sneak-and-Peak Searches Critical to the War on Terror
Sneak and peek warrants effective
Paul Rosenzweig, Senior Legal Research Fellow, Heritage Foundation, 2004, Duquesne University
Law Review, 42 Duq. L. Rev. 663, p. 700 (HARVCL0710)
Nor can it be doubted that the delayed notification have performed a useful function and are a
critical aspect of the strategy of prevention - detecting and incapacitating terrorists before they are
able to strike. One example of the use of delayed notification involves the indictment of Dr. Rafil
Dhafir. A delayed notification warrant allowed the surreptitious search of an airmail envelope
containing records of overseas bank accounts used to ship over $4 million to Iraq. Because Dhafir
did not know of the search, he was unable to flee and he did not move the funds before they were
seized. In another instance, the Department described a hypothetical (based upon an actual case) in
which the FBI secured access to the hard drive of terrorists who had sent their computer for repair.
In still another, they planted a bug in a terrorists' safe house.
Sneak and peek searches effective in countering terrorists
The Georgetown Journal of Law & Public Policy, Winter, 2002, 1 Geo. J.L. & Pub. Pol'y 131, p.
145-6 (HARVCL0711)
"Sneak-and-peek" searches, while a new part of federal statutory law, have been judicially reviewed
and approved, with important restrictions, for more than a decade. As Beth Wilkinson, a lead
prosecutor in the trials of Timothy McVeigh and Terry Nichols, noted in a recent debate about the
USA PATRIOT Act, "Most of what [terrorists] do are lawful activities in furtherance of an unlawful
ultimate act. . . . They were taking flying classes. They were getting money from different
organizations. . . . They weren't doing anything that law enforcement would be able easily to
identify as acts in furtherance of terrorism." Without the ability to surreptitiously enter and search a
suspected terrorist's residence, it may be impossible for law enforcement to learn the extent of a
terrorist conspiracy, especially given the near impenetrable operational security terrorists have
demonstrated that they employ. Because a judge must find that there is "reasonable cause to believe
that providing immediate notification of the execution of the warrant may have an adverse result," it
is unlikely that "sneak-and-peek" searches will "become the rule rather than the exception." In light
of the Villegas decision upholding two months of delays, and the bill's somewhat broad language
requiring "the giving of such notice within a reasonable period of its execution, which period may
thereafter be extended by the court for good cause shown," it is possible that in many instances
there will be long delays between a surreptitious search and the giving of notice. Still, neither the
language nor the case precedent is so broad as to allow an extended delay without convincing a
judge there was a compelling government interest, or to permit a search to "be kept secret during the
pendency of investigations, which often drag on for years."
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FISA’s Collapse of the Intelligence/Criminal Surveillance Wall Doesn’t Threaten Rights
The “Special Needs Exemption protects FISA’s “significant purpose” requirement
Robert Power, Associate Dean for Faculty Research and Development and Professor of Law,
Widener University School of Law, Winter 2010, Pace Law Review, “Intelligence" Searches and
Purpose: A Significant Mismatch Between Constitutional Criminal Procedure and the Law of
Intelligence-Gathering,” p. 653-4
This structure established by FISA, to allow electronic surveillance where foreign
intelligence is a significant purpose of the action, is arguably consistent with the prevailing
law concerning Fourth Amendment searches and seizures. In a series of decisions over the last
thirty years, the Supreme Court has approved searches and seizures, and later use of resulting
evidence in court, where the government had acted for a legitimate, non-law-enforcement
reason, even where the government did not meet traditional Fourth Amendment requirements.
n155 This is the "special needs" exception to the warrant and probable cause requirements. If
the action is "reasonable" under the Fourth Amendment, then the intrusion is lawful. n156
Because the action is lawful under the Fourth Amendment, there is no reason to exclude the
resulting evidence in criminal trials.
There are at least two legs to this principle in operation. One is that courts are reluctant to
second guess law enforcement motives. If a government agent has a lawful basis to search, the
courts will not invalidate the search or bar use of the seized evidence just because the officer
took advantage of that basis to search, even though the officer hoped or anticipated finding
evidence for a criminal prosecution. Another, sometimes related, principle is the Plain View
Doctrine, in which the courts allow the seizure of evidence discovered under one rationale
when there is some second reason that allows its seizure. n157 These notions arguably come
[*654] together in the Pretense Search Doctrine, in which the courts conclude that police
officers may take advantage of reasonable suspicion or probable cause to stop a car for a
vehicular violation while intending to look for evidence of more serious crimes. n158 While
these doctrines were hotly disputed when first recognized, and while they do present
significant questions about the nature of Fourth Amendment protections, they are unlikely to
be reconsidered unless there is a sea change on the Supreme Court. Analyses of Fourth
Amendment aspects of national security law must accordingly take them into account. To this
end, the following section builds on "special needs" law and these principles to provide an
argument for dual purpose foreign intelligence/law enforcement electronic surveillance under
FISA.
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Collapse of the Intelligence/Criminal Surveillance Wall Critical to the War on Terror
Requiring probable cause risks terrorism
Gary J. Schmitt is a resident scholar at AEI., CONSTITUTIONAL SPYING, December 27, 2005,
http://www.aei.org/publications/pubID.23628,filter.all/pub_detail.asp
Though much of the court's workings are classified, there are known instances in which
FISA's "probable cause" standard prevented the government from getting warrants where
common sense made it perfectly clear surveillance was justified. Notably, there was the case
of Wen Ho Lee, the Chinese-American scientist who worked at the Los Alamos nuclear
weapons lab. Lee downloaded nuclear codes and databases from the lab's secure computers.
"In the wrong hands," his boss noted, such information could "change the global strategic
balance." Despite this, and the fact that Lee had access to a warhead design that had leaked to
the Chinese, had visited China in the period when Beijing apparently acquired the data, and
had obvious friendly ties to Chinese nuclear scientists, it was judged that a FISA warrant
could not be obtained. It didn't matter how grave the damage might be if Lee was actually
engaged in espionage; what mattered was the government had no real evidence that Lee was a
likely spy.
The monitoring has helped prevent attacks
NEWSDAY, December 26, 2005
The administration won't provide details or say how many people were spied on, but says the
program helped prevent attacks. Attorney General Alberto Gonzales compared the monitoring
to wartime "signals intelligence" dating back to the Civil War. "Foreign intelligence collection
undertaken to prevent further devastating attacks on our Nation serves the highest government
purpose through means other than traditional law. Eavesdropping tests legal lines; Executive
powers have been used before.
A program with no limits is not necessary to fight terror
LOS ANGELES TIMES, December 24, 2005
Critics, however, point out that the FISA law allows 72-hour emergency wiretaps without
court orders, and even longer periods are permitted in wartime. They say the program is not
about speed, agility and procedure, but about substance - an intelligence net tapping people
who couldn't be tapped under FISA, a completely new category of Americans targeted simply
because they were in contact with people overseas whom the government suspected. "I
doubt that it's necessary or effective," Bass said. "It boggles my mind to think that a threeyear program that seems to have targeted thousands of Americans produced enough
information not otherwise obtainable to justify that degree of intrusion."
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Collapse of the Intelligence/Criminal Surveillance Wall Critical to the War on Terror
Probable cause requirements undermine the collection of foreign intelligence
William Kristol is editor of The Weekly Standard. Gary J. Schmitt is a resident scholar at the AEI,
VITAL PRESIDENTIAL POWER, December 20, 2005,
http://www.aei.org/publications/pubID.23599,filter.all/pub_detail.asp
A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda
operative in Pakistan. Among his possessions are a couple of cell phones--phones that contain several American phone
numbers. In the wake of Sept. 11, 2001, what's a president to do? If the president were taking the advice offered by
some politicians and pundits in recent days, he would order the attorney general to go to the Foreign Intelligence
Surveillance Court. The attorney general would ask that panel of federal judges for a warrant under the Foreign
Intelligence Surveillance Act (FISA) to begin eavesdropping on those telephone numbers, to determine whether any
individual associated with those numbers was involved in terrorist activities. But the attorney general might have to tell
the president he might well not be able to get that warrant. FISA requires the attorney general to convince the panel that
there is "probable cause to believe" that the target of the surveillance is an agent of a foreign power or a terrorist. Yet
where is the evidence to support such a finding? Who knows why the person seized in Pakistan was calling these
people? Even terrorists make innocent calls and have relationships with folks who are not themselves terrorists. The
difficulty with FISA is the standard it imposes for obtaining a warrant aimed at a "U.S. person"--a U.S. citizen or a legal
alien: The standard suggests that, for all practical purposes, the Justice Department must already have in hand evidence
that someone is a problem before they seek a warrant. Consider the case of Zacarias Moussaoui, the French Moroccan
who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to
steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence
that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient
evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators
might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters
don't rise to the level of probable cause under FISA. This is presumably one reason why President Bush decided that
national security required that he not simply follow the strictures of the 1978 foreign intelligence act, and, indeed, it
reveals why the issue of executive power and the law in our constitutional order is more complicated than the current
debate would suggest. It is not easy to answer the question whether the president, acting in this gray area, is "breaking
the law." It is not easy because the Founders intended the executive to have--believed the executive needed to have-some powers in the national security area that were extralegal but constitutional. Following that logic, the Supreme
Court has never ruled that the president does not ultimately have the authority to collect foreign intelligence--here and
abroad--as he sees fit. Even as federal courts have sought to balance Fourth Amendment rights with security
imperatives, they have upheld a president's "inherent authority" under the Constitution to acquire necessary intelligence
for national security purposes. (Using such information for criminal investigations is different, since a citizen's life and
liberty are potentially at stake.) So Bush seems to have behaved as one would expect and want a president to behave. A
key reason the Articles of Confederation were dumped in favor of the Constitution in 1787 was because the new
Constitution--our Constitution--created a unitary chief executive. That chief executive could, in times of war or
emergency, act with the decisiveness, dispatch and, yes, secrecy, needed to protect the country and its citizens. That is
why the president uniquely swears an oath--prescribed in the Constitution--to preserve, protect and defend the Constitution. Implicit
in that oath is the Founders' recognition that, no matter how much we might wish it to be case, Congress cannot legislate for every
contingency, and judges cannot supervise many national security decisions. This will be especially true in times of war. This is not an
argument for an unfettered executive prerogative. Under our system of separated powers, Congress has the right and the ability to
judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't. But to
engage in demagogic rhetoric about "imperial" presidents and "monarchic" pretensions, with no evidence that the president has
abused his discretion, is foolish and irresponsible.
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Collapse of the Intelligence/Criminal Surveillance Wall Critical to the War on Terror
Instant action is needed to fight terror
Lee P Butler is the Vice Chairman of the Richmond County Republican Party, LIBERALS
CHARGE BUSH SPYING AUTHORIZATION INFRINGES ON TERRORISTS CIVIL RIGHTS,
December 28, 2005, http://www.opinioneditorials.com/guestcontributors/lbutler_20051228.html
Using the presidential powers bestowed upon him by Article II of the Constitution and under the
auspices of the declaration for war passed by Congress prior to our military intervention of
Operation Iraqi Freedom in Iraq, President Bush authorized the use of electronic international
surveillance of possible terrorists without court ordered warrants. In the new electronic age, where
information is as fleeting as a feather in the wind, intelligence officials need to be able to quickly,
sometimes in a matter of minutes, access, assess, and distribute collected evidence so that
apprehension of terrorists or prevention of terrorist activities can be fully achieved to protect
Americans in the post 9-11 world. Realizing the need to completely utilize this ability to fight
terrorist activities, unlike previous administrations, President Bush usurped the FISA court...
Foreign Intelligence Surveillance Act... and ordered the operations in the immediate aftermath of
the 9-11 tragedy. Besides the fact that he had the power under the U.S. Constitution and
congressional support, he also understood the lightning swiftness of modern-day communications
and the powerful edge it gives terrorist organizations throughout the world, over law-abiding
countries fighting the War on Terror using antiquated criminal procedures.
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FISA’s Collapse of the Intelligence/Criminal Surveillance Wall Doesn’t Threaten Rights
It’s common for the government to change search purposes
Robert Power, Associate Dean for Faculty Research and Development and Professor of Law,
Widener University School of Law, Winter 2010, Pace Law Review, “Intelligence" Searches and
Purpose: A Significant Mismatch Between Constitutional Criminal Procedure and the Law of
Intelligence-Gathering,” p. 659
Fourth Amendment law already acknowledges that government officers will sometimes
change or add purposes in the course of their investigations. Much of the case law on special
needs searches is based upon this principle in action. While some cases consider the
constitutionality of a particular government program in the context of a Fourth Amendment
challenge to the program regardless of an attempt by criminal prosecutors to use evidence
obtained in the search, n187 most courts address the issue in the context of a motion to
suppress evidence obtained during a non-law enforcement special needs search. This was the
issue in T.L.O., itself, and at least two of the important Supreme Court decisions concerning
roadblocks. n188
This notion is also the underlying premise of the Plain View Doctrine, under which
government officers are permitted to seize evidence that they discover while otherwise acting
lawfully. n189 A typical plain view seizure occurs when agents executing a search warrant for
one offense discover evidence of a second offense. The central requirement is that the officer
is lawfully present where he or she locates the evidence that is [*660] seized. n190 Thus,
plain view seizures can occur when officers are performing non-law enforcement functions,
such as community-care policing. n191 There is no requirement that the discovery be
inadvertent or in any way accidental. Thus, it is entirely permissible for agents to hope and
expect to find specific evidence, and then to seize it under the Plain View Doctrine. n192
Viewing this doctrine through the national security purpose that underlies FISA, agents may
permissibly "seize" and use evidence of crimes discovered while acting in their foreign
intelligence capacity. Just as an officer who notices illegal drugs during a D.U.I. roadblock or
while conducting a traffic stop may seize those drugs and use them as evidence in a drug
prosecution, n193 so too may the intelligence officer take note of and use evidence of federal
crimes committed by targets of FISA authorized electronic surveillance.
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Detaining Terrorists as “Material Witnesses” Critical to the War on Terror
Detainment of terrorists as “material witnesses” is key to stop terrorism
Christian Science Monitor, 2002
["A legal tool emerges in terror war," June 19, http://www.csmonitor.com/2002/0619/p01s02usju.html]
The advantages in fighting terrorism are obvious, experts say. Rather than having to prove probable
cause of criminal involvement, all the government must show to authorize the open-ended detention
of any individual is that prosecutors believe the "witness" possesses critical information related to
the government's investigation and that he or she is unlikely to comply with a subpoena to testify.
Some legal experts say the witness law offers the government an effective means of disrupting
ongoing terror plots without having to exert the time and effort to develop solid evidence of illegal
conduct. There is no risk of disclosing intelligence sources and methods. And some experts say the
witness law can be used to pressure detainees into providing timely intelligence, regardless of
whether the resulting information results in a solid criminal case later. "We are using criminal laws
like the material-witness statute in a whole new context of terrorism prevention," says Paul
Rosenzweig, a former federal prosecutor and legal research fellow at the Heritage Foundation in
Washington. "Our criminal laws are not designed to fight a war on terrorism," he says. "The
government is using the tools that are presently on its books and available, and the fit isn't perfect."
But Mr. Rosenzweig says the administration's approach is appropriate given the exigencies of the
war on terror. "I'm not one to cheer about everything the government does, but those who think
things haven't changed since Sept. 11 are putting their head in the sand." Because material-witness
laws have rarely been the subject of major court challenges, there is no extensive body of case law
delineating abuses of the federal statute, experts say. For example, it remains unclear to what extent
material-witness detainees have a right to see documents related to their detention, have a right to
Miranda warnings, or even have a right to consult with counsel. "The whole concept of holding
people as material witnesses has a lot of potential for abuse," says Richard Samp of the Washington
Legal Foundation, a conservative legal-advocacy group. "But there has to be in this nationalsecurity area a certain play in the joint," he says. "When you have people who are intent on
destroying our society, there aren't many people who think the government should have no basis for
holding such people until [investigators] have gotten enough evidence to arrest them for a crime.
That would be suicidal."
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Searching Library Records Critical to Fight Terrorism
Searching library records provides essential clues to find terrorists
Marc Racicot, former Governor of Montana, 2005
["Patriot Act preserves liberties, prevents terrorism," Billings Gazette, 4/16,
http://www.billingsgazette.com/index.php?display=rednews/2005/04/16/build/opinion/42-guestop2.inc]
Some may question law enforcement's need to access suspects' library records when it has not
exercised that authority since the Patriot Act became law. But, library records have been vital in
regular, nonterror investigations for years. In 1997, a grand jury in Florida subpoenaed library
records from Miami Beach in the Gianni Versace murder case. A Manhattan grand jury subpoenaed
library records in the 1990 Zodiac gunman case, when investigators wanted to research whether the
murderer was inspired by a Scottish poet. And the Unabomber's Montana library records were used
in his trial in order to match quotations in his threatening letters to books he checked out. Libraries
and terrorists Beyond books, Montana's libraries provide Internet access, and terrorists may use
those public terminals to plot or coordinate their attacks. The resolution calls on libraries to "ensure
the regular destruction of records … [that contain] the name of any Internet user." If common
criminals are prohibited from perpetrating their crimes in libraries, it makes sense that we should
not permit library computers to be a terrorist loophole. Montanans have a long history of defending
civil liberties and respecting individual rights. A careful examination of what the Patriot Act does free from overheated rhetoric and misinformation - shows that it preserves civil liberties while
protecting the American people from the threat of terrorism.
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Surveillance Critical to Fight Terrorism
Strong police surveillance is necessary to prevent terrorism
David Perkins, professor of criminal justice, THE FUTURE OF TERRORISM, 1998, p. 174.
(DRGCL/T018)
By keeping their own activities from direct observation, terrorists and barricaded criminals can limit
the tactical options of responding law enforcement personnel. Only with the adaptations of various
technologies can the human sense be improved enough to allow law enforcement responders to
these situations to gather and analyze information, formulate a plan of action, and execute a plan
while minimizing the risks to all concerned.
Electronic surveillance is necessary to fight terrorism
Andrew C. McCarthy, a former federal prosecutor, NATIONAL REVIEW, November 13, 2003, p.
http://www.nationalreview.com/comment/mccarthy200311130835.asp, accessed 5/18/05.
(DRGCL/T020)
As is implicit in the wiretap developments described above, international terrorism cannot be
carried out without covert communications between international operatives spread far and wide.
Investigative infiltration of their communications networks — their e-mail and voice traffic — is
obviously vital. Yet pre-9/11 law was patently inadequate for the task. For example, while terrorists
who communicated by email over ever more archaic dial-up Internet connections ran some risk of
having their contacts monitored, the increasing legions of cable Internet users did not. That's
because the laws were written at a time when cable service was understood to be programming
(television shows, movies, etc.), not e-mail.
Terrorist threat justifies targeting places where potential terrorists hang out—even if it
includes churches
Amitai Etzioni, Professor of Communitarian Studies at George Washington University, How
Patriotic is the Patriot Act?, 2004, p. 29-30 (HARVCL0927)
Civil libertarians are up in arms because more than a generation ago the FBI infiltrated some civil rights and
fringe groups (such as the Ku Klux Klan and the Black Panthers). But today we have a very different FBI from the
one run by J. Edgar Hoover. In the reforms that followed in the mid-1970s, the FBI was prohibited from simply
attending a public event or going to a public space to observe the goings-on there, even if these events were open
to all comers, unless they were investigating a specific crime. As a result, we live in an absurd situation in which a
terrorist cell could meet in a place of worship without any concern that their plotting might be overheard by public
authorities. Or, if they called their cell a “political club,” they knew they could not be the subject of surveillance.
Far from a theoretical issue, several mosques have been a major ground for recruiting terrorists. For instance,
scores of people living in Britain were recruited in mosques in London to fight with the Taliban and some of the
September 11 hijackers were recruited in a mosque in Hamburg, according to German security sources. Since the
September 11 terrorist attacks, several mosques have been investigated for links to terrorists, including a 2002
federal grand jury investigation of two mosques in the St. Louis area. Not allowing terrorists a secure haven seems
reasonable.
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Strong Law Enforcement Critical to Fight Terrorism
Effective law enforcement vital component to the military effort to prevent terrorist attacks—
justifies modifying law enforcement tools
Paul Rosenzweig, Senior Legal Research Fellow, Heritage Foundation, 2004, Duquesne University
Law Review, 42 Duq. L. Rev. 663, p. 679-81 (HARVCL0569)
As should be clear from the outline of the scope of the problem, the suppression of terrorism will
not be accomplished by military means alone. Rather, effective law enforcement and/or intelligence
gathering activity are the key to avoiding new terrorist acts. Recent history supports this conclusion.
In fact, police have arrested more terrorists than military operations have captured or killed. Police
in more than 100 countries have arrested more than 3,000 al Qaeda linked suspects, while the
military has captured some 650 enemy combatants. Equally important, it is policing of a different
form - preventative rather than reactive, since there is less value in punishing terrorists after the fact
when, in some instances, they are willing to perish in the attack. The foregoing understanding of the
nature of the threat from terrorism helps to explain why the traditional law enforcement paradigm
needs to be modified (or, in some instances, discarded) in the context of terrorism investigations.
The traditional law enforcement model is highly protective of civil liberty in preference to physical
security. All lawyers have heard one or another form of the maxim that "it is better that 10 guilty go
free than that 1 innocent be mistakenly punished." This embodies a fundamentally moral judgment
that when it comes to enforcing criminal law, American society, in effect, prefers to have many
more Type II errors (false negatives) than it does Type I errors (false positives). That preference
arises from two interrelated grounds: one is the historical distrust of government that, as already
noted, animates many critics of the Patriot Act. But the other is, at least implicitly, a comparative
valuation of the social costs attending the two types of error. We value liberty sufficiently highly
that we see a great cost in any Type I error. And, though we realize that Type II errors free the
guilty to return to the general population, thereby imposing additional social costs on society, we
have a common sense understanding that those costs, while significant, are not so substantial that
they threaten large numbers of citizens or core structural aspects of the American polity.
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AT: Military Deterrence Solves
Terrorists can’t be deterred militarily
Graham Allison is the founding dean of Harvard's modern John F. Kennedy School of Government
and Director of the Belfer Center for Science and International Affairs. He was Assistant Secretary
of Defense in the first Clinton Administration, The American Prospect, March 2005, p. 48
(DRGCL/T026)
First, it has made an important conceptual advance in recognizing that the gravest danger lies in
what Vice President Dick Cheney termed the "nexus between terrorists and weapons of mass
destruction"-terrorists armed with nuclear weapons. It rightly rejected a status quo that let terrorists
and weapons-of-mass-destruction threats hide behind a shield of state sovereignty. It employed the
full spectrum of American military power to topple the Taliban in Afghanistan and deny terrorists
sanctuary anywhere in the world. And it has been prepared to revise traditional Cold War policies of
deterrence and containment in those cases where they are no longer sufficient. Deterrence, which
discouraged other states from launching a nuclear attack on the United States through the threat of
overwhelming retaliation, is less applicable to suicide bombers or terrorists with no return address.
Prevention only effective way to stop terrorism – deterrence strategies fail
Sherry Colb, Professor Rutgers Law School, October 10, 2001, “The new face of racial profiling:
how terrorism affects the debate,” http://writ.news.findlaw.com/colb/20011010.html
(HARVCL3316)
Unlike ordinary criminal activity, terrorism cannot be addressed primarily by "solving" acts of
terrorism after the fact. Punishing offenders, though desirable from a retributive perspective, will
not stop most future acts of terrorism. The prospect of a prison term or a lethal injection is unlikely
to deter any aspiring suicide bomber. As a result, discovering terrorist missions at the inchoate
stage, prior to harm, becomes a matter of great urgency. Among the many issues that may
accordingly emerge is whether police, in the fight against terrorism, will be allowed to engage in
racial profiling. The issue is hardly a new one, but a number of considerations may alter the terms
of the debate.
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AT: War on Terror Bad
1. No link- their evidence assumes the us’s military strategy in iraq- not domestic law
enforcement questions.
2. War on terrorism is inevitable for years
Paul Rosenzweig, Heritage Senior Legal Research Fellow, 2004
["The Ashcroft Legacy: Liberty and Security," Nov. 10,
http://www.heritage.org/Research/HomelandDefense/wm607.cfm]
And that, in the end, captures what is perhaps John Ashcroft’s greatest success. He has begun to put
in place processes and systems of law that will stand us in good stead for the future. After all, any
new system of laws and law enforcement procedures that we develop and implement must be
designed to be tolerable over the long term. The war against terrorism, like the Cold War, is one
with no immediately foreseeable end. Thus, excessive intrusions of civil rights cannot be justified as
merely emergency measures that will lapse upon the termination of hostilities. Instead,
policymakers must be restrained because Americans could have to live with the war on terror and
the policies with which we wage it for many years.
3. This strategy of strength is essential to stop terrorism- there's only a risk of solvency
Yonah Alexander, Inter-University for Terrorism Studies Director, 2003
[The Washington Times, "Terrorism myths and realities," 8/28, LN]
The second myth is that strong action against terrorist infrastructure [leaders, recruitment, funding,
propaganda, training, weapons, operational command and control] will only increase terrorism. The
argument here is that law-enforcement efforts and military retaliation inevitably will fuel more
brutal acts of violent revenge. Clearly, if this perception continues to prevail, particularly in
democratic societies, there is the danger it will paralyze governments and thereby encourage further
terrorist attacks. In sum, past experience provides useful lessons for a realistic future strategy. The
prudent application of force has been demonstrated to be an effective tool for short- and long-term
deterrence of terrorism. For example, Israel's targeted killing of Mohammed Sider, the Hebron
commander of the Islamic Jihad, defused a "ticking bomb." The assassination of Ismail Abu Shanab
- a top Hamas leader in the Gaza Strip who was directly responsible for several suicide bombings
including the latest bus attack in Jerusalem - disrupted potential terrorist operations. Similarly, the
U.S. military operation in Iraq eliminated Saddam Hussein's regime as a state sponsor of terror.
Thus, it behooves those countries victimized by terrorism to understand a cardinal message
communicated by Winston Churchill to the House of Commons on May 13, 1940: "Victory at all
costs, victory in spite of terror, victory however long and hard the road may be: For without victory,
there is no survival."
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AT: War on Terror Bad-2/2
4. Attempts to fight the ‘root causes’ of terrorism are futile
Yonah Alexander, Inter-University for Terrorism Studies Director, 2003
[The Washington Times, "Terrorism myths and realities," 8/28, LN]
The first illusion is that terrorism can be greatly reduced, if not eliminated completely, provided the
root causes of conflicts - political, social and economic - are addressed. The conventional illusion is
that terrorism must be justified by oppressed people seeking to achieve their goals and consequently
the argument advanced by "freedom fighters" anywhere, "give me liberty and I will give you
death," should be tolerated if not glorified. This traditional rationalization of "sacred" violence
often conceals that the real purpose of terrorist groups is to gain political power through the barrel
of the gun, in violation of fundamental human rights of the noncombatant segment of societies. For
instance, Palestinians religious movements [e.g., Hamas, Islamic Jihad] and secular entities [such as
Fatah's Tanzim and Aqsa Martyr Brigades]] wish not only to resolve national grievances [such as
Jewish settlements, right of return, Jerusalem] but primarily to destroy the Jewish state.
Similarly, Osama bin Laden's international network not only opposes the presence of American
military in the Arabian Peninsula and Iraq, but its stated objective is to "unite all Muslims and
establish a government that follows the rule of the Caliphs."
5. Turn: if there is a military terrorist attack in the US, militarization of the war on terrorism
is more likely. The con is arguing for prevention in the war on terrorism through aggressive law
enforcement rather than militarization.
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Airport Searches Generally Justified
Airport searches protect the lives of millions of flyers
Behany Gulley, JD Candidate, University of Arkansas at Little Rock Law Review, Spring, 2009,
NOTE: CRIMINAL LAW - NO RIGHT TO REVOKE AND AVOID SEARCH - NINTH CIRCUIT
RULES THAT CONSENT TO AIRPORT SCREENING CANNOT BE REVOKED IN AN
ADMINISTRATIVE SEARCH. UNITED STATES V. AUKAI, 497 F.3D 955 (9TH CIR. 2007), p. 539
The administrative search theory lays out the correct rationale for why airport searches fit
within an exception to the Fourth Amendment warrant requirement. Airport searches are
conducted in a heavily regulated area for the governmental purpose of protecting the lives of
millions of people.This rationale captures the essence of why airport searches are conducted.
Thus, the balance of the intrusion of the search against deterring terrorist activity, weighs in
favor of allowing the search. In addition, the search fits into this theory because if a warrant
were required, the effectiveness of the search would be lost.
Another attack like 9-11 would paralyze the economy, security is critical
Moira Bergin, Catholic University Law Review, Fall, 2009, COMMENT: PACKING HEAT?
DEFINING THE SCOPE OF THE TRANSPORTATION SECURITY ADMINISTRATION'S
AUTHORITY TO PROTECT AMERICA'S AIRPORTS, p. 229
The American aviation industry faces historic threats of attack and disruption by terrorists and
other criminals. Another attack like the one carried out on September 11, 2001, would
paralyze the national economy and result in another devastating death toll. To thwart future
attacks against air travel--a top terrorist target--Congress created TSA to serve as the central
command for aviation security. In doing so, Congress purposefully equipped TSA with broad
authority to regulate all activities and components of air travel necessary to prevent another
terrorist attack.
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Airport Searches Generally Justified
Government has a substantial interest in airport security
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,” p. 3523
In the case of the mandatory or otherwise coerced use of a full-body scanner at an airport
checkpoint, the state's interest is the safety of airport patrons and staff, airplane
passengers and staff, and those who may be harmed by malicious and harmful attacks
using airplanes. The potential harm is great because airports are busy, crowded ports,
and airplanes have large ranges of reach.
The government's interest in protecting against harm increased in the wake of
September 11, 2011, after airplanes were used to facilitate several terrorist attacks. The
government, including the new Department of Homeland Security (DHS), used a multifaceted
approach to beef up security measures. With the security failures of Flight 253, the
government began to use full-body scanners to prevent a recurrence. The DHS implemented
procedures such as the color-coded Homeland Security Advisory System and expanded
the Federal Air Marshal Service n139 in airplanes and airports across the United States.
n140 This multifaceted approach reveals the difficulty of ensuring that the state's interests are
met by using just one of these methods.
Airport screenings are legitimate administrative searches
Behany Gulley, JD Candidate, University of Arkansas at Little Rock Law Review, Spring, 2009,
NOTE: CRIMINAL LAW - NO RIGHT TO REVOKE AND AVOID SEARCH - NINTH CIRCUIT
RULES THAT CONSENT TO AIRPORT SCREENING CANNOT BE REVOKED IN AN
ADMINISTRATIVE SEARCH. UNITED STATES V. AUKAI, 497 F.3D 955 (9TH CIR. 2007), p.
524-5
Another recognized exception to the Fourth Amendment warrant requirement is the
administrative search. The essence of an administrative search is that the search must
be conducted as part of the general regulatory scheme to further an administrative
purpose. The Supreme Court of the United States established the constitutionality of
administrative searches in 1967 in Camara v. Municipal Court of City and County of San
Franciscoand See v. City of Seattle. In Camara, the Court balanced the need to search against
the intrusiveness of the search. The administrative search shifted the focus of the probable
cause standard from an individualized suspicion to reasonableness in the form of a balancing
test. Thus, probable cause was replaced by the reasonableness standard.
Furthermore, the administrative search does not usually require a warrant or probable
cause. When there is a compelling governmental interest, the warrant requirement may
be deemed unnecessary if the intrusion is characterized as a reasonable administrative
search. If a warrant were required, the deterrent element would be lost because the
inspections need to be unannounced and frequent in order to be effective against
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terroristic acts. Because the purpose of the search is to find terroristic activities, not
criminal evidence, the nature of the investigation will be less intrusive, making the
search more likely to pass the reasonableness standard under the
ConstitutionFurthermore, a person who engages in activity that is part of a "pervasively
regulated business" is assumed to be subject to an inspection.
United States v. Davis was the first to apply administrative search analysis to airport
security screenings. The Ninth Circuit reasoned that all the elements of an airport
screening fit the description of an administrative search. As the Davis court noted,
airport security screenings are part of a general regulatory scheme to further the
administrative purpose of preventing people from carrying weapons or explosives onto
aircrafts. Such screenings are not conducted to find evidence of a person carrying
weapons onto an aircraft, but are meant to deter passengers from attempting to do so.
Airport screenings also fit within the administrative search definition because the
requirement of a warrant or individualized suspicion would simply "frustrate the
purpose of the search."
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Airport Searches Generally Justified
Passengers are well-informed that they will be screened
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 310-11
Airport screening is not a new occurrence in American airports. Indeed, airport screening has
been commonplace both in the United States as well as throughout the world for nearly three
decades. Airline passengers are warned many times, from the purchasing of a ticket to
arriving at the airport, that screening of their persons and carry-on baggage will occur.
Anyone who enters the concourse of an airport is virtually charged with the knowledge that
screening is required. Such as with flying, persons who partake in activities in which there is
an overwhelming public interest implicitly grant consent to those conducting searches to serve
the public interest. Anyone who refuses to submit to the search will not be permitted to pass
into the sterile area of the airport. In fact, some courts have held that once the screening
process has begun at the security checkpoint, the passenger no longer has a constitutional
right to revoke the consent. The passenger cannot attempt to enter the sterile area and then
"beat a retreat if the search proves not to his liking."
Hijackers must be intercepted far before they act
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 312
With airplane hijackings reaching their pinnacle in the 1970's, American courts starting
taking these ever-present terroristic threats very seriously. Balancing the governmental
interest against personal privacy, the Fifth Circuit ruled that using a profile to discover
hijackers before they took the opportunity to complete their purpose was not only
constitutional but was also necessary: Although the problem of aerial hijacking is well known
to the public, we think it appropriate, nevertheless, to single out our reasons for treating
airport security searches as an exceptional and exigent situation under the Fourth
Amendment. Obviously, in order to jeopardize the lives and safety of the smallest number of
people, the hijacker must be discovered when he is least dangerous to others and when he
least expects confrontation with the police. In practical terms, this means while he is still on
the ground and before he has taken any overt action.
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Airport Searches Generally Justified
Screening searches are administrative searches
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?,
N21 Administrative search warrants "may be issued solely on a showing that "reasonable
legislative or administrative standards for conducting an...inspection are satisfied with respect
to the particular' place to be searched - there need be no probable cause that a violation is
occurring in a particular place." 2-34 John Wesley Hall, Search and Seizure ß 34.1 (Matthew
Bender, 2009). An administrative search when applied to airport security mutates from its
original definition of a search necessitated to "passively advance the public health and
welfare" to a search necessitated by the overwhelming governmental interest in preventing
passengers from carrying weapons or explosives on board an airplane. 2-32 Hall, supra, at ß
32.11. This governmental interest strives to ensure the safety of other passengers as well as
prevent the destruction of the airplane and the potential devastation such destruction can
cause. Since airport screening has now been taken over by the TSA, "flying on a commercial
airline is a "highly regulated industry.' Thus, screening searches are now administrative
searches, and implied consent is no longer a valid consideration. 2-38 Hall, supra, at ß 38.28.
Peter Siggins, Racial Profiling in an Age of Terrorism, March 12, 2002
(http://www.scu.edu/ethics/publications/ethicalperspectives/profiling.html).
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Heavy Airport Security Generally Effective
Enhanced security measures could have prevented 9-11
P. Paul Fitzgerald, LL.B., B.C.L., M.B.A., has lectured on the regulation of air transport by
governments at McGill's Institute of Air and Space Law and at Chicago's DePaul University.
Journal of Air Law and Commerce, Spring, 2010, AIR MARSHALS: THE NEED FOR LEGAL
CERTAINTY, p. 380
If every U.S. airport had maintained the same security standard as New York's JFK
international terminal, the events of September 11th might have been avoided. Between 8:30
a.m. and 9:15 a.m. on September 11, 2001, two 777s, one 767, and one 747-400 departed JFK
for London, Tokyo, or Hong Kong. Even though these aircraft were bigger than the planes
used in the attack, they were not chosen; security at JFK was much tighter than at airports
such as Boston's (BOS).
Checkpoint screening critical to provide airport security
Tobias Mock, Technical Editor, Santa Clara Law Review, 2009, ,49 Santa Clara L. Rev. 213,
COMMENT: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT
IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT SECURITY
CHECKPOINTS, p. 215-6
Since its creation in November 2001, n20 the TSA has assumed control of security in at least
315 of the nation's more than 420 commercial airports, hired and trained a screening
workforce, and deployed thousands of explosive detection systems and x-ray devices to
remedy perceived security weaknesses at airport checkpoints. Following the direction of the
9/11 Commission, the TSA seeks to carry out a "layered" security system with a "broad range
of interlinked measures that are flexible, mobile, and unpredictable." Although airport
security under the TSA is multifaceted, n25 checkpoint screening is the primary method of
identifying potential threats.
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Airport Privacy Expectations Low
Expectation of privacy at an airport is very low
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE
SPOT PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH
AMENDMENT?, p. 307
On a street, people reasonably believe they will be free from police interrogation. In other
words, a person has a reasonable "expectation of privacy" in just walking down the street.
However, a person's expectation of privacy is substantially diminished in an airport terminal.
After 9/11, the increase of airport security was widely publicized and indeed welcomed by
the flying population. Passengers' pleas of ignorance that they did not know they would be
stopped or screened before boarding a plane is no longer legitimate.
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Racial Profiling Reasonable/Effective
Racial profiling is effective, political correctness should be abandoned
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 334-5
While many civil rights groups have called for an end to the profiling, Israel maintains that
"profiling...is essential to focus on a very small percentage of passengers with terrorist intent."
"No sensible person imagines that ethnic or religious profiling alone can stop every terrorist
plot. But it is illogical and potentially suicidal not to take account of the fact that so far every
suicide-terrorist plotting to take down an American plane has been a radical Muslim man."
Ariel Merari, an Israeli terrorism expert, calls such political correctness foolish: "it's
foolishness not to use profiles when you know that most terrorists come from certain ethnic
groups and certain age groups. A bomber on a plane is likely to be Muslim and young. We're
talking about preventing a lot of casualties, and that justifies inconveniencing a certain ethnic
group." As stated by Rafi Sela, a security consultant with Ben-Gurion International Airport,
"yes, the Arabs are going through a much tighter investigation-interrogation because of threat
they pose than an Israeli who served in the army who is going on vacation. How many blond,
blue-eyed ladies have brought down planes in the last 20 years? They were all fanatic
Muslims. So, if you are a Muslim, we have to find out if you are a fanatic or not." Ideally,
airport security agents should have all options open to them in order to make the best
decision possible under the circumstances. As long as the agents can identify other factors
which appear suspicious, race as a factor must be allowed: "most Muslims are not violent
jihadis, but all violent jihadis are Muslim. How much longer will we tolerate an aviation
security system that pretends, for reasons of political correctness, not to know that?" Even
Khalid Mahmood, a British Member of Parliament and a Muslim, believes racial profiling is
necessary in today's society: "I think most people would rather be profiled than blown up. It
wouldn't be victimisation [sic] of an entire community. I think people will understand that it's
only through something like profiling that there will be some kind of safety."
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Racial Profiling Reasonable/Effective
Today’s enemy is Islamic terrorism
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 333-4
While superseded by statute, the ruling in Korematsu still stands, not for the proposition that
the Japanese (or any ethnic group) should be constrained to internment camps or subject to
curfew, but for the ideal that any classification based on race must withstand rigorous judicial
analysis weighing the burden on the racial group compared to the governmental interest
driving the classification. Are Arab-Americans and Muslims really being "raced as terrorists:
foreign, disloyal, and imminently threatening?" Interestingly, a cover on The New Yorker
published in 1993 showed several "American" children building a replica of New York City
on the beach with an "Arab" dressed child trying to destroy the World Trade Center. Today,
as harsh as it may sound, the cover seems to be an ominous warning of the anti-American
sentiment growing among the most radical members of Islam. As recognized in the 9/11
Report, the enemy today is not some "generic evil." The enemy threat is Isalmist terrorism,
"especially the al Qaeda network."
The TSA acknowledges that SPOT is based largely on the successes of a similar program
utilized by the Israeli's at their Ben-Gurion International Airport in Tel Aviv. Israeli airport
security also monitors suspicious behavior, often engaging passengers in lengthy
conversations before they even enter the terminal. In fact, passengers must receive a pass
from these profilers before they are allowed to check in for their flight. But unlike Israel, the
United States bans ethnic, racial, or religious profiling.
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Racial Profiling Reasonable/Effective
People profile every day
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 338-9
If we were truthful with ourselves, we must all admit that we "profile" to some extent.
Whether we inadvertently cross the street to avoid "a certain type of person" or drive ten
minutes out of our way to avoid "that part of town," we all make decisions in our daily lives
on who to socialize with and who to avoid. n the scientific evidence, the primary function of
stereotypes is what researchers call "the reality function." That is, stereotypes are useful tools
for dealing with the world. Confronted with a snake or a fawn, our immediate behavior is
determined by generalized beliefs-stereotypes-about snakes and fawns. Stereotypes are, in
fact, merely one aspect of the mind's ability to make generalizations, without which science
and mathematics, not to mention, as the snake/fawn example shows, much of everyday life,
would be impossible. Arguably airport security has moved past mere stereotypes and into
verifiable fact. Treating passengers who are Middle Eastern in appearance differently is using
a constitutionally sound, objective factor backed by irrefutable evidence. Ultimately, "the
mission of responsible law enforcement officials in combating domestic terrorism is to take
what they know to be true about the ethnic identity of the September 11th assailants, and
combine it with other factors developed through investigation and analysis to focus
investigative efforts and avoid casting a net too wide." Profiling does have the ability deter
would-be terrorists. According to an interview given on May 10, 2003 by Khalid Sheikh
Mohammed, the alleged architect of the 9/11 attacks, the "review of Muslims' immigration
file ... forced al-Qaeda to operate less freely in the United States." However, race can never
be the only factor when making the crucial decision to search and seize. Stopping every
Middle Eastern passenger without additional factors would not only over-extend scarce
security resources, but would also fail constitutional standards. Using race, however, as one
factor when determining whether to stop an individual exhibiting other suspicious behaviors
is not only legitimate law enforcement, but constitutionally responsible. As the 9/11
Commission stated, "The choice between security and liberty is a false choice, as nothing is
more likely to endanger America's liberties than the success of a terrorist attack at home."
n363
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Racial Profiling Reasonable/Effective
Ethnicity is a real risk factor
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 323
However, many times, measurable factors fail in comparison to the valued judgment of a
well-trained and seasoned security agent. In discussing the terrorists' attacks of 9/11, the 9/11
Commission praised the inherent instincts of just such an agent: "one potential hijacker was
turned back by an immigration inspector as he tried to enter the United States. The inspector
relied on intuitive experience to ask questions more than he relied on any objective factor that
could be detected or "scored" by a machine." The 9/11 Report calls this "screening," not
"profiling." Yet, it defines screening as looking for "identifiable suspects or indicators of
risk." Arguably, looking for "indicators of risk" is profiling. Unfortunately, an indicator of
risk in today's world of terrorism possibly includes ethnic origin. At the airports, the SPOT
program mandates watching for what could easily be called "indicators of risk." In Terry, the
police officer articulated the risk factors he observed when making the decision to stop and
ultimately frisk Terry and his companions. What may be an uncomfortable truth is that now,
ethnicity might just be as viable a risk factor as staring in a store window one too many times.
People are singled-out based on nationality
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 323-4
After the attempted bombing on Christmas Day, 2009 aboard Flight 253, the TSA quickly
implemented new rules on domestic passenger screening while also issuing what could be
called blatant ethnic profiling mandates when it decreed that all inbound passengers from
fourteen suspect countries must be subjected to more intense screening than passengers from
other countries. Notably, nearly every country located in the Middle East is on the list as well
as certain African countries believed to have citizens with ties to terrorist organizations. These
enhanced screenings include full-body pat downs, carry-on baggage searches, full-body
scanning, and explosives detection. However, according to the TSA, these new rules are not
profiling. As is apparently taught during TSA training, "singling out people based on ethnicity
or religion is verboten-but it's OK if it's based on a person's nationality."
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Racial Profiling Prevents Terrorism
Racial profiling necessary to stop terrorism
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 336
Prior to 9/11, the major threat to aviation security appeared to be the placing of bombs on
planes, not the planes becoming bombs. As late as 1999, the FAA Civil Aviation Security
Intelligence Office assessed a suicide hijacking as "an option of last resort." After 9/11,
however, what was once thought inconceivable became all too real. After 9/11, racial
profiling became not merely a "good idea," but an argued requirement for national security:
More than 6,000 people are dead, some would argue, because of insufficient attention to racial
or ethnic profiles at our airports... . Let's be blunt: How can law enforcement not consider
ethnicity in investigating these crimes when that identifier is an essential characteristic of the
hijackers and their supposed confederates and sponsors, and when law enforcement's
ignorance of the community heightens the importance of such broadly shared characteristics?
Law enforcement tactics must be calibrated to address the magnitude of the threat society
faces.
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Racial Profiling Prevents Terrorism
History vindicates the use of racial profiling to find terrorists
Jason L. Riley, Wall Street Journal Senior Editorial Writer, 2001
[“’Racial Profiling’ and Terrorism,” Oct. 24,
http://www.facstaff.bucknell.edu/pagana/mg312/racialprofiling.html]
Of the 19 hijackers responsible for last month's calamity, all were Arabic, all were practitioners of
Islam and all came from known state incubators of terrorism in the Middle East. Of the 22 suspects
on the FBI's "most wanted" list of international terrorists, all are Arabic, all are practitioners of
Islam and all come from known state incubators of terrorism in the Middle East. Not "some" of
them, or a "disproportionate number" of them. All of them. Those numbers dictate that any sensible
domestic effort to expose terrorist cells would include concentrating on particular groups in
particular communities associated with a particular culture. To ignore the fact that America's
enemies in this war share a faith and ethnicity -- and that their actions, by their own reckoning, are
ethnically and religiously inspired -- would be self-deluding and foolish. The public is already
responding to Attorney General John Ashcroft's call for "each American to help us defend our
nation in this war." People have flooded law enforcement with information about suspicious
activities and individuals, and law enforcement has responded accordingly -- some 1,000 people
have been detained and more than 4,000 subpoenas issued. If there exists any hesitancy or guilt
about the appropriateness of this patriotic endeavor, it derives from that unfortunate label it goes by:
racial profiling. Many topics of our national conversation prior to Sept. 11 -- stem-cell research,
slavery reparations, wayward California congressmen -- have been moved to the backburner. Talk
of "racial profiling," by contrast, has not only survived the terrorist attacks but intensified as a result
of them. Before last month's events, those Americans who favored profiling were few in number,
and those willing to say so aloud were fewer still. President Bush and Mr. Ashcroft had gone on
record condemning racially motivated police stops, which surprised no one. To the public and the
media, racial profiling was a major no-no; it evoked images of state troopers targeting black
highway motorists for traffic violations in order to search for drugs. Not much effort has gone into
distinguishing between our pre-September understanding of this controversial police procedure and
our current effort to pre-empt future terror strikes on the basis of all we know about the perpetrators.
Instead we get polls purporting to show a shift in public attitudes about profiling, even among
groups who ostensibly stand to lose the most in such a shift.
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Racial Profiling Prevents Terrorism
Racial profiling is a useful tool against terrorists
Roger Clegg, Center for Equal Opportunity General Counsel, 2001
[National Review Online, “Profiling Terrorists: A Dose of Realism,” Sept. 18,
http://www.nationalreview.com/contributors/clegg091801.shtml]
A few news stories over the last week have reported on the fear of some people that the government
will use "racial profiling" in trying to identify terrorists. To which there are two responses. First, it
is not at all clear that what will be used really is racial profiling. And, second, so what? If you are
mugged by a six-foot-two-inch, black male wearing a red sweatshirt, it is not "racial profiling" for
the police to be on the lookout for people who meet that description, even though one element in it
is racial. The classic case of racial profiling is, instead, when the police decide to stop cars being
driven by young black males, not because they have the description of a specific suspect, but
because they know that statistically drugs are more likely to be smuggled by young black males
than, say, old Asian females. But there are other circumstances that fall in between these two
extremes. Suppose, for instance, that you are looking for members of a particular drug cartel, who
are engaged in particular acts of smuggling, and you know that they will all be Colombian
nationals, but you don't have specific names or descriptions that go beyond that. Is it "racial
profiling" to look harder at dark-eyed, dark-haired, darker-skin whites, and give shorter shrift to
Asians, blacks, and folks with blond or red hair? Enough hypotheticals. Suppose that you have
already identified several members of a terrorist ring and want to find the rest. The ones you have
identified so far meet a particular profile: Middle Eastern descent. Moslem. Several are trained
pilots. Male. Young or middle-aged. Booked on transcontinental flights. Any problem with
assuming that there is a good chance that the remaining members of the ring are likely to meet this
profile, too?
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Racial Profiling Prevents Terrorism
Terrorists likely to come from the Middle East
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 332
Courts continue to struggle with the concept of racial profiling at airports since 9/11. The law
clearly states the race cannot be the only factor when detaining someone at an airport, even if
the conversation is consensual and any "other reasons" articulated by the officers that may
justify the stop must be more than "an "inchoate and unparticularized suspicion or hunch.'"
"Although the Fourth Amendment does not single out race as a matter of special concern, it
does impose a general requirement that any factor considered in a decision to detain must
contribute to "a particularized and objective basis for suspecting the particular person stopped
of criminal activity.'" For example, race may be used as an "identifying factor" in the
description of a suspect. If the ethnicity of a perpetrator is known, such as from the statement
of a victim or witness, the ethnicity limits the investigation and police may consider this
factor when questioning suspects.With today's ever-increasing terroristic threat, diligent
governments cannot turn a blind eye to the known seed of most of the world's terror cells: the
radical Islamic group al-Qaeda based primarily in the Middle East. Indeed, with Osama bin
Laden continuing to issue terror threats against the United States and its allies, ignoring such
an obvious fact would be not only irresponsible, but should another attack such as 9/11 occur,
nearly unforgiveable.
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AT: Justifies Korematsu
Korematsu was reasonable in the time it was issued
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE
SPOT PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH
AMENDMENT?, p. 333
To cast this case into outlines of racial prejudice, without reference to the real military
dangers which were presented, merely confuses the issue. Korematsu was not excluded from
the Military Area because of hostility to him or his race. He was excluded because we are at
war with the Japanese Empire, because the properly constituted military authorities feared an
invasion of our West Coast and felt constrained to take proper security measures, because
they decided that the military urgency of the situation demanded that all citizens of Japanese
ancestry be segregated from the West Coast temporarily, and finally, because Congress,
reposing its confidence in this time of war in our military leaders-as inevitably it mustdetermined that they should have the power to do just this. There was evidence of disloyalty
on the part of some, the military authorities considered that the need for action was great, and
time was short. We cannot-by availing ourselves of the calm perspective of hindsight-now say
that at that time these actions were unjustified.
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SPOT/Behavioral Profiling Boosts Security
Behavioral profiling increases security in six ways
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident Fellow
of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law Review,
Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident Fellow of the
Georgetown Center on National Security and the Law, and a Principal in the Truman National Security Project, Winter,
2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE BEHAVIORAL PROFILING
PARADIGM, p. 435-40
There are a variety of reasons that security advocates have enthusiastically embraced
behavioral profiling programs. We see six possible benefits to this type of security.
First, and most fundamentally, behavioral profiling provides an additional layer of
security and another opportunity for homeland security officials to identify potential
threats. That is to say, the appropriate question is not whether behavioral profiling is superior
to other layers of security- such as hardened cockpit doors, baggage screening, and metal
detectors--but rather, whether it enhances security when used in addition to those programs.
Second, a core lesson of 9/11 is that it is people, not particular tools, weapons, or objects
that pose the greatest threat. The simple box-cutters used as weapons by the 9/11 hijackers
are no longer allowed through security, but surely cunning terrorists can devise suitable
alternatives if they wish to perpetrate violence on an airplane. Whether through plastic
knives, liquid explosives, or blunt objects, it seems unlikely that screening objects alone
can eliminate the risk of terrorism. As a TSA spokesman put it, "somewhere out there the
needle in the haystack is a bad guy. If our behavior detection officer's sic give us better odds
of finding that needle, we're going to use every tool we can while protecting the rights and
privacy of passengers." Behavioral profiling is not the only aviation security tactic that
focuses on people--watchlists serve the same function. But again, behavioral profiling can be
used in addition to watchlists, and, given the numerous problems with watchlists, behavioral
profiling may well be more effective. At a minimum, behavioral profiling focuses on the
actual individual in question, not just a name. Third, compared to subjecting all
passengers to high scrutiny (as the Israeli model does), targeted behavioral profiling
along the lines of SPOT is a more efficient use of resources. SPOT allows TSA officials to
focus only on particular individuals for more intensive questioning, maximizing the
effectiveness of available resources. Fourth, and similarly, behavioral profiling is far less
burdensome and invasive for individuals than would be a questioning of every single
traveler, as in the Israeli model. If the United States were to adopt that approach, passengers
would face lengthy delays and be forced to reveal extensive information about themselves.
From the standpoint of passenger convenience and air travel expediency, the SPOT program
seems to benefit from two important attributes. Because SPOT is based on visually observable
behavioral cues, the program is executed through non-intrusive means and effective
implementation does not require conducting physical searches. And unlike mandatory
baggage screening procedures which apply to all passengers and create delays, long lines, and
increased hassle, enforcing SPOT does not necessitate stopping every passenger who walks
through the airport. For an air travel population that already registers a strong distaste for TSA
and the burdens of aviation security, the less intrusive the passenger impact, the more likely
the public will tolerate a security measure. Moreover, in passing a law to implement the
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recommendations of the 9/11 Commission, Congress included a provision directing TSA to
reduce the average security-related delays in airports to less than ten minutes--which
certainly could not be achieved were every passenger interviewed. Fifth, behavioral
profiling need not involve any explicit racial or ethnic profiling. This has several advantages.
It has a security value, in that it does not permit an individual to evade detection merely
because he or she does not have a racial or ethnic appearance that seems to signal a terrorist.
Law enforcement experts generally contend that observing an individual's behavior is far
more valuable than profiling based on race or ethnicity alone. Further, this type of profiling is
likely to improve public support for and confidence in the program, by lending it additional
legitimacy.
Sixth, anecdotal evidence suggests behavioral profiling can yield results. In a recently
publicized incident, a BDO identified five men in a security screening line at Washington
D.C.'s Dulles International Airport whose behavior seemed suspicious. TSA immediately
notified the Metropolitan Washington Airports Authority Police Department.
Subsequent questioning revealed that all five passengers had entered the U.S. illegally
and possessed likely-fraudulent identification. Some of the publicly available results of
SPOT also include: identification of a passenger carrying surveillance photos of highrisk buildings and bridges; interception of a man wearing several layers of clothing with
wires extending from his sleeves to a black box he was carrying; and the detection of
several passengers who were sitting separately but making clandestine signs to one
another, while pretending not to know each other, and who later admitted to being paid
$ 5,000 to travel between airports and observe security. And recently, a Jamaica-bound
passenger aroused the suspicion of BDOs, who, working in conjunction with the
Orlando Police Department, the Orange County Bomb Squad, and the Federal Bureau
of Investigation, uncovered everything needed to make a bomb in the passenger's
checked bag.
In sum, behavioral profiling has the potential to provide more effective security, at a
lower cost, with less disruption of innocent people, than other counter-terrorism
screening techniques. As new research into human behavior develops alongside emerging
technologies, security officials will have the power and ability to profile more people in more
places in more different ways. The behavioral profiling paradigm offers the promise of better
security alongside more liberty and less hassle for travelers.
But is this legal? And who keeps watch on the behavioral profilers? It is to those questions
that we turn in the following Parts.
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STOP Searches Don’t Threaten Rights
STOP searches are just administrative and stop-n-frisk searches
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 308
Part Terry, part administrative search, airport searches appear to be a type of search unique
unto themselves. Airport security searches are arguably a "hybrid of stop and frisk and
administrative searches. They are administrative searches when they are passively initiated
and stop and frisk when suspicion is created and they are actively concluded by governmental
action." The initial contact between passenger and airport security could be classified as an
administrative search because "the prospective airline passenger merely walks through a
magnetometer and sends his or her carry-on baggage through an x-ray machine." No Terry
stop has occurred-no passenger has been specifically targeted for questioning and the airport
screening procedures are far less invasive that a traditional stop; while the searches may be
somewhat "inconvenient," they "are experienced by the entire airplane-riding public."
When a passenger is singled out for additional questioning due to his behavior, the screening
process arguably becomes a Terry stop. The airport detention now very much mirrors a street
detention as described in Terry. At this point, the BDOs must have reasonable suspicion to
stop the passenger.
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AT: People Don’t Consent to Searches
Passengers provide implied consent
Behany Gulley, JD Candidate, University of Arkansas at Little Rock Law Review, Spring, 2009,
NOTE: CRIMINAL LAW - NO RIGHT TO REVOKE AND AVOID SEARCH - NINTH CIRCUIT
RULES THAT CONSENT TO AIRPORT SCREENING CANNOT BE REVOKED IN AN
ADMINISTRATIVE SEARCH. UNITED STATES V. AUKAI, 497 F.3D 955 (9TH CIR. 2007), p.
522-3
Courts have held that officials can search without a warrant by obtaining the
individual's consent. People can waive their Fourth Amendment rights by consent if the
"consent is freely and voluntarily given, and not the result of coercion or duress, actual or
implied." The Schneckloth v. Bustamonte court held that to determine if consent is freely and
voluntarily given, the totality of the situation must be considered. To determine whether the
consent was voluntary there must be a legitimate need for the search, as well as an absence of
coercion. nAcquiescence alone is not enough to establish consent. Nevertheless, courts
understand that the public is cognizant of the security measures at airports; thus
making the decision to buy a ticket at the counter shows a willingness to be subjected to
a reasonable search. The vague nature of consent in these cases has led courts to the
doctrine of implied consent.
2.Implied Consent
Searches have also been upheld on the rationale of implied consent. The first case to
discuss implied consent for airport screenings was United States v. Davis. The Davis court
held that passengers could choose to submit to the search, which meant they would give up
their Fourth Amendment right or elect not to fly. The consent occurred when the passenger
chose to proceed to the boarding gate. At this point, passengers know or should know that
they will be subject to a search.
United States v. Miner considered the implied consent theory more directly by
applying Davis. Miner held that when the passengers approached the counter with the
intent to board the aircraft, they impliedly consented to a search. These courts, however,
did not address at what point in the airport screening process the passengers could no longer
avoid the search by opting to not fly.
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AT: Consent to Search Should Be Required
If consent was required for airport searches, terrorists could just leave when searched
Behany Gulley, JD Candidate, University of Arkansas at Little Rock Law Review, Spring, 2009,
NOTE: CRIMINAL LAW - NO RIGHT TO REVOKE AND AVOID SEARCH - NINTH CIRCUIT
RULES THAT CONSENT TO AIRPORT SCREENING CANNOT BE REVOKED IN AN
ADMINISTRATIVE SEARCH. UNITED STATES V. AUKAI, 497 F.3D 955 (9TH CIR. 2007), p. 535
The court next stated its belief that its case law had incorrectly suggested that consent was
required for a reasonable airport security search through "either ongoing consent or
irrevocable implied consent." The court concluded that an airport screening search is not
dependent on consent to be constitutional because such a search is reasonable. The court
explained the consequences of requiring consent in this context. The court emphasized
terrorism in the "post-9/11 world," and reasoned that if consent were not required, it would
make it much easier for a terrorist to plan and carry out attacks. The court reasoned that if
terrorists were allowed to elect to leave when subject to search, they could make repeated
attempts to get on a plane until they were successful. The terrorists could use the knowledge
of weaknesses in certain airports to plan an attack.
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AT: Rights Abuses
Office of Civil Rights and Liberties prevents abuses
Yevgenia Kleiner, law review articles editor, Boston College Third World Law Journal, Winter,
2010, NOTE: RACIAL PROFILING IN THE NAME OF NATIONAL SECURITY:
PROTECTING MINORITY TRAVELERS' CIVIL LIBERTIES IN THE AGE OF TERRORISM,
p. 123-4
No doubt in part to assuage fears that such "flexible, mobile and unpredictable" measures risk
jeopardizing travelers' civil liberties, the TSA formed an Office of Civil Rights and Liberties
and charged the External Compliance Division ("the Division") with ensuring that "the civil
rights and liberties of the traveling public are respected throughout screening processes,
without compromising security." Among its several responsibilities, the Division provides
"civil rights guidance and services to TSA program offices, including security offices,
technology offices, and communications offices." The Division is also responsible for
reviewing TSA policies and procedures "to ensure that the civil rights and liberties of the
traveling public are taken into account." Additionally, the TSA issued a civil rights policy
statement asserting the organization's vision of excellence in transportation security. In the
civil rights policy statement, the TSA pledges that "[w]ith this vision, comes a commitment
that all TSA employees and the public we serve are to be treated in a fair, lawful, and
nondiscriminatory manner." Besides the confines of the laws of the United States and the
TSA's own Civil Rights Policy Statement, the TSA is obligated to comply with unique rules
applicable to particular modes of transportation -- specifically, civil aviation security rules,
maritime and land transportation security rules, and rules that apply to many other modes of
transportation. The airport security rules require that airport operators adopt and carry out
TSA-approved security programs. The rules delineate the requirements for such programs
and discuss expectations for established secured areas, air operations areas, security
identification display areas, security directives issued to airports, and access control systems.
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Full Body Scanners Don’t Violate Liberty Interests
Full body scans are not mandatory
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,” p. 346
Full-body scanners have been deployed in over seventy airports across the United States. n61
The use of these scanners is currently optional for all passengers, with the alternative being a
pat-down search.
Many privacy protections for full body scans
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,” p. 346
According to the TSA, the images created by these scanners are viewed by a remote TSA
agent that cannot see the person being scanned. n65 Additionally, the agent taking the
passenger through the scanning process does not see the image. n66 The TSA states that the
millimeter wave scanner blurs the face of the person and that the backscatter image has a
blurring algorithm implemented. n67 All of these features exist to protect the privacy of the
person.
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Passengers Aren’t Removed Based on Race
Airlines can’t remove a passenger based on race
Benjamin Williams, JD Candidate, Journal of Air Law and Commerce, Winter, 2009, CASE
NOTE: ANTIDISCRIMINATION LAW - IN THE FACE OF RACIAL PROFILING, THE FIRST
CIRCUIT HOLDS THAT LONGSTANDING ANTIDISCRIMINATION PRINCIPLES MUST
YIELD TO AIRLINE SAFETY: CERQUEIRA V. AMERICAN AIRLINES, INC.,
N48 If an airline's decision to deny boarding to a passenger is indeed found to be motivated
by race, such decision will fail the Williams test because the decision "is inherently arbitrary
and capricious." Shqeirat v. U.S. Airways Group, Inc., 515 F. Supp. 2d 984, 1004 (D. Minn.
2007) (citing Bayaa v. United Airlines, Inc., 249 F. Supp. 2d 1198, 1205 (C.D. Cal. 2002)).
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Passenger Removals Reasonable
Second-guessing pilot’s removal decisions increases terrorism risks
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 319-310
One columnist for the Star Tribune in Minneapolis went so far as to state that Judge
Montgomery "aided and abetted" the imams' victory, acting "arrogantly dismissive of lawenforcement realities." Even Muslims are leery of the precedent being set by the settlement.
Zuhdi Jasser, chairman of the American Islamic Forum for Democracy wonders if the result
will cause future pilots to avoid making the quick decision which may ultimately protect the
lives of everyone onboard. He was quoted in USA Today as saying "people are going to
wonder: Am I going to be another captain who will end up costing my employer X dollars
because I made a bad decision that was a bit quick." n228 This type of "second-guessing"
simply cannot stand if American skies are to remain terrorist free: "the day we tell the captain
of a commercial airliner that he cannot remove a problem passenger unless he divines beyond
question what is in that passenger's head and heart is the day our commercial aviation system
begins to crumble."
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Passenger Removals Reasonable
The pilot’s actions in Cerquiera were reasonable
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 320-1
The First Circuit took a different view of a very similar situation. In Cerqueira v. American
Airlines, Inc., n230 Cerqueira claimed, under 42 U.S.C. ß 1981, that he was illegally removed
from American Airlines Flight 2237 from Boston to Fort Lauderdale. He claimed that he was
removed and then denied rebooking because of his race. The airlines countered his claim,
stating that under 49 U.S.C. ß 44902, the airline had a legal right to refuse to transport the
passenger if it felt he was "or might be, inimical to safety." In practice and as a matter of law,
the Captain, as pilot in command, "stands in the role of the air carrier for a decision to remove
a passenger from a flight." In support of his removal, the Captain of Flight 2237 took into
consideration at least nine separate factors which led him to ask Cerqueira and his two "row
mates" to leave the plane. Taken together, he believed these factors serious enough to bring
the jetway back to the plane and delay the takeoff. After the men were removed, another
passenger reported that one of the three men had box cutters confiscated by TSA agents at the
security checkpoint. With this additional knowledge, the Captain, with nearly seventeen years
of experience with American Airlines, decided to have all the passengers disembark and have
all the baggage removed so the plane could be thoroughly searched. Although the plaintiff
believed his appearance was the reason for his removal, the Captain testified he could not see
the plaintiff from the front of the plane. The first time the Captain saw the plaintiff was at
trial.
In applying ß 44902, courts must balance the need for airline safety with the potential for
racial discrimination. The standard for liability under the statute is the "arbitrary and
capricious" standard: "the air carrier's decision to refuse air transport must be shown to be
arbitrary or capricious." In determining whether the refusal was arbitrary or capricious in this
case, the court applied four principles: (1) the decision of the pilot in charge is the decision for
the air carrier; (2) review of that decision is limited to what the Captain knew at the time the
decision was made - not what he should have known; (3) since the decision must be made
quickly and expediently, the Captain is entitled to rely upon the representations made to him
about the situation, even if reliance on those representations is mistaken; and (4) biases of
those giving information to the Captain cannot be attributed to the Captain himself. In
Cerqueira, the plaintiff presented no evidence that the Captain acted out of racial bias.
Indeed, the Captain, not having seen the plaintiff, did not even know of his Middle Eastern
appearance. If the Captain had based his judgment solely on the plaintiff's appearance, the
removal would have been arbitrary and thus, illegal under ß 44902. Having been presented
with other objective and reasonably believable factors at the time of the incident when the
decision was made, his decision was valid.
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Full Body Scans Don’t Threaten Rights
Privacy protected with full body scans
Madson Taylor, JD, Mississippi Law School, Richmond Journal of Law & Technology, Fall,
2010, ARTICLE: BENDING BROKEN RULES: THE FOURTH AMENDMENT
IMPLICATIONS OF FULL-BODY SCANNERS IN PREFLIGHT SCREENING
P17 The TSA has instituted protective measures to reduce violations of privacy. First, the
TSA instituted several spatial protections. The TSO viewing the full-body scan remains
isolated from the passenger being screened. Thus, the TSO viewing the image cannot see the
passenger, and the TSO assisting the passenger cannot see the image. Notably, there is no
guarantee the person viewing the image will be the same gender as the person being screened.
Finally, the operation of full-body scanners must comply with a standard operating procedure
(the details of which are not available to the public).
P18 The TSA also employs technological measures that mitigate the vividness of the images.
The "millimeter wave technology blurs all facial features and backscatter technology has an
algorithm applied to the entire image." Additionally, although full-body scanners have "the
capability of collecting and storing an image, the image storage functions will be disabled by
the manufacturer before the devices are placed in an airport." As such, "[i]mages will be
maintained on the screen only for as long as it takes to resolve any anomalies," and "[t]he
image is deleted in order to permit the next individual to be screened." Finally, any TSO
charged with viewing the images "will be prohibited from bringing any device into the
viewing area that has any photographic capability."
Blurred images minimize privacy violations
Tobias Mock, Technical Editor, Santa Clara Law Review, 2009, ,49 Santa Clara L. Rev. 213,
COMMENT: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT
IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT SECURITY
CHECKPOINTS, p. 229-30
The TSA has taken steps to remedy some of these concerns. First, manufacturers now
integrate software systems into the machines that distort the images they produce. The result
is an image of the human form that blurs many intimate details of the body, including the
face, but that retains some ability to display concealed items. Described as a "chalk outline of
a person," the image generated by the masking software sacrifices a degree of detection
capability, as the blurred images "start to lose the ability to [detect] ... C4" explosives.
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Full Body Scans Don’t Threaten Rights
Additional measures to protect privacy
Tobias Mock, Technical Editor, Santa Clara Law Review, 2009, ,49 Santa Clara L. Rev. 213,
COMMENT: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT
IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT SECURITY
CHECKPOINTS, p. 230
Second, the TSA has guaranteed that the officer viewing station will be remotely located. The
officer attending the passenger will not view the images and the remotely located officer will
not be able to associate the image with the person being screened. The remote screening
officer will also be the same sex as the passenger. Third, the manufacturer contends that it is
not possible for the screening officer to save, transmit, print, or otherwise store the images.
All images are immediately and automatically deleted from the system after viewing.
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*** Pro – Terrorism Risk & Impacts ***
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Terrorist Threat Increasing
Terror threats increasing
Ashton B. Carter is chair of the International and Global Affairs faculty at Harvard Kennedy School. He was Assistant
Secretary of Defense for International Security Policy in the Clinton Administration, Orbis, Winter 2009, p. 47
No one can say how long it will take to defeat or contain radical Islamist extremists bent on
terrorism. However, there are reasons to believe that combating terrorism will be an enduring
feature of the national security landscape long after what the Bush administration calls the ‘‘Long
War’’ against Islamist extremism is over. With the advance of technology, the destructive power
available to even small groups of extremists is growing. At the same time, society is growing
more interdependent and connected and thus more vulnerable to terror—physically and
psychologically. These two fundamental trends are visible as far into the future as any of us
can see. Whatever the lifetime of Islamist extremism, therefore, it will long remain the
business of national security authorities to counter terrorism arising from other movements
and groups. In this sense, the notion of a ‘‘Long War on Terror’’ is apt.
Many terror threats
Adam Garfinkle is editor of The American Interest. From 2003-05 he served on the Policy
Planning Staff of the State Department as Speechwriter to the Secretary of State, Summer 2008,
Orbis, p.
Fifth, if we understand that rapid social change occasionally produces violent chiliastic
movements, we should expect to see more such movements over the next several decades as
the scientific-technical basis of globalization accelerates and penetrates every stilltraditionalist corner of an increasingly politicized globe. We should also expect that if the United
States remains the number one power, and if we continue to promote, by acts of omission and
commission, the rapid changes already afoot, we will remain the prime target for such groups. These
groups may be Arab and Muslim, but they needn’t be. There are many sources for such
movements: South Asia, Russia, the Balkans, indigenous groups in Latin America, and more
besides. The U.S. government, and its leaders, should be far more concerned with where the
next Aum Shinrikyo might come from than with the details of the next Iraqi election. That cult
was technically proficient and very dangerous; Japan was fortunate that it did not do
vastly more damage than it did.
Globalization increases the risk of nuclear terrorism
Commission on the Prevention of WMD Proliferation and Terrorism, December 2008,
http://documents.scribd.com/docs/15bq1nrl9aerfu0yu9qd.pdf
The United States still wields enormous power of the traditional kind, but traditional power is less effective than
it used to be. In today’s world, individuals anywhere on the planet connect instantly with one another and with
information. Money is moved, transactions are made, information is shared, instructions are issued, and
attacks are unleashed with a keystroke. Weapons of tremendous destructive capability can be developed
or acquired by those without access to an industrial base or even an economic base of any kind, and
those weapons can be used to kill thousands of people and disrupt vital financial, communications, and
transportation systems, which are easy to attack and hard to defend. All these factors have made nationstates less powerful and more vulnerable relative to the terrorists, who have no national base to
defendand who therefore cannot be deterred through traditional means.
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High Risk of Nuclear Terror Attack
High risk of a nuclear terror attack in the next decade
Richmond Times Dispatch, October 20, 2008, p. A13
How likely is such a catastrophe? "Based on current trends, a nuclear terrorist attack on the United
States is more likely than not in the decade ahead," wrote Graham Allison, a nuclear terrorism
expert who heads the Belfer Center for Science and International Affairs at Harvard He is not alone
in this assessment "Fabrication of at least a 'crude' nuclear device was within al-Qaida's
capabilities, if it could obtain fissile material," the U.S. intelligence community has warned.
WMD terror risks increasing
Los Angeles Times, December 4, 2008, p. 22
President-elect Barack Obama will probably confront a biological or nuclear attack at home or
abroad if the U.S. and its allies do not act decisively to prevent it, according to a report released
this week by a panel created by Congress The report found that the U.S. had taken important steps
to counteract nuclear proliferation and, to a lesser extent, biological terrorism, but had "not kept
pace with growing risks." The nine-member, bipartisan commission presented its conclusions
Wednesday to Vice President-elect Joe Biden and Arizona Gov. Janet Napolitano, Obama's
nominee for Homeland Security secretary "We have been losing ground, and we are less secure
today than we have been in the recent past," said former Sen. Bob Graham (D-Fla.), the
commission chairman.
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AT: Bin Laden Killing Reduces Terror Risks
Osama will just be replaced
Anna Badkhen is the author of Peace Meals and Waiting for the Taliban, The Fight Goes On,
Foreign Policy, May 12, 2011,
http://www.foreignpolicy.com/articles/2011/05/11/the_fight_goes_on?page=0,1
That anyone should consider bin Laden's death auspicious to the course of the counterinsurgency is a
surprising notion to many in northern Afghanistan, where the Taliban have been gaining rapid
momentum over the past 18 months. In Balkh province, village elders, farmers, and taxi drivers have
told me they saw no connection at all between the killing of al Qaeda's founder and war -Afghanistan's near-permanent state for millennia, uninterrupted since the Soviet invasion in 1979. In
Mazar-e-Sharif, where an enraged mob lynched 12 U.N. workers last month, Balkh provincial police
chief, General Ismat "They will produce 1,000 more Osamas!" he fumed behind a broad desk
decorated with a jade plaque bearing his name and a red soccer ball wrapped in a garland of papiermâché roses. "It is foolish to think that if someone kills the headmaster of a school the school will
cease existing. Al Qaeda is like a breach in the hull of a ship. Killing Osama is like bailing water,
and saying that we've closed the breach."ullah Alizai, cackled with derision when I brought up bin
Laden's name.
Al Qaeda is decentralized, death has no impact
John Arquilla teaches in the special operations program at the U.S. Naval Postgraduate School. His
latest book is Insurgents, Raiders and Bandits., May 10, 2011,
http://www.foreignpolicy.com/articles/2011/05/10/the_new_seeds_of_terror?page=0,1 “The New
Seeds of Terror”
The trouble with "high-value targets" is that their value may not be so high. During the years it took to
find and terminate al Qaeda's No. 1, about 20 No. 3s have been killed. The problem is that No. 1s are
not essential to overall operations, and in a network, everybody is No. 3. Al Qaeda, now one of
the flattest, most decentralized networks in the world, will live on.
A rash of recent terrorist attacks by al Qaeda affiliates in Iraq, Morocco, and Yemen, and a
thwarted plot in Germany, suggest that the network may even be mounting a small-scale, but
still global, new terror offensive. The lack of "spectaculars" should not be seen as a sign of a
weakening al Qaeda, but rather as an indicator of a shift in strategy. Watch for more small strikes in
the weeks and months ahead, launched around the world.
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AT: Bin Laden Killing Reduces Terror Risks
Obama’s death will spur more effective cells
Michael Wahid Hanna is a fellow and program officer at The Century Foundation, May 6, 2011,
Foreign Policy, The bin Laden Aftermath: What now for reconciliation?”
ttp://afpak.foreignpolicy.com/posts/2011/05/06/the_bin_laden_aftermath_what_now_for_afghan_reco
nciliation
Indeed, the death of Osama bin Laden may actually facilitate al Qaeda's transition from a huband-spokes network -- with Waziristan as the hub -- to a "mesh" network composed of small,
loose-jointed cells distributed globally. This new organizational design was the dream of al Qaeda's
top strategist, Abu Musab al-Suri ("the Syrian"). He was apparently much inspired by Robert Taber's
classic The War of the Flea, on which he lectured to aspiring jihadists in the 1990s. But he built quite
a bit on this foundational work.
Al-Suri, who likely plotted the 2004 Madrid train bombing that caused the fall of the Spanish
government and the withdrawal of Spanish troops from Iraq, has been in custody for over five years.
His name is scarcely known to the mass publics of the world, and to surprisingly few in the military.
But his ideas, articulated at great length -- clocking in at some 1,600 pages -- in his e-book The Global
Islamic Resistance Call, seem to have carried the day in setting al Qaeda's new course. He and bin
Laden used to spar over this approach, in which links to the core were to be almost completely severed
in favor of local cells' freedom to chart their own courses and plan their own violent campaigns.
Obama’s death will not impact Jihadism
Gill Doronsoro, Carnegie Endowment for International Peace, May 2, 2011, The War on Terror After
Osama Bin Laden, http://carnegieendowment.org/publications/?fa=view&id=43803
Of course, the current events in the Middle East — from Yemen to Iraq — give al-Qaeda ample
opportunities to recruit militants, and it is wishful thinking to believe that bin Laden’s death will cause
a major shift in the perceptions of the United States. In addition, nothing indicates that other jihadist
groups, for example Lashkar-e-Taiba in Pakistan, will be affected by the killing of Osama.
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AT: Bin Laden Killing Reduces Terror Risks
Extremism still strong
Anthony Cordesman, CSIS, May 20, 2011, The Death Of Bin Laden and the Shape of Threats to
Come, http://csis.org/publication/death-osama-bin-laden-and-shape-threats-come
We need to face the fact that all of the social, political and religious forces that triggered the
terrorist and extremist threat are still in place. Moreover, they have been reinforced in extremist
eyes by the fighting in Iraq and Afghanistan, by the political upheavals in the Middle East and other
Muslim states, and by anger at both local regimes and the US and other Western states for what all too
many in the region perceive as attacks on Arabs and Islam. It is very unlikely that Bin Laden’s
death, or even the destruction of Al Qa’ida, can end or seriously undercut the broader threat
from extremism and terrorism.
Death will increase terror attacks
Anthony Cordesman, CSIS, May 20, 2011, The Death Of Bin Laden and the Shape of Threats to
Come, http://csis.org/publication/death-osama-bin-laden-and-shape-threats-come
Bin Laden’s death will also raise new questions about whether the Afghan war can really put an end to
Al Qa’ida and other terrorist sanctuaries, and lead some of those who oppose the war to state that the
US and its allies should now withdraw. At least one senior member of Egypt’s Muslim Brotherhood
has already called for US withdrawal, and less biased voices are now likely to ask whether the Afghan
War is really the most effective way of defeating a mix of terrorist groups and threats that is nearly
global in scope. It will take weeks – and possibly months – before we can understand just how much
we have gained in strategic terms in the war in Afghanistan and our deeply troubled relations with
Pakistan. It will take at least that long to determine how successful Al Qa’ida will be in finding some
form of revenge and in conducting dramatic attacks to show it is still a threat and still powerful.
Moreover, Al Qa’ida affiliates throughout the world will seek to act as well, and this might
trigger a new wave of attacks from groups like the Taliban and Haqqani network in Afghanistan
and Pakistan.
Splintered groups means no end to the war on terror
Marwan Muasher, Carnegie Endowment for International Peace, May 5, 2011, Bin Laden and the
Arab Spring, http://carnegieendowment.org/publications/?fa=view&id=43849
Osama bin Laden’s killing should be seen as a psychological victory. Bin Laden’s success in evading
capture for nearly ten years after 9/11 dismayed Americans and the international community, and his
death brings a great deal of understandable relief. But this doesn’t mean that al-Qaeda is finished.
It is a decentralized organization—while many affiliates voiced allegiance to bin Laden, they do
not rely on centralized direction and operate largely on their own. Splinter groups formed in the
Arab world—from Iraq to Yemen to Morocco—and remain a distinct threat to the region and
the West. With this in mind, bin Laden’s end in no way spells the end of the war on al-Qaeda and
terror.
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AT: Bin Laden Killing Reduces Terror Risks
Network decentralized, terror not about personalities
Ilan Berman is vice president of the American Foreign Policy Council in Washington, What Bin
Laden’s Death Means for the War on Terror, May 2, 2011,
http://www.afpc.org/publication_listings/viewArticle/1189
President Obama's announcement last night that al-Qaeda leader Osama Bin Laden was killed
by U.S. special operations forces outside the Pakistani capital of Islamabad is welcome news
indeed. The death of the man responsible for the worst attack on the U.S. in history represents a major
counterterrorism victory, and long overdue justice for the victims of 9/11. But it's hardly the "end of
the War on Terror," as some observers have been quick to suggest.
For one thing, although Bin Laden's death marks a significant setback for al-Qaeda, it's far from
a fatal blow to it. That's because, since September 11th, sustained counterterrorism operations
by the United States and its allies have prompted the Bin Laden network to undergo a major
metamorphosis—from a cohesive front into a loose-knit movement of ideologically-affiliated
groups. And Bin Laden, experts say, "has transitioned from being the head of a unitary terrorist
organization to being the ideological leader of a 'jihadist' movement comprising many new groups that
operate without direct support or direction from him or his deputy, Ayman al-Zawahiri."
These affiliates are numerous. They include not only AQIM and AQAP, al-Qaeda's franchises in
North Africa and the Persian Gulf, but Kashmiri separatist groups Lashkar-e-Taiba and Jaishe-Muhammad, the Philippine kidnapping ring Abu Sayyaf, and Indonesia's radical Jemaah Islamiyah
as well. These groups may be affected by the loss of their ideological inspiration, but it's too optimistic
by half to assume that Bin Laden's death will prompt them to give up the fight entirely. Rather, the
network built up by Bin Laden and his followers for the past two decades is bound to remain a global
menace—and an enduring threat to the U.S. and its allies.
For another, our struggle with radical Islam isn't about personalities; it's about ideas. Al-Qaeda
understands this very well, and over the past decade has worked diligently to convey the impression of
an organization on the march, and convince the wider Muslim world that it is fighting—and
winning—a religious war against the West. The logic behind this approach is clear; as Bin Laden
himself boasted in the wake of the September 11th attacks, "when people see a strong horse and a weak
horse, by nature they will like the strong horse."
So far, we haven't done much to counter this perception. To be sure, we've invested heavily in
targeting al-Qaeda on the battlefields of Iraq and Afghanistan, with notable effect. Yet we've spent
remarkably little time discrediting the organization's radical ideology, debunking its claims about the
West, and delegitimizing its authority to speak on behalf of all Muslims. And because we haven't, Bin
Laden's message still carries a great deal more resonance abroad than it should.
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Terrorism Results in Rights Violations
Terrorism results in massive civil violations, the collapse of democracy, and militarism
Michael Ignatieff, Harvard Human Rights Prof, 2004
[The Lesser Evil: Political Ethics in an Age of Terror, pg. 153-154]
It is a commonplace of presidential and prime ministerial rhetoric to insist that their democracies
cannot lose in a war on terror. My own analysis thus far has confirmed that no democracy has ever
been toppled by a terrorist campaign, unless other factors, like economic collapse or military defeat,
were present too. But faced with terrorism that deploys weapons of mass destruction, we cannot be
as certain that the historical pattern, argued for in this book, would prevail in the future. In other
words, we could lose. What would defeat look like? It would not be like invasion, conquest, or
occupation, of course, but rather would entail the disintegration of our institutions and way of life.
A succession of mass casualty attacks, using weapons of mass destruction, would leave behind
zones of devastation sealed off for years and a pall of mourning, anger, and fear hanging over our
public and private lives. Such attacks would destroy the existential security on which democracy
depends. Recurrent attacks with weapons of mass destruction might not just kill hundreds of
thousands of people. We might find our selves living with a national security state on permanent
alert, with sealed borders, constant identity checks, and permanent detention camps for suspicious
aliens and recalcitrant citizens. A successful attack would poison the wellsprings of trust among
strangers that make the relative liberty of liberal democracy possible. Our police forces might
descend to torturing suspects in order to prevent future attacks, and our secret security forces might
engage in direct assassination of perpetrators or mere suspects as well. Our military might itself use
weapons of mass destruction against terrorist enemies. If our institutions were unable to stop the
attacks, the state's monopoly of force might even break down, as citizens took the law into their own
hands seeking to defend themselves against would-be perpetrators. Vigilantes would patrol blighted
and deserted streets. This is what the face of defeat might look like. We would survive, but we
would no longer recognize ourselves or our institutions. We would exist but lose our identity as
free people.
Another 9/11 will result in the internment of Arab Americans
David Harris, law professor, Missouri Law Review, Winter, 2011, On the Contemporary
Meaning of Korematsu: "Liberty Lies in the Hearts of Men and Women", p. 1
Whichever way one chooses to view Kirsanow's words, the unfortunate truth is that the
question of whether internment could occur again is no longer just an academic curiosity.
Rather, Kirsanow's comments reveal a genuinely frightening and dark fact. In the aftermath of
another serious attack by extremists based in Arab or Muslim countries or, worse yet, an
attack that originates with Arab or Muslim extremists who live in the U.S., some will argue
that the internment of Arabs and Muslims is a necessary measure that national security
demands.
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Terrorism Results in Rights Violations
Terrorism risks massive civil liberties violations- turning the case
Ambassador L. Paul Bremer, National Commission on Terrorism Chair, 2000
["New Terrorist Threats and How to Counter Them," 7/31,
http://www.heritage.org/Research/HomelandDefense/hl678.cfm]
Our argument is that you had better think about that beforehand, not afterwards. If you are
concerned with civil liberties, that is an even better reason to think about it beforehand. And the
example we use is Pearl Harbor, which was certainly by anybody's definition a catastrophic attack
on the American people. After Pearl Harbor America's two great 20th century liberals, Franklin D.
Roosevelt and Earl Warren, locked up Japanese-Americans. Our view is that the best way to assure
that in the wake of a catastrophic event you do not trample on our constitutional rights and on the
civil liberties we have come to take for granted, is to think about it ahead of time to make plans and
to exercise them ahead of time.
Turns the case- terrorism crushes civil liberties
Ivan Eland, Independent Institute Senior Fellow, 2003
[Mediterranean Quarterly, "Bush's Wars and the State of Civil Liberties," 14.4, pg. 158-175,
ProjectMuse]
Unfortunately, counterproductive U.S. government action in response to terrorism is not confined to
aggressive behavior overseas. In fact, the most pernicious effects of the escalating cycle of violence
between the terrorists and the U.S. government are not found overseas, although those are bad
enough, but at home. With each new round of terrorist attacks, the government takes away more of
the civil liberties enshrined in the U.S. Constitution by the nation's founders. When this occurs, the
terrorists have won—even if we capture or kill them all.
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Nuclear Terrorism Impacts
Nuclear terrorism risks ethnic conflicts, civil liberties violations, world war, and extinction
Mohamed Sid-Ahmed, Al-Ahram Weekly political analyst, 2004
[Al-Ahram Weekly, "Extinction!" 8/26, no. 705, http://weekly.ahram.org.eg/2004/705/op5.htm]
What would be the consequences of a nuclear attack by terrorists? Even if it fails, it would further
exacerbate the negative features of the new and frightening world in which we are now living.
Societies would close in on themselves, police measures would be stepped up at the expense of
human rights, tensions between civilisations and religions would rise and ethnic conflicts would
proliferate. It would also speed up the arms race and develop the awareness that a different type of
world order is imperative if humankind is to survive. But the still more critical scenario is if the
attack succeeds. This could lead to a third world war, from which no one will emerge victorious.
Unlike a conventional war which ends when one side triumphs over another, this war will be
without winners and losers. When nuclear pollution infects the whole planet, we will all be losers.
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Nuclear Terror Attack Destroys the Global Economy
A nuclear terror attack will destroy the global economy
Richmond Times Dispatch, October 20, 2008, p. A13
What if the four 9/11 jetliners had been carrying nuclear devices, killing millions instead of nearly
3,000 people, wrecking the global economy, and changing the world as we know it? The scenario
is not plucked from a sci-fi thriller. The danger is very real because Osama bin Laden has made the
destruction of the United States his stated goal. The RAND Corp. has depicted a scenario in
which the detonation of a 10-kiloton device in the port of Long Beach, Calif., immediately
would kill 60,000 people, cause $1 trillion in damage in the Los Angeles area, and create chaos
in the U.S. and world economies.
A nuclear terror attack would collapse trade, destroy the global economy, and trigger massive
retaliation that will trigger war
USA TODAY, October 9, 2008, p. 12A (John Diamond is a Washington fellow of the Saga
Foundation)
As the Saga Foundation -- a non-profit organization focused on the threat of terrorism involving
weapons of mass destruction -- argued in a recent white paper, the vast damage at and around a
nuclear ground zero would be dwarfed in scope by the national and global economic
aftershocks. These aftershocks would stem not only from the explosion itself but also from a
predictable set of decisions a president would almost certainly have to make in grappling with the
possibility of a follow-on attack. Assuming, as the experts believe likely, that such a weapon
would have to be smuggled into the country, the president could be expected to close the
nation's borders, halt all freight commerce and direct a search of virtually any moving
conveyance that could transport a nuclear weapon. Most manufacturing would then cease. In
a nation that lives on just-in-time inventory, these developments could empty the nation's
shelves in days. The effects of post-attack decision-making go far beyond this example. If U.S.
intelligence determined that one or more countries had somehow aided and abetted the
attack, we would face the prospect of full-scale war. Even short of that, the nation would
demand, and the president would almost certainly order, a level of retaliation at the suspected
locus of the attacking group that would dwarf the post-9/11 military response. The possibility
of follow-on attacks could transform our notions of civil liberties and freedom forever. And as
former 9/11 Commission co-chairman Lee Hamilton has pointed out, a nuclear terrorist attack
would prompt a collapse in public faith in the government's ability to protect the American people.
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Nuclear Terror Attack Destroys the Global Economy
Nuclear terrorism in the US would devastate the global economy
Matthew C. Weinzierl, Council of Economic Advisers Economist, 2004
[The National Interest, "The Cost of Living: The Economics of Preventing Nuclear Terrorism,"
Spring, LN]
Nuclear terrorism presents an unparalleled threat to the United States. The economic impact alone
of a nuclear terrorist attack would undoubtedly be staggering. Estimates of the direct economic cost
of one potential scenario-a crude nuclear device detonated in lower Manhattan-range well over $ 1
trillion. Even this estimate cannot capture the full tragedy of such a scenario, which could include
half a million deaths, a zone of total destruction one mile wide, and radiation extending for miles
around the blast's center. For the protectors of America's national interest, no single issue is more
urgent and frightening.
Even a small terrorist nuclear strike would collapse the global economy
John Kenneth Galbraith, Harvard Economics Prof, 2000
[“Economic Aspects,” http://www.reachingcriticalwill.org/legal/nwc/mon1galb.html]
Such is the vulnerability of the American economy that in the form we know it, it could be brought
to an end by the most elementary of nuclear attacks. This could be accomplished by a tactical
nuclear weapon on downtown New York. With such an attack there would, of course, be massive
death and destruction. But additionally the American economy would be made non-functional. No
longer in the economic world would it be known what was owned and what possessed in the banks.
That knowledge would be destroyed along with the people that convey the information. The trading
of securities would, of course, come to an end but, as seriously, so would the knowledge throughout
the country of what is owned. Those with ownership in and income from the financial world —
stocks, bonds and other financial instruments — would find a record of their possessions
eliminated. It would be true for individuals and for corporations throughout the country. Ownership
would come to an end; of assets possessed there would no longer be a record. Capitalism as it is
known would be finished. This, to repeat, would be the result of one small nuclear weapon.
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AT: “Terrorists Won’t Use Nukes”
The "new" terrorism makes wmd use likely
Captain Matthew Morgan, HHOC Intelligence Commander, 2004 [Parameters, "The Origins of
the New Terrorism," Spring, http://carlisle-www.army.mil/usawc/Parameters/04spring/morgan.htm]
Most recent scholarship, however, has taken the perspective that contemporary terrorism represents
a significant departure from the past. Various factors have led to the development of this new type
of terrorism. Paul Wilkinson pondered the increase in indiscriminateness among terrorists, and he
posited several possible reasons accounting for this upsurge. First, the saturation of the media with
images of terrorist atrocity has raised the bar on the level of destruction that will attract headline
attention. Second, terrorists have realized that civilian soft targets involve lower risk to themselves.
Finally, there has been a shift from the politically-minded terrorist to the vengeful and hard-line
fanatic.
Al-Qaeda has the motivation to acquire and use nuclear weapons
Graham Allison, Harvard Government Prof, 2002 [The National Interest, "The New Containment:
An Alliance Against Nuclear Terrorism," w/ Andrei Kokoshin, Fall, LN]
There is no doubt that Osama bin Laden and his associates have serious nuclear ambitions. For
almost a decade they have been actively seeking nuclear weapons, and, as President Bush has noted,
they would use such weapons against the United States or its allies "in a heartbeat." In 2000, the
CIA intercepted a message in which a member of Al-Qaeda boasted of plans for a "Hiroshima"
against America. According to the Justice Department indictment for the 1998 bombings of the
American embassies in Kenya and Tanzania, "At various times from at least as early as 1993,
Osama bin Laden and others, known and unknown, made efforts to obtain the components of
nuclear weapons." Additional evidence from a former Al-Qaeda member describes attempts to buy
uranium of South African origin, repeated travels to three Central Asian states to try to buy a
complete warhead or weapons-usable material, and discussions with Chechen criminal groups in
which money and drugs were offered for nuclear weapons. Bin Laden himself has declared that
acquiring nuclear weapons is a religious duty. "If I have indeed acquired [nuclear] weapons", he
once said, "then I thank God for enabling me to do so." When forging an alliance of terrorist
organizations in 1998, he issued a statement entitled "The Nuclear Bomb of Islam." Characterized
by Bernard Lewis as "a magnificent piece of eloquent, at times even poetic Arabic prose", it states:
"It is the duty of Muslims to prepare as much force as possible to terrorize the enemies of God." If
anything, the ongoing American-led war on global terrorism is heightening our adversary's
incentive to obtain and use a nuclear weapon. Al-Qaeda has discovered that it can no longer attack
the United States with impunity. Faced with an assertive, determined opponent now doing
everything it can to destroy this terrorist network, Al-Qaeda has every incentive to take its best shot.
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AT: Terrorists Don’t Want to Kill A Lot of People
Al Qaeda is trying to purchase nuclear materials in order to kill a lot of people
Peter D. Zimmerman, professor of science and security in the Department of War Studies at King's
College London, Jeffrey G. Lewis, executive director of the Managing the Atom Project at the
Belfer Center for Science and International Affairs, JFK School of Government, NATIONAL
POST, December 20, 2006, p. A26
Osama bin Laden's long-standing interest in developing nuclear weapons is deeply troubling, and
the attempt to purchase uranium from the Sudanese was far from an isolated incident. Al-Qaeda
operatives have repeatedly tried to acquire nuclear materials over the years. In August, 2001, a
month before the September 11 attacks, bin Laden received two former Pakistani nuclear officials,
asking them to help recruit other Pakistani scientists with expertise in building nuclear weapons.
After the military effort to oust the Taliban from Afghanistan, U.S. forces found extensive
documents, including crude bomb designs, at an al-Qaeda safe house in Kabul. In 2003, bin Laden
sought a fatwa from an extremist Saudi cleric permitting the use of weapons of mass destruction,
calling their acquisition a "religious duty." As recently as September, al-Qaeda put out a call urging
nuclear scientists to join its war against the West. Bin Laden's attempt to purchase highly enriched
uranium in the past belies the conventional wisdom that terrorists want a lot of people watching, not
a lot of people dead. Clearly, some terrorists do want a lot of people dead.
Attempted uranium purchases prove that terrorists want high death rates
Peter D Zimmerman, Jeffrey G Lewis. Foreign Policy. Washington: Nov/Dec 2006., Iss. 157; pg. 33, 7 pgs
Osama bin Laden's long-standing interest in developing nuclear weapons is deeply troubling, and the attempt to
purchase uranium from the Sudanese was far from an isolated incident. Al Qaeda operatives have repeatedly tried
to acquire nuclear materials over the years. In August 2001, a month before the September 11 attacks, bin Laden
received two former Pakistani nuclear officials, asking them to help recruit other Pakistani scientists with expertise
in building nuclear weapons. After the military effort to oust the Taliban from Afghanistan, U.S. forces found
extensive documents, including crude bomb designs, at an al Qaeda safe house in Kabul. In 2003, bin Laden
sought a fatwa from an extremist Saudi cleric permitting the use of weapons of mass destruction, calling their
acquisition a "religious duty." As recently as September, al Qaeda put out a call urging nuclear scientists to join its
war against the West. Bin Laden's attempt to purchase highly enriched uranium in the past belies the conventional
wisdom that terrorists want a lot of people watching, not a lot of people dead. Clearly, some terrorists do want a lot
of people dead.
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AT: Terrorists Can’t Build a Bomb
Technical information to build a bomb easily available
Robert L. Gallucci, dean of Georgetown University's School of Foreign Service, NovemberDecember 2008, The National Interest, p. online
Ultimately, though, the size observation is not really reassuring. There are just too many variables
involved, and ignorance on the part of the current generation of analysts is not the most important
one. It is certainly arguable that if terrorists manage to get their hands on enough highly
enriched uranium, rather than plutonium, and the overall size of the whole bomb package
was not limited by the requirements of the method of delivery, there is enough information
available these days for a terrorist organization to make a bomb of the simple "gun type"
design and yield used at Hiroshima. If true, this would make the higher-yield city-buster quite
plausible, even assuming no special knowledge of nuclear-explosive design. However, it would
require some expertise in nuclear engineering, high explosives and metallurgy. Moreover,
drawing conclusions from first attempts at nuclear explosions using plutonium and the more
technically demanding "implosion" design, whether by India or North Korea, may not be
particularly relevant, especially when we are uncertain about those governments' intent, or
"design yield."
Easy to assemble a nuke once terrorists have the material
Peter D. Zimmerman, professor of science and security in the Department of War Studies at King's
College London, Jeffrey G. Lewis, executive director of the Managing the Atom Project at the
Belfer Center for Science and International Affairs, JFK School of Government, NATIONAL
POST, December 20, 2006, p. A26
Could a nuclear attack by bin Laden, or any other terrorist, actually happen? Some say it would be
impossible, mistakenly believing that terrorists do not have the motivation, or the ability, to
assemble the highly sophisticated, modern tools necessary for the task. Most observers, however,
agree that a small group could construct a lethal nuclear weapon since they are conceptually simple
devices. After all, the technology involved in creating a nuclear weapon is more than 60 years old.
In fact, it is perhaps easier to make a gun-assembled nuclear bomb than it is to develop biological or
chemical weapons.
Terrorists could build a nuclear bomb with publicly-available materials
Graham Allison, JFK School @ Harvard, Harvard International Review. Cambridge: Fall
2006.Vol.28, Iss. 3; pg. 50, 6 pgs
Once a terrorist group acquires 100 pounds of highly enriched uranium (HEU), building an elementary nuclear
bomb no longer takes the mind of an Oppenheimer. Standing on these shoulders, with fissile material acquired
from a weapons state, using publicly available documents and items commercially obtainable in any
technologically advanced country, terrorists could construct a gun-type bomb like the one dropped on Hiroshima.
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AT: Terrorists Can’t Build a Bomb
Terrorists could easily build a bomb similar to what we used on Hiroshima
Peter D. Zimmerman, professor of science and security in the Department of War Studies at King's
College London, Jeffrey G. Lewis, executive director of the Managing the Atom Project at the
Belfer Center for Science and International Affairs, JFK School of Government, NATIONAL
POST, December 20, 2006, p. A26
What kind of nuclear device might a terrorist organization consider? Some bombs can produce an
extremely big bang, but are difficult to build; other devices produce a smaller explosion but are
comparatively easy to construct. In order not to publish anything that would make the terrorists'
work easier, we have chosen a crude but well-known design concept, widely available on the
Internet, that is similar to the device that the United States used when it bombed Hiroshima. Our
device consists of a gun that fires a highly enriched uranium "bullet" into a cylindrical target block,
also made of highly enriched uranium. Terrorists could use a surplus light artillery gun barrel,
something that's easily available today on the global arms market or the Internet for much less than
US$10,000. The target is hollow with a hole to receive the bullet, and is simply bolted onto the
muzzle of the gun. The explosion in Hiroshima produced a yield of approximately 12.5 kilotons,
which killed about 100,000 people instantaneously. How many people would it take to construct a
crude nuclear device? In a 1977 government report on safeguards against nuclear proliferation, the
U.S. Office of Technology Assessment estimated that a small group, including a "person capable of
searching and understanding the technical literature in several fields and a jack-of-all- trades
technician," could build a nuclear device for a sum that "need not exceed a fraction of a million
dollars." Adjusted for inflation, that's less than US$3-million today. The constraint we have placed
on our would-be bomb-makers is a total of 19 persons -- the same number of hijackers who
orchestrated the Sept. 11 attacks -- working over the course of a year in the United States. We
estimate that a three-person physics team, including a relatively senior physicist and two postdoctoral students, would be capable of rendering the design in three to six months. Their salaries
during the course of a year would total approximately US$200,000. In addition to the physics
team, the project could comprise a few small engineering teams to address the following: casting
the uranium for the device, constructing the proper gun, assembling the supercritical mass of
uranium, overseeing the electronics and finally, the actual detonation. In many respects, the most
difficult task for nuclear terrorists would be casting the uranium metal, which melts at high
temperatures, into appropriate shapes. The metallurgy team would include at least one person with
experience in advanced casting techniques. A vacuum furnace is probably required to reduce
oxygen contamination and prevent the uranium from igniting. The team would likely need to
practice using either natural uranium or some surrogate before casting the final core. The group
could find the vacuum furnace to fit their specifications by searching on the Internet, and could
probably purchase it for less than US$50,000. The actual pit -- or core of the weapon containing
the highly enriched uranium -- could be fabricated quickly. When China built its first nuclear bomb
in 1964, a single technician named Yuan Gongfu used a lathe to shape the highly enriched uranium
in just one night. New or used lathes large enough to properly finish the roughly cast pit can be
bought on the Internet, even on e Bay, for US$10,000. These instruments are probably as capable
as the one Yuan used more than 40 years ago. Computer-controlled machine tools are not necessary.
Our terrorist outfit could probably find all the standard machine-shop equipment it would need in
any university physics department. None of the tools requires special licences to purchase.
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AT: Terrorists Can’t Build a Bomb
Designing and detonating a bomb is not difficult
Micah Zenko is a research associate in the Belfer Center for Science and International Affairs,
ANNALS OF THE AMERICAN ACADEMY OF POLITICAL SCIENCE, September 2006, p. 104
American intelligence estimates about the development of nuclear weapons by other states and their
intentions for their use have been a mixed bag of quiet successes and notable failures. Knowing the
capabilities and intentions of non-state groups interested in obtaining nuclear weapons is
undoubtedly a much more difficult proposition. Nevertheless, in reviewing the history of known
intelligence estimates of the threat of nuclear terrorism, several important themes emerge: the
proliferation of interest among of nonstate actors to obtaining a bomb, the acknowledged ease with
which terrorists could assemble a crude nuclear device, the ease with which any malicious actor
could smuggle it into the United States, and the continued surprise of the U.S. government that this
threat has persisted over a half century. The intelligence estimates presented above demonstrate
beyond any doubt that the United States has been sufficiently warned about the very real possibility
of a nuclear terror attack. If a terrorists' bomb were detonated on American soil tomorrow, given the
sustained strategic warning that the IC has provided to policy makers, it would be a "bolt from the
blue" only to the indifferent, but not the unaware.
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AT: Terrorists Couldn’t Build a Trigger Device
Terrorists could easily find a trigger device
Peter D. Zimmerman, professor of science and security in the Department of War Studies at King's
College London, Jeffrey G. Lewis, executive director of the Managing the Atom Project at the
Belfer Center for Science and International Affairs, JFK School of Government, NATIONAL
POST, December 20, 2006, p. A26
To detonate a nuclear bomb, terrorists do not need to fashion the right type of gun. "Team Gun"
would likely consist of three or four people, at least one of whom is familiar with the interior
ballistics of guns in the appropriate size range. Their principal task would be to find a surplus
artillery piece of the correct size and to build a projectile. Such recoilless rifles are widely available
in the United States and Canada as military surplus, though they require a licence to purchase. A
hobbyist could easily refurbish a recoilless rifle for just a few thousand dollars. In all likelihood, the
gun team would want to test-fire the gun with a dummy nuclear projectile to verify its actual speed.
One or two shots should suffice. Barrel life, usually hundreds of shots without maintenance, would
not pose a problem. It is unlikely to take more than six months for such a group to adapt and test a
reliable gun.
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AT: Nukes Too Expensive for Terrorists
For terrorists, nuclear weapons are cheap per death
Peter D. Zimmerman, professor of science and security in the Department of War Studies at King's
College London, Jeffrey G. Lewis, executive director of the Managing the Atom Project at the
Belfer Center for Science and International Affairs, JFK School of Government, NATIONAL
POST, December 20, 2006, p. A26
For example, the October, 2000 bombing of the USS Cole in Yemenmay have cost US$10,000, but
with 17 casualties, it added up to a pricey US$590 per murder. Yet terrorists do not have to pay a
premium for a nuclear attack; on a per-murder basis, nuclear weapons are both cheap and can be
used against high profile targets. And a nuclear attack induces great fear. Its specter has hung over
the world since the United States dropped Little Boy on Hiroshima. To put it in strictly
commercial terms, terrorists would likely find a nuclear attack cost effective. The simple appeal of
nuclear terrorism can be illustrated with a hypothetical situation. A failed nuclear detonation, one
that produced only a few tens of tons in yield, could kill 10,000 people in just a few hours if the
device exploded in a crowded financial centre. Not only would 10,000 persons represent the upward
limit of a conventional terrorist attack, but that figure would also exceed the combined casualties in
all of al-Qaeda's attacks over the entire history of the organization. And that's a "worst-case"
scenario for the terrorists. A "successful" nuclear detonation would kill 10 times as many people. If
terrorists could construct a successful device that killed 100,000 people for a cost of US$10-million
-- about US$100 per murder -- it would be a bargain, considering that most of al-Qaeda's attacks
have been mounted in the US$100 to US$300 per murder range. A nuclear terrorist attack that cost
US$5-million would result in a cost per murder comparable to the Madrid bombings. So, just how
difficult an enterprise would this be? What would a terrorist group have to do to build a bomb that
would kill 100,000 people for less than US$10-million?
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AT: “Small Cells Couldn’t Produce/Detonate a Nuke”
Only a small number of people are needed to produce and detonate a nuclear weapon
Matthew Bunn is a senior research associate at the Project on Managing the Atom in the Belfer
Center for Science and International Affairs at Harvard University's John F. Kennedy School of
Government, ANNALS OF THE AMERICAN ACADEMY OF POLITICAL & SOCIAL
SCIENCE, September 2006, p. 145
Others assert that a group with al Qaeda's structure of small cells would not be well suited for an
arguably large, long-term project like making a nuclear bomb, particularly given the substantial
operational disruptions sustained since 9/11. This would undoubtedly make a bomb effort more
difficult. Unfortunately, as already noted, repeated technical studies show that the group needed to
design and fabricate a crude nuclear explosive, once the needed materials are in hand, might be
quite small--possibly as small as a single al Qaeda cell.
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AT: “Terrorists Don’t Have a Large Sanctuary to Produce a Nuke”
Plenty of terrorist sanctuaries for nuclear production
Matthew Bunn is a senior research associate at the Project on Managing the Atom in the Belfer
Center for Science and International Affairs at Harvard University's John F. Kennedy School of
Government, ANNALS OF THE AMERICAN ACADEMY OF POLITICAL & SOCIAL
SCIENCE, September 2006, p. 146
Finally, some argue that in the absence of a stable sanctuary with large fixed facilities, it would be
nearly impossible for a terrorist group to make a nuclear bomb. The overthrow of the Taliban
regime and the removal of al Qaeda's Afghan sanctuary undoubtedly disrupted al Qaeda's nuclear
efforts significantly. But two crucial points should be made. First, large fixed facilities are not
necessarily required for putting together a crude nuclear explosive, and the time required may be
distressingly short (as suggested by the U.S. Department of Energy's [1994] security regulations).
The building that South Africa used to assemble its nuclear weapons, for instance, is a very
ordinary-looking warehouse, with little external sign of the deadly activities that went on inside
(Albright 1994). Terrorists might well process nuclear material or manufacture a crude nuclear
bomb on the premises of an apparently legitimate front company operating in a developed country.
Second, a wide range of possible sanctuaries still exists. Indeed, in March 2004, former Director of
Central Intelligence George Tenet expressed his concern regarding stateless zones in approximately
fifty countries around the world where central governments have no consistent reach. In as many as
half of those zones, Tenet said, terrorist groups were thriving (U.S. Senate 2004).
11
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AT: Countries Won’t Transfer Nukes to Terrorists
Many states may give may give nuclear material to terrorists
Robert L. Gallucci, dean of Georgetown University's School of Foreign Service, NovemberDecember 2008, The National Interest, p. online
Iran and North Korea will transfer nuclear weapons to terrorists
The fissile material would have to be acquired by transfer from a country whose government
had approved its movement, or as the result of theft from a country whose government had not
authorized its movement. Jenkins disparages the former, state-sponsored nuclear terrorism and,
indeed, this would seem the less likely scenario. However, current concerns that North Korea
and Iran might do just that should not be dismissed too rapidly. The regime in Pyongyang has
a record of transferring extended-range-ballistic-missile technology, equipment and more to
the Middle East and South Asia, creating a medium-range-ballistic-missile threat for the
delivery of nuclear weapons in countries where one did not exist before. North Korea is the
only country on earth still in this business. Moreover, the best information currently available
suggests that the North Koreans built a plutonium-production reactor in Syria, a well-known
sponsor of terrorism, that would be providing that country with a shortcut to nuclear
weapons were it not for Israel's concept of nonproliferation. As for Iran, while it now has no
source of fissile material, it is busy building facilities that will give it the capability to produce
both highly enriched uranium and plutonium. From the American perspective, Iran is now
the world's most active supplier of advanced conventional weapons to terrorist groups
operating in the Middle East. So, assuming that Tehran will act responsibly if it acquires
fissile material would seem to involve more optimism than is justified by experience.
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AT: No Documented Theft Risks
150 cases of theft per year
Senator Lieberman, December 11, 2008HEARING OF THE SENATE COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS SUBJECT: PREVENTION OF
WEAPONS OF MASS DESTRUCTION
In fact, the IAEA handles about 150 cases a year involving trafficking of nuclear material. Some of
that material -- some of that material reported stolen is never recovered, and some of the material
recovered has never been reported stolen.
Intercepted material is a small amount of what is available on the black market
Rens Lee is President of Global Advisory Services in McLean, Virginia. He is also a senior fellow
at the Foreign Policy Research Institute in Philadelphia, Summer 2008, Orbis, p.
Other explanations, though, view this apparently anemic and supplier- driven traffic in more
ominous terms. Observed data from confirmed smuggling incidents and associated seizures
and arrests are not necessarily representative of the wider universe of black market nuclear
deals, including sophisticated schemes that escape scrutiny. As with other illegal
commodities— drugs for instance—what is captured probably represents just a fraction of
what is available in the international marketplace. For example, the small (usually multigram) quantities of HEU and plutonium intercepted by authorities suggests that traders
planned to show prospective customers samples of what could be larger inventories of
privately-held material. Even kilogram-sized lots appearing in the black market may
represent the tip of the proverbial iceberg. For instance, according to a Czech police
investigation of a 1994 seizure in Prague of 2.7 kilograms of Russian-origin HEU, smugglers
claimed they could deliver to buyers an additional 40 kilograms of HEU in the short term and
5 kilos each month over the next 12 months.2 Where this vagabond material, if it really
existed, is now anyone’s guess.
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Terrorism Can Be Defined
Terrorism can be meaningfully defined as violence sending a message
Ken Robertson, AnalyticA Research Ltd., THE JOURNAL OF CONFLICT STUDIES, Fall
1999, p.180-1. (MHSOLT1870)
However, my main debate with Guelke is his desire to give up on the idea that there is something
distinctive that we can call terrorism. It is true that it is often difficult to distinguish ethnic conflict
from guerrilla warfare or national liberation struggle from civil war but I would argue that in all of
these cases one can still identify something called terrorism. He rightly rejects the argument that
terrorism can be distinguished from other forms of violence because civilians are targeted, although
for the wrong reason. He argues that attacks on civilians are a part of modern war and that therefore
one would be obliged to accept that many states are terrorists. If this was the argument then the
dilemma of choosing to describe Britain as a terrorist state, say between 1942 and 1945, or
abandoning the label may well lead one to choose the latter. But it is a false dilemma. An attack on
a soldier can be just as much an act of terrorism as planting a bomb in a shopping centre. The issue
does not rest on the nature of the target but on the objective of the violence. As Tucker described
earlier the key issue is whether the aim is to destroy a target because it stands between you and your
objective or whether one destroys it in order to send a message. Terrorism is an act of
communication that requires an audience who identify with the victim and, at least in part,
understand the message being sent. If the bombing of German cities was about sending a message to
the German people then it may indeed have been terrorism but if the aim was to destroy people and
property then it was not. It is not always easy to determine the aim of violence but Guelke fails to
see that this is the central issue and not the red herring about the innocent or guilty. These concepts
are subjective and would leave the field ridden with confusion. Objectives may be unclear or
confused but there is at least the possibility of arriving at some form of scholarly judgment about
what they were. In conclusion, I find Tucker to be a very valuable addition to the literature because,
although he does complicate our lives, he sticks like a rock to the key idea: terrorism is an act of
violence in which the target is not the important objective, the aim is the impact of the act on others.
Not distinguishing terrorism from crime overly limits liberty and produces ineffective results
Philip Heymann, Belfer Center for Science and International Affairs, Harvard, TERRORISM
AND AMERICA, 1998, p.153. (MHSOLT1879)
I began this book with a reminder that a democratic nation wants life, liberty, and unity as the
products of its policies for dealing with terrorism, not just physical security. Focusing exclusively
on a very popular desire for revenge -- treating terrorism as if it were nothing but a common crime - is likely to provide too little liberty and unity to be a sensible policy. Urged on us by Israel's Prime
Minister Netanyahu, this policy has not served his country well.
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Terrorism Can Be Defined
Defining "international terrorism" is key to mobilizing international support
Brian Michael Jenkins, terrorism expert, RAND Corporation, COUNTERING THE NEW
TERRORISM, 1999, p.vi-ii. (MHSOLT1899)
Defining "international terrorism" was a necessary prerequisite for mobilizing international support
against terrorism and could be viewed as a noble effort to extend the international rule of law -international efforts against piracy provided an historical precedent -- and the conventions
governing war. It also served U.S. national interests in that the principal terrorist threat to the United
States came not from terrorist attacks inside the United States but rather from terrorist attacks on
American citizens and facilities abroad. The chronology of international terrorism reinforced this
concern by showing that U.S. citizens and facilities were the number one target in international
incidents of terrorism. The United States had no mandate to intervene in the internal conflicts of
other nations, but when that violence spilled over into the international community, it became a
legitimate international concern.
It's necessary to define terrorism. but definitions can differ based on particularities
Philip Heymann, Belfer Center for Science and International Affairs, Harvard, TERRORISM
AND AMERICA, 1998, p.5. (MHSOLT1901)
Two things are clear from this list of occasions where a definition of terrorism is needed. First, we
cannot escape the task of defining terrorism for each of these purposes unless we are prepared to
treat politically motivated and directed violence as no different from other crimes -- a decision that
would be risky business and strongly contrary to public reactions in almost every country. Second,
the definitions are likely to differ, not only because of different judgments about the centrality of the
moral issue, but also because definitions are meant to serve the particular purposes most relevant in
the setting where they are being used.
There are many viable definitions of terrorism
Jonathan White, Director of the School of Criminal Justice, Grand Valley State University,
TERRORISM: AN INTRODUCTION, 1991, p.7. (MHSOLT1867)
The problems associated with defining terrorism have not-been solved by these many efforts: each
definition has its weaknesses and limitations, but each is also perfectly acceptable. Herman's view
of state repression is just as valid as Jenkins's simplicity. The academic rigor of Crenshaw does not
detract from the pragmatism of Livingstone. All of these definitions are viable.
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Terrorism Can Be Defined
Terrorist tactics can be defined even if who is a terrorist can't be
Jeffrey Simon, former RAND Corporation terrorism specialist, THE TERRORIST TRAP, 1994,
p.384-5. (MHSOLT1868)
The difficulty in defining terrorism has given rise to the famous slogan, "one person's terrorist is
another person's freedom fighter." Communities that support various groups in their violent acts do
not necessarily see them as "terrorists." Since the essence of terrorism is the effect that violent acts
can have on various targets and audiences, it would make more sense to talk about terrorist-type
tactics -- which can be utilized by extremist groups, guerrillas, criminals, or governments -- than to
attempt to determine who exactly qualifies as a "terrorist." The blowing up of planes, whether done
by Canadian or American criminals such as J. Albert Guay and John Gilbert Graham, or by Libyan
agents and the PFLP-GC, is terrorism. The same is true for hijackings, assassinations, bombings,
product contaminations, and other violent acts.
Its value-loaded nature doesn't render terrorism a meaningless term
Paul Wilkinson, Professor in International Relations, University of St Andrews, TERRORISM,
PROTEST AND POWER, Martin Warner and Roger Crisp eds., 1990, p.45-6. (MHSOLT1896)
It is frequently suggested that the usage of the concept of terrorism outlined above is so contentious
or 'value-loaded' that there is no adequate basis for meaningful scholarly debate and collaborative
research in the field. This is far from being the case. Since the mid 1970s there has been
considerable development internationally in the academic social scientific and historical literature
on terrorism. As one would expect there is an enormous variety of approaches, theories and
methodologies within the field. An examination of the scholarly literature on other aspects of
conflict, such as revolution or limited war, would find a similar diversity of methods and
conclusions. It would be foolish to expect the literature on terrorism to reflect total agreement on
concepts, theories, data and literature. It is noteworthy, however, that the most authoritative guide to
the international literature on terrorism (Schmid 1988) concludes that there is a consensus among
over a hundred leading scholars worldwide on what its editors call a 'minimal definition' of
terrorism. This consensus rests on five elements or characteristics which the overwhelming majority
of scholars in the field identify as the distinguishing characteristics or hallmarks of terroristic
violence. These five elements are:1. the intention to create extreme fear or terror;2. the targeting of
random and symbolic targets, including civilians and civilian property;3. the attempt to influence a
wider audience than the immediate victims of the violence;4. the use of particularly brutal or
extreme methods of violence, viewed as 'extranormal' according to the norms of the community
under attack;5. the exploitation of terrorism for a variety of purposes, including influencing the
mass media, public opinion, sectors of the population and governments.
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Condemning Terror Good
Terrorism violates deontological ethics
Jessica Stern, research fellow, National Security Council, THE ULTIMATE TERRORISTS,
1999, p.19. (MHSOLT1906)
But not all of the major moral traditions would proscribe terrorism, or the targeting of
noncombatants, in all circumstances. Deontological ethical systems, such as Kant's, would do so,
because they hold that the value of an act is intrinsic. The act is either good or evil in and of itself.
So killing the innocent is wrong, regardless of its ultimate consequences.
Terrorism immorally uses others as means
Maurice Berger, cultural historian, VIOLENT PERSUASIONS, David Brown and Robert
Merrill, eds., 1993, p.18-20. (MHSOLT1907)
Ultimately, the most vexing issues surrounding the morality of terrorism center less on its political
goals (e.g., the emancipation of oppressed peoples, the end of colonial rule, the collapse of an
authoritarian regime, die survival of people marked for destruction) and more on its means the
strategies, conditions, and losses associated with violent political behavior. Because almost all
violent acts result in cruel and inhuman consequences, there exists an overarching moral imperative
that mitigates against physical terrorism as a form of political speech. And in many instances of
political violence, the immediate victims are not directly responsible for the perceived injustices
that are being avenged.
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Condemning Terror Good
If we don’t respond to terrorism we will not have fullness of being
Elshtain, Professor of Social and Political Ethics at the University of Chicago, 2002 (Jean Bethke
“Luther's Lamb: When and How to Fight a Just War” (2002) 304-309)
When a wound as grievous as that of September 11 has been inflicted on a body politic, it would be
the height of moral irresponsibility, a dereliction of duty, a flight from the serious vocation of
politics, were the relevant governments to fail to respond. The Christian tradition tells us that
government is instituted by God. This does not mean that every government and every public
official is godly but, rather, that each is charged with a solemn responsibility for which there is
divine warrant. Surely it is an exercise in bad faith to accept this warrant but to disdain its effective
use—even as one enjoys the benefits of that civic peace, the tranquillitas ordinis, for which
government is responsible. A political ethic is an ethic of responsibility. The just-war tradition
offers a way to exercise that responsibility. This way of thinking rejects the "anything goes" ethic of
Machiavellian realpolitik, but it rejects as well an ethic that forswears the use of armed force even
in a responsible and limited way. Apropos the latter stance, it must be asked: why are the practical
alternatives to the use of armed force for the protection of civic peace so inadequate? Crying peace,
peace, when there is no peace, and no possibility of peace—we are facing those who think of us as
infidels fit only for destruction—is not a plausible alternative to a military response. Too often,
when the Christian traditions of pacifism and just war meet in modern guises, one is offered pieties
rather than policies. The events of September 11 have reminded us of what governments are for:
the shepherd is charged with protecting the flock. None of the goods that human beings cherish,
including the free exercise of religion, can flourish absent a measure of civic peace and security. If
evil is permitted to grow—and the word evil does, yes, have specifiable referents—good goes into
hiding. Evildoers that lurk and plot in secret, that operate stealthily, and that refuse to accept
responsibility for wrongdoing perpetrate harm beyond the immediate violence. It is they who would
force good into hiding as we retreat behind closed doors. What good do I have in mind?—nothing
so dramatic as the evil I have been describing. What I mean is the simple but profound good that is
moms and dads raising their children, men and women going to work, citizens of a great city
making their way on streets and subways, ordinary people buying airplane tickets in order to visit
the grandkids in California, people en route to transact business with colleagues in other cities, the
faithful attending their churches, synagogues, and mosques without fear. Make no mistake about it:
this quotidian idea of basic civic peace is a great good. It is not the peace of the kingdom promised
by Scripture. That peace awaits the eschaton. We are not there yet, to put it mildly. The conditions
of eschatological peace, as Kenneth Anderson reminds us in a recent article ("Language, Law and
Terror," TLS, September 21, 2001), have not been met—and until they are, beating swords into
plowshares and spears into pruning hooks is not our immediate project. The ordinary civic peace
that terrorist violence disrupts and attempts to [End Page 306] destroy offers intimations of
eschatological peace; it is a good to be cherished and not to make light of. It is a good we charge
our public officials with maintaining. If we live from day to day in fear of deadly attack, the other
goods we cherish become more difficult. Human beings are fragile, soft-shelled creatures. We
cannot reveal the fullness of our being, including our deep sociality, if airplanes are flying into
buildings and cities become piles of rubble composed in part of the mangled bodies of victims. We
can neither take this civic peace for granted—as we have learned so shockingly—nor shake off our
responsibility for helping to respect and to promote the norms and rules whose enforcement is
constitutive of civic peace. Augustine taught us that we should not spurn worldly vocations,
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including the tragic vocation of the judge—tragic, because he or she can never know with absolute
certainty whether punishment is being meted out to the guilty and not the innocent. But we depend
on judges and others to uphold a world of responsibility, a world in which people are not permitted
to "devour one another like fishes," in Augustine's pithy phrase. Public officials are charged with
protecting a people. As those extraordinary firemen in New York City said, simply: "It's my job."
The same holds for our military: it is their job, and it is our sons and daughters who do it. Another
vital dimension of the just-war tradition is to limit—by its sanctioning a rightfully constituted
military—all freelance, opportunistic, and individualistic violence. Responding justly to injustice is
a tall order, for it means that it is better to risk the lives of one's own combatants than to
intentionally kill "enemy" noncombatants. It is often difficult to separate combatants from
noncombatants, but try one must. The restraints internal to the just-war tradition encode the notion
of limits to the use of force. Many of these rules and stipulations have been incorporated into
international agreements, including several Geneva Conventions. During and after a conflict, we
assess the conduct of a war-fighting nation by how its warriors conducted themselves. Did they rape
and pillage? Were they under careful rules of engagement or was it a free-for-all? Was every
attempt made to limit civilian casualties in the knowledge that, in time of war, civilians are
invariably going to fall in harm's way? It is unworthy of the solemn nature of these matters to
respond cynically or naively to such attempts to limit damage. As the theologian Oliver O'Donovan
put it at the time of Desert Storm: just ask yourself whether you would rather have been a citizen of
Berlin in 1944 or a citizen of Baghdad during the Persian Gulf War? The answer is obvious, as
every effort was made in American targeting strategy to avoid civilian targets during the later
conflict.
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*** Con – Terrorism Answers ***
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Terrorism Risk Low – Post Osama
Obama’s death crushes Al Qaeda
Peter Bergen is the director of national security studies at the New America Foundation and
the author of “The Longest War: The Enduring Conflict Between America and Al-Qaeda.” ,
May 6, 2011, http://www.washingtonpost.com/opinions/five-myths-about-osama-binladen/2011/05/05/AFkG1rAG_story_1.html Washington Post. DOA: 5/6/11
Many commentators have asserted in the past week that the death of bin Laden won’t make
much difference to the wider jihadist movement that he helped spawn. There is some truth to
that, but balanced against this are the facts that al-Qaeda was bin Laden’s creation and he
was the ultimate author of the 9/11 attacks. When new recruits joined al-Qaeda, they
pledged a personal oath of religious allegiance to bin Laden, rather than to the
organization. Similarly, when affiliated jihadist groups have attached themselves to alQaeda central, as al-Qaeda in Iraq did in 2004, their leaders pledge their fealty to bin
Laden personally.
Bin Laden is one of the few men in recent decades who truly changed the history of the
world. With him gone from the scene, there is no one of his stature and charisma to
become not only the leader and strategic guide of al-Qaeda, but to inspire the group’s
affiliates across the Middle East and North Africa and the wider jihadi movement
around the globe. For that, we can all be grateful.
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Terrorism Risk Low – Post Osama
Al Qaeda dead, Arab spring has arrested Middle East extremism
Democracy Digest May 2, 2001, http://www.demdigest.net/blog/2011/05/bin-ladens-death-aglobal-boost-for-democracy/
Does the death of Osama bin Laden raise the likelihood of a broader shift in favor of
democratic ideas? Or does his legacy remain a toxic political force in Pakistan, Afghanistan,
and beyond?
The pro-democracy protesters of the Arab awakening had already demonstrated Al-Qaeda’s
political irrelevance, observers suggest.
“Bin Laden became part of the past, just like the Arab regimes that have been toppled,”
said Khalil el-Anani [1], an expert on Islamist movements. “
“It was the soft power of Wael Ghoneim and his associates, not bin Laden’s crude
power, that led to regime change,” he said, in a reference to Wael Ghoneim, the former
Google executive and public face of the youth-led Tahrir Square protests.
Bin Laden’s death is “a big blow” to the organization, said Olivier Roy [2], one of the world’s
leading experts on Islamist politics.
But the Arab Spring had already marginalized its appeal. “It wasn’t making headlines in
the Middle East, it ceased to be at the core of the region’s issues.”
The Arab world’s pro-democracy movements “accomplished in weeks what militants
couldn’t in decades,” notes one account:
Radical and ultraconservative Muslims temper their screeds these days to speak to a Middle
East and North Africa that crave jobs and freedoms over religious extremism and holy war
that have led to promises of paradise but few earthly rewards.
The ouster of Mubarak and Ben Ali “was a significant blow to al-Qaeda extremist
ideology, which always claimed that violent Jihad was the only way of regime change in the
Middle East,” said Khaled Hamza [3], a leader of Egypt’s Muslim Brotherhood.
But with jihadist ideology losing its appeal, Islamists are adapting their discourse.
“All the rhetoric that Bin Laden and his allies were using against Arab governments no
longer applies,” said Gulf-based analyst Riad Kahwaji [4]. “That’s why we see the
Salafists talk about participation and the Muslim Brotherhood [in Egypt] modifying its
agenda and meeting the seculars half way.”
The region’s citizens are moving towards a positive, constructive agenda, observers
contend.
“The problem now is not how you can destroy something, how you can resist something, it’s
how can you build something new — a new state, a new authority, a new relationship
between the public and leadership, a new civil society,” said Radwan Sayyid [5], a professor of
Islamic studies at Beirut’s Lebanese University.
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Terrorism Risk Low – Post Osama
As autocratic regimes fall, support for terrorism will decrease
Democracy Digest May 2, 2001, http://www.demdigest.net/blog/2011/05/bin-ladens-death-aglobal-boost-for-democracy/
The Obama administration should take advantage of this new momentum by “pushing further
to end the vicious and violent regimes” in Libya and Syria, writes Elliot Abrams [8].
“As the republics of fear fall, al Qaida’s message will fall further into disrepute and the
message of freedom that is now spreading in the Middle East will grow stronger,” he argues.
Bin Laden’s death has a powerful symbolism, writes Paul Berman [9]. Some pundits have
airily dismissed the war on terror, but his demise represents a major victory for democracy in
the struggle against radical Islamism.
Drone attacks kill Al Qaeda’s ability to effectively operate
Daniel Byman, Professor in the Security Studies Program at the School of Foreign Service at
Georgetown University and Research Director at the Saban Center for Middle East Policy at
the Brookings Institution, Terrorism After the Revolutions. Affairs, 00157120, May/Jun2011,
Vol. 90, p. 33
The United States must also continue to use drone strikes and other means to put pressure on
al Qaeda's senior leadership in Pakistan, even though these at times decrease support for the
United States there. Part of the explanation for al Qaeda's slow response may be the fact that
responding to such momentous change requires extensive consultations among leaders.
Holding an open meeting, however, could invite a deluge of Hellfire missiles from U.S.
drones.
Al Qaeda will presumably get its act together eventually and develop a coherent message
regarding how jihadists should respond to the revolutions. Drone attacks remain vital to
keeping al Qaeda behind the pace of events and preventing it from coordinating operations far
from its base in Pakistan. Keeping al Qaeda's response slow and incoherent by inhibiting
communication will make the organization appear irrelevant.
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Terrorism Risk Very Low
Drowning in a bathtub is more likely than dying in a terror attack
Mueller ’05
(John, “Is There Still a Terrorist Threat?” FOREIGN AFFAIRS v. 85 n. 5,
September/October)
But while keeping such potential dangers in mind, it is worth remembering that the total number of people killed
since 9/11 by al Qaeda or al Qaeda_like operatives outside of Afghanistan and Iraq is not much higher than the number who
drown in bathtubs in the United States in a single year, and that the lifetime chance of an American being killed
by international terrorism is about one in 80,000 -- about the same chance of being killed by a comet
or a meteor. Even if there were a 9/11-scale attack every three months for the next five years, the likelihood that an individual American would
number among the dead would be two hundredths of a percent (or one in 5,000). Although it remains heretical to say so,
the evidence so far
suggests that fears of the omnipotent terrorist -- reminiscent of those inspired by images of the 20-foot-tall Japanese after
Pearl Harbor or the 20-foot-tall Communists at various points in the Cold War (particularly after Sputnik) -- may have been overblown,
the threat presented within the United States by al Qaeda greatly exaggerated. The massive and expensive homeland
security apparatus erected since 9/11 may be persecuting some, spying on many, inconveniencing most, and taxing all to defend the United States
against an enemy that scarcely exists.
Lack of prosecutions prove no genuine threat
Mueller ’05
(John, “Is There Still a Terrorist Threat?” FOREIGN AFFAIRS v. 85 n. 5,
September/October)
A fully credible explanation for the fact that the United States has suffered no terrorist attacks since 9/11 is that the threat posed by homegrown
or imported terrorists -- like that presented by Japanese Americans during World War II or by American Communists after it -- has been
massively exaggerated. Is it possible that the haystack is essentially free of needles? The fbi embraces a spooky I-think-therefore-they-are line of
reasoning when assessing the purported terrorist menace. In 2003, its director, Robert Mueller, proclaimed, "The greatest threat is from al Qaeda cells in the U.S. that we
have not yet identified." He rather mysteriously deemed the threat from those unidentified entities to be "increasing in part because of the heightened publicity" surrounding
such episodes as the 2002 Washington sniper shootings and the 2001 anthrax attacks (which had nothing to do with al Qaeda). But in 2001, the 9/11 hijackers received no
aid from U.S.-based al Qaeda operatives for the simple reason that no such operatives appear to have existed. It is not at all clear that that condition has changed. Mueller
also claimed to know that "al Qaeda maintains the ability and the intent to inflict significant casualties in the U.S. with little warning." If this was true -- if the terrorists had
both the ability and the intent in 2003, and if the threat they presented was somehow increasing -- they had remained remarkably quiet by the time the unflappable Mueller
repeated his alarmist mantra in 2005: "I remain very concerned about what we are not seeing." Intelligence estimates in 2002 held that there were as many as 5,000 al
Qaeda terrorists and supporters in the United States. However,
a secret fbi report in 2005 wistfully noted that although the bureau had managed to arrest a few bad
had been unable to identify a single true al
guys here and there after more than three years of intense and well-funded hunting, it
Qaeda sleeper cell anywhere in the country. Thousands of people in the United States have had their overseas communications monitored under a
controversial warrantless surveillance program. Of these, fewer than ten U.S. citizens or residents per year have aroused enough suspicion to impel the agencies spying on
them to seek warrants authorizing surveillance of their domestic communications as well; none of this activity, it appears, has led to an indictment on any charge whatever.
In addition to massive eavesdropping and detention programs, every year some 30,000 "national security letters" are issued without judicial review, forcing businesses and
other institutions to disclose confidential information about their customers without telling anyone they have done so. That process has generated thousands of leads that,
when pursued, have led nowhere. Some 80,000 Arab and Muslim immigrants have been subjected to fingerprinting and registration, another 8,000 have been called in for
interviews with the fbi, and over 5,000 foreign nationals have been imprisoned in initiatives designed to prevent terrorism. This activity, notes the Georgetown University
only a small number of people picked up
on terrorism charges -- always to great official fanfare -- have been convicted at all, and almost all of these
convictions have been for other infractions, particularly immigration violations. Some of those convicted have clearly been
law professor David Cole, has not resulted in a single conviction for a terrorist crime. In fact ,
mental cases or simply flaunting jihadist bravado -- rattling on about taking down the Brooklyn Bridge with a blowtorch, blowing up the Sears Tower
if only they could get to Chicago, beheading the prime minister of Canada, or flooding lower Manhattan by somehow doing something terrible to one
of those tunnels.
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Terrorism Risk Very Low
Only a tenth of percent risk of a terror attack that will claim millions of lives in the next 50
years
Vaclav Smil, Distinguished Professor, University of Manitoba, POPULATION AND
DEVELOPMENT REVIEW 31(2): June 2005, 201–236
Good arguments can be made for seeing terrorist actions as a shocking (also painful and costly) but
manageable risk among other risks and to point out the general tendency to exaggerate the
likelihood of new, infrequent, but spectacular, threats. On the other hand, it is understandable why a
responsible political leadership would tend to see terrorism as an unprecedented, and intolerably
deadly, challenge to the perpetuation of modern open societies. In any case, nobody can assign any
meaningful probabilities to these different outcomes, whereas a clear judgment is possible regarding
any future natural catastrophes: in order to leave a mark on world history they would have to be on
scales not experienced during the historic era and would have to claim, almost instantly or within a
few months, many millions of lives. Events of sufficient magnitude to produce such a toll took
place within the past million years, but none of them has probabilities higher than 0.1 percent
during the next 50 years
Only a 1 in 80,000 chance of being killed by a terrorist
The New Republic, December 24, 2008, p. 22
As a result of this psychological bias, large numbers of Americans have overestimated the
probability of future terrorist strikes: In a poll conducted a few weeks after September 11,
respondents saw a 20 percent chance that they would be personally harmed in a terrorist attack
within the next year and nearly a 50 percent chance that the average American would be harmed.
Those alarmist predictions, thankfully, proved to be wrong; in fact, since September 11,
international terrorism has killed only a few hundred people per year around the globe, as
John Mueller points out in Overblown. At the current rates, Mueller argues, the lifetime
probability of any resident of the globe being killed by terrorism is just one in 80,000.
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Terrorism Risk Very Low
Terrorism is not an existential threat
The New Republic, December 24, 2008, p. 22
Michael Chertoff's public comments about terrorism embody this dilemma: Despite his laudable
efforts to speak soberly and responsibly about terrorism--and to argue that there are many kinds of
attacks we simply can't prevent--the incentives associated with his job have led him at times to
increase, rather than diminish, public anxiety. Last March he declared that, "if we don't recognize
the struggle we are in as a significant existential struggle, then it is going to be very hard to
maintain the focus." If nuclear attacks aren't likely and smaller events aren't existential
threats, I asked, why did he say the war on terrorism is a "significant existential struggle"?
"To me, existential is a threat that shakes the core of a society's confidence and causes a
significant and long-lasting line of damage to the country," he replied. But it would take a
series of weekly Virginia Tech-style shootings or London-style subway bombings to shake the
core of American confidence; and Al Qaeda hasn't come close to mustering that frequency of
low-level attacks in any Western democracy since September 11. "Terrorism kills a certain
number of people, and so do forest fires," Mueller told me. "If terrorism is merely killing
certain numbers of people, then it's not an existential threat, and money is better spent on
smoke alarms or forcing people to wear seat belts instead of chasing terrorists."
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Terrorism Risk Very Low
All reliable data supports our argument
Robinson ’05
(Paul,- assistant director of the Centre for Security Studies at the University of Hull “The
good news about terrorism”)
Alas for the experts, but luckily for us, the facts do not back this up. Far from being more dangerous, the world is safer now than ever before; and far
from being an ever-growing problem, terrorism
has been in sharp decline for over a decade
. This is not a matter of
opinion. It is provable. The Stockholm International Peace Research Institute (Sipri) and Canada’s Project Ploughshares both annually track the number of armed conflicts
taking place worldwide. Sipri counts only those which result in 1,000 deaths or more in a given year, so its figures are slightly lower. Even so, it agrees with Project
Ploughshares that the amount of fighting on the planet is declining. According to Sipri, there were only 19 conflicts in 2003, down from 33 in 1991. With its broader
definition, Project Ploughshares reports a decline to 36 in 2003 from a peak of 44 in 1995. More good news follows, I’m afraid. Battle-related deaths rose slightly from
15,000 in 2002 to 20,000 in 2003 because of the Iraq war, but even these figures are substantially down from the annual tolls of 40,000 to 100,000 during the Cold War.
Global military expenditure also fell by 11 per cent in real terms between 1992 and 2000, and the Congressional Research Service in Washington notes that international
arms sales fell from £22.8 billion in 2000 to £14.3 billion in 2003. In short, there are fewer wars, fewer arms sales and fewer people dying, each year, than at any time since
the second world war So much for the idea that the world is becoming more unstable. What of the second thesis — that global terrorism poses a new and unprecedented
threat to our security? Again, the concept turns out to be unsound. I recommend that the fearful visit the excellent website of the Rand Corporation’s MIPT (Memorial
Institute for the Prevention of Terrorism) database and try out its ‘Incident Analysis Wizard’ (www.tkb.org/ChartModule.jsp). However you fiddle MIPT’s figures, the
a big peak in terrorism in the late 1970s and early ’80s, followed by a
steady reduction ever since. During the 1980s, the number of international terrorist incidents worldwide averaged about 360 a year. By the year 2000,
chart always ends up looking roughly the same —
it was down to just 100. In Western Europe, the number has declined from about 200 in the mid-1980s to under 30 in 2004. Even more strikingly, in North America the
number of attacks has fallen from over 40 a year in the mid-1970s to under five every year for the past ten years, with the sole exception of 2001. Doubters can also turn to
the US State Department’s yearly analyses of international terrorism. These display exactly the same picture. It is
sometimes argued that terrorist attacks nowadays cause more deaths than in the past, but even that does not add up — except in the case of 2001.
The statistics for worldwide fatalities from terrorism show the same decline as the number of
attacks. For every Bali or Madrid bombing now, there was a Beirut, an Air India or a Lockerbie in the past. We seem to have very short
memories. Remember the FLQ, the Red Brigades, the Red Army Faction, the Baader-Meinhof group, and all the rest of them? All defunct. Even Eta
haven’t killed anybody for a couple of years. Bluntly, terrorism
is a declining problem, despite our best efforts to
provoke it.
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Terrorism Risk Very Low
Response to 9-11 proves
Mueller ’05
(John, “Is There Still a Terrorist Threat?” FOREIGN AFFAIRS v. 85 n. 5,
September/October)
The results of policing activity overseas suggest that the absence of results in the United States has less to do with terrorists' cleverness or with
investigative incompetence than with the possibility that few, if any, terrorists exist in the country. It also suggests that al Qaeda's ubiquity and
capacity to do damage may have, as with so many perceived threats, been exaggerated. Just
because some terrorists may wish
to do great harm does not mean that they are able to. Gerges argues that mainstream Islamists -- who
make up the vast majority of the Islamist political movement -- gave up on the use of force before 9/11, except perhaps against
Israel, and that the jihadists still committed to violence constitute a tiny minority. Even this small
group primarily focuses on various "infidel" Muslim regimes and considers jihadists who carry out violence against
the "far enemy" -- mainly Europe and the United States -- to be irresponsible, reckless adventurers who
endanger the survival of the whole movement. In this view, 9/11 was a sign of al Qaeda's desperation,
isolation, fragmentation, and decline, not of its strength.
Even if they haven’t rejected all violence – terrorists avoid mass destruction
Mueller ’05
(John, “Is There Still a Terrorist Threat?” FOREIGN AFFAIRS v. 85 n. 5,
September/October)
One reason al Qaeda and "al Qaeda types" seem not to be trying very hard to repeat 9/11 may be that that dramatic act of destruction
itself proved counterproductive by massively heightening concerns about terrorism around the world. No matter
how much they might disagree on other issues (most notably on the war in Iraq), there is a compelling incentive for states -even ones such as Iran, Libya, Sudan, and Syria -- to cooperate in cracking down on al Qaeda, because they know that they could
easily be among its victims. The fbi may not have uncovered much of anything within the United States since 9/11, but thousands of apparent
terrorists have been rounded, or rolled, up overseas with U.S. aid and encouragement. Although some Arabs and Muslims took pleasure in the
suffering inflicted on 9/11 -- Schadenfreude in German, shamateh in Arabic -- the
most common response among jihadists
and religious nationalists was a vehement rejection of al Qaeda's strategy and methods. When
Soviet troops invaded Afghanistan in 1979, there were calls for jihad everywhere in Arab and Muslim lands, and tens of thousands flocked to the
country to fight the invaders. In stark contrast, when the U.S. military invaded in 2001 to topple an Islamist regime, there was, as the political scientist
Fawaz Gerges points out, a "deafening silence" from the Muslim world, and only a trickle of jihadists went to fight the Americans. Other
jihadists publicly blamed al Qaeda for their post-9/11 problems and held the attacks to be
shortsighted and hugely miscalculated. The post-9/11 willingness of governments around the
world to take on international terrorists has been much reinforced and amplified by
subsequent, if scattered, terrorist activity outside the United States. Thus, a terrorist bombing in Bali in 2002
galvanized the Indonesian government into action. Extensive arrests and convictions -- including of leaders who had previously enjoyed some degree
of local fame and political popularity -- seem to have severely degraded the capacity of the chief jihadist group in Indonesia, Jemaah Islamiyah. After
terrorists attacked Saudis in Saudi Arabia in 2003, that country, very much for self-interested reasons, became considerably more serious about
dealing with domestic terrorism; it soon clamped down on radical clerics and preachers. Some rather inept terrorist bombings in Casablanca in 2003
inspired a similarly determined crackdown by Moroccan authorities. And the 2005 bombing in Jordan of a wedding at a hotel (an unbelievably stupid
target for the terrorists) succeeded mainly in outraging the Jordanians: according to a Pew poll, the percentage of the population expressing a lot of
confidence in bin Laden to "do the right thing" dropped from 25 percent to less than one percent after the attack.
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Middle East Terrorism Risk Generally Exaggerated
Fear of Middle Eastern terrorism is irrational
John Tehranian, law professor, Connecticut Law Review, February, 2009, Article: The Last
Minstrel Show? Racial Profiling, the War on Terrorism and the Mass Media, p. 793
Support for racial profiling in the war on terrorism continues unabated, despite its underlying
irrationality, because of fear-an emotion that has animated ill- conceived and discriminatory
government projects since time immemorial. The specter of another 9/11 causes otherwise
sound policy makers to support anti-terrorism policies that target individuals of MiddleEastern descent. The average American has little direct contact with the Middle East or even
with Middle-Easterners. Instead, popular perceptions are driven by indirect contact through
the mediating force of mass communications. In news and entertainment programming, fear is
reflected, cultivated and magnified to devastating effect.
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Bioterrorism Answers
No impact to Bio-terrorism --- Public health checks epidemics
Easterbrook ’02
(Gregg,- “'Weapons of Mass Destruction' Meaningless” http://www.whywar.com/news/2002/10/07/weaponso.html)
Note that bioweapons have done steadily less harm in recent times, as public health infrastructure has improved. When the Aralsk smallpox
outbreak happened, for example, Soviet officials moved rapidly to vaccinate the 50,000 people closest to the area;
this stopped the disease, giving it no vulnerable hosts to jump to. Ebola had no impact in the United States in
1989, and anthrax had relatively little impact in 2001, because the releases occurred in areas of high
public health and excellent health care services; the pathogens were rapidly isolated and antibiotics were
given. In a world of ever-better public health (in the West, at least), using a bioweapon is like shooting a gun at
someone wearing a bulletproof vest--the bullet is still dangerous, but there is a reasonable chance it will bounce off.
Terrorists don’t want bio-weapons
Paranchi ’01
(John, Analyst, RAND Corporation, “Anthrax Attacks, Biological Terrorism, and Preventive
Responses,” RAND TESTIMONY, November, p. 11-12 Available from the World Wide
Web at: www.rand.org/publications/CT/CT186/CT186.pdf)
The use of disease and biological material as a weapon is not a new method of warfare. What is surprising is how
infrequently it is has been used. Biological agents may appeal to the new terrorist groups because they affect people indiscriminately and unnoticed,
thereby sowing panic. A pattern is emerging that terrorists who perpetrate mass and indiscriminate attacks do not claim responsibility.5 In contrast to
the turgid manifestos issued by terrorists in the 1960s, 1970s and 1980s, recent mass casualty terrorists have not claimed responsibility until they were
imprisoned. Biological agents enable terrorists to preserve their anonymity because of their delayed impact and can be confused with natural disease
outbreaks. Instead of the immediate gratification of seeing an explosion or the glory of claiming credit for disrupting society, the biological weapons
terrorist may derive satisfaction from seeing society’s panicked response to their actions. If this is the case, this is a new motive for the mass casualty
terrorist. There
are a number of countervailing disincentives for states and terrorists to use biological weapons,
which help explain why their use is so infrequent. The technical and operational challenges biological
weapons pose are considerable. Acquiring the material, skills of production, knowledge of
weaponization, and successfully delivering the weapon, to the target is difficult. In cases where the populations of the terrorist
supporters and adversaries are mixed, biological weapons risk inadvertently hitting the same people for
whom terrorists claim to fight. Terrorists may also hesitate in using biological weapons specifically because
breaking the taboo on their use may evoke considerable retaliation. The use of disease as a weapon is widely
recognized in most cultures as a means of killing that is beyond the bounds of a civilized society. From a
psychological perspective, terrorists may be drawn to explosives as arsonists are drawn to fire. The immediate
gratification of explosives and the thrill of the blast may meet a psychological need of terrorists that the delayed
effects of biological weapons do not. Causing slow death of others may not offer the same psychic thrill achieved by killing with
firearms or explosives. Perhaps the greatest alternative to using biological weapons is that terrorists can inflict (and have inflicted) many
more fatalities and casualties with conventional explosives than with unconventional weapons. Biological weapons present technical and
operational challenges that determined killers may not have the patience to overcome or they may simply concentrate their
efforts on more readily available alternatives.
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Bioterrorism Answers
Technical challenges
National Journal ’05
(April 23, lexis)
On the other hand, critics argue that some experts have oversimplified the significant technical challenges to
building catastrophic biological weapons and have overestimated the abilities of terrorist groups to overcome them. "How do you kill a lot of people?
There, you've got to get involved with airborne, deadly pathogens such as Bacillus anthracis spores, and that's fairly technically demanding to do,"
Zilinskas said. Potential difficulties, experts say, include
obtaining proper equipment and an appropriate
strain of pathogen; storing and handling the pathogen properly; growing it to produce a greater quantity;
processing it to develop the desirable characteristics; testing it; and dispersing it. A terrorist group would need to
have suitably educated and knowledgeable people, and sufficient time and freedom from government scrutiny, to do the
work, they say. Potentially the toughest challenge, experts say, is "weaponization" -- processing an agent to the point that it
can resist environmental stresses, survive dissemination, and increase its ability to infect (pathogenicity) and to harm (toxicity). This is particularly
true if the terrorists want to spray the agent, which is a more effective approach for a mass attack than spreading an agent through human-to-human
contact. "While collection and purification knowledge is widespread among ordinary scientists, weaponization
is obviously a military
subject, and much of the knowledge that surrounds it is classified," wrote Danzig, who believes that terrorists nevertheless might be able to
develop catastrophic biological weapons.
The key difficulty for producing an aerosolized weapon, Danzig said,
"would be to produce a pathogen formulation in sizes that would be within the human respiratory range and that
could be reliably stored, handled, and spread as a stable aerosol rather than clump and fall to the ground. Mastering these somewhat contradictory
requirements is
tricky... The challenge becomes greater as attackers seek higher concentrations of
agent and higher efficiency in dissemination." Stanford's Chyba agrees on the difficulties of weaponization. "Aerosolization is clearly
[a] serious hurdle. I just find it hard, currently, to imagine a Qaeda offshoot -- or, for that matter, any of the current
non-state groups that I have read about -- being technically proficient in that."
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No Terror/Large Attacks
Low-risk of super terrorism (limited capabilities, inevitable mistakes, and conservative
tactics)
Michael Levi, fellow at the Council on Foreign Relations, January/February, 2008, Stopping Nuclear Terrorism, Foreign Affairs, p. lexis
neglected. The search for a perfect defense is partly driven
by outsized fears of terrorists' capabilities and the assumption that a worst-case, or "perfect storm," scenario will occur. But terrorists do not
have superhuman powers; their plots are imperfect, contingent, and can be derailed. Consider the analogy of a police department seeking to
WHEN STRATEGIES for preventing nuclear terrorism rely on silver bullets, less dramatic--but nonetheless crucial--measures are
prevent bank robberies. If the department assumes that all thieves have cars that travel 200 miles per hour, the department will give up on planning carefully for car chases and focus almost entirely on
guarding the banks. If it instead realizes that many thieves will have cars that travel only 100 miles per hour, it will also carefully develop tactics for chasing down robbers. Realistically assessing the
full spectrum of possible threats--in this case, from Ferraris to Ford Escorts--spurs broader and more careful planning by the police department. The same would be true of the U.S. government's
Moving away from worst-case assessments
of the capabilities of nuclear terrorists will require strategists to rethink many basic assumptions. Terrorist groups are limited in
their capabilities. Some terrorist groups, for example, lack expert personnel but have extensive resources. Analysts generally assume that wealthy groups will
use their resources, whether money or connections, to recruit the right people. But the case of Aum Shinrikyo, an apocalyptic Japanese cult,
reveals that this logic is not always correct. The cult was both wealthy and well connected in the Russian bioweapons world, but it decided that expanding its circle of experts would
homeland security and counterterrorism policies if Washington adopted a more nuanced view of the nuclear terrorist threat.
threaten its cover and failed to pull off a successful anthrax attack. Defenses that might work against groups with limited capabilities should not be dismissed, even if they are likely to fail against
Terrorist groups also make mistakes. In the typical portrait of nuclear terrorists, if they see an opportunity to succeed, they will manage to seize it. But things do not always
A group skilled enough to acquire a nuclear weapon will not , for example, necessarily succeed in the simpler task of
hiding it from authorities. In June 2007, a group of highly educated Britons attempted to build and detonate two car bombs in London. They
succeeded in building the bombs, but their education and intelligence did not stop them from leaving their cars in a no-parking zone, a
others.
go as planned.
seemingly avoidable mistake that led to their capture. It is impossible to predict where groups will err, but defenses should be devised so that they are ready to exploit the mistakes that terrorists will
Flashes of creativity, such as al Qaeda's use of
airliners as missiles, have convinced many observers that such groups are invariably nimble and innovative. But many ambitious
and successful terrorist groups are conservative and averse to failure--and thus stick to bread-and-butter tactics whenever
almost inevitably make. Another common misperception is that apocalyptic terrorist groups care little about risk or failure.
possible, even when a new approach seems promising. Although 9/11 has convinced many that al Qaeda is innovative, it also provides evidence for the opposite conclusion: the group used battle-tested
Defensive measures that target the most obvious terrorist tactics should not be dismissed simply because analysts
can dream up ways in which those measures might theoretically be evaded .
techniques for financing and travel.
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No Nuke Terror – Laundry List Cards (Short Frontline)
No technical capacity to steal, transport or build the bomb
Steven Chapman, columnist and editorial writer for the Chicago Tribune, 2/8/2008, Who’s Still Afraid of Osama?, p.
http://reason.com/news/show/124874.html
Ever since Sept. 11, 2001, Americans have had to live with the knowledge that the next time the terrorists strike, it could be not with airplanes capable of killing thousands but atomic bombs capable of
killing hundreds of thousands. The prospect has created a sense of profound vulnerability. It has shaped our view of government policies aimed at combating terrorism (filtered through Jack Bauer). It
helped mobilize support for the Iraq war. Why are we worried? Bomb designs can be found on the Internet. Fissile material may be smuggled out of Russia. Iran, a longtime sponsor of terrorist groups,
is trying to acquire nuclear weapons. A layperson may figure it's only a matter of time before the unimaginable comes to pass. Harvard's Graham Allison, in his book Nuclear Terrorism: The Ultimate
Preventable Catastrophe, concludes, "On the current course, nuclear terrorism is inevitable." But remember: After Sept. 11, 2001, we all thought more attacks were a certainty. Yet Al Qaeda and its
ideological kin have proved unable to mount a second strike. Given their inability to do something simple—say, shoot up a shopping mall or set off a truck bomb—it's reasonable to ask if they have a
recent presentation at the University of Chicago, "the
likelihood that a terrorist group will come up with an atomic bomb seems to be vanishingly small."
(http://polisci.osu.edu/faculty/jmueller/ APSACHGO.PDF) The events required to make that happen include a multitude of herculean
tasks . First, a terrorist group has to get a bomb or fissile material, perhaps from Russia's inventory of decommissioned warheads. If
that were easy, one would have already gone missing. Besides, those devices are probably no longer a danger, since
weapons that are not scrupulously maintained (as those have not been) quickly become what one expert calls "radioactive scrap
metal." If terrorists were able to steal a Pakistani bomb, they would still have to defeat the arming codes and other safeguards
designed to prevent unauthorized use. As for Iran, no nuclear state has ever given a bomb to an ally—for reasons even the Iranians can
grasp. Stealing some 100 pounds of bomb fuel would require help from rogue individuals inside some government who are prepared
to jeopardize their own lives. The terrorists, notes Mueller, would then have to spirit it "hundreds of miles out of the country
over unfamiliar terrain, and probably while being pursued by security forces." Then comes the task of building a bomb. It's
not something you can gin up with spare parts and power tools in your garage. It requires millions of dollars, a safe haven and advanced
equipment—plus people with specialized skills, lots of time and a willingness to die for the cause. And if Al Qaeda
could make a prototype, another obstacle would emerge: There is no guarantee it would work, and there is no way to
test it. Assuming the jihadists vault over those Himalayas, they would have to deliver the weapon onto American soil. Sure, drug
smugglers bring in contraband all the time—but seeking their help would confront the plotters with possible exposure or
extortion. This, like every other step in the entire process, means expanding the circle of people who know what's going on,
multiplying the chance someone will blab, back out or screw up . Mueller recalls that after the Irish Republican Army failed in an
attempt to blow up British Prime Minister Margaret Thatcher, it said, "We only have to be lucky once. You will have to be lucky always." Al
Qaeda, he says, faces a very different challenge: For it to carry out a nuclear attack, everything has to go right. For us to
escape, only one thing has to go wrong. That has heartening implications. If Osama bin Laden embarks on the project, he has only a
chance at something much more ambitious. Far from being plausible, argued Ohio State University professor John Mueller in a
minuscule chance of seeing it bear fruit. Given the formidable odds, he probably won't bother. None of this means we should stop trying to minimize
the risk by securing nuclear stockpiles, monitoring terrorist communications and improving port screening. But it offers good reason to think that in
this war, it appears, the worst eventuality is one that will never happen.
Nuclear attack unlikely – no materials, motivation, and terrorists won’t risk a failed effort
Levi, ‘7 (Michael A., Fellow for Science and Technology at the Council on Foreign Relations, “How Likely is a
Nuclear Terrorist Attack on the United States?,” Council on Foreign Relations, April 13,
http://www.cfr.org/publication/13097/how_likely_is_a_nuclear_terrorist_attack_on_the_united_states.html)
A nuclear weapon requires highly enriched uranium (HEU) or plutonium, materials that don’t occur in nature and that
terrorist groups cannot produce themselves. The ease of access to materials in state stockpiles is thus one of the main factors affecting the
odds of a nuclear terrorist attack. The other big factor is motivation. Most terrorist groups have little incentive to pursue nuclear
terrorism, since mass murder doesn’t serve their political ends—but for some groups, indiscriminate killing is precisely the goal.
Most analysts agree that the availability of nuclear weapons and materials, and the utility to terrorist groups of successful nuclear attacks, are the two
most important factors in determining the likelihood of nuclear terrorism, even if they disagree over how hard acquiring materials would be or over
how many groups might expect to benefit from nuclear terrorism. So let me flag another dimension of motivation that gets too little attention. Even
groups that want to and possibly can execute nuclear attacks may decide against them . Why? Because many of the most
dangerous terrorist groups hate to fail. Brian Jenkins wrote recently that for jihadists, “failure signals God’s
disapproval.” That’s a lot of pressure to succeed. This inevitably pushes the odds of nuclear terrorism down. When we look at
our defenses against nuclear terrorism, we prudently notice the holes. When terrorists look at those same defenses, they may be
fixating on whatever barriers, however limited, exist. If that’s what’s happening, nuclear terrorism may be much less likely
than many expect.
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No Nuke Terror – Laundry List Cards (Short Frontline)
Low risk of nuclear terrorism – terrorists couldn’t build or buy nukes
Frost ’5 [Robin Frost, political science at Simon Fraser University, December, 2005, Nuclear Terrorism After 9/11,
Adelphi Papers]
Nonetheless, there is considerable evidence that must inform this speculation and narrow its range. First, there are technical considerations.
Assembling enough fissile material for even the crudest nuclear device - and the amounts needed vary inversely with sophistication -
would be very difficult and probably extremely expensive for a terrorist organisation. The theoretical knowledge and
practical skills required to design and build a nuclear weapon are of a high order, while setting up, equipping and
successfully operating an undetectable clandestine weapons laboratory would be difficult and expensive, even for the
best-funded terrorist organisation. Aum Shinrikyo, which operated relatively openly under Japanese laws regarding
religious organisations that made it all-but-untouchable, and which had a billion-dollar war chest, gave up the attempt to develop a
nuclear weapon very early on in the process, preferring to work with chemical and biological agents instead. The evidence, much of it
admittedly negative, suggests that buying or stealing a functional nuclear weapon would be an even more difficult, perhaps
impossible, task. Nuclear weapons are guarded like national treasures; indeed, nuclear weapons are in some sense national treasures,
symbols of national strength and modernity bought at immense cost. No state that possessed them, whether established or 'rogue',
would be likely to hand over such weapons to terrorists unless they were acting as mercenary agents of the state itself.
The threat of nuclear retaliation, even if the possibility of tracing the weapon back to its source were thought to be low,
should be enough to deter any rational state from using a nuclear weapon against another nuclear-weapon state, or a
country under the protection of one.
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Nuclear Terrorism Frontline (Long)
No Nuclear Terrorism
1. Can’t Get a Bomb
A.
States wont transfer nukes – no incentive and fear retaliation
Frost ’5 [Robin Frost, political science at Simon Fraser University, December, 2005, Nuclear Terrorism After 9/11,
Adelphi Papers]
With regard to the first point, it is sometimes speculated that a state might actively or passively help a terrorist group to acquire a nuclear weapon. It
is almost inconceivable, however, that any state, of any stripe, would knowingly allow a nuclear weapon on its soil in the
possession of actors that were not themselves under the state's tightest possible control and hence effectively part of it, if for no
other reason than the fear that the weapon might be used against itself. Nor could it allow the expertise and physical plant required to
build one to be outside of state control. Why sponsor a nuclear programme if the state were not the primary beneficiary? In the
case of second-tier nuclear-weapon states, the weapons themselves are national treasures, bought at great cost, invested
with immense symbolic value and therefore presumably kept under tight control. (The A.Q. Kahn episode is evidence of a
state entity sharing some nuclear technology - but possibly not fissile materials and certainly not bombs - with other
friendly states, not terrorists.) If state-sponsored nuclear terror were to occur, it would most probably be a case of a state using an
unconventional delivery system, a potentially attractive option if the attack were thought to be deniable or if the state lacked suitable delivery
vehicles, such as intercontinental ballistic missiles. That, at any rate, is how it would be seen by the victim and the international community. The
possibility that a terrorist weapon could be traced back to the sponsor, even if relatively low, should still be too high in
relation to the worst possible consequences - nuclear annihilation - for a state to sponsor or even knowingly to host
nuclear terrorists. Even passive, unwitting hosts might face some level of retaliation if it could be argued that they should have known about the
terrorists on their soil. All nuclear-weapon states - established, 'rogue' and clandestine proliferators alike - have the strongest
possible interests in ensuring that terrorists do not get hold of nuclear weapons and, therefore, in maintaining control of their
nuclear materials and technology. This is, of course, especially true since the enunciation of the so-called First Bush Doctrine, in which US President
George W. Bush announced that the United States would 'make no distinction between the terrorists who committed [the 9/11 attacks] and those who
harbour them'.2 Not all states or their leaderships are necessarily rational, of course, but it is still difficult to imagine any state
actively sponsoring nuclear terrorism. Both the obvious potential candidates, Iran and North Korea, have engaged in risky nuclear
brinkmanship, but it is highly unlikely that either would sponsor a terrorist nuclear attack on another state. North Korea has consistently used
its nuclear programme as a way of wringing concessions from the West, and even as erratic a ruler as Kim Jong Il would not
launch a nuclear attack of any sort unless he were in extremis, facing an imminent invasion by the combined forces of the US and
South Korea, perhaps, or confronting the collapse of his regime for other reasons. Under those circumstances, however, he would be unlikely to
deliver his weapons clandestinely. For Iran, the possible pursuit of a nuclear-weapon programme has increased international
pressure and prompted hints of military intervention; sponsoring a nuclear attack would simply seal the country's fate.
The risk is compounded by the fact that the wounded party might not be over-concerned with proof of sponsorship. The most likely target, the United
States, has invaded two countries and toppled their governments, inflicting thousands of casualties in the process, largely because of these states'
associations, proven in one case but merely assumed in the other, with an attack that killed 3,000 Americans. How might it respond to an attack that
killed perhaps half a million citizens, devastated Manhattan or Washington and crippled the national and global economies?
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Nuclear Terrorism Frontline (Long)
B. Too Hard to build them
John Mueller, department of political science at Ohio State University, 1/1/2008, The Atomic Terrorist, p.
http://polisci.osu.edu/faculty/jmueller/APSACHGO.PDF
Constructing an atomic device. Once outside the country with their precious booty, terrorists would have to set up a large and well-equipped
machine shop to manufacture a bomb and then populate it with a very select team of highly skilled scientists, technicians, and
machinists. They would have to be assembled and retained for the task while no consequential suspicions are generated among
friends, family, and police about their curious and sudden absence from normal pursuits back home. They would also have to be
utterly devoted to the cause, of course. And, in addition, they would have to be willing to risk their lives, and certainly their
careers, because after their bomb was discovered, or exploded, they would likely become the targets in an intense
worldwide dragnet operation facilitated by the fact that their skills would not be common ones.12 Applying jargon that
emerged in the aftermath of an earlier brutal conspiracy, their names would become Mudd. More than a decade ago Allison boldly insisted that it
would be "easy" for terrorists to assemble a crude bomb if they could get enough fissile material (Allison et al. 1996, 12).13 Atomic scientists,
perhaps laboring under the concern, in Langewiesche's words, that "a declaration of safety can at any time be proved spectacularly wrong" (2007, 49),
have been comparatively restrained in cataloguing the difficulties terrorists would face in constructing a bomb. But physicists Wirz and Egger
have published a paper that does so, and it concludes that the task "could hardly be accomplished by a subnational group"
(2005, 501). They point out that precise blueprints are required, not just sketches and general ideas, and that even with a good
blueprint they "would most certainly be forced to redesign" (2005, 499-500). The process could take months or even a year or more
(Pluta and Zimmerman 2006, 62), and in distinct contrast with Allison, they stress that the work, far from being "easy," is difficult, dangerous,
and extremely exacting, and that the technical requirements "in several fields verge on the unfeasible." They conclude that "it
takes much more than knowledge of the workings of nuclear weapons and access to fissile material to successfully
manufacture a usable weapon" (2005, 501-2). These problems are also emphasized in an earlier report by five Los Alamos scientists: although
schematic drawings showing the principles of bomb design in a qualitative way are widely available, the detailed design
drawings and specifications that are essential before it is possible to plan the fabrication of actual parts are not available.
The preparation of these drawings requires a large number of man-hours and the direct participation of individuals
thoroughly informed in several quite distinct areas: the physical, chemical, and metallurgical properties of the various materials to be used, as
well as the characteristics affecting their fabrication; neutronic properties; radiation effects, both nuclear and biological; technology concerning high
explosives and/or chemical propellants; some hydrodynamics; electrical circuitry; and others (Mark et al. 1987, 58).14 Moreover, stresses physicist
David Albright, the process would also require "good managers and organization people" (Keller 2002). The Los Alamos scientists
additionally point out that the design and building would require a base or installation at which experiments could be carried out
over many months, results could be assessed, and, as necessary, the effects of corrections or improvements could be observed in follow-on
experiments. Similar considerations would apply with respect to the chemical, fabrication, and other aspects of the program (Mark et al. 1987, 64-65).
Although they think the problems can be dealt with "provided adequate provisions have been made," they also stress that "there are a number of
obvious potential hazards in any such operation, among them those arising in the handling of a high explosive; the possibility of inadvertently
inducing a critical configuration of the fissile material at some stage in the procedure; and the chemical toxicity or radiological hazards inherent in the
materials used. Failure to foresee all the needs on these points," they conclude laconically, "could bring the operation to a close" (Mark et al. 1987, 62,
emphasis added; see also Pluta and Zimmerman 2006, 64). Or, as Gary Milhollin puts it, "a single mistake in design could wreck the whole project"
(2002, 48). Younger has more recently made a similar argument: it would be wrong to assume that nuclear weapons are now easy to
make....I am constantly amazed when self-declared "nuclear weapons experts," many of whom have never seen a real nuclear weapon, hold forth on
how easy it is to make a functioning nuclear explosive....While it is true that one can obtain the general idea behind a rudimentary
nuclear explosive from articles on the Internet, none of these sources has enough detail to enable the confident assembly
of a real nuclear explosive (2007, 86, 88).15 Although he remains concerned that a terrorist group could buy or steal a nuclear device or be
given one by an established nuclear country (2007, 93), Younger is quick to enumerate the difficulties the group would confront when trying to
fabricate one on their own. He stresses that uranium is "exceptionally difficult to machine" while "plutonium is one of the most complex metals ever
discovered, a material whose basic properties are sensitive to exactly how it is processed. Both need special machining technology that has evolved
through a process of trial and error." Others contend the crudest type of bomb would be "simple and robust" and "very simple"
to detonate (Bunn and Wier 2006, 140). Younger disagrees: Another challenge...is how to choose the right tolerances. "Just
put a slug uranium into a gun barrel and shoot it into another slug of uranium" is one deception of how easy it is to
make a nuclear explosive. However, if the gap between the barrel and the slug is too tight, then the slug may stick as it is
accelerated down the barrel. If the gap is too big, then other more complex, issues may arise. All of these problems can be solved by
experimentation, but this experimentation requires a level of technical resources that , until recently, few countries had. How do
you measure the progress of an explosive detonation without destroying the equipment doing the measurement? How do you perform precision
measurements on something that only lasts a fraction of a millionth of a second? (2007, 89) All this work would have to be carried out in
utter secret, of course, even while local and international security police are likely to be on the intense prowl . "In addition to all
the usual intelligence methods," note the Los Alamos scientists, "the most sensitive technical detection equipment available would be
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at their disposal," and effective airborne detectors used to prospect for uranium have been around for decades and "great
improvement in such equipment have been realized since" (Mark et al. 1987, 60). As Milhollin presents the terrorists’ problem, "the
theft of the uranium would probably be discovered soon enough, and it might be only a short matter of time before the whole world showed
up on their doorstep" (2002, 48).16 Moreover, points out Langewiesche, people in the area may observe with increasing curiosity and
puzzlement the constant coming and going of technicians unlikely to be locals (2007, 65-69).17 In addition, the bombmakers
would not be able to test the product to be sure they were on the right track (Linzer 2004; Mark et al. 1987, 64). The process of fabricating an
IND requires, then, the effective recruitment of people who at once have great technical skills and will remain completely devoted to the cause. This is
not an impossible task--some of the terrorists who tried to commit mayhem in Britain in 2007 had medical degrees--but it certainly vastly complicates
the problem. In addition, corrupted co-conspirators, many of them foreign, must remain utterly reliable, no curious outsider must get wind of the
project over the months or even years it takes to pull off, and international and local security services must be kept perpetually in the dark.
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Nuclear Terrorism Frontline (Long)
C. Too expensive to buy or build them
John Mueller, department of political science at Ohio State University, 1/1/2008, The Atomic Terrorist, p.
http://polisci.osu.edu/faculty/jmueller/APSACHGO.PDF
Assessing the financial costs. The discussion so far has neglected to consider the financial costs of the extended operation in all its cumulating, or
cascading, entirely, but these could easily become monumental. There would be expensive equipment to buy, smuggle, and set up,
and people to pay--or pay off. Some operatives might work for free out of utter dedication to The Cause, but the vast conspiracy requires
in addition the subversion of a considerable array of criminals and opportunists, each of whom has every incentive to
push the price for cooperation as high as possible. Alarmists Zimmerman and Lewis (2006) suggest the entire caper could be
pulled off for $10 million. The conspirators would be lucky to buy off three people with such a paltry sum. Moreover, the
terrorists would be required to expose their ultimate goals to at least some of the corrupted, and at that point (if not earlier) they
would become potential extortion victims. They could not afford to abandon unreliable people who know their goals (though
they could attempt to kill them), and such people would now enjoy essentially monopoly powers ever to escalate their price.
The cost of the operation in bribes alone could easily become ten times the sum suggested by Zimmerman and Lewis. And even at that,
there would be, of course, a considerable risk that those so purchased would, at an exquisitely opportune moment of their choosing,
decide to take the money and run--perhaps to the authorities representing desperate governments with essentially bottomless bankrolls
and an overwhelming incentive to expend resources to arrest the atomic plot and to capture or kill the scheming perpetrators.
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Nuclear Terrorism Frontline (Long)
2. No delivery
A. Too hard to transport a nuke to the target
Charles Ferguson, scientist-in-residence at Monterey Institute of International Studies, and William Potter, professor and director of the Center
for Nonproliferation Studies at Monterey Institute of International Studies, 2004, The Four Faces of Nuclear Terrorism, p.
http://www.nti.org/c_press/analysis_4faces.pdf
Assuming a terrorist organization could obtain a nuclear weapon and had the ability to overcome any mechanisms built into the device to prevent its
unauthorized detonation, it would still face the task of taking the weapon to the group's intended target. For the scenarios of greatest concern
to the U nited S tates - the use of the weapon against a city in the United States or one of its allies - the distance between the point of
acquisition and the target could be quite substantial.41 If the loss of a nuclear weapon were detected, as would be
expected unless a state provided one to a terrorist organization, a massive hunt for the weapon would be launched, involving law
enforcement and military personnel from many nations, assisted by nuclear specialists. This effort would be accompanied
by greatly intensified security over transportation links and points of entry . These factors would present considerable
challenges to the terrorist organization, underscoring the need for such a group to have extensive resources and networks of collaborators.
D. Too hard to detonate
Charles Ferguson, scientist-in-residence at Monterey Institute of International Studies, and William Potter, professor and director of the Center
for Nonproliferation Studies at Monterey Institute of International Studies, 2004, The Four Faces of Nuclear Terrorism, p.
http://www.nti.org/c_press/analysis_4faces.pdf
Detonation If a nuclear weapon were successfully transported to its target site, and any PALs disabled, a degree of technical competence
would nonetheless be required to determine how to trigger the device and provide the necessary electrical or mechanical input
for detonation. Moreover, detonation could be daunting unless the detonators and the arming and firing sequence mechanisms had been
preserved. Here, again, insider assistance would be of considerable help. Thus, even this seemingly straightforward aspect of the
chain of causation would pose an obstacle to the terrorists' goals.
3. Won’t Use them
A. Terrorists won’t use nukes – damages their causes
Kapur ‘8 [S. Paul – Assoc Prof in Dept of Strategic Research at the US Naval War College. “Nuclear Terrorism,” in
The Long Shadow: Nuclear Weapons and Security in 21st Century Asia. Ed. Muthiah Alagappa. p. 324]
Before a terrorist group can attempt to use nuclear weapons, it must meet two basic requirements. First, the group must decide that it wishes to engage
in nuclear terrorism. Analysts and policy makers often assume that terrorist groups necessarily want to do so (Carter 2004; U.S. Government 2002).
However, it is not clear that terrorist organizations would necessarily covet nuclear devices. Although analysts often
characterize terrorism as an irrational activity (Laqeuer 1999: 4-5), extensive empirical evidence indicates that terrorist groups in fact
be- have rationally, adopting strategies designed to achieve particular ends (Crenshaw 1995: 4; Pape 2003: 344). Thus whether
terrorists would use nuclear weapons is contingent on whether doing so is likely to further their goals . Under what
circumstances could nuclear weapons fail to promote terrorists' goals? For certain types of terrorist objectives, nuclear weapons could be
too de- structive. Large-scale devastation could negatively influence audiences important to the terrorist groups.
Terrorists often rely on populations sympathetic to their cause for political, financial, and military support. The horrific
destruction of a nuclear explosion could alienate segments of this audience. People who otherwise would sympathize with the
terrorists may conclude that in using a nuclear device terrorists had gone too far and were no longer deserving of support . The catastrophic
effects of nuclear weapons could also damage or destroy the very thing that the terrorist group most values. For example, if
a terrorist orga- nization were struggling with another group for control of their common home- land, the use of nuclear weapons against the
enemy group would devastate the terrorists' own home territory. Using nuclear weapons would be extremely counter- productive for
the terrorists in this scenario. It is thus not obvious that all terrorist groups would use nuclear weapons. Some groups would probably not. The
propensity for nuclear acquisition and use by ter- rorist groups must be assessed on a case-by-case basis.
B. Won’t pursue nukes because of risk of detection
Charles Ferguson, scientist-in-residence at Monterey Institute of International Studies, and William Potter, professor and director of the Center
for Nonproliferation Studies at Monterey Institute of International Studies, 2004, The Four Faces of Nuclear Terrorism, p.
http://www.nti.org/c_press/analysis_4faces.pdf
A final disincentive to terrorists considering the option of nuclear terrorism could be that the planning, training, and
acquisition of necessary capabilities might create unique "signatures," making them more vulnerable to discovery by
intelligence operatives and law enforcement agents. In addition, since a nuclear terrorist incident would involve a terrorist group
in novel, complex, technical, and untried activities, the potential for accidents and emergence of unforeseen problems
would be much greater than what might be expected for more conventional terrorism.
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Nuclear Terrorism Frontline (Long)
C. Terrorists aren’t tactical innovators –they wont use nukes
Frost ’5 [Robin Frost, political science at Simon Fraser University, December, 2005, Nuclear Terrorism After 9/11,
Adelphi Papers]
It is important to remember that terrorists, with the possible exception of al-Qaeda, are
not known for their great tactical innovation.
The traditional tools of terrorism - hostage-taking, bombings, shoot-and-run sniper attacks - have only relatively
recently been expanded to include the use of suicide bombers, and even suicide bombs are only a particularly unpleasant
and vicious variation on an older theme. Terrorists in general probably share the same ignorance and fear of WMD
prevalent in the broader population, and probably see little reason to turn to unknown, possibly unpredictable and
certainly dangerous substances and techniques when the older tactics have proved themselves to be simple, reliable and
cheap - or so, at least, we hope.
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A2 Pakistan Loose Nukes
Pakistan has robust nuclear security – shields against terrorism
Gregory ‘9 [Professor Shaun Gregory is Director of the Pakistan Security Research Unit (PSRU) at the
University of Bradford in the United Kingdom. “The Terrorist Threat to Pakistan’s Nuclear Weapons” CTC
SENTINEL JULY 2009 . VOL 2 . ISSUE 7]
Pakistan has established a robust set of measures to assure the security of its nuclear weapons . These have
been based on copying U.S. practices, procedures and technologies, and comprise: a) physical security;
b)
personnel
reliability programs; c) technical and procedural safeguards; and d) deception and secrecy.
These measures provide the Pakistan Army’s Strategic Plans Division (SPD)—which oversees nuclear weapons operations—a high
degree of confidence in the safety and security of the country’s nuclear weapons .2 In terms of physical security,
Pakistan operates a layered concept of concentric tiers of armed forces personnel to guard nuclear weapons facilities,
the use of physical barriers and intrusion detectors to secure nuclear weapons facilities, the physical separation of
warhead cores from their detonation components, and the storage of the components in protected
underground sites. With respect to personnel reliability, the Pakistan Army conducts a tight selection
process
drawing
almost exclusively on officers from Punjab Province who are considered to have
fewer links with religious extremism or with the Pashtun areas of Pakistan from which groups such as the Pakistani Taliban
mainly garner their support. Pakistan operates an analog to the U.S. Personnel Reliability Program (PRP) that
screens individuals for Islamist sympathies, personality problems, drug use, inappropriate external affiliations, and sexual
deviancy.3 The army uses staff rotation and also operates a “two- person” rule under which no action,
decision, or activity involving a nuclear weapon can be undertaken by fewer than two persons .4 The purpose of
this policy is to reduce the risk of collusion with terrorists and to prevent nuclear weapons technology getting
transferred to the black market. In total, between 8,000 and 10,000 individuals from the SPD’s security division and from
Pakistan’s Inter-Services Intelligence Directorate (ISI), Military Intelligence and Intelligence Bureau agencies are involved in the
security clearance and monitoring of those with nuclear weapons duties.5 Despite formal command authority structures that cede a
role to Pakistan’s civilian leadership, in practice the Pakistan Army has complete control over the country’s
nuclear weapons. It imposes its executive authority over the weapons through the use of an
authenticating code system down through the command chains that is intended to ensure that only authorized nuclear
weapons
activities
and operations occur. It operates a tightly controlled
identification system to assure the
identity of those involved in the nuclear chain of command, and it also uses a rudimentary Permissive Action Link (PAL)
type system to electronically lock its nuclear weapons. This system uses technology similar to the banking industry’s “chip and
pin” to ensure that even if weapons fall into terrorist hands they cannot be detonated. 6 Finally, Pakistan makes
extensive use of secrecy and deception. Significant elements
of
Pakistan’s
nuclear weapons
infrastructure are kept a closely guarded secret. This includes the precise location of some of the
storage facilities for nuclear core and detonation components, the location of preconfigured nuclear weapons crisis
deployment sites, aspects of the nuclear command and control arrangements,7 and many aspects of the arrangements for nuclear safety
and security (such as the numbers of those removed under personnel reliability programs, the reasons for their removal, and
how often
authenticating and enabling (PAL-type) codes are changed). In addition, Pakistan uses deception— such
as dummy missiles—to complicate the calculus of adversaries and is likely to have extended this practice to
its nuclear weapons infrastructure. Taken together, these measures provide confidence that the Pakistan
Army can fully protect its nuclear weapons against the internal terrorist threat ,8 against its main adversary
India, and against the suggestion that its nuclear weapons could be either spirited out of the country by a
third party (posited to be the United States) or destroyed in the event of a deteriorating situation or a state collapse
in Pakistan.9 The fact that Pakistan has been willing to fire on U.S. soldiers during the latter’s ground incursion into Pakistan’s tribal
areas on September 12, 200810 removes any debate about whether Pakistan would use force to resist attempts by the United States to
secure Pakistan’s nuclear assets without its consent. Similarly, the use of U.S. precision strikes to destroy the weapons would
need to rely on perfect intelligence and would risk not only significant radiological hazards at strike targets, but also the ire of the
Pakistan Army and the wider Islamic world.
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A2 Pakistan Loose Nukes
No Pakistan loose nukes
Bokhari ’07 (Farhan,- Pakistan-based commentator who writes on political and economic matters “Pakistan's nuclear
assets - myth vs reality” fttp://www.alarabiya.net/views/2007/12/09/42688.html)
Since the controversy surrounding Khan erupted almost four years ago, Pakistan's structure of nuclear management has been significantly
transformed. The country's nuclear establishment has overseen the induction of improved standards across the board. New safeguards have been
applied for taking charge of nuclear assets in a variety of ways, ranging from closer monitoring of up to 2,000 individuals who hold key positions in the nuclear
establishment to the enforcement of safe practices such as a two-man rule, which essentially means that key decisions in the use of nuclear materials
will never be left to any individual. Takeover Besides, scenarios such as the danger of a Taliban takeover are just too far-fetched to
become part of a serious discourse. For years Pakistan has been widely seen as a country which has seen a stark rise in the number of
Taliban-type militants. The present anxieties in the Western world are probably fuelled by the reality of Taliban-type Islamists ruling the North West Frontier
Province (NWFP) for the past five years. As key partners in a ruling provincial coalition, those Islamists have also held sway over the provincial government in the
south western Balochistan province. The truth, however, is that these two provinces represent well below 20 per cent of Pakistan's population of 165
million - a fact which is often ignored when political analysts blindly contemplate the Taliban sweeping through Pakistan and taking charge not only of the country but
also of its nuclear assets. Further reassurance for the anti-nuclear proliferation lobby must be the fact that the management of Pakistan's nuclear assets lies squarely
in the hands of the armed forces. Unlike political governments which can be voted in or out of office, the Pakistan army as an institution provides
consistency in managing nuclear assets. In its short history as an independent state, Pakistan has seen a series of military coups and returns to
civilian rule, political murders and times of reconciliation. When East Pakistan seceded from the country to become Bangladesh in 1971, there was also
talk of the nation coming undone, but it survived that and will likely survive this. The fact that Pakistan possesses nuclear weapons may make the current
situation there more worrisome to us in the West, but it's also worth remembering that other nuclear powers of longer standing have been here before.
Throughout the upheaval of the Cultural Revolution, China remained in control of its nuclear weapons. The Soviet Union survived the dissolution of its
statehood, and so far at least, this hasn't led to atomic catastrophe. But whether elections go ahead next month as planned or a state of emergency is
declared and the vote postponed, Bhutto's Pakistan Peoples Party (PPP) will likely play a key role in the country's future. If anything, the blow of Bhutto's death will
make the military -- which has seen its prestige among Pakistanis suffer during President Pervez Musharraf's rule -- all the more eager to see civilians back in charge
of the country.
Self-interest prevents Pakistan loose nukes
John Mueller, Department of Political Science at Ohio State University, 1/1/2008, The Atomic Terrorist: Assessing the Likelihood, p.
http://polisci.osu.edu/faculty/jmueller/APSACHGO.PDF
The government of Pakistan, which has been repeatedly threatened by al-Qaeda, has a similar very strong interest in controlling its
nuclear weapons and material--and scientists. Notes Stephen Younger, former head of nuclear weapons research and
development at Los Alamos and director of the Defense Department's Defense Threat Reduction Agency from 2001 to
2004, "regardless of what is reported in the news, all nuclear nations take the security of their weapons very seriously"
(2007, 93; see also Kamp 1996, 22; Milhollin 2002, 47-48).
Pakistani nukes safe - not vulnerable to theft
THE STATESMAN (INDIA), November 21, 2001, p. Lexis (MHHAR7532)
The ECC is the apex body for nuclear decision-making and is chaired by General Musharraf. The committee has the foreign minister as its deputy
chairman and includes the defence and interior ministers, the chairman of the joint chiefs of staff committee, the three chiefs of staff, director general
strategic plans division and representatives from Pakistans strategic organisations. The DCC supervises the actual development, not just of the nuclear
and missile forces, but also of the auxiliary command, control, communications, and intelligence systems. The actual custody of Pakistans
two dozen nuclear warheads would have been entrusted to specially selected elite units of the Pakistan army. Personnel
connected with the safety and security of nuclear weapons are likely to have been thoroughly screened and would be
constantly under watch. Military regimes have very strong survival instincts and the Musharraf regime would have ensured that jehadi
hardliners are ruthlessly weeded out from the nuclear security detail. Also, it could be assumed that the fissionable nuclear core of each
warhead, comprising highly enriched uranium, would be stored separately from the high explosive trigger assembly to
guard against accidents and unauthorised use. These storage sites would be well dispersed so that at least some of the
warheads survive a conventional air attack. They would also be well defended against possible commando raids.
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A2 Russian Loose Nukes
Russia materials can’t be used to create a bomb
John Mueller, Department of Political Science at Ohio State University, 1/1/2008, The Atomic Terrorist: Assessing the Likelihood, p.
http://polisci.osu.edu/faculty/jmueller/APSACHGO.PDF
There has been a lot of worry about "loose nukes," particularly in post-Communist Russia--weapons, "suitcase bombs" in particular,
that can be stolen or bought illicitly. However, when asked, Russian nuclear officials and experts on the Russian nuclear programs
"adamantly deny that al Qaeda or any other terrorist group could have bought Soviet-made suitcase nukes." They further point
out that the bombs, all built before 1991, are difficult to maintain and have a lifespan of one to three years after which
they become "radioactive scrap metal" (Badkhen 2004). Similarly, a careful assessment of the concern conducted by the Center
for Nonproliferation Studies has concluded that it is unlikely that any of these devices have actually been lost and that,
regardless, their effectiveness would be very low or even non-existent because they require continual maintenance (2002, 4, 12;
see also Smith and Hoffman 1997; Langewiesche 2007, 19). By 2007, even such alarmists at Anna Pluto and Peter Zimmerman were
concluding that "It is probably true that there are no 'loose nukes', transportable nuclear weapons missing from their proper storage
locations and available for purchase in some way (2007, 56).
Russia doesn’t have any loose nukes – its arsenal is secure
Robin Frost, political science at Simon Fraser University, December, 2005, Nuclear Terrorism After 9/11, Adelphi Papers
The NIC’s 2004 report also addressed the security of nuclear warheads in general: ‘All nuclear weapons storage sites, except those subordinate to the
strategic missile troops, fall under the 12th GUMO’s responsibility, thus facilitating a uniform policy in matters of operation and physical security. In
peacetime all nuclear munitions except those on ICBMs and SLBMs on alert status are stored in nuclear weapons storage sites. The Russians
employ a multi-layered approach that includes physical, procedural, and technical measures to secure their weapons.’
Globalsecurity.org describes the security around nuclear weapons under the control of the 12th GUMO in similar terms to the NIC: ‘ The
system for the protection of nuclear munitions is echeloned and generally extremely reliable. Access to them is
multilayered, and it is virtually impossible for unauthorized individual [sic] to gain access to the warheads. The transport of
nuclear munitions is also properly organized. Special security units are in a high state of readiness to thwart any attempt to
seize them. To date there has not been a single loss from the nuclear arsenals.’ Clearly, nuclear weapons are not ‘strewn
across Russia’, nor are they ‘scattered throughout’ the country.
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A2 Russian Loose Nukes
Russian officials wont sell or transfer nukes: Aum Sinrikyo and rogue states prove
Frost ’5 [Robin Frost, political science at Simon Fraser University, December, 2005, Nuclear Terrorism After 9/11,
Adelphi Papers]
In general, at least some of the concern about loose Russian weapons may stem from an unconscious but pervasive belief
that Russians cannot possibly be as responsible and effective as the Americans, the French or the British in safeguarding their
nuclear arsenal, an attitude reminiscent of the demonising mythology of the Cold War , which simultaneously exaggerated the
capabilities of the Soviet military, while denigrating the professionalism and competence of its members. Granted, with the near-collapse of the
Russian state there was indeed a severe rise in criminality that did not exclude the armed forces, and which persists to this day. However, it is one
thing to acknowledge disorder in a society simultaneously released from decades of authoritarian rule and subjected to
the severe stress of economic failure; it is another altogether to allege a general abeyance of morality. Consider this excerpt
from a RAND Corporation briefing paper on nuclear terrorism, which discussed the Japanese sect Aum Shinrikyo's failure to
obtain nuclear weapons or technology from Russia: 'even enterprising Russian officials and scientists may have feared
the implications of transferring nuclear technology, knowledge, or material to a religious organization based in a foreign
state … Aum's contacts may have been good, but not good enough to secure the transfer of such sensitive capabilities'
(emphasis added).51 The default assumptions appear to have been that 'enterprising' Russians might normally have been
expected to transfer nuclear weapons or technology to an apocalyptic religious cult without considering the
consequences (in other words, that they would have lacked ordinary standards of morality and responsibility); that there most likely were people in
positions to do so who would indeed have handed nuclear weapons over to a cult, if only its contacts had been good enough; and that evidence to the
contrary was worthy of special note, to be expressed in a tone of faint but distinct surprise. If terrorists have indeed been seeking
radioactive materials or nuclear weapons during the years since the Soviet Union's collapse, and if they are as readily
available as some commentators suggest, why have terrorists - with one or two very minor exceptions - never used any
radioactive materials, or shown any signs of having nuclear weapons? Similarly, why have would-be nuclear-weapon
states, especially 'rogues', invested such enormous amounts of time and treasure in their quest for fissile materials,
risking increasingly severe consequences, if these materials are easily available off the ex-Soviet shelf? Granted, aspirant
nuclear states ideally want sustainable indigenous fuel cycles to support credible long-term deterrent or offensive capabilities, but if the aim were
simply to achieve instant nuclear status, then purchasing a few Russian warheads or the fissile materials and expertise required to build an arsenal
would seem to be an obvious choice. Yet to our knowledge none has taken that route, suggesting that it might not be available
even to state actors, whose pockets are considerably deeper than the best-funded terrorist organisations.
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A2 Russian Loose Nukes
Russian nuclear security prevents theft and indigenous programs disprove the “loose nuke”
theory
Robin Frost, political science at Simon Fraser University, December, 2005, Nuclear Terrorism After 9/11, Adelphi Papers
Russian nuclear weapons. Russian nuclear weapons appear to be under the generally good control of élite troops. There is
no evidence in open-source material that a single nuclear warhead, from any national arsenal or another source, has ever made its
way into the world's illegal arms bazaars, let alone into terrorist hands. No actual or aspiring nuclear-weapon state has
ever claimed to have nuclear weapons without also having all of the technical infrastructure necessary to produce them
ab initio, although they could, if the ‘loose nukes’ arguments were sound, easily have bought a few on the black market.
Even the extravagant sums sometimes mentioned as the alleged asking price for stolen weapons would be tiny fractions of the amount
required to develop an indigenous nuclear-weapon capability, yet circumstances seem to have compelled states to
choose the more expensive course.
Even if terrorists got Russian bombs, security features would prevent usage
John Mueller, Department of Political Science at Ohio State University, 1/1/2008, The Atomic Terrorist: Assessing the Likelihood, p.
http://polisci.osu.edu/faculty/jmueller/APSACHGO.PDF
It might be added that Russia has an intense interest in controlling any weapons on its territory since it is likely to be a prime
target of any illicit use by terrorist groups, particularly, of course, Chechen ones with whom it has been waging an vicious on-and-off war for
over a decade (Cameron 2004, 84). Officials there insist that all weapons have either been destroyed or are secured, and the
experts polled by Linzer (2004) point out that "it would be very difficult for terrorists to figure out on their own how to
work a Russian or Pakistan bomb" even if they did obtain one because even the simplest of these "has some security
features that would have to be defeated before it could be used" (see also Kamp 1996, 34; Wirz and Egger 2005, 502; Langewiesche 2007, 19).
One of the experts, Charles Ferguson, stresses You'd have to run it through a specific sequence of events, including
changes in temperature, pressure and environmental conditions before the weapon would allow itself to be armed, for the fuses to fall
into place and then for it to allow itself to be fired. You don't get off the shelf, enter a code and have it go off. Moreover, continues
Linzer, most bombs that could conceivably be stolen use plutonium which emits a great deal of radiation that could relatively
easily be detected by passive sensors at ports and other points of transmission.
No former soviet nukes unaccounted for
Frost ’5 [Robin Frost, political science at Simon Fraser University, December, 2005, Nuclear Terrorism After 9/11,
Adelphi Papers]
The greatest risk of 'leakage' was almost certainly in the months immediately following the collapse of the Soviet
Union, when Russia was attempting to withdraw all nuclear weapons from the newly independent members of the old
empire. Graham Allison has used courier companies such as FedEx and DHL as the standards by which to judge the likely success of these efforts.
Allison argues that even professional, profit-driven companies would 'find it challenging to move so many items from so many sites in so little time
without losing any'.45 However, it is reasonable to assume that, if FedEx had been tasked with handling the most powerful weapons on earth and had
been threatened with the most dire consequences if any went missing, it just might have managed a perfect success rate, especially if it had done
nothing but look after nuclear weapons for the previous half century. US Vice-President Dick Cheney (then secretary of defense to President G.H.W.
Bush) remarked in 1991 that a 99% success rate would constitute 'excellent' performance, though Allison points out that this would still leave '220
highly portable nuclear weapons lost, stolen, or otherwise unaccounted for'.46 Neither Cheney nor Allison would have considered it at all excellent,
however, if American troops lost a single nuclear weapon in transit, and neither, one assumes, would the Russian authorities. Nuclear weapons are not
courier packages, and a level of success that might be appropriate for commercial shipping would be entirely unacceptable when applied to them. In
fact, all the evidence is that the weapons were indeed safely withdrawn. In 2002, the NIC 'assessed' that, by June 1992, 'the last of the
former Soviet tactical nuclear warheads were withdrawn to Russia, and … by the end of 1996, the last of the strategic
nuclear warheads had been removed from Kazakhstan, Ukraine, and Belarus'.47 The NIC's 2004 report on Russian nuclear security
quotes former Minister of Atomic Energy Yevgeny Adamov as saying: 'Neither Bin Ladin nor anyone else could steal a
nuclear warhead from anywhere in the former Soviet Union. During my time as minister, I carried out a comprehensive
stock-taking of everything we had and had had, and traced the history of all the warheads ever produced. So, everything
there was on the territories of the former USSR republics was returned to Russia … Nothing was stolen from us . So,
neither Bin Ladin, nor Iraq nor Iran could make use of these explosive devices.'48
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A2 Russian Suitcase Nukes
No risk from Russian suitcase nukes – they never existed, and even if they did, they would be
defunct by now
Frost ’5 [Robin Frost, political science at Simon Fraser University, December, 2005, Nuclear Terrorism After 9/11,
Adelphi Papers]
The greatest concern about 'loose' Russian nuclear weapons was triggered by General Alexander Lebed, a former chief of the
Russian Security Council, who claimed in 1997 that he could account for only 48 of 100 (or 132; accounts differ) backpack-sized nuclear
weapons (so-called 'suitcase nukes'). However, it is not certain that the weapons existed at all, or that, if they did, any
went missing. In 2002, Nikolai Sokov, who worked on arms control at the Soviet and then Russian Ministry of Foreign
Affairs between 1987 and 1992, wrote what is probably the most comprehensive review of open-source material on the topic. His
paper reached two main conclusions: 'First, the probability that any portable nuclear devices were lost prior to or after
the breakup of the Soviet Union appears low … This does not mean that the threat does not exist, but rather that at this moment, it is
probably not the most immediate threat to the home security of the United States or to US armed forces abroad. Second, even if any devices
were lost, their effectiveness should be very low or maybe even non-existent, especially if the loss occurred during the period of the
greatest risk, in the early 1990s. Without scheduled maintenance, these devices apparently can produce only minimal yield and
eventually possibly no yield at all, and can only serve as a source of small amounts of weapons-grade fissile materials'.49 Sokov
described the evidence for the weapons' existence as 'sketchy and incomplete', saying they had a 'mythological quality'
and 'often seem a matter of fiction rather than that of fact'. Nonetheless, he concluded that 'several broad considerations suggest that the
story about portable nuclear devices should be taken seriously, with a caveat that their existence cannot be viewed as an established fact'.50 Even if
terrorists had been able to obtain any of these weapons, Sokov argues that they would have been difficult or impossible
to deploy: the bombs might have been fitted with locks to prevent unauthorised deployment, or radioactive components
may have decayed to the point of uselessness. Even if it were still fresh and fully functional, terrorists would only be
able to 'mine' one for its nuclear materials, which they almost certainly could not reassemble into a functional weapon.
These materials could, however, be used in one or more relatively harmless RDDs. This discussion necessarily involves a good deal of speculation state secrets are state secrets, after all, and few are more closely held than those concerning nuclear weapons - but Sokov is unusually well
qualified to address the matter.
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A2 NK Loose Nukes
No terrorist access to WMD in North Korea
Charles Ferguson, scientist-in-residence at Monterey Institute of International Studies, and William Potter, professor and director of the Center
for Nonproliferation Studies at Monterey Institute of International Studies, 2004, The Four Faces of Nuclear Terrorism, p.
http://www.nti.org/c_press/analysis_4faces.pdf
North Korea No open source information is available about the security of North Korea's presumed nuclear weapons arsenal, usually estimated to
consist of between two and eight nuclear weapons. Given the totalitarian nature of the North Korean regime, it is highly unlikely
that these weapons might be seized or diverted by a non-state organization, since none could operate within that
country.
North Korea needs nukes for bargaining
Robin Frost, political science at Simon Fraser University, December, 2005, Nuclear Terrorism After 9/11, Adelphi Papers
Not all states or their leaderships are necessarily rational, of course, but it is still difficult to imagine any state actively
sponsoring nuclear terrorism. Both the obvious potential candidates, Iran and North Korea, have engaged in risky nuclear
brinkmanship, but it is highly unlikely that either would sponsor a terrorist nuclear attack on another state. North Korea has
consistently used its nuclear programme as a way of wringing concessions from the West, and even as erratic a ruler as Kim
Jong Il would not launch a nuclear attack of any sort unless he were in extremis, facing an imminent invasion by the combined
forces of the US and South Korea, perhaps, or confronting the collapse of his regime for other reasons. Under those circumstances, however, he would
be unlikely to deliver his weapons clandestinely. For Iran, the possible pursuit of a nuclear-weapon programme has increased international pressure
and prompted hints of military intervention; sponsoring a nuclear attack would simply seal the country’s fate.
Loss of control and risk of nuclear forensic detection deters North Korean sale
Travis Sharp and Erica Poff 14 November 2008 (Understanding and Preventing Nulcear Terrorism, The Center for
Arms Control and Non-Proliferation)
A top priority for nuclear weapons experts is North Korea and Iran. There is no doubt that the development of nuclear programs which may lead to
weapons capabilities in these countries is cause for concern. There is little reason to believe, however, that if Pyongyang and Tehran did
manage to obtain deliverable nuclear weapons, they would ever be foolhardy enough to use them against the United States.
American retaliation against a nuclear first strike from North Korea or Iran would be swift and massive, and the threat of this retaliation deters either
country from launching an attack against American targets. It also is not very likely that North Korea , Iran, or any country would
knowingly provide a terrorist organization with nuclear weapons. Not only is it irrational for a nation to hand over its
most powerful weapon to terrorists over which it has no definitive control, but the weapons themselves could likely be
traced back to their country of origin. Again, retaliation against the supplying state would be devastating and anticipation of this
fate deters countries from giving nuclear weapons to terrorists.3
No risk of nuclear sale to terrorists-unstable, can’t afford it, and risk of detection
Andrew Coe, research associate at the Institute for Defense Analyses, Summer 2005 (North Korea's New Cash Crop,
The Washington Quarterly, 28:3, pp. 73-84)
Ramshackle states headed by extreme, unstable regimes, such as Somalia or Afghanistan under the Taliban, would be riskier choices for
Pyongyang because of the potential for internal strife or reckless aggression . Moreover, such states would probably not be
able to afford North Korea’s desired price. Following this logic, terrorist organizations would present the worst risk of all
potential customers. As with poorer states, they might be unable to meet the asking price, and Pyongyang might lack
confidence in their operational security. Most importantly, the probability that terrorists would expose Pyongyang, either by
detonating the weapon or having it captured, is simply too high.
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Iran will be extremely careful with nuclear weapons – they won’t get stolen or diverted to
terrorists
Peter N. Madson, U.S. Navy Lieutenant, March 2006 [“THE SKY IS NOT FALLING:
REGIONAL REACTION TO A NUCLEAR-ARMED IRAN,” Naval Postgraduate School Thesis]
Tehran relies upon the IRGC to ensure regime survival. However, granting release authority to this lower echelon unit without an immediate threat is
inconsistent with how C2 that such weapons require. Such an uncertainty of action with nuclear weapons invites gross instability. In fact, not
Iran would likely keep
these weapons close to home for regime survival, or at least in very secure locations. Turning even one
weapon over to a terrorist organization─with Iran’s relatively defensive stance─would be very
unlikely. Had Tehran wanted to terrorize states in the region with WMD, they would only have had
to arm terrorists with chemical or biological weapons. The possession of nuclear weapons holds a mystique and prestige,
yet the consequences of misuse are tremendous. The costs of construction and the prestige that accompanies nuclear
ownership in the international community are so significant that a state would not lightly place these weapons
in the hands of unpredictable entities. Furthermore, these same reasons explain why Iran would ensure
security over its precious arsenal, preventing them from falling into third-party hands. The fact that
Tehran has not yet passed along WMD, lends weight to the argument that it will not change this
policy for nuclear weapons.
possessing sound C2 over these weapons suggests a level of volatility that has not been seen in Iran for some time.
Iran won’t give nuclear weapons to terrorists – deterrence and empiricism prove
Daniel Byman, Director of Center for Peace and Security Studies, US Fed News, March 15, 2007
Nor is Iran likely to provide nuclear weapons to a terrorist group. Because these weapons can be
devastating they would inevitably provoke a massive response against Iran, even if it tried to
maintain deniability. Perhaps not surprisingly, Iran has not transferred chemical or biological weapons or
agents to its proxies, despite its longstanding capability to do so. Nor do Iran's favored proxies
actively seek nuclear weapons as does al-Qa'ida. The Lebanese Hizballah, for example, appears to recognize the
"red line" drawn by the United States and other powers with regard to terrorist use of these
weapons. Moreover, Hizballah's current tactics and weapons systems enable them to inflict considerable casualties. Only in the event of a truly
grave threat such as an invasion of Iran would many of Tehran's traditional cautions go out the window.
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Iran will not give nuclear weapons to terrorists
John Mearsheimer, co-director on the International Security Policy at University of Chicago and total badass, and Stephen Walt, professor of
international relations at the Kennedy School of Government, 8/27/2007, The Israel Lobby and U.S. Foreign Policy, p. 72-73
Yet given that both Israel and the United States have powerful nuclear forces of their own, this danger is overstated. Attacking the United States or
Israel directly is out of the question, because Israel has several hundred weapons of its own and the United States has thousands. If either country were
ever attacked, the perpetrator would immediately face a devastating retaliation. Neither country could be blackmailed by a nuclear-armed rogue state,
because the blackmailer could not carry out the threat without facing the same fate. The Soviet Union had thousands of nuclear weapons during the
Cold War, was committed to and guided by a revolutionary ideology, and governed by ruthless men who placed little value on human life. Yet
Moscow could not use its vast arsenal to “blackmail” the United States, and Stalin, Khrushchev, and Brezhnev never even tried. The reason is
obvious: the United States had its own weapons and could (and would) retaliate in kind. The danger that a rogue state might decide to
give one of its nuclear weapons to a terrorist group is equally remote, because the country’s leaders could never be sure
the transfer would remain undetected or that they would not be blamed and punished afterward . Indeed, giving away the
nuclear weapons that they had run grave risks to obtain is probably the last thing such regimes would ever do . They
would no longer control how the weapons might be used and they could never be certain that the U nited S tates (or Israel)
would not incinerate them if either country merely suspected that a particular “rogue state” had provided terrorists with
the ability to carry out a WMD attack. If the U nited S tates could live with a nuclear Soviet Union or a nuclear China (whose
former leaders were among the greatest mass murderers the world has ever known and if it can tolerate a nuclear Pakistan and embrace a nuclear
India, think it could live (however reluctantly) with a nuclear Iran as well.
Deterrence prevents Iran from supplying terrorists
Michael McFaul, director of the Center on Democracy, Development and the Rule of Law, and Peter Milani, senior fellow at Hoover,
11/28/2004, How U.S. Should Take On Iran, p. http://cddrl.stanford.edu/news/376
Probably the most important question the administration's leaders should ask themselves is whether Iran, even a nuclear-armed Iran,
poses a direct threat to the U nited S tates and its allies. The answer, we believe, is no. The mullahs who rule Tehran long ago gave up
their ideological quest to "export'' revolution. Like the last generation of octogenarians who ruled the Soviet Union, Iran's leaders today
want nuclear weapons as a means to help them preserve their power, not to help them spread their model of theocratic rule to other
countries. Deterrence works In other words, even if Iran's rulers succeeded in building nuclear bombs, they would be very unlikely to
take on the U nited S tates and its vast nuclear arsenal or to attack Israel. (The mullahs in Tehran understand that any nuclear attack against
Israel would trigger full retaliation from the U nited S tates.) In dealing with Iran, deterrence works. Tehran would also be unlikely
to pass a bomb to Islamist terrorists, despite its support of Arab terrorist organizations that continue to attack Israel. One reason, again, is
deterrence. Iran's rulers know that the U nited S tates would probably be able to trace the weapon back to them and retaliate.
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The nuclear black market is vastly overstated – no real risk
Frost ’5 [Robin Frost, political science at Simon Fraser University, December, 2005, Nuclear Terrorism After 9/11,
Adelphi Papers]
Comparisons are sometimes made between the drug trade and the illicit traffic in nuclear materials, the implication being that the detected traffic
represents only a tiny fraction of the actual flow of goods. This argument is weak, although it cannot be completely dismissed. The huge demand
for illegal drugs is obvious, but there is almost no evidence of a comparable demand for nuclear materials. To argue that
a large black market exists, and that the failure to detect it is proof of the fiendish cunning of those who operate it, is
sophistry of the least persuasive kind. Lee provided an excellent example in testimony to the US Congress Subcommittee on Prevention of
Nuclear and Biological Attack in September 2005: 'Admittedly the visible face of the nuclear black market doesn't seem very compelling. Lots of
radioactive junk floating around. A multitude of sellers, a few bona fide buyers, and some more a minor international nuisance than a first-order
strategic threat. But this picture may be misleading. As with other illegal businesses - drugs, for example - what is seized is only a small fraction of
what may be circulating in international smuggling channels.'23 Lee went on to say that 'important incidents go unreported or
undetected - actually go under-reported, especially in former Soviet bloc countries'. This is simply fatuous: if these
incidents were unreported or undetected, Lee could not know about them or assert their existence. In the case of 'unreported'
incidents, Lee might conceivably have access to classified information, although he made no such claim, but in the case of 'undetected' incidents, no
one but the parties directly involved can know anything about them. Far from under-reporting, it may well be the case, as Deutch has
pointed out, that incidents of nuclear trafficking in the former Soviet Union are in fact sensationalised or overreported.24 It is even possible that media coverage has to some extent created the problem of nuclear smuggling: 'For Smirnov
[Leonid Smirnov, the first known thief of weapons-grade fissile material] and many other thieves, the idea of material diversion was prompted by
extensive coverage by the mass media. Newspaper reports on nuclear trafficking raised the awareness about the value of such material, often
exaggerated, among the general public and thus involuntarily contributed to the increased number of thefts.'25 Lee's further remark that 'sophisticated
thieves and smugglers are less likely to get caught than the amateur players and scam artists who dominate the known smuggling incidents'26 is selfevidently true but, again, it has nothing to say about the actual market and activities therein. No one, Lee included, has been able to provide, at
least in the open sources, concrete evidence of a single case in which a substantial portion of the fissile materials needed
to make a bomb had been, or was close to being, illicitly transferred to terrorists, organised criminals or, indeed,
anyone actively seeking them. It is clearly possible that the actual black market is larger than the IAEA's database suggests - law enforcement is not
perfect, after all - but it is not likely to be much larger: 'In sum, the visible manifest market for nuclear materials appears
disorganised, chaotic, dominated by bumbling amateurs, and artificial in important respects; genuine buyers with real
money seldom make an appearance, even in the few cases where weapons-usable materials are offered for sale …
Moreover … the nuclear materials flowing through international smuggling channels frequently are nothing more than
artifacts of undercover operations.'27
There is no nuclear black market
Robin Frost, political science at Simon Fraser University, December, 2005, Nuclear Terrorism After 9/11, Adelphi Papers
The nuclear black market. There is no evidence in the open-source literature of a true international black market in nuclear
materials. Virtually all known cases of nuclear theft or smuggling have involved amateurs hoping for rich returns, despite the
seeming absence of anyone interested in buying the material. To the extent that a market exists, it is almost entirely driven by supply; there
appears to be no true demand, except where the buyers were government agents running a sting . Organised crime, with one known exception,
has not been involved in nuclear trafficking. Even the notorious A.Q. Khan network concentrated on nuclear technology, especially
centrifuge uranium enrichment, rather than fissile materials, although there have been suggestions that Khan, a Pakistani nuclear engineer, sold
uranium hexafluoride, the feedstock for enrichment, to Libya.
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A2 Theft
Terrorists can’t steal it and even if they could, it’d be useless.
John Mueller, department of political science at Ohio State University, 1/1/2008, The Atomic Terrorist, p.
http://polisci.osu.edu/faculty/jmueller/APSACHGO.PDF
There has been a lot of worry about "loose nukes," particularly in post-Communist Russia--weapons, "suitcase bombs" in particular, that
can be stolen or bought illicitly. However, when asked, Russian nuclear officials and experts on the Russian nuclear programs "adamantly deny
that al Qaeda or any other terrorist group could have bought Soviet-made suitcase nukes." They further point out that the bombs, all built before
1991, are difficult to maintain and have a lifespan of one to three years after which they become "radioactive scrap
metal" (Badkhen 2004). Similarly, a careful assessment of the concern conducted by the C enter for N onproliferation S tudies has
concluded that it is unlikely that any of these devices have actually been lost and that, regardless, their effectiveness would
be very low or even non-existent because they require continual maintenance (2002, 4, 12; see also Smith and Hoffman 1997; Langewiesche
2007, 19). By 2007, even such alarmists at Anna Pluto and Peter Zimmerman were concluding that "It is probably true that there are no
'loose nukes', transportable nuclear weapons missing from their proper storage locations and available for purchase in some way (2007, 56). It
might be added that Russia has an intense interest in controlling any weapons on its territory since it is likely to be a prime target
of any illicit use by terrorist groups, particularly, of course, Chechen ones with whom it has been waging an vicious on-and-off war for over a
decade (Cameron 2004, 84). Officials there insist that all weapons have either been destroyed or are secured, and the experts polled by Linzer (2004)
point out that "it would be very difficult for terrorists to figure out on their own how to work a Russian or Pakistan bomb"
even if they did obtain one because even the simplest of these "has some security features that would have to be defeated before it
could be used" (see also Kamp 1996, 34; Wirz and Egger 2005, 502; Langewiesche 2007, 19). One of the experts, Charles Ferguson, stresses
You'd have to run it through a specific sequence of events, including changes in temperature, pressure and environmental conditions
before the weapon would allow itself to be armed, for the fuses to fall into place and then for it to allow itself to be fired. You don't get off the
shelf, enter a code and have it go off. Moreover, continues Linzer, most bombs that could conceivably be stolen use plutonium
which emits a great deal of radiation that could relatively easily be detected by passive sensors at ports and other points of transmission. The
government of Pakistan, which has been repeatedly threatened by al-Qaeda, has a similar very strong interest in controlling its nuclear
weapons and material--and scientists. Notes Stephen Younger, former head of nuclear weapons research and development at Los Alamos and
director of the Defense Department's Defense Threat Reduction Agency from 2001 to 2004, "regardless of what is reported in the news, all nuclear
nations take the security of their weapons very seriously" (2007, 93; see also Kamp 1996, 22; Milhollin 2002, 47-48).
This is true even of failed states.
Charles Ferguson, scientist-in-residence at Monterey Institute of International Studies, and William Potter, professor and director of the Center
for Nonproliferation Studies at Monterey Institute of International Studies, 2004, The Four Faces of Nuclear Terrorism, p.
http://www.nti.org/c_press/analysis_4faces.pdf
Today, it is highly unlikely that political unrest would threaten nuclear controls in most weapon states. The situation is less clear
cut, however, in the case of Pakistan and North Korea. Here, the possibility of a breakdown of political order during the next several years - and with it the crumbling of the
layers of security surrounding nuclear weapons - cannot be ruled out. A period of violent clashes among political factions in Pakistan that left the nature of the future government in doubt, or the
more general disintegration of central government authority, might permit elements allied with terrorists groups or, even the members of such groups, to gain control of a Pakistani nuclear weapon. In
North Korea, economic collapse and political instability might lead to a massive outflow of refugees into China, Russia, and South Korea and to wholesale desertions from the country's armed forces.
These events, in turn could lead to loss of governmental control over the country's nuclear weapons, their seizure by remnant elements of the Kim Jong Il regime, and, possibly, their sale on the
international black market to a terrorist group. Although one cannot discount the possible loss of state control over nuclear weapons during extreme political unrest or a coup
all regimes can be expected to regard nuclear weapons as crucial symbols of political power and to employ the most
Though political instability and uncertainty may create greater incentives
and opportunities for nuclear custodians to cooperate in the illicit transfer or sale of nuclear weapons, elite security forces
are most likely to continue to perform their protective duties during and after regime change. Under some circumstances, they
also may be charged with destroying or evacuating the weapons to prevent them from falling under hostile control. Moreover,
in the event of a successful coup in a nuclear-armed state, the new regime will have the same motivations as its predecessors to
guard its nuclear arsenal, although, depending on the orientation of the new leadership, it may be more sympathetic to the nuclear aspirations of terrorists.
d'etat,
reliable military or state security forces to guard them.
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A2 Theft
Terrorist theft of nuclear weapons is nearly impossible – even under conditions of massive
unrest
Kapur ‘8 [S. Paul – Assoc Prof in Dept of Strategic Research at the US Naval War College. “Nuclear Terrorism,” in
The Long Shadow: Nuclear Weapons and Security in 21 st Century Asia. Ed. Muthiah Alagappa. p. 325]
Terrorist groups could also acquire an intact weapon by stealing it from a nu- clear state. This would be an extremely
difficult feat even for sophisticated terror- ist groups. Nuclear weapons are protected by the most robust security
measures that nation-states can devise. Protective measures include programs to ensure the reliability of the personnel in
charge of weapons; extensive physical barriers, in- cluding location in heavily guarded, often isolated military bases;
electronic sys- tems to prevent unauthorized weapons use; and storage of the fissile core separate from the rest of the
weapon. According to Ferguson and Potter, in the absence of significant insider assistance, theft of a nuclear weapon by
terrorists is probably better described as "the stuff of fiction than a practicable approach for a terrorist organization."
Even in the event of inside help or major political unrest within a nuclear weapon state, terrorist theft of an intact
nuclear device would be dif- ficult and unlikely (Bunn, Holdren, and Wier 2002: 5; Ferguson and Potter 2004: 57-65,
119).
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A2 Theft – PALS Check
Safety devices prevent terrorist use
Charles Ferguson, scientist-in-residence at Monterey Institute of International Studies, and William Potter, professor and director of the Center
for Nonproliferation Studies at Monterey Institute of International Studies, 2004, The Four Faces of Nuclear Terrorism, p.
http://www.nti.org/c_press/analysis_4faces.pdf
Assuming that a terrorist group had acquired a weapon protected by PALs or other features preventing easy detonation, the
group might attempt to disable or bypass these mechanisms at a safe location prior to transporting the weapon to its final target, or it
might make preparations to do so at the detonation site. Unless assisted by sympathetic experts , terrorists would find it difficult, though not
necessarily impossible, to master this requirement. Modern PALs, particularly those integrated into the weapon itself, are more
difficult to defeat than older-generation PALs, which may still be characteristics of some Russian weapon systems. Facing these
impediments, terrorists might attempt to open the weapon casing to obtain fissile material in order to produce their own
improvised nuclear device, a strategy discussed in the next chapter. However, the act of prying open the bomb might result in terrorist
blowing themselves up with the conventional high explosives associated with nuclear warheads.
Security devices will thwart terrorist theft of nuclear weapons
The San Francisco Chronicle, April 18, 2004, “Assessing the risk of nuclear terrorism,” p. Lexis
Michael May, a former director of the Lawrence Livermore National Laboratory, where U.S. nuclear weapons are designed,
and
now a professor emeritus at the Center for International Security and Cooperation at Stanford, said the technological
hurdles to a terrorist bomb remain, realistically, quite high. He discounted the possibility terrorists could make use of a
stolen warhead because of all the sophisticated security devices built into them. He also said it would be all but impossible for a
non-state terrorist group to develop the capability of making its own weapons-grade uranium, because of the industrial infrastructure required
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Cyberterrorism Answers
No motivation – terrorists have the capability but don’t prefer cyberterror
Joshua Green, editor of Washington Monthly, November, 2002, The Myth of Cyberterrorism, Washington Monthly, p.
http://www.washingtonmonthly.com/features/2001/0211.green.html#byline
Despite all the media alarm about terrorists poised on the verge of cyberattack, intelligence suggests that they're doing no more than emailing and
surfing for potential targets. When U.S. troops recovered al Qaeda laptops in Afghanistan, officials were surprised to find its
members more technologically adept than previously believed. They discovered structural and engineering software, electronic models
of a dam, and information on computerized water systems, nuclear power plants, and U.S. and European stadiums. But nothing suggested they
were planning cyberattacks, only that they were using the Internet to communicate and coordinate physical attacks. "There doesn't seem
to be any evidence that the people we know as terrorists like to do cyberterrorism," says Libicki. Indeed, in a July report to the
Senate Governmental Affairs Committee detailing the threats detected to critical infrastructure, the G eneral A ccounting O ffice noted
"to date none of the traditional terrorist groups such as al Qaeda have used the Internet to launch a known assault on the
U.S.'s infrastructure." It is much easier, and almost certainly much deadlier, to strike the old-fashioned way.
Prefer our ev – cyberterror fears are based in ignorance, profit-motivation, and political
manipulation
Joshua Green, editor of Washington Monthly, November, 2002, The Myth of Cyberterrorism, Washington Monthly, p.
http://www.washingtonmonthly.com/features/2001/0211.green.html#byline
Why all this brooding over so relatively minor a threat? Ignorance is one reason. Cyberterrorism merges two spheres-terrorism and technology--that most lawmakers and senior administration officials don't fully understand and therefore
tend to fear, making them likelier to accede to any measure, if only out of self-preservation. Just as tellingly, many are eager to
exploit this ignorance. Numerous technology companies, still reeling from the collapse of the tech bubble, have recast themselves
as innovators crucial to national security and boosted their Washington presence in an effort to attract federal dollars. As Ohio State
University law professor Peter Swire explained to Mother Jones, "Many companies that rode the dot-com boom need to find big new
sources of income. One is direct sales to the federal government; another is federal mandates. If we have a big federal push for new
security spending, that could prop up the sagging market." But lately, a third motive has emerged: Stoking fears of
cyberterrorism helps maintain the level of public anxiety about terrorism generally, which in turn makes it easier for the
administration to pass its agenda.
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Cyberterror Answers
No risk of catastrophic cyberterror
LA Weekly ‘2 [http://www.christophernoxon.com/laweekly_sub_cyberterrorism.html]
It’s easy to forget one simple fact: Cyberterrorism is imaginary. It has never happened. In the 13 years since Schwartau warned
of an impending electronic catastrophe, not one single computer attack has been traced to a terrorist organization. The FBI,
which now has some 1,000 dedicated “cyber-investigators,” has never responded to a hack, virus or even a spam e-mail
linked to a terrorist. What’s more, cyberterrorism may not even be possible – some computer experts say networked
computers simply aren’t capable of triggering the sorts of destruction described by cyberterror buffs . That doesn’t mean
terrorists don’t use computers, or that the Internet hasn’t been a boon to thieves, pranksters, disgruntled workers and political activists. But computer
crime is not cyberterrorism. And so far anyway, our most dangerous and determined enemies -- al Qaeda or any of the 27 covert groups listed by the
federal government as terrorist organizations -- appear only dimly aware of the arcane tricks of computer warfare that inspire such fever dreams in
American computer geeks and policy wonks. The scant evidence that the sky is indeed falling – heavy Web traffic from Indonesia, research on
electronic switching systems on al Qaeda laptops, rumors of master hackers at Camp X Ray in Cuba – might get pulses racing
among fans of Tom Clancy. But it’s hard to come away from any sober reality check without concluding that computers
are less weapons of mass destruction than weapons of mass annoyance. While popular scenarios are certainly cinematic – cut to:
Matthew Broderick bringing the U.S. to the brink of nuclear war in War Games – the fact is that computers are a lot less connected or allpowerful as we might think. For one thing, most computer systems that control so-called critical infrastructures aren’t
even plugged into the Internet. “There seems to be this perception you can log on to America Online, and if you know the right passwords,
hack into the national power grid,” says Douglas Thomas, a USC professor and author of two books on hacking and the policing of cyberspace.
“People don’t seem to realize that these aren’t publicly accessible systems. Why would they be? Most sensitive military
and government networks are completely shielded. A terrorist would have to be a ranking official in the military to get
access to these networks – and if that’s happening, we’ve got way bigger problems than computer security to worry
about.” More importantly, most critical computer systems are vast labyrinths of code that can’t be navigated with the
help of store-bought manuals. As one former hacker recruited by Cisco Systems as a security architect confided, “I’ve
worked here two years and if someone came along and asked me where the source code is for the operating system, I’d
have no idea.” But perhaps the main reason why cyberterrorism has remained more fiction than fact is that we Americans know more – and
care more – about computers than any of our enemies. While most Westerners have trouble even remembering a time before e-mail,
ATMs or cell phones, technology figures a lot less prominently in the lives of, say, the average Islamic fundamentalist. And so far anyway, low-tech
tools like bombs, bullets and box cutters have proven to be highly effective instruments for whipping up terror.
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No Motivation for Cyberterror
No motivation for cyberterror – that’s 1NC Green. Despite being technologically advanced,
terrorists show no intention of using cyberterror. Prefer our ev because it’s backed by
government studies and speaks to practice vs. theory
Lack of publicity and damage decrease cyberterror motivation
Andy Jones, British Army's Intelligence Corps, researcher and analyst in Informationa Warfare, Security Research Centre, July, 2005, Cyber
Terrorism: Fact or Fiction, p. http://www.sciencedirect.com/science?_ob=ArticleURL&_udi=B6VNT-4GHRV624&_user=793338&_rdoc=1&_fmt=&_orig=search&_sort=d&view=c&_acct=C000029698&_version=1&_urlVersion=0&_userid=793338&md5=5b
3f6a4174c94aaf8452dffd0ef84acd#SECX2
Given this difficulty in clearly identifying the source of a cyber attack, it is difficult to see how a terrorist group would
‘terrorise' the population or why they would attempt to employ this type of attack . If they warned that they were going to carry out the
attack in advance (not the usual tactics), then the likelihood of success would be much reduced, and if they waited till after the
attack to claim credit, the impact of their claim would, it could be argued, be rather weak, as it would take time for the claims to
be verified. The other issue is that, in a physical attack which might be characterised as being conducted with the ‘bullet and the bomb' there
is potentially huge physical destruction that takes time to repair or replace the damaged infrastructure. This type of direct physical
attack gives the terrorist that which they crave most: publicity and public revulsion. In a cyber attack, any physical
destruction is much less likely (excluding the rather implausible hypothetical cases of hacking into nuclear power facilities and causing them
to go critical – one would hope that, first of all, the control systems were not connected to the outside world, and secondly that the all encompassing
safety systems would actually prevent it). The lack of physical destruction to the elements of the infrastructure means that it is likely
that any effect of a cyber attack will be difficult to sustain for a significant period, with the relevant authorities capable of restoring the
attacked system to normal or near normal service within a realistic period.
Low payoff for a big risk
Michael Miora, CEO and founder of ContingenZ Corp., 25 years of experience in the security industry, consultation to the National Reconnaissance
Office, August 1, 2003 Entrepreneur, No. 8, Vol. 31, interviewed by Geoff Williams, “Threat level: low; this CEO doesn’t worry about
cyberterrorism--and he says you shouldn’t, either,” p. 28 (PDNSS4065)
SARS. THE FLUCTUATING ECONOMY. Frightening stuff. But cyberterrorism? It doesn’t spook Michael Miora, the CEO and founder of
ContingenZ Corp., a Playa del Rey, California-based incident management and planning firm. Miora has 25 years of experience in the security
industry. A typical gig on his resume: offering expertise to the National Reconnaissance Office--a government agency that builds the nation’s spy
satellites. If anybody should know about cyberterrorism, Miora should. And he thinks the threat is way overblown. Are you kidding? We’ve been
While cyberterrorist attempts are
possible, the effort required to bring them about is very high, while the yield is very low. It’s much
more likely we’ll see a traditional terrorist attack For the same effort, expertise, time and money, a
terrorist can have a much bigger effect If you bring down the New York Stock Exchange (NYSE) Web site, it
might be down, what, 15, 30 minutes? You might make some headlines, but it probably won’t even
be on the front page that day. Everybody knows where they were on 9/11, but nobody is likely to ask where you
were the day the NYSE Web site went down And the probability that a cyberterrorist attack would
target a small company is virtually nil But aren’t there terrorists content to commit a series of smaller attacks over time? MIORA:
Cyberterrorism requires technology, knowledge and funding, but most of all, it requires access. We
hearing forever that cyberterrorism is a powder keg, just waiting to explode. MICHAEL MIORA:
know terrorists come ball stripes. They can get the funding. They can get equipment But they have to do it from someplace that has a persistent
[Internet] connection. Besides, attacking
from a computer increases the odds of capture. Conducting
cyberterrorism while eluding capture is very difficult.
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*** Con – Specific War on Terror Policies Fail/Are Bad ***
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Airport Security Measures
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List of Airport Prohibitions
Many restrictions on what can be brought on-board
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,”
p. 351
Since the attacks of September 11, 2001, airport and flight security has changed drastically.
Passengers are severely restricted in what they may bring aboard, including being prohibited
from carrying a variety of basic toiletry items unless they fit within a one-quart clear,
resealable bag. As they line up to go through security checkpoints, passengers remove their
shoes, belts, and jackets. With stringent security procedures, many passengers experience
delays and missed flights, prompting questions about and annoyance at many regulations.
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Airport Security Measures Generally Fail
Security methods fail because they assume terrorists will use the same methods they have in
the past. Returning to pre 9-11 security and directing funds elsewhere would reduce terror
risks
Yevgenia Kleiner, law review articles editor, Boston College Third World Law Journal, Winter,
2010, NOTE: RACIAL PROFILING IN THE NAME OF NATIONAL SECURITY:
PROTECTING MINORITY TRAVELERS' CIVIL LIBERTIES IN THE AGE OF TERRORISM,
p. 108-9
The tragic events of September 11, 2001 introduced a fear of terrorism into Americans' daily
lives and inspired in many a suspicion of immigrants of Muslims and Middle Eastern descent.
Compounding the dangerous environment of racism these fears engender is what
Jeffrey Goldberg, an acclaimed Israeli-American journalist, calls American "security
theater." Goldberg argues that airport security in America is a sham, entirely incapable
of dealing with a myriad of security vulnerabilities, and accuses the security system of
being able to catch only the most careless and "stupid" of terrorists. If Goldberg is right,
his argument lends support to the idea that existing security programs can be only partially
successful because they assume that terrorists will wage future attacks using the same
methods they used in the past. If true, this theory would mean that the U.S. government is
wasting millions of dollars on security equipment that is either obsolete or more likely to
be put to use on an unsuspecting minority traveler than against a real terrorist. Some
authorities on the subject go so far as to argue that the United States would be better
served if airport security was returned to pre-September 11 levels and the remaining
funds allocated for intelligence, investigations and emergency response.
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Airport Security Measures Generally Fail
Airport security measures do not work
Tobias Mock, Technical Editor, Santa Clara Law Review, 2009, ,49 Santa Clara L. Rev. 213,
COMMENT: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT
IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT
SECURITY CHECKPOINTS, p. 213-4
The technology is emerging as a result of widespread deficiencies in present-day search
capabilities. Since the events of September 11, 2001, government accountability auditors have
successfully bypassed security checkpoints with weapons and explosives at an alarming rate.
While weaknesses exist across all areas of airport security, outdated technology has been
identified as a primary culprit, with traditional walk-through metal detectors (magnetometers)
leading the way.
Screenings can’t detect terror weapons
Tobias Mock, Technical Editor, Santa Clara Law Review, 2009, ,49 Santa Clara L. Rev. 213,
COMMENT: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT
IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT
SECURITY CHECKPOINTS, p. 222-3
Widespread government audits of security checkpoints have been underway since 9/11. The
results have exposed a security system that is unable to detect modern terrorist weapons.
While opportunities for improvement exist across all aspects of security, there is a general
consensus regarding the need to enhance detection capabilities through implementation of
new technology.
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Airport Security Measures Generally Fail
Improvised Explosive Devices pass through check points now
Tobias Mock, Technical Editor, Santa Clara Law Review, 2009, ,49 Santa Clara L. Rev. 213,
COMMENT: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT
IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT SECURITY
CHECKPOINTS, p. 224-5
In response to these audits, TSA created the Aviation Screening Assessment Program
("ASAP") to expand covert testing and provide statistics to further develop security systems.
Over a six-month period beginning in April 2007, ASAP performed thousands of covert tests
designed to assess threats, including those specifically posed by liquid and other non-metal
explosives. Additionally, the TSA itself conducts over a thousand covert tests for improvised
explosive devices ("IEDs") and improvised incendiary devices ("IIDs") and 70,000 electronic
image tests every day. The TSA has remained secretive about the specific results of these
audits. However, the Government Accountability Office was particularly forthcoming in a
November 15, 2007 preliminary report detailing the result of a series of tests performed by the
Office. The report showed that investigators were successful in passing through security
checkpoints with components for "several" IEDs and IIDs: Our tests clearly demonstrate that
a terrorist group, using publicly available information and few resources, could cause severe
damage to an airplane and threaten the safety of passengers by bringing prohibited IED and
IID components through security checkpoints. Given our degree of success, we are confident
that our investigators would have been able to evade transportation security officers at
additional airports had we decided to test them.
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Security Measures Not Justified
9/11 cannot be used as an excuse to subvert the Constitution
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 317
In denying this argument, the court remained focused on the Constitution and the need to
defend its protections regardless of the circumstances: "unquestionably the events of 9/11
changed the calculus in the balance American society chooses to make, especially in airport
settings, between liberty and security. But when a law enforcement officer exercises the
power of the Sovereign over its citizens, she or he has a responsibility to operate within the
bounds of the Constitution and cannot raise the specter of 9/11 as an absolute exception to
that responsibility."
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Security Measures Threaten the Airline Industry
New security regulations fail and threaten the aviation industry, particularly small airports
John W. Heck, Major, USAFR, JD, Journal of Air Law and Commerce, Spring, 2009,
ARTICLE: PUSHING THE ENVELOPE: WHY WASHINGTON, DC AIRSPACE
RESTRICTIONS DO NOT ENHANCE SECURITY, p. 335-7
TWO DAYS AFTER the September 2001 terrorist attacks on the United States, the cover of
the Economist stated simply "The Day the World Changed." Nowhere has this been more
true than in the aviation industry where, driven by a new culture of fear, Americans now
quietly accept restrictions that, less than a decade ago, were unthinkable. This new regulatory
environment goes beyond allocating a few extra minutes to pass through the security gate at a
local airport. Along with excessive passenger screening and outdated and often incorrect
"watch lists," pilots, mechanics, and air traffic controllers are now subjected to intense
scrutiny and constant second-guessing by security personnel with far less experience and
training. Pilots face severe punishment for the slightest deviation into an arbitrary airspace
boundary over the metropolitan Washington, D.C. area even when no flight safety has been
compromised. n4 These ill-conceived restrictions are estimated to have cost over $ 300
million in lost revenue from small airports in the region. Additionally, understaffed and
overworked air traffic controllers are forced to cope with a system that has punished
thousands of aviators but has not stopped a single terror attack. Evidence suggests that while
these restrictions have made little difference with respect to safety, they have advanced the
financial decline of the aviation industry. Attempts to reform aspects of the current system
have been stalled due to poor implementation or political maneuvering. Maintaining the status
quo will only strain the aviation system further - 500 million additional passengers and
hundreds of smaller airplanes, manned and unmanned, are forecast to take to the airways by
2010. While it is impossible to guarantee terror-free skies, strengthened security rules, both
published and unpublished, will serve only to deprive Americans of their right to traverse the
airspace over the United States.
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No Risk of a Small Aircraft Being a WMD
Chances of a small aircraft delivering a WMD are not worth considering
John W. Heck, Major, USAFR, JD, Journal of Air Law and Commerce, Spring, 2009,
ARTICLE: PUSHING THE ENVELOPE: WHY WASHINGTON, DC AIRSPACE
RESTRICTIONS DO NOT ENHANCE SECURITY, p. 376
Such a justification may be hard to come by. In its NPRM, the FAA neglects to mention that
the aircraft that attacked the Pentagon came not from an airport within the FRZ, but from
Dulles. The FAA also fails to address the fact that the amount of damage a small aircraft
could cause is minimal. Because the vast majority of general aviation airplanes are
lightweight single-engine aircraft with six or fewer seats, they can carry a very limited
payload and travel only at relatively slow speeds. One recent report estimated that it would
take more than one thousand small planes acting as one to equal the destructive potential of a
single airliner. Although it is true that even a payload of several hundred pounds of chemical,
biological, or nuclear material could, theoretically, cause substantial damage, it is highly
unlikely that such an attack could be successfully carried out. The logistics in obtaining such
material, weaponizing it, creating a viable delivery system, placing it into a small aircraft
unnoticed, and then getting close enough to cause substantial damage make such an attack
virtually impossible. Indeed, in its Final Rule, the FAA stated that "an aircraft, regardless of
size, could be used to transport individuals with criminal intentions or dangerous materials
that could do significant harm to the NCR," but offered only a vague "concern that terrorists
may turn to general aviation as an alternative method for conducting operations" as evidence
supporting its claim.
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* Airport Screening Involves Racial Profiling
Muslims profiled as a part of airport security
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,” p. 340
In the context of airport security after the attacks of September 11, 2001, Islam has
taken a new image for many people. Those who appear to be Muslim are often
associated with terrorism or danger. The result has often been profiling, while at other
times it is overt stares or not-so-subtle whispers. Because of their Muslim identity, Muslim
women represent a portion of the populace that has been disproportionately persecuted
within the United States. Outside of the United States, in countries such as Afghanistan,
Muslim women have been viewed by some as the prime beneficiaries of democratization.
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Racial Profiling Fails
Racial profiling fails to promote security and diverts focus away from the most significant
security threats
Yevgenia Kleiner, law review articles editor, Boston College Third World Law Journal, Winter,
2010, NOTE: RACIAL PROFILING IN THE NAME OF NATIONAL SECURITY:
PROTECTING MINORITY TRAVELERS' CIVIL LIBERTIES IN THE AGE OF TERRORISM,
p. 111-13
While no one definition of racial profiling can be held above others as the most accurate,
government agencies, non-profit groups, and bills proposed in Congress have all attempted to
define the phrase. Although the definitions entail varying levels of contempt for racial
profiling, all hold that the use of criteria based on race, national origin, religion or
ethnicity as the sole rationale for scrutinizing and searching certain individuals
constitutes unlawful racial profiling based on the erroneous belief that these individuals are
more likely than others to engage in proscribed conduct. Not surprisingly, overt racism
brought to light is loudly and vehemently condemned by the courts and in the media.
But whereas law enforcement agents rarely target individuals solely based on race,
empirical evidence indicates that race is often "the" decisive factor in law enforcement
decisions regarding who should be searched and questioned. It is the position of this
Note that racial profiling is wrong because it is both ineffective in ensuring security and
constitutionally unlawful.
In his introduction to the 2004 Amnesty International (AIUSA) report, Threat and
Humiliation: Racial Profiling, Domestic Security and Human Rights in the United States, the
Honorable Timothy K. Lewis admonished the U.S. government that "focusing on race,
ethnicity, national origin, or religion as a proxy for criminal behavior has always failed
as a means to protect society from criminal activity." Instead, profiling has left society
more susceptible to discriminatory abuse. The AIUSA report identified racial profiling as a
threat to U.S. national security, finding that targeting millions of innocent Americans
has "undermined . . . law enforcement agencies' ability to detect actual domestic security
threats and apprehend serial killers, assassins, and other purveyors of terror." Racebased profiling jeopardizes the effectiveness of antiterrorist security measures because it
prevents law enforcement officials from focusing on the real target--dangerous
behaviors and legitimate threats--and poses great risks to our society's criminal justice
system and constitutional protections. Despite the hidden risks racial profiling poses to
national security, AIUSA's report conservatively estimates that one in three people living in
the United States, or approximately eighty-seven million individuals out of a population of
approximately 281 million, are at risk of being subjected to some form of racial profiling.
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Racial Profiling Fails
Terrorists are not limited to Middle Easterners
Yevgenia Kleiner, law review articles editor, Boston College Third World Law Journal, Winter,
2010, NOTE: RACIAL PROFILING IN THE NAME OF NATIONAL SECURITY:
PROTECTING MINORITY TRAVELERS' CIVIL LIBERTIES IN THE AGE OF TERRORISM,
p. 113-4
Although racial profiling implies the identification and singling-out of suspects of color, the
reality is that anybody can be a terrorist, regardless of background, age, sex, ethnicity,
education and economic status. The recent cases of alleged "American Taliban" John Walker
Lindh and British "shoe bomber" Richard Reid, for example, revealed that Al Qaeda has the
ability to recruit sympathizers of diverse backgrounds. Lindh, a white U.S. citizen, and Reid,
a British citizen, would not have necessarily been identified by existing programs like the
National Security Entry Exit Registration System (NSEERS) and US-VISIT, which target
Arab, Muslim and South Asian men and boys. Like Lindh and Reid, Oklahoma City Bomber
Timothy McVeigh eluded arrest in 1995 while law enforcement searched for Arab suspects
and detained a Jordanian.
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Racial Profiling Fails
9/11 terrorists could have been viewed through many lenses, a racial lense is not necessarily
the most accurate
John Tehranian, law professor, Connecticut Law Review, February, 2009, Article: The Last
Minstrel Show? Racial Profiling, the War on Terrorism and the Mass Media, p. 783-4
Without belittling the consequences at stake, the war on terrorism shares at least this one
commonality with the war on traffic. One of the most terrifying results of globalization is our
increased vulnerability to terrorism. In truth, there is only so much that a government can
realistically do to protect its citizenry from extremists hell-bent on senselessly sacrificing
innocent lives along with their own. Unfortunately, racial profiling has taken its place
alongside the screening of all shoes through x-ray scanners as an effort that at least
makes us feel that the government is doing something to respond to the threat. Unlike the
relatively harmless, impotent push button boxes, however, racial profiling has profoundly
negative consequences. In promulgating policies targeting individuals on the basis of their
race, we are sacrificing, among other things, fealty to our most precious democratic
principles. As David Cole reminds us, "The argument that we cannot afford to rely on
something other than racial or ethnic proxies for suspicion after all, is precisely the rationale
used to intern 110,000 persons of Japanese ancestry during World War II."
But, of course, racial profiling in the war on terrorism has its supporters. And the most
prominent defense by its advocates, both enthusiastic and even reluctant, comes from one
seemingly irrefutable fact: each one of the 9/11 perpetrators was a man of MiddleEastern descent. Yet this ostensibly unimpeachable summation of 9/11 is, in fact, a
product of a biased lens. In an alternative world, using the same set of facts, the
interpretive narrative could have been constructed quite differently. The attacks could
have been anthologized as the work of a group of anti-Americans, of frustrated young
men, of the disenfranchised and socioeconomically disadvantaged, of Saudi Arabians, or
of Islamic radicals (with no specific racialized elements). Thus, our collective
epistemological summation of the perpetrators could have reduced them to any number
of other identity signifiers, including shared ideology, age, socioeconomic status, gender,
religion, or nationality. But it did not. The terrorists were, above all, racialized. Such a
bent not only compromises the protection of basic civil liberties and risks making the
war on terrorism a war on a race; its misguided reductionism is also bad public policy.
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Racial Profiling Fails
Authorities fail to properly identify people based on race
John Tehranian, law professor, Connecticut Law Review, February, 2009, Article: The Last
Minstrel Show? Racial Profiling, the War on Terrorism and the Mass Media, p. 794-5
The effectiveness of racial profiling is also problematic, even if one wishes to target on the
basis of apparent Arab ancestry. Criminologist Albert Alschuler has noted that the
defensibility of racial profiling rests on the ability of law enforcement to distinguish members
of different racial groups. Courts have already questioned the ability to identify Latinos by
their appearance, and one can critique efforts to profile Arabs on similar grounds. As Susan
Akram and Maritza Karmely posit, "Arabs are even less racially or ethnically homogeneous
than Mexicans or Hispanics-those fitting stereotypical 'Arab-appearance' will most likely be
profiled and stopped, while many Arabs will not be." Thus, even if there is a meaningful
correlation between Arab or Muslim background and terror risk, the policy is both wildly
over- and under- inclusive-a fact with which I am intimately familiar. I am frequently
perceived as an Arab Muslim. I am neither Arab nor a Muslim. Our racial profiling practices
are not only bad policy, however. They also fail to pass muster under the Constitution, which
requires any government policy implicating race to be narrowly tailored to further a
compelling government interest. While our national security undoubtedly constitutes a
compelling government interest, the racial profiling of Middle-Easterners as a part of the war
on terrorism is not a narrowly tailored policy under existing Supreme Court jurisprudence.
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Racial Profiling Fails
Statistically irrelevant correlation between race and terrorism
John Tehranian, law professor, Connecticut Law Review, February, 2009, Article: The Last
Minstrel Show? Racial Profiling, the War on Terrorism and the Mass Media, p. 795
In Craig v. Boren, the Supreme Court addressed an equal protection challenge to a
government policy based on gender classifications-a type of discrimination traditionally
subject to lesser scrutiny by the courts than racial categorizations. Law enforcement statistics
have long-confirmed that young men, especially those between the ages of 18 and 21, are far
more likely than young women of the same age to engage in drunk driving. Drawing on this
fact, the state of Oklahoma set two different minimum ages for the purchase of alcohol: 18 for
females, 21 for males. When the policy was challenged by an underage man and a female beer
vendor, the Supreme Court struck down the law on the grounds that it violated the
Constitution's Equal Protection Clause. As the Court readily admitted, the fact that only
0.18% of females but 2% of males between the ages of 18 and 20 had engaged in drunk
driving represented a "disparity [that] is not trivial in a statistical sense." Yet, as the Court
concluded, such a disparity "hardly can form the basis for employment of a gender line as a
classifying device. Certainly if maleness is to serve as a proxy for drinking and driving, a
correlation of 2% must be considered an unduly tenuous 'fit.'" As legal scholar David Cole
reminds us, "the vast majority of persons who appear Arab and Muslim-probably well over
99.9 percent- have no involvement with terrorism." As such, the percentage of drunk drivers
among college-age men is undoubtedly far greater than the percentage of terrorists among
men of Middle-Eastern appearance. If a classification based on gender is impermissible under
the former fact, then surely classification based on race is manifestly unconstitutional under
the latter fact. As the facts reveal, terrorism knows no creed or color. By thinking otherwise,
we not only sacrifice our true national security, but we threaten to make the war on terrorism
a race war. By abandoning the rule of law, we betray the principles of equality and nondiscrimination that form the bedrocks of our democracy. The tale of John Walker Lindh, the
American Taliban, is revealing on several levels. First, Lindh demonstrates that the terror
threat can come from socioeconomically advantaged American men of European descent.
More importantly, it reveals the impending danger that the war on terrorism will indeed
degenerate into a war on a particular race.
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Racial Profiling Fails
No real risk that a person of Arab ethnicity is a terrorist
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 330
According to the Department of Justice Backgrounder on Outreach and Enforcement Efforts
to Protect American Muslims, nearly seven million American Muslims live in the United
States. n317 Yet considering only a fraction of that number may at any time be flying within
the United States (as well as the non-American Muslims flying into the United States), the
percentage of those who have been confirmed or accused terrorists is extremely small. As the
Farag court noted, "even granting that all of the participants in the 9/11 attacks were Arabs,
and even assuming arguendo that a large proportion of would-be anti-American terrorists are
Arabs, the likelihood that any given airline passenger of Arab ethnicity is a terrorist is so
negligible that Arab ethnicity has no probative value in a particularized reasonable-suspicion
or probable-cause determination."
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Racial Profiling Increases Terror Risks
Profiling diverts precious anti-terror resources
Yevgenia Kleiner, law review articles editor, Boston College Third World Law Journal, Winter,
2010, NOTE: RACIAL PROFILING IN THE NAME OF NATIONAL SECURITY:
PROTECTING MINORITY TRAVELERS' CIVIL LIBERTIES IN THE AGE OF TERRORISM,
p. 143-4
Racial profiling, or indicia of it, is unconstitutional and often ineffective in eliminating the
threat of terrorist attacks on commercial aircraft. In fact, the use of racial profiling to detect
terrorists hinders the anti-terrorist effort more than it bolsters it: profiling serves to "divert
precious anti-terrorism resources, alienate potential allies in the anti-terrorism struggle, and is
inconsistent with cherished notions of freedom and equality" because it is contrary to basic
rights guaranteed by the U.S. Constitution. As others have suggested, the ability to travel by
airplane is not a right, but rather a privilege. Those who would prefer not to have their things
and their person carefully examined are of course free to travel by other means.
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AT: Government Prohibits Racial Profiling
Racial profiling Guidance rules don’t protect ethnic or religious minorities. They can also be
easily suspended
Yevgenia Kleiner, law review articles editor, Boston College Third World Law Journal, Winter,
2010, NOTE: RACIAL PROFILING IN THE NAME OF NATIONAL SECURITY:
PROTECTING MINORITY TRAVELERS' CIVIL LIBERTIES IN THE AGE OF TERRORISM,
p. 119-120
B. Presidential Promises Broken, International Treaties Contravened
Besides its accountability for constitutional protections against racial profiling, the United
States is also responsible for honoring the race-related provisions of international treaties that
it has ratified. The International Convention on the Elimination of All Forms of Racial
Discrimination ("the Convention") is a United Nations treaty that was adopted in order to
eliminate racial discrimination and promote understanding among all races. Along with
dozens of other nations, the United States expressed reservations regarding specific portions
of the Convention but nevertheless ratified the Convention in 1994.
Echoing the recommendations of the Convention, former President George W. Bush promised
in 2001 to end racial profiling in the United States. It took the government two years to
follow through on President Bush's promise, as it was not until June 17, 2003, that the
Department of Justice issued its Guidance Regarding the Use of Race by Federal Law
Enforcement Agencies ("the Guidance"). Although the Guidance contains a definition of
racial profiling modeled after a definition endorsed by AIUSA and other human and
civil rights organizations, it "fails to address religious and ethnic profiling, provides no
enforcement mechanisms for victims of profiling, does little to ensure accountability,
and provides a blanket exception for cases in which national security is threatened." n83
Furthermore, the Guidance is merely advisory and therefore lacks the authority of a legally
binding statute.
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AT: Government Uses Behavioral, Not Racial Profiling
Behavioral profiling just ends up being racial profiling
Yevgenia Kleiner, law review articles editor, Boston College Third World Law Journal, Winter,
2010, NOTE: RACIAL PROFILING IN THE NAME OF NATIONAL SECURITY:
PROTECTING MINORITY TRAVELERS' CIVIL LIBERTIES IN THE AGE OF TERRORISM,
p. 135-6
Behavioral profiling appears at first glance to be a race-blind, politically neutral mechanism
for ensuring the safety of all passengers. Grasping at this superficial solution, federal and
state agencies and law enforcement bodies--ranging from the Department of Homeland
Security itself to local police departments--have issued security advisories to guide officials
and civilians alike as to what constitutes "suspicious" behavior. Unfortunately, this
unscientific practice threatens to disguise some racial profiling as permissible behavior and
risks doing more harm than good in the effort to ensure aviation security.
Behavioral profiling characteristics justify racial profiling
Yevgenia Kleiner, law review articles editor, Boston College Third World Law Journal, Winter,
2010, NOTE: RACIAL PROFILING IN THE NAME OF NATIONAL SECURITY:
PROTECTING MINORITY TRAVELERS' CIVIL LIBERTIES IN THE AGE OF TERRORISM,
p. 138-9
Because behavioral profiling requires security officials to identify conduct that is perfectly natural in a
variety of situations, those whose actions triggers scrutiny under this security method are prone to
abuse by security officers based on "race-based preconceptions as to which racial groups are more
likely to represent a 'terrorist' threat." Critics warn that security officials engaged in behavioral
profiling will disproportionately scrutinize racial and ethnic minorities and 'observe' suspicious
behavior where none actually exists, causing racially disparate impacts similar to those caused by
racial profiling. The brunt of this discrimination, critics warn, will be borne by those who are (or are
perceived to be) Muslim, Arab and South Asian, wrongly reinforcing the idea that terrorist suspects
can be successfully identified by their race, ethnicity or religion and reiterating prejudicial stereotypes
in the mind of the public instead of devoting resources to "genuine threats to security." A prime
example of the inappropriateness of behavioral profiling is the list of behaviors the Department of
Homeland Security determined to be "indicative behaviors of suicide bombers." The list of behaviors-a list that fails to recognize legitimate motives for any of the described conduct--includes culturally
and racially insensitive items such as "clothing is loose," "clothing is out of sync with the weather,"
"pale face from recent shaving of beard," and "does not respond to authoritative voice commands or
direct salutation from a distance" as well as statements that could easily apply to any traveler, such as
"eyes appear to be focused and vigilant," "suspect may be carrying heavy luggage, bag or wearing a
backpack," and "suspect is walking with deliberation but not running." Likewise, the item, "behavior
is consistent with no future, e.g., individual purchases one-way ticket or is unconcerned about receipts
for purchases, or receiving change," might have some correlation with the behavior of a terrorist; it
could also apply to individuals who are wealthy, scatterbrained, or just in a hurry.
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AT: Government Uses Behavioral, Not Racial Profiling
Since the government won’t release criteria for behavioral profiling, there is no way to deny
that it involves racial profiling
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident Fellow
of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law Review,
Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident Fellow of the
Georgetown Center on National Security and the Law, and a Principal in the Truman National Security Project, Winter,
2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE BEHAVIORAL PROFILING
PARADIGM, p. 440
First, at a most extreme level, since the official criteria for being identified through the
program have not been made public, it is possible that race, religion, or ethnicity is actually
one of the criteria BDOs are trained to look for. Although the government denies this, unless
the criteria are made public (something unlikely to happen for obvious security reasons), the
possibility cannot be entirely discounted. In particular, there is some concern that the Israeli
airport security model from which SPOT derives does rely on intentional racial or ethnic
profiling.
Behavioral profiling characteristics can be indirectly racial
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident Fellow
of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law Review,
Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident Fellow of the
Georgetown Center on National Security and the Law, and a Principal in the Truman National Security Project, Winter,
2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE BEHAVIORAL PROFILING
PARADIGM, p. 440
Second, and relatedly, the possibility exists that the SPOT criteria do not directly target
people of a particular race or ethnicity, but instead focus on second-order behavioral traits of
certain groups. For example, imagine if the program identified people who cross themselves,
cover their heads, or have long beards. To the extent the program intentionally looks to these
types of criteria as proxies for race or ethnicity, this would function in essentially the same
way as the most explicit and direct type of racial profiling described above. On the other
hand, it is of course conceivable that these concerns actually are directed at behavior, not an
underlying racial, ethnic, or religious group--for example, TSA might believe that people who
cross themselves are nervous and more likely to be a security risk, not that Catholics are a
security risk.
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AT: Government Uses Behavioral, Not Racial Profiling
BDOs might still think people of particular races are more suspicious
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident Fellow
of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law Review,
Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident Fellow of the
Georgetown Center on National Security and the Law, and a Principal in the Truman National Security Project, Winter,
2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE BEHAVIORAL PROFILING
PARADIGM, p. 441
Third, and more likely, is the possibility that SPOT's criteria are not particularly exacting and
leave extensive discretion to BDOs to target anybody who "looks suspicious"--and the BDOs
themselves might determine who "looks suspicious" on the basis of race or ethnicity. As one
scholar puts it, "without concrete, objective criteria, behavioral profiling can become just
another way for law enforcement to ferret out what they think of as 'different' behavior."
This, too, the agency denies: it asserts that BDOs are trained not to profile based on race. But
again, without making the details of the training public (which would be inconsistent with
security concerns), this is difficult to establish.
Interpretations of expressions can be based on race
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident Fellow
of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law Review,
Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident Fellow of the
Georgetown Center on National Security and the Law, and a Principal in the Truman National Security Project, Winter,
2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE BEHAVIORAL PROFILING
PARADIGM, p. 441
Fourth, and most likely, is the concern that even if the BDOs are given clear, non-race-based
objective criteria--and are trained not to select passengers based on race or ethnicity--human
observers will nonetheless tend to pay more attention to, and look more scrutinizingly at,
persons of a particular race or ethnicity because of either conscious or unconscious bias. No
matter how well-trained, a BDO is only human, and cannot look at all people in a crowded
airport or even a single security line for the same amount of time, with the same focus, and
the same perception. It has been noted that "the main advantage of FACS [the facial
expression catalogue that serves as the scientific underpinning of SPOT] is the possibility to
measure facial behavior objectively." However, even assuming that facial behaviors have
been coded objectively, the interpretation of that expression may occur subjectively, through
the observers' "inferential judgments about what emotion is present upon a scrutinized face."
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AT: Government Uses Behavioral, Not Racial Profiling
BDOs will still target a disproprortionate number of minorities
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident Fellow
of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law Review,
Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident Fellow of the
Georgetown Center on National Security and the Law, and a Principal in the Truman National Security Project, Winter,
2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE BEHAVIORAL PROFILING
PARADIGM, p. 441-2
Fifth, and finally, is the concern that for whatever reason, objective, non-racial criteria,
applied evenly and appropriately by BDOs, still end up targeting a disproportionately high
number of people from certain classes. There would be two likely explanations for this. One is
straightforward: there may be a greater number of security threats among certain populations.
The second possibility is that certain classes of people--because they assume they are going to
be the subjects of more intense scrutiny by nature of their race or ethnicity--become more
nervous when going through airport security, and so exhibit more of the "objective" criteria
which SPOT targets. Indeed, the potential for security programs like SPOT to "distort" the
social world has an antecedent in traditional racial profiling. One scholar notes that "many
African-Americans cope with the possibility of pretextual traffic stops by driving drab cars
and dressing in ways that are not flamboyant so as not to attract attention." So too, travelers of
certain races or ethnicities may act or appear differently in airports because they are
conditioned to believe there is a greater likelihood of being stopped or questioned.
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AT: Government Uses Behavioral, Not Racial Profiling
SPOT leads to unconscious racial profiling
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident Fellow
of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law Review,
Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident Fellow of the
Georgetown Center on National Security and the Law, and a Principal in the Truman National Security Project, Winter,
2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE BEHAVIORAL PROFILING
PARADIGM, p. 442-3
The SPOT program, which relies on human observation, may be particularly open to
unconscious racial profiling. Recent scholarship on implicit cognition indicates that
"actors do not always have conscious, intentional control over the processes of social
perception, impression formation, and judgment that motivate their actions." As
Sigmund Freud long ago explained: "Very powerful mental processes or ideas exist . . . which
can produce all the effects in mental life that ordinary ideas do (including effects that can in
their turn become conscious as ideas), though they themselves do not become conscious."
Professor Charles Lawrence's landmark article on unconscious racism may have
particular resonance with respect to the behavioral profiling paradigm. n98 As he
explained, Americans share a common historical and cultural heritage in which racism
has played, and still plays, a dominant role. Because of this shared experience,
Americans also inevitably share many ideas, attitudes, and beliefs that attach
significance to an individual's race and induce negative feelings and opinions about
nonwhites. But they do not recognize the ways in which our cultural experience has
influenced our beliefs about race or the occasions on which those beliefs affect our
actions. In other words, a large part of the behavior that produces racial discrimination
is influenced by unconscious racial motivation.
What has long been suspected anecdotally, and posited as a matter of psychoanalytical
theory, is now supported by a substantial body of empirical evidence. The Implicit
Association Test ("IAT") was developed by Dr. Anthony Greenwald in 1994, working out of
the University of Washington. The IAT is "designed to examine which words or concepts are
strongly paired in peoples' minds." For example, in the early years of the test, Greenwald used
stereotypically white-sounding names, such as Adam and Chip, and stereotypically blacksounding names, such as Alonzo and Jamel. He grouped these terms with pleasant words such
as "dream," "heaven," and "candy" and unpleasant words such as "evil," "poison," and
"devil." Given a random list of these words, the task of grouping the white-sounding names
with pleasant words and the black-sounding names with unpleasant words was relatively
simple. However, grouping the black-sounding names with pleasant words and the whitesounding names with unpleasant words was more difficult and took more time. And because
it takes more time for the mind to connect concepts it perceives as incompatible, researchers
have observed that the time differential can be quantified to measure implicit attitudes.
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AT: Abusive Racial Profiling is Prohibited
No action is taken to stop law enforcement practices that are biased against minorities
Yevgenia Kleiner, law review articles editor, Boston College Third World Law Journal, Winter,
2010, NOTE: RACIAL PROFILING IN THE NAME OF NATIONAL SECURITY:
PROTECTING MINORITY TRAVELERS' CIVIL LIBERTIES IN THE AGE OF TERRORISM,
p. 121-2
Furthermore, the 2007 report found that the U.S. government has failed to take "any
meaningful action" to address discriminatory law enforcement practices in the United States.
The report attributed this state of affairs to the absence of binding federal legislation that
would prohibit and monitor the racial profiling by law enforcement officers at the federal,
state and local level. Existing federal guidelines, such as the Guidance, have little legal
significance because they are not mandatory; furthermore, they are inapplicable to the
majority of state law enforcement agents because, at the time of the report, twenty-six states
lacked explicit prohibitions on racial profiling by law enforcement officials. The ability of
government agencies and independent third parties to evaluate discrimination in law
enforcement officials' treatment of minorities is further hindered by the U.S. government's
failure to collect the comprehensive statistical information on "acts of excessive force, racial
profiling, or false arrests and wrongful prosecutions" as required by the Convention. Finally,
because individuals seeking remedies must demonstrate proof of intent to discriminate, the
judicial process itself presents another factor that perpetuates racial profiling. In the United
States, victims of racial profiling have three forms of recourse against law enforcement
officials who subject them to racial profiling. A first option is to request that the appropriate
government body prosecute the official(s), a method that puts the onus of initiating a criminal
prosecution on the agency that employed the official. A second option is to file a complaint
with an internal disciplinary agency or civilian complaint board, but even when such an
agency or board exists, fair investigations and adequate resolutions are rare. The final option
is to file a civil rights challenge to racial profiling by the government or private individuals
and institutions in the form of a civil suit under 42 U.S.C. ß 1983. Overall, however, these
mechanisms have been criticized as "largely ineffective and insufficient to meet the U.S.
Government's obligations to provide remedies and redress for violations of rights under the
Convention" because such suits, even in rare instances of success, seldom lead to individual
or systemic changes in law enforcement policies and practices.
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Profiling Bad: Immoral
RACE-BASED POLICING MORALLY INDEFENSIBLE
David A. Harris, Professor of Law & Values, University of Toledo College of Law, Mississippi Law Journal, 2003, 73
Miss. L.J. 423, p. 450-1
Beyond legal considerations, one must consider the moral aspect of this use of race. Using race as a predictor is akin
to assigning guilt by association: it is, in every way, morally indefensible. Anglo-American criminal law, and most
other mature legal systems, strongly align themselves with a fundamental idea: the assignment of criminal
blameworthiness depends upon individual responsibility for individual actions. It is fundamental in our system that a
person cannot be held responsible for a crime unless the crime was the doing of that particular individual. While we
permit punishment for subsidiary roles in crimes--the accomplice who encourages the person pulling the trigger, or the
driver of the getaway car for the bank robbery--these actors have themselves still done something to deserve
punishment, even if it is only to support or encourage the main actor. By the same token, we require not just action for
criminal liability--the proverbial actus reus so familiar to students of criminal law--but that the action be voluntary. That
is, it cannot be the result of an unconscious action or a spasm, such as the movement of a limb during a seizure.
Scholars of criminal law explain that, without a voluntary, willed action, we would feel deep discomfort affixing moral
blameworthiness to the individual. It is only when individuals act consciously that they deserve blame and criminal
sanctions. For it is only then that we deem them individually responsible for the consequences of their acts. In sum, we
feel that it is morally wrong to pin blame on a person who, ultimately, is not responsible for it.
RACIAL PROFILING IS IMMORAL
Reginald T. Shuford, Staff Attorney, Legal Department, ACLU, Saint Louis University Public Law Review, 1999, 18
St. Louis U. Pub. L. Rev. 371, p. 372-3
Any way you slice it, racial profiling is wrong. First, it is morally indefensible, steeped as it is in racial stereotypes
and erroneous assumptions about the propensity of black and Latino men to commit particular types of crimes. Second,
racial profiling - equating race with criminality and using it in the absence of and in lieu of probable cause - is legally
impermissible. It violates various constitutional and statutory rights, including the Equal Protection Clause of the
Fourteenth Amendment, the Fourth Amendment, and Title VI of the Civil Rights Act of 1964. Finally, racial profiling is
just bad, ineffective policing. By targeting black and Latino men, practitioners of racial profiling ignore the reality that
others are committing crimes (especially those involving the transport of drugs on the nation's highways) and are largely
being allowed to get away with it. Additionally, the societal costs exacted by racial profiling, including jury nullification
and the lack of faith in the justice system, are immeasurable.
RACIAL PROFILING MORALLY INDEFENSIBLE
Reginald T. Shuford, Staff Attorney, Legal Department, ACLU, Saint Louis University Public Law Review, 1999, 18
St. Louis U. Pub. L. Rev. 371, p. 373
Racial profiling is morally indefensible. Under the guise of good policing, racial profilers stereotype and penalize
African-Americans and Latinos solely on the basis of their skin color. Even conceding that, as with all races, some
small percentage of African-Americans and Latinos are committing crimes, racially motivated policing punishes
everyone for the sins of a few. So widespread is racial profiling that Harvard Law School Professor Randall Kennedy,
in his book Race, Crime, and the Law, likens it to a tax levied against black men: "[A] young black man selected for
questioning by police as he alights from an airplane or drives a car is being made to pay a type of racial tax for the war
against drugs that whites and other groups escape."
RACIAL PROFILING IS MORALLY WRONG
Thomas M. McDonnell, Professor of Law, Pace University School of Law, Pace International Law Review, Spring,
2004, 16 Pace Int'l L. Rev. 19, p. 57
Additionally, racial profiling is morally wrong. During the Iran hostage crisis, I represented two Iranian students.
Then as now, Iranians (like Iraqis) were required to report to and register with the Immigration and Naturalization
Service. After walking into the federal building in Los Angeles with my two clients, I saw in the drab corridors of INS a
sea of Iranian faces. It was chilling. We are more true to ourselves and can better protect our society by adopting more
measured investigative approaches and by doing the hard but time tested methods of investigation, with the aid of the
Muslim and Arab communities and in cooperation with our allies throughout the world.
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Profiling Bad: Psychological Pain p. 1/2
RACIAL PROFILING TAKES A MAJOR EMOTIONAL TOLL ON PEOPLE OF COLOR
Deborah A. Ramirez et al, Professor, Northeastern University School of Law, American Criminal Law Review,
Summer, 2003, 40 Am. Crim. L. Rev. 1195, p. 1214-5
Additionally, the use of race in multi-factor profiles by law enforcement creates bad public policy, as it engenders
tremendous frustration, anger, and hostility from communities of color. Clearly, the onus that accompanies constant
suspicion by law enforcement takes a mental toll on people of color. Professor Barbara Underwood noted the
cumulative effect on people of color, stating "by repeatedly excluding from various benefits the members of the same
well-defined group, the practice contributes to the formation of a discrete disadvantaged class, whose members share a
massive sense of injustice." Even more troubling is the idea that when the community is not invested in the justice
system, law enforcement has more difficulty tapping into the community as a resource for invaluable intelligence
information. Although some may argue that the anger triggered in the targeted community comes with the territory
during pressing times, the reality is that the focus on one particular community or race can be detrimental. For example,
in the War on Terrorism, rather than targeting all Arabs with suspicion, law enforcement should work in conjunction
with Arab and Muslim communities to identify individuals whose behavior arouses suspicion and warrants
investigation. This approach not only produces sounder community relations, but also results in much more effective
law enforcement.
RACIAL PROFILING INJURES THOSE SUBJECTED TO IT
William M. Carter, Jr., Assistant Professor, Case Western Reserve University School of Law, Harvard Civil RightsCivil Liberties Law Review, Winter, 2004, 39 Harv. C.R.-C.L. L. Rev. 17, p. 23-5
Racial profiling inflicts several injuries upon those subjected to it. While these injuries often overlap, they are
analytically distinct. First-hand experience with being singled out for suspicion because of one's race substantiates and
reinforces the already pervasive belief among racial minorities (particularly African Americans) that the criminal justice
system is racially biased. As stated in the proposed federal End Racial Profiling Act of 2001: Racial profiling harms
individuals subjected to it because they experience fear, anxiety, humiliation, anger, resentment, and cynicism when
they are unjustifiably treated as criminal suspects. Racial profiling damages law enforcement and the criminal justice
system as a whole by undermining public confidence and trust in the police, the courts, and the criminal law. These
findings rightly emphasize that racial profiling is a societal problem that both impacts the individuals subjected to it and
undermines effective policing. Persons subjected to racial profiling feel unfairly singled out because they are African
American or belong to another minority group, not because of any legitimate reason for suspicion. This wholesale
categorization of all members of a certain race as potential criminals happens only when racial minorities are involved.
Seldom, if ever, do we hear a description of the criminal suspect as white and then apply an assumption of criminality to
all whites we meet thereafter. This is because we think of the white criminal as "an individual deviant, a bad actor. We
do not think of his actions as representative of an entire racial group." A second form of injury caused by racial
profiling involves feelings of victimization or powerlessness, both during the racially motivated encounter and while
seeking redress afterwards. The police correctly try to assume immediate control of the situation when they stop a
person suspected of criminal activity. This "control dynamic," when racialized, leaves the target of racial profiling
feeling subjected to control because of his race and stripped of power and agency. Further, victims of racial profiling
often find that they get stonewalled when trying to seek remedies for racial profiling, causing them to simply give up
and accept racial profiling as a fact of life. This feeling of powerlessness often leads members of racial minorities to
adopt accommodationist strategies to live with the effects of perpetual criminal suspicion based on their race. Such
strategies include changing when, where and how one lives, works, drives, or dresses. Yet a third injury caused by
racial profiling--and the one most relevant for purposes of understanding racial profiling as a badge or incident of
slavery--involves stigmatization and dehumanization. Quite apart from the feeling of racially charged powerlessness
described above, the legally enforced stereotype of black criminality has a particularly injurious effect on African
Americans, given their history of enduring legally enforced and officially sanctioned enslavement, apartheid and
mistreatment. The image in the collective white mind of blacks (particularly black men) as congenital criminals is
perhaps the most deeply entrenched stereotype pervading the black-white relationship in America. The pervasiveness
of this assumption reveals that it rests upon deeply rooted historical attitudes and is not simply the result of individual
racial bias. To see this legacy of slavery embodied in modern-day stereotypes, "whites need simply to peer into their
own minds and watch as they confront blacks on the street, in a classroom, or on television."
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Profiling Bad: Psychological Pain p. 2/2
RACE-BASED POLICING IS PAINFUL – SENDS MESSAGE TO ALL MEMBERS OF
THE COMMUNITY THAT THEY ARE “STAINED”
Lenese C. Herbert, Associate Professor of Law, Albany Law School, Michigan Journal of Race & Law, Fall, 2003, 9
Mich. J. Race & L. 149, p. 202-3
Both race-based policing and conspiring against the United States as an American accomplish much of the same goal:
defining identity, particularly after September 11. Identity - its assertion as well as its denial - can easily become an
instrument of war, since the concept of identity is often based on a perceived enemy. Wanton police profiling is not
merely an extraordinary, once in a lifetime incident; it is a painful way of life. This is what the Court refuses to
consider: when you are an African American (primarily male), being the target of wanton police profiling denies you
the right to be let alone regardless of who you are and what you are doing. By virtue of the Supreme Court's refusal to
disrupt race-based policing and officers' resultant ability to interrupt the coming and going of pedestrians and motorists
on a race-based whim, even noncriminal "good" African Americansn are reminded that they manifest the congenital
stain of appropriation. Those who dare walk and live in neighborhoods deemed beyond their means or race are policed.
What stymies the country's unity is the specter of virulent policing of those who require none. The doctrinal result not
only rigidly ignores the often apparent presence of discriminatory policing and racial animus by law enforcement but
also stokes the growing fear mistrust, disconnect, and clear powerlessness of African Americans, feelings that can
readily lend themselves to violence as a way of standing against the negative and negating identity forged upon them by
such practices.
RACIAL PROFILING INFLICTS SERIOUS EMOTIONAL HARM
William M. Carter, Jr., Assistant Professor, Case Western Reserve University School of Law, Harvard Civil RightsCivil Liberties Law Review, Winter, 2004, 39 Harv. C.R.-C.L. L. Rev. 17, p. 26
It is critical to understand that such reactions to racial profiling are not isolated or limited to those who are "too
sensitive." In recent years, psychologists exploring racial profiling's personal impact have concluded that racial profiling
can inflict serious emotional anguish. One researcher conducted in-depth interviews regarding reactions to racial
profiling and racialized law enforcement in different Washington, D.C., neighborhoods. This study reveals that feelings
of anger, powerlessness and stigmatization are the norm for racial minorities subjected to criminal suspicion because of
their race.
RACIAL PROFILING IMPOSES SUBSTANTIAL BURDENS ON INNOCENT PEOPLE AS
WELL AS GUILTY
William M. Carter, Jr., Assistant Professor, Case Western Reserve University School of Law, Harvard Civil RightsCivil Liberties Law Review, Winter, 2004, 39 Harv. C.R.-C.L. L. Rev. 17, p. 26-7
Furthermore, the injuries caused by racial profiling are suffered regardless of whether the person singled out is
actually engaged in criminal activity. I realize that this is an emotionally unappealing argument and that judges are
reluctant to suppress evidence on "procedural" grounds. Yet the Constitution demands, in a variety of other
circumstances, that certain means of ascertaining substantive guilt are simply impermissible because they conflict with
overriding social values. The charge that condemning racial profiling is misguided because only criminals have
something to fear from the practice is incorrect because racial profiling imposes substantial burdens on persons who are
in fact innocent. This argument is also overly simplistic because the law in other circumstances protects the right to
procedural fairness, even at the risk of suppressing evidence of substantive guilt. There are several reasons for
opposing racial profiling as a matter of law and policy. First, racial profiling imposes substantial burdens upon large
numbers of innocent persons who happen to share a racial characteristic. This is both inefficient and unfair. For
example, where only ten percent of people matching a racial profile have actually committed a crime, then, by
definition, the remaining ninety percent are innocent. Thus, racial profiling is an imprecise tactic that subjects lawabiding persons to unjustified, intrusive police encounters and diverts law enforcement resources away from more
accurate crime-fighting techniques.
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Profiling Bad: Violates Civil Liberties/Equal Protection
RACIAL PROFILING VIOLATES 14TH AMENDMENT EQUAL PROTECTION
GUARANTEE
Reginald T. Shuford, Staff Attorney, ACLU, Saint Louis University Public Law Review, 1999, 18 St. Louis U. Pub. L.
Rev. 371, p 375
Beyond being immoral, racial profiling is also illegal. The Equal Protection Clause of the Fourteenth Amendment
forbids unequal treatment on the basis of race. "The central purpose of the Fourteenth Amendment was to eliminate
racial discrimination emanating from official sources in the States." The Equal Protection Clause "is essentially a
direction that all persons similarly situated should be treated alike." Racial profiling, which targets people of color on
the basis of nothing more than their race and subjects them to differential treatment, stands in direct contravention of the
Fourteenth Amendment's mandates.
IGNORING RACE-BASED POLICING EXACERBATES RIGHTS VIOLATIONS
Lenese C. Herbert, Associate Professor of Law, Albany Law School, Michigan Journal of Race & Law, Fall, 2003, 9
Mich. J. Race & L. 149, p. 192
Ultimately, ignoring race-based policing in a race-based society has, counter-intuitively and counter-productively,
exacerbated the problem faced by those who are policed because they are non-White. Instead of providing even a
modicum of relief for the victims of such interactions, the Court has repeatedly decided that such police actions, no
matter how flagrant, excessive, or fatal are not only lawful, but reasonable.
RACIAL PROFILING VIOLATES 14TH AMENDMENT
John Dwight Ingram, Professor of Law, John Marshall Law School, Thurgood Marshall Law Review, Fall, 2003, 29 T.
Marshall L. Rev. 55, p. 72
The Equal Protection Clause of the Fourteenth Amendment prohibits unequal treatment by government officials on
the basis of race or ethnicity. "[A]ll persons similarly situated should be treated alike." Racial and ethnic profiling
targets people, at least partly, on the basis of their race or ethnicity, and is prima facie contrary to the mandate of the
Fourteenth Amendment because it subjects targets of profiling to disparate treatment.
ALL RACIAL PROFILING VIOLATES CORE VALUES PROTECTED BY 14TH
AMENDMENT
Sherry Colb, Professor Rutgers Law School, October 10, 2001, “The new face of racial profiling: how terrorism affects
the debate,” http://writ.news.findlaw.com/colb/20011010.html
Those of us who oppose "DWB" profiling have articulated a number of independent reasons for that opposition. One
reason, common to any official instance of racial stereotyping, is that it denies affected African-Americans the equal
protection of the laws guaranteed every person by the Fourteenth Amendment.
It is unfair, in other words, to visit disproportionate burdens upon one segment of the population, defined by its racial
characteristics. In part, this is because race is immutable and therefore cannot be altered to avoid unwanted disparate
treatment.
On this score, any new law enforcement initiative involving terrorist profiling that rests on ethnic or racial
characteristics would meet with the same objections as "DWB" profiling.
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Racial Profiling Violates Core of 4th Amendment Protections p. 1/2
USING RACE AS A PREDICTOR OF CRIMINAL ACTIVITY VIOLATES CORE VALUE
OF 4TH AMENDMENT
David A. Harris, Professor of Law & Values, University of Toledo College of Law, Mississippi Law Journal, 2003, 73
Miss. L.J. 423, p. 435-6
If it is relatively easy to understand what the law is on the use of race to assess suspicion, what the law ought to be is
both considerably more complex and of far greater importance. Law enforcement may properly use race in deciding
whether or not reasonable suspicion exists when race comes from a description of a known suspect. In such a situation,
race becomes part--a vital part--of a particularized reason for individual suspicion. This is not only good police work; it
is good for society in general. By way of contrast, race should not be used as an indicator of suspicion when it is used as
a predictor--that is, a factor in deciding which person in a group of strangers is more likely than others to be involved in
some as-yet-unknown crime. In the latter situation, race is used as a proxy to indicate a greater propensity to be
involved in crime, based on statistical prediction. This use of race represents a profound mistake--in the sense of both
police work and policy. In the following sections of this paper, I will attempt to justify this "description versus
prediction" rule on three bases. First, law and history demonstrate that the Constitution permits using race only as a
description. Using race as a predictor runs directly contrary to the history and purposes of the Fourth Amendment.
Second, a powerful moral argument makes clear that, even if using race as a predictor has some statistical basis, using
race this way is profoundly wrongheaded. Third, using race as a predictor of suspicion fails to make any practical
contribution to policing. Rather, race as a predictor of criminality does not provide the boost to policing that its
proponents usually claim. Predicting criminal behavior with race actually damages policing, making it less effective and
driving a wedge between law enforcement officers and those they serve. And in this time of special risk from terrorism
on our own soil, using race as a predictor is a mistake we simply cannot afford to make.
RACIAL MINORITIES ENTITLED TO HEIGHTENED 4TH AMENDMENT
PROTECTION
Lenese C. Herbert, Associate Professor of Law, Albany Law School, Michigan Journal of Race & Law, Fall, 2003, 9
Mich. J. Race & L. 149, p. 179-80
Indeed, race may compel a more explicit constitutional determination of the right to be let alone, since the unbridled
policies and practices of law enforcement with respect to race make the need for such jurisprudence all the more
important. Race-based policing shows that without clear and uncompromised protection of this right, the legacies of
slavery and institutionalized racism will render African Americans bereft of any real notion of liberty or Fourth
Amendment protection in this society.
Race should be revisited by the Court as an "essential construct" in assessing violations of an individual's Fourth
Amendment right to be let alone. In a world where, according to Professor Andrews, "the harms to be addressed were
meted out in explicitly racial terms, and in which the rules denying access to justice to Blacks and others operated
explicitly along racial lines," the right to be let alone, at best, seems apocryphal, a wraith-like apparition which has been
of little use to those who most require it, given the history of the United States and in the face of race-based policing.
Yet, the Court refuses to tackle race in its Fourth Amendment jurisprudence, preferring instead to employ a colorblind
judicial review of police actions.
RACIAL PROFILING VIOLATES 4TH AMENDMENT PROTECTION AGAINST
UNREASONABLE SEARCH AND SEIZURE
William M. Carter, Jr., Assistant Professor, Case Western Reserve University School of Law, Harvard Civil RightsCivil Liberties Law Review, Winter, 2004, 39 Harv. C.R.-C.L. L. Rev. 17, p. 29-30*
In a legal context, racial profiling has also been opposed as a violation of the Fourth Amendment's prohibition against
unreasonable searches and seizures. As scholars initially began to focus on racial profiling, many argued that a search or
seizure based on an individual's race as a predictor of possible criminality violated the Fourth Amendment. n63 The
Supreme Court, however, has held that an officer's subjective motivation cannot be used to attack a search or seizure.
As long as there is some objectively reasonable justification for the encounter, even where that justification is purely
pretextual, the Fourth Amendment provides no relief.
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Racial Profiling Violates Core of 4th Amendment Protections p. 2/2
CORE CONCEPT OF 4TH AMENDMENT IS THE REQUIREMENT OF
INDIVIDUALIZED SUSPICION FOR 4TH AMENDMENT INTRUSIONS
David A. Harris, Professor of Law & Values, University of Toledo College of Law, Mississippi Law Journal, 2003, 73
Miss. L.J. 423, p. 438-40
This is clearly a dispute of great significance, but it overlooks something important: the core concept of the Fourth
Amendment is not which clause should govern, but the requirement of individualized suspicion for any Fourth
Amendment intrusion. In other words, history shows that the framers would have required all searches and seizures,
whether or not they were based on a warrant, to be based on particularized, individual suspicion. William Cuddihy provides a
new contribution to the debate over the Fourth Amendment's meaning--a scholarly work that Justice O'Connor has called "one of the most exhaustive
analyses of the original meaning of the Fourth Amendment ever undertaken" (Justice O'Connor cited it approvingly thirteen times in just a few pages
of one of her opinions). In his work, entitled The Fourth Amendment: Origins and Original Meaning, Cuddihy has done the hard, tedious and
thorough work of digging and sifting through historical materials to find the Amendment's core. Cuddihy's work--three volumes, with 1560 pages of
text and footnotes as well as additional pages of appendices, tables and the like--is a masterwork of thoroughness, detail and scope, even if the reader
sometimes wishes for better editing and organization. Cuddihy has much to say about the debate over the clauses of the Fourth Amendment. But it is
another, related aspect of Cuddihy's history of the Fourth Amendment that illuminates the question of how we should use race to assess suspicion in
police investigation. The historical record, Cuddihy asserts, strongly supports the idea that the Fourth Amendment was intended to limit government
action and discretion to conduct not just searches and seizures with warrants, but a wide variety of searches and seizures without warrants. n88
Cuddihy points out the importance of individual suspicion--the idea that the authorities had to have reasons for
suspicion that centered on particular individuals by virtue of their conduct. Long pre-dating the Fourth Amendment,
there existed in England not only the idea that searches and seizures could be unreasonable, but that particularized
suspicion was absolutely required in order for a search or seizure to be considered reasonable. Cuddihy finds evidence
that these intrusions required some type of particularized suspicion as far back as the thirteenth century. Professor Tom
Clancy, director of the National Center for Justice and the Rule of Law at the University of Mississippi School of Law, has written
persuasively about the importance of individualized suspicion to both the history of the Fourth Amendment and our current struggle
over the meaning of the Amendment's two clauses as they relate to the question of what searches and seizures are reasonable.
Professor Clancy explains the importance of individualized suspicion this way:
The requirement of some level of individualized suspicion operates to limit the government's discretionary authority to search and
seize. Individualized suspicion, also called particularized suspicion, serves to preclude arbitrary and general searches and seizures
and mandates specific justification for each intrusion. It places the focus of the inquiry concerning the permissibility of a search or
seizure upon the circumstances presented by the private party or object of the search or seizure; if and only if the individual or object
provides a reason for governmental inquiry may the government intrude.
RACE AS SUSPICION VIOLATES CORE REQUIREMENT OF 4TH AMENDMENT OF
INDIVIDUALIZED SUSPICION
David A. Harris, Professor of Law & Values, University of Toledo College of Law, Mississippi Law Journal, 2003, 73
Miss. L.J. 423, p. 448-50
It is when we begin to use race or ethnic appearance not to describe a known suspect, but to predict the probability that any random
stranger may be involved in an as-yet-unknown crime, that we stray from the Fourth Amendment's history and purpose and the
protections it is supposed to afford. This, of course, is the essence of racial profiling: race or ethnic appearance is used as a proxy
characteristic to indicate a greater propensity to be involved in crime. Police officers cannot look at any particular person and see that
he or she is a drug courier or dealer, especially as that person drives down a roadway. But anyone can see the person's skin color or
ethnic features. If we believe that persons in a particular racial or ethnic group are more likely to be drug dealers or bank robbers or
terrorists, and we see a person who belongs to that group, a law enforcement officer who uses racial profiling will use the person's
racial or ethnic characteristics to make a prediction. Since people in this racial or ethnic group are more likely to be (fill in the blank:
drug dealers, bank robbers or terrorists), the person I am observing is more likely to be one, too. I can therefore predict that it is more
likely that I will find a (fill in the blank) if I stop this person than if I stop a person not belonging to this group. Based on this
prediction and other facts I observe, I'll make the stop of this driver. This kind of prediction is based not on an individual's sharing a
characteristic of a known suspect who has perpetrated a particular crime, but on sharing the characteristics of a large group of people,
only a small percentage of whom may have committed any known kind of crime at any point in the past, and none of whom has
committed any known crime in conjunction with the particular person under observation. This sharing of characteristics says very
little, if anything at all, about the person under observation, except that he belongs to some particular large racial or ethnic group; it
lends nothing to individual suspicion. In short, in terms of the particular and specific indicators of individual suspicion that the Fourth
Amendment requires the government to have before a search or seizure is allowed, race or ethnic appearance adds nothing.
Regardless of what the Martinez-Fuerte case says to the contrary, this predictive use of racial or ethnic characteristics should not be
allowed under the Fourth Amendment.
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Profiling Bad: Slavery
RACIAL-BASED LAW ENFORCEMENT INHERENTLY VIOLENT AND COMPLICIT
WITH SLAVERY
Lenese C. Herbert, Associate Professor of Law, Albany Law School, Michigan Journal of Race & Law, Fall, 2003, 9
Mich. J. Race & L. 149, p. 164
However, if "oppression gave birth to the Fourth Amendment," then fear of African Americans has accompanied its
death. For an overwhelming majority of African Americans, the authority of law that allows for interference with their
right to be let alone is far from "clear and unquestionable." Moreover, the notion of freedom from governmental specifically police - interference is as foreign as a Plutonian heat wave. According to Professor Russell, "antebellum and
postbellum criminal law stood as the antithesis to a racially just system." Russell further argues that "one constant
remained as the slave codes became the Black codes and the Black codes became segregation statutes: Blackness itself
was a crime." Law enforcement complicity with race-based policing is inherently violent and shares responsibility for
the derogation of actual and implied rights of African Americans. This creates a different legal measure of citizenship
and the rights of citizenship possessed by African Americans.
RACIAL PROFILING IS AN INCIDENT OF SLAVERY
William M. Carter, Jr., Assistant Professor, Case Western Reserve University School of Law, Harvard Civil RightsCivil Liberties Law Review, Winter, 2004, 39 Harv. C.R.-C.L. L. Rev. 17, p. 62-4
In its simplest form, the argument for considering racial profiling an incident of slavery is that it results in a regime of race-based
restraint on freedom of movement and that a similar regime existed during slavery. Even during the era when the Supreme Court
construed the Thirteenth Amendment most narrowly, the Court held that the Amendment prohibited the "inseparable incidents of the
institution [of slavery]" visited upon blacks, such as "restraint of his movements . . . ." Widespread racial profiling means that
African Americans are subjected to official criminal suspicion based upon their race, with the concomitant restraint on liberty that
results from such suspicion in the form of "driving while black" encounters, "stop and frisk" detentions on the streets, and other law
enforcement investigations. In contrast to the "responsive" use of race as part of the description of a known suspect, the "predictive"
use of race as a basis for criminal suspicion means that any person possessing the racial background in question is at any time subject
to official restraint because of his race. The same sort of race-based restraint on liberty was an essential part of the slave system.
Along with the means of restraint and domination used by slaveholding individuals (shackles, beatings, and threats of violence), the
Black Codes and Slave Codes enshrined race as the primary factor in criminal suspicion. While slaveholders did all in their private
power to dominate the enslaved black class, they realized that private brutalization, without legal validation and enforcement, was not
enough to maintain the system of human bondage. They knew that "without the power to punish, which the state conferred upon the
master, bondage could not have existed. By comparison, all other techniques of control were of secondary importance." History
makes clear that "courts, police and militia were indispensable parts of the machinery of control" over enslaved Africans.
In
addition to authorizing and immunizing slaveholders' private brutality, one way in which the criminal law supported slavery was by
controlling the slaves' movements when away from the slaveholder. For example, under South Carolina's Slave Code, slaves were
prohibited from leaving the plantation without a pass unless they were accompanied by some white person. Pennsylvania's Slave
Code similarly provided that any black person discovered more than ten miles from the master's home without permission in writing
should be apprehended and whipped and that the apprehending party would receive payment.
Race-based restraint on freedom of
movement is also the reality under a racial profiling regime. The point is not that racial profiling is the equivalent of flogging slaves
found off the plantation. Instead, the point is that during slavery, blacks were denied freedom of movement based on their race and
that widespread racial profiling has the same effect today. Thus, racial profiling, when it leads to an arrest or detention, can be
characterized as a Thirteenth Amendment seizure, in violation of the Amendment's promise to eliminate this vestige of the slave
system.
RACIAL PROFILING VIOLATES 13TH AMENDMENT PROHIBITION OF THE
BADGES OF SLAVERY
William M. Carter, Jr., Assistant Professor, Case Western Reserve University School of Law, Harvard Civil Rights-Civil Liberties
Law Review, Winter, 2004, 39 Harv. C.R.-C.L. L. Rev. 17, p. 66-7
Racial profiling also falls within this broader theory because racial profiling causes all African Americans to be treated as potential
criminals. This same assumption, deeply rooted at the time of slavery, provided essential support for the slave system. This attitude
is a stigma or "badge" of slavery in the truest sense of the word. It is a mark of Cain that cannot be washed away by success,
education or assimilation. An African American in the "wrong" neighborhood, or on our nation's highways, does not escape racial
profiling because he is "respectable" in terms of appearance or profession. The visible "brand" of blackness (perhaps in conjunction
with other factors, perhaps alone) is sufficient to trigger police suspicion, even in the total absence of individualized indicia of
possible criminality. This response to the stimulus of blackness also makes racial profiling a badge or incident of slavery.
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Racial Profiling Bad Law Enforcement Strategy
RACIAL PROFILING INEFFECTIVE
David A. Harris, Professor of Law & Values, University of Toledo College of Law, Mississippi Law Journal, 2003, 73
Miss. L.J. 423, p. 455-6
A third set of considerations that also militates against the use of racial or ethnic characteristics for purposes of
assessing the reasonableness of Fourth Amendment intrusions has little to do with the U.S. Constitution or morality, and
everything to do with the practicalities and efficacy of everyday police work. When police use race or ethnic appearance
as one factor among others in assessing who is suspicious enough to warrant being stopped, questioned or searched, the
success of police work--the rate at which officers catch bad guys and find illegal guns and drugs--actually drops. That
is, police officers are less successful in fighting crime when they use race and ethnicity as indicators of suspicion than
when they do not. Put another way, using race or ethnicity this way is like tying lead weights around a police officer's
ankles when he or she chases a bad guy.
RACIAL PROFILING INEFFICIENT USE OF SCARCE POLICE RESOURCES
Thomas M. McDonnell, Professor of Law, Pace University School of Law, Pace International Law Review, Spring,
2004, 16 Pace Int'l L. Rev. 19, p. 42-3
In the last five years, however, racial profiling has been increasingly attacked. DWB, a description of the police
practice of routinely stopping black male drivers, has been roundly condemned. Picking individuals out because they
belong to a minority group and then subjecting them to criminal investigation encourages lazy police practices,
humiliates the individuals who are so selected, and causes resentment in the minority community against the police.
Lastly, such " racial profiling, " which is bound to produce a large number of false positives, is an inefficient use of
scarce police resources.
RACIAL PROFILING INCREASES CRIME
Reginald T. Shuford, Staff Attorney, ACLU, Saint Louis University Public Law Review, 1999, 18 St. Louis U. Pub. L.
Rev. 371, p 378
In addition to being immoral and illegal, racial profiling is bad policing, failing to reduce crime - some say even
breeding it - and exacting immeasurable costs upon society. Time and again, studies have shown that racial profiling,
to combat crime generally and in service of the War on Drugs, in particular, is simply ineffective. For example, federal
statistics show that African-Americans are 13 percent of the country's drug users (equivalent to their composition in the
American population), yet African-Americans constitute 37 percent of those arrested on drug charges, 55 percent of
those convicted on drug charges, and 74 percent of all drug offenders sentenced to prison. The former Attorney General
of New Jersey has called this phenomenon the "perverse illogic" of racial profiling: when people of color are targeted
and searched at a grossly disproportionate rate, it is only logical that they will be arrested and incarcerated at a
commensurately high rate. Meanwhile, the 87 percent of drug users who are NOT African-American are for the most
part left alone.
RACIAL PROFILING CREATES SELF-FULFILLING PROPHECY—TARGETING
MINORITIES FOR INVESTIGATION LEADS TO MORE ARRESTS AND
CONVICTIONS
Thomas M. McDonnell, Professor of Law, Pace University School of Law, Pace International Law Review, Spring,
2004, 16 Pace Int'l L. Rev. 19, p. 47-8
. Some scholars argue that racial profiling of minorities has created a self-fulfilling prophecy: because more members
of minority groups are investigated, more are found criminally responsible for the target offenses. Had white persons
been investigated as thoroughly, according to these scholars, more white persons would be found criminally responsible
for the target offenses.
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* Airport Screening Involves SPOT/Behavioral Screening
The government uses SPOT to screen potential terrorists
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident
Fellow of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law
Review, Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident
Fellow of the Georgetown Center on National Security and the Law, and a Principal in the Truman National
Security Project, Winter, 2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE
BEHAVIORAL PROFILING PARADIGM, p. 423-4
You're at an airport, standing in line to go through security. You're sweating, having rushed
from the curb with bulky suitcases, gripping a ziplock bag in one hand and your shoes in
another. Nervous that, as the security line crawls along, you may miss your flight, you
glance around impatiently at the officials and your watch. Government agents are
watching your every move--looking to see whether you exhibit certain facial expressions
that they believe are the telltale signs of a terrorist. This is Screening Passengers by
Observation Technique ("SPOT"), the Department of Homeland Security's behavioral
profiling program, in which trained federal agents closely observe travelers' faces for
hints that they may be security risks. It is in operation in airports across the United
States, and is used in other settings, such as urban mass transit.
SPOT is just one element of an emerging paradigm in homeland security and counterterrorism programs. Rather than investigate particular plots or actual, known suspects, the
United States and other governments are developing new tools to make quick evaluations of
whether individuals might be dangerous. Rather than rely on explicit racial or religious
profiling, they purport to use objective, scientific criteria to identify dangerous people by
analyzing their facial movements, voices, blood pressure, sweat levels, heart and breathing
rates, and even brain waves. Rather than apply scientific techniques, CSI-style, to crime
scenes, these new programs are applying them to people in a crowd. There is much to like
about these programs: they provide an extra layer of security, are non-invasive, efficient,
[*424] and targeted. Given the obvious lesson of 9/11 that our security must focus not just on
dangerous objects, but dangerous people, these profiling programs are likely to be at the
center of law enforcement and homeland security initiatives for the foreseeable future.
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* Airport Screening Involves SPOT/Behavioral Screening
TSA uses SPOT to reduce terror risks
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE
SPOT PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH
AMENDMENT?, p. 291
But most airline passengers may not know of a relatively new "unseen" program airport
security is using to ferret out would-be terrorists before they even make it to the security
checkpoint. This unpublicized program is the Screening of Passengers by Observation
Technique, otherwise known as "SPOT." The Transportation Security Administration
("TSA") now uses SPOT as one of its newest security innovations to hopefully recognize
potential terrorists through "behavior observation and analysis techniques to identify high-risk
passengers." To implement this program, the TSA specially trained several of its agents,
called Behavior Detection Officers ("BDOs"), n13 to observe travelers for "involuntary
physical and physiological reactions that people exhibit in response to a fear of being
discovered." BDOs watch for these types of reactions by simply observing a person of interest
or by actually engaging that person in what appears to be harmless dialogue. If warranted,
BDOs may "refer these individuals for additional screening at the passenger security
checkpoint."
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SPOT Explained
How SPOT works
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident Fellow
of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law Review,
Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident Fellow of the
Georgetown Center on National Security and the Law, and a Principal in the Truman National Security Project, Winter,
2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE BEHAVIORAL PROFILING
PARADIGM, p. 425-7
In this Part, we provide a brief introduction to the behavioral profiling paradigm. We first
explain the operations and origins of the SPOT program, as representative of this new security
trend. We then review other programs currently in development that would extend behavioral
profiling beyond just facial observations, and move it from airports to a range of public
institutions. We conclude by describing the rationale for behavioral profiling and the range of
benefits that this type of security promises.
A.The Basics of SPOT
The Department of Homeland Security's Transportation Security Administration ("TSA")
began operating SPOT, its airport behavioral profiling program, in June 2003. Under the
program, Behavior Detection Officers ("BDOs") observe airport passengers for certain
physical and physiological characteristics and reactions. n2 BDOs work in pairs and scan
passengers at security checkpoints for signs of specific behaviors listed on the officers'
[*426] checklists. n3 Because of the high volume of passenger traffic in busy airports
nationwide, BDOs must monitor multiple individuals simultaneously. n4 BDOs are trained
to look for individuals who exhibit unusual or anxious behavior, which can be as simple as
changes in mannerisms, excessive sweating on a cool day, or changes in the pitch of a
person's voice. Assertedly, "racial or ethnic factors are not a criterion for singling out people."
n5 The program is "rooted in the notion that people convey emotions" through unconscious
gestures and facial expressions. n6 The aim is that BDOs will identify the dangerous faces in
the crowd and subject them to more extensive questioning or searches than other travelers.
Before providing more details, it may help to mention what SPOT is not. The program
purportedly focuses in particular on unconscious facial expressions or reactions--not
more conscious or planned characteristics of human behavior. SPOT is different than, for
example, identifying high-risk travelers based on whether they are flying one-way, how they
paid for their tickets, or how much luggage they are carrying. It also differs from traditional
law enforcement criminal profiling, in which officers use characteristics associated with a
particular crime or group of crimes to develop a profile of the likely perpetrator--for example,
a serial-killer or drug courier.
SPOT, in contrast, focuses on an individual's subtle behavior and appearances--in
particular, facial micro-expressions like raising the inner corners of the eyebrows so that
the brows slope down from the center of the forehead, the cheeks become elevated, and
the corners of the lips slightly dip. n8 Other signs of visual suspicion can include body
language and gestures, such as a slumped posture or excessive pocket-patting. n9 Judging
from a pre-determined set of criteria consisting of some thirty possible suspicious behaviors-each with an assigned numerical score--BDOs analyze whether an individual's observed
behavior registers a high enough tally for more intrusive questioning, pat-downs, or
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baggage inspections. For some individuals identified as suspicious, a secondary examination
in the form of a face-to-face interview may be conducted by local police. In other cases, a
person's name might be run against national criminal databases to determine whether any
threat exists.
TSA does not tally the number of incidents at each airport, but last year BDOs "nationwide
required 98,805 passengers to undergo additional screenings" and "police questioned
9,854 of them and arrested 813." TSA maintains that secondary security screening referrals
are based only on specific observed behaviors that coincide with behaviors catalogued on
officers' checklists and not on passengers' appearance, race, ethnicity, or religion. TSA's
Assistant Administrator of Security Operations, Mo McGowan, reinforced the point that the
"SPOT program is the antidote to profiling because referrals are solely based on the behavior
of the passenger." Nonetheless, TSA has not made public the precise list of characteristics
for which it is observing, or the requirements for being selected for additional inquiry
by a BDO. Right now, there are more than one thousand BDOs operating nationwide.
These officers are stationed at 161 U.S. airports. Because SPOT consists of observation by
humans, not machines, its effectiveness depends largely on the officers--the BDOs--who are
tasked with identifying potential threats through SPOT. BDO recruits are culled from the
group of routine security screeners at TSA--a job that requires only a high school
degree, GED, or its equivalent, and a criminal background check. Transportation
security personnel selected for the SPOT program undergo four days of classroom
instruction in behavior observation and analysis and twenty-four hours of on-the-job
training in an airport security checkpoint environment. Many BDOs have been trained
by a former corrections officer who relies on his experience with the incarcerated to
detect deception.
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SPOT Program Fails
The behavioral profiling program is based on a flawed Facial Action Coding System
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident Fellow
of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law Review,
Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident Fellow of the
Georgetown Center on National Security and the Law, and a Principal in the Truman National Security Project, Winter,
2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE BEHAVIORAL PROFILING
PARADIGM, p. 428-9
TSA's behavioral profiling program relies on the Facial Action Coding System
("FACS"), which was developed in 1978 by psychologists Paul Ekman and Wallace
Friesen. Using a catalogue to map over ten thousand facial muscle combinations, Ekman and
Friesen created FACS as a "comprehensive, anatomically based system for measuring all
visually discernible facial movement." FACS thus purports to standardize a method of
deciphering facial behavior for cues of deception. Even in the face of a purposeful or
unconscious attempt to conceal, according to the theory behind FACS, human emotions
manage to appear as micro-expressions, which last from one-fifth to one-twenty-fifth of a
second or less. Ekman explains how he and his co-author gathered empirical data to develop
his catalogue: In our studies, we recorded interviews set up in such a way that we knew when
a person was lying. Afterward, we replayed the videotapes over and over in slow motion to
identify the expressions and behaviors that distinguish lying from truth-telling. We spent
hours identifying the precise moment-to-moment movements of the facial muscles based on
FACS to get comprehensive evidence of the kinds of facial looks that accompany spoken lies.
Once such expressions are identified, people can be quickly trained to recognize them as they
occur.
"According to Ekman and Friesen, faces manifest each emotion similarly, irrespective of
race, ethnicity, or gender."
Ekman and Friesen's work has been criticized on several grounds. First, and most
fundamentally, some suggest that expressions do not reflect the inner feelings of the
expresser. Instead of forecasting emotions in the person exhibiting a particular
expression, these scholars argue that "expressions evolved to elicit behaviors from
others." Thus, "a smile may encourage people to approach while a scowl may impel them to
stay clear, and a pout may elicit words of sympathy and reassurance." If facial expressions
are social cues intended to send signals to other human beings, then a SPOT security program
premised on the scientific rationale of detecting suppressed emotions--especially a propensity
for truthfulness--would be undermined.
A second possible limitation in Ekman and Friesen's FACS model is that it contains
only a subset of all human facial muscle movements and represents merely a recorded
portion of the "total repertoire used by a person during his daily life." After all, the
FACS catalogue was created by humans, and researchers can only score those expressions
that have actually been observed. Therefore, it is possible that the facial expressions
accompanying a terrorist's response to a BDO query might not register under the FACS
coding framework and would tell security personnel nothing about that person's
emotions. Moreover, even if the facial expression has been coded, humans differ greatly
in the manner in which they process emotions: the relative speed at which an emotion
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arises, the level of intensity and duration, and the time an emotion takes to return to its
baseline levels.
A third critique of FACS concerns whether it can be used effectively outside of the
laboratory environment. Ekman and Friesen's laboratory research relied on recorded
interviews and the replaying and scrutinizing of videotapes in slow motion. Whether the
accuracy of decoding facial expressions for deception cues can be effectively transferred
from the laboratory setting to the real-time chaos and commotion of fast-paced
American airports is an open question. And whether the skillful and expert detection
abilities of scientists trained in the art of emotion recognition can be replicated by BDOs, who
receive fairly limited substantive training, is equally uncertain. Ekman himself acknowledged
some uncertainties about the translation of FACS from the lab to the airport. There are, for
example, significant difference between the two environments when it comes to the potential
for background noise and interruption. Because a person seeking to suppress an emotional
response can typically do so one-twenty-fifth of second after an emotion initially appears,
observers who blink or are distracted may fail to see it.
People can manipulate behaviors to overcome SPOT
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 324-5
The behavioral analysis done in the SPOT program may more properly be called
biobehavioral analysis. Biobehavorial analysis uses outward physical manifestations to infer
an attempt to mask illegal intentions. BDOs, trained in SPOT, look for biobehaviors such a
facial expressions, vocalization, fidgeting, reddening of face, or profuse sweating. Many
people believe that these biobehaviors are "automatic" or involuntary. However, most of these
behaviors can be easily manipulated by an ordinary citizen: "depending on the robustness of
the biobehavioral techniques involved, it may be possible in the face of countermeasures for a
subject to induce false negatives by manipulating his or her behavior." Indeed, with practice,
most people can become quite good at hiding their true emotions by "faking" a smile or
inflecting their voice.
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SPOT Program Fails
SPOT would not have prevented the Christmas bombing
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 325-6
Although an obvious comment, it must be noted that SPOT will only work if the person intent
on committing the crime is anxious about committing it. One need only dissect the Dec. 25,
2009 bombing attempt over Detroit to verify this SPOT restriction. All reports of the incident
noted how calm the bomber went about his work. Even after being tackled by other
passengers, the bomber simply stated he had an explosive device and became extremely
cooperative with authorities. He appeared to be a "normal" passenger flying to the U.S.
Instead, he was a suicide bomber with ties to terrorist organizations in Yemen.
To determine the success of the SPOT program as implemented today, one need only look at
its brief history.
No SPOT arrest has been terrorism-related
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 325-6
The SPOT program started in Boston at the Logan International Airport in 2003. n280 By
2008, the program was in place at more than 150 airports. During this year alone, 98,905
passengers nationwide were subjected to secondary screenings as requested by BDOs. Of
those passengers, police actually questioned only 9,854. Of those passengers, only 813 were
arrested. Since 2006, SPOT has led to the secondary screenings of more than 160,000
passengers. Less than one percent of these passengers, 1,266 passengers to be exact, were
arrested. These arrests consisted mainly of drug crimes, possessing fraudulent documents, and
having outstanding warrants. The TSA, however, continues to praise the successes of the
program; yet, none of the arrests reported have been terrorist related.
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SPOT Program Fails
SPOT has a 100% failure rate
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 326-7
Critics soon denounced the program, arguing that the program is flawed. The United States
General Accounting Office ("GAO"), very critical of the job the TSA has done in
implementing the DHS's National Infrastructure Protection Plan ("NIPP"), analyzed the risk
assessment the TSA performed in creating its strategic passenger screening plan. As part of
that analysis, the GAO confirmed that "these efforts [do not] meet the risk-based framework
outlined in the NIPP." Thus, the TSA continues to invest in security technologies that may
not work. In support of this analysis, statistics show that [SPOT does not catch the criminal it
is designed to catch. "Behavioral profiling has never turned up someone planning harm to
aviation security. It has never turned up a person with weapons, guns, bombs, or any other
implement that would cause a flight to be delayed, much less brought down." Put bluntly, the
program has a 100% failure rate: it has never stopped a terrorist. Since 2004, sixteen
individuals later accused of terrorist involvement flew twenty-three times within the United
States and were never caught by the BDOs working in those airports. Stephen Fienberg, a
Carnegie Mellon scientist who studied the TSA program stated, "I think it's a sham. We have
no evidence it works."
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SPOT Program Involves Racial Profiling
BDOs are making unconscious race-based decisions
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 328-9
Publically, the TSA is quick to stress that SPOT is "race-neutral" profiling: "referrals are
based on specific observed behaviors only, not on one's appearance, race, ethnicity or
religion." As quoted in the Washington Post, TSA spokeswoman Sari Koshetz stated, "we're
not looking for a type of person, but at behaviors." Conveniently, the TSA will not reveal all
the suspicious behaviors that will catch the eye of well-trained BDOs. Opting instead for the
generic labels of "anxiety" or "nervousness," the TSA argues that discussing the "other
behaviors" in detail will compromise the integrity of the program. The American Civil
Liberties Union ("ACLU"), however, does not believe that explanation. Tim Sparapani, senior
legal counsel with the ACLU in Washington, stated, "the other unidentified criteria are
unjustified ways to profile," adding that the program "is a fictional bit of defense against
terror." Privately, the ultimate decision on who to stop for additional questioning rests with
the individual agents. Although they may be trained to ignore race or ethnicity when
observing the passengers, separating oneself from making internal subjective judgments can
be extremely difficult if not impossible. In fact, it is quite reasonable to believe that many
BDOs are making racially based decisions unconsciously. Going into the job with the prior
knowledge that all nineteen hijackers who perpetrated the worst act of terrorism on U.S. soil
were Middle Eastern n308 must certainly color every decision an agent makes. Furthermore,
in knowing this truth, should an agent exercising limited profiling (whether consciously or
unconsciously) when supported by other reasonable objective suspicions be condemned?
"Effective and tight security is about preventing a perpetrator at all cost, all the time, from
bypassing or fooling the system. This critical objective is not achievable if a political, religion
or ethnic "passenger correctness' is in place."
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AT: Profiling/Screening Works in Israel
The Israeli system is different
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident
Fellow of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law
Review, Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident
Fellow of the Georgetown Center on National Security and the Law, and a Principal in the Truman National
Security Project, Winter, 2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE
BEHAVIORAL PROFILING PARADIGM, p. 430-1
There are, however, significant differences between behavioral profiling in U.S. airports,
which (at least initially) relies on observation, and the use of behavioral profiling in Israeli
aviation security, in which observation is carefully combined with in depth questioning of all
passengers. n40 Moreover, the difference in air passenger volume between Israel and the
United States is substantial. In 2007, just over ten million international passengers passed
through Ben Gurion International Airport and just four hundred thousand domestic
travelers. n41 The number of scheduled domestic and international passengers on U.S.
airlines during the first eleven months of 2007 was 706.6 million. To implement an
aviation security program in the United States that paralleled the Israeli model would
present massive logistical difficulties and significant financial costs. And spending an
hour interviewing and scrutinizing each passenger, as the Israelis do, would make
airport travel even more cumbersome and slow.
The training of security personnel differs significantly between the U.S. and Israel. As
outlined above, BDOs are typically culled from the ranks of routine security screeners at
TSA and need only a high school degree or GED equivalent. The Israelis select officers-the vast majority of whom have military backgrounds--and subject them to tests in
order to select those with above-average intelligence and particularly strong personality
types. n43 The Israeli recruits then benefit from nine weeks of training in behavior
recognition where they practice identifying terrorists who may have been trained to
evade behavioral pattern recognition. These highly trained Israeli aviation security
agents develop advanced skills in order to recognize the precise behaviors exemplified
by potential hijackers or terrorists. By contrast, BDOs receive just four days of
classroom instruction and analysis--which relies in part on watching videotapes with
known visual cues of deception--and twenty-four hours of on-the-job training in an
airport security checkpoint environment.
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AT: Courts Check Abuses
Many reasons courts will not check SPOT abuses
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident
Fellow of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law
Review, Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident
Fellow of the Georgetown Center on National Security and the Law, and a Principal in the Truman National
Security Project, Winter, 2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE
BEHAVIORAL PROFILING PARADIGM,
The judicial branch is normally tasked with resolving whether a challenged government
program complies with the Constitution and laws of the United States. The Court has the duty
to "say what the law is"--and has recently made clear that the same duty applies when national
security issues are at stake. And Congress has given the federal courts jurisdiction over suits
challenging government programs, so an individual or organization could sue DHS over the
constitutionality and legality of a behavioral profiling program--seeking either injunctive
relief or damages. Nonetheless, there are several reasons why the federal courts are not
likely in practice to be particularly successful at testing and monitoring behavioral profiling
programs. As an initial matter, courts are not likely to be called upon to evaluate the legality
of these programs. For the most part, being identified by SPOT (for example) merely results
in more intensive screening or questioning, and few travelers are likely to bring a lawsuit on
this basis--the collective action problem looms large. There is a significant difference between
a counter-terrorism or homeland security program and a security program used as part of the
criminal process. If a person is arrested, indicted, and prosecuted for criminal activity based
on some sort of scientific, sociological, or psychological program, the defendant will have
strong incentives, in court, to object to the basis for that program, because the exclusionary
rule makes inadmissible as evidence in a criminal case the fruits of an illegal search or
seizure. But this is not the case if there is no criminal prosecution.
In addition to the problem of a lack of incentive for affected persons to bring lawsuits, there
are several doctrinal barriers to a court reaching the merits of a case and resolving SPOT's
legality. We note two in particular. First, the state secrets privilege might prevent plaintiffs
from bringing a successful suit. As an initial matter, the government might move to dismiss a
legal challenge at the pleadings stage on the basis of the privilege based on the theories that:
(1) the program's operations necessarily must remain secret; (2) the plaintiffs would not be
able to get sufficient evidence to establish a prima facie case; n213 and/or (3) allowing a suit
against individual defendants would prejudice them because they would lack the secret
evidence necessary to show their actions were legal. The government has done this in
response to lawsuits challenging the NSA's warrantless surveillance program and an alleged
CIA rendition and torture program. Even if the government did not move to dismiss--or a
court rejected such a motion--the state secrets privilege might still prevent plaintiffs, during
discovery or trial, from obtaining and entering into evidence the information necessary to
allow a court to rule on the merits of the program. Second, it might be difficult for any
plaintiff to have standing to sue over the program. This is because no single plaintiff--or even
group of plaintiffs--would necessarily be able to establish that he or they were tar gets of the
program. If an individual were detained at an airport for further questioning, or forced to miss
a flight, or arrested, the government could simply argue that as a result of the state secrets
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privilege, it will not be able to confirm or deny whether the individual was, in fact, identified
by the SPOT program--or even whether the program was in operation at the particular time
and location in which the individual was identified. This problem has frustrated litigation
against the wiretapping programs. Even if a plaintiff established standing and overcame the
state secrets privilege, it is not clear that a federal court would be in a strong position to
address whether the program accords with the constitutional principles discussed above.
Behavioral profiling programs are complex and evolving, both in terms of operational details
and scientific underpinnings. While judges can have the assistance of expert testimony,
special masters, and the like, they may not be in the best position to assess the scientific
rationality and effectiveness of the programs. In the Fourth Amendment context, to choose
just one example, judicial doctrine explicitly defers to law enforcement expertise:
In reviewing the propriety of an officer's conduct, courts do not have available empirical
studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably
demand scientific certainty from judges or law enforcement officers where none exists. Thus,
the determination of reasonable suspicion must be based on commonsense judgments and
inferences about human behavior.
Given this degree of deference to the judgments of law enforcement in the course of ordinary
police work, judicial deference to behavioral profiling tactics--as a practical matter--is likely
to be all the greater in the national security context.
In the equal protection context, courts are unlikely to ferret out unconscious bias. Moreover,
as a matter of current judicial doctrine, the Court's equal protection analysis focuses on
discriminatory purpose. That is, plaintiffs challenging the constitutionality of a law that is
neutral on its face must show a racially discriminatory motive on the part of the
decisionmaker in order to prevail. Finally, of course, even if a court could fully assess the
legality of a program at one point in time, the specific operational details of behavioral
profiling are likely to change significantly over time. New training methods, technologies, or
criteria could be used to identify targets. Ensuring the legality of the profiling paradigm
requires ongoing monitoring, not just a one-time review. For these reasons, while we by all
means welcome judicial assessment of the legality of a particular behavioral profiling
program in an appropriate case, we are skeptical that courts are by themselves capable of
sufficiently monitoring behavioral profiling programs.
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* Airlines Removal Passengers At-Will
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No Limit on Discrimination in Removal Decisions
Court interpretations means there is no limit on acceptable discrimination in the name of
airport security
Benjamin Williams, JD Candidate, Journal of Air Law and Commerce, Winter, 2009, CASE
NOTE: ANTIDISCRIMINATION LAW - IN THE FACE OF RACIAL PROFILING, THE
FIRST CIRCUIT HOLDS THAT LONGSTANDING ANTIDISCRIMINATION
PRINCIPLES MUST YIELD TO AIRLINE SAFETY: CERQUEIRA V. AMERICAN
AIRLINES, INC., p. 131
IN CERQUEIRA V. American Airlines, Inc., the First Circuit Court of Appeals lobbed a
forceful blow against longstanding, well-regarded antidiscrimination law by holding that
49 U.S.C. ß 44902(b) - a statute that permits air carriers to refuse to transport a ticketed
passenger that the carrier decides "is, or might be, inimical to safety" n2 - eclipses the
protections of 42 U.S.C. ß 1981, which proscribes racial discrimination in the making
and performance of contracts. The First Circuit's decision overturned a jury finding
that American Airlines removed a passenger from one of its flights in violation of the
antidiscrimination requirements of ß 1981. Based on an overly broad interpretation of ß
44902(b), the court's holding will essentially allow a carrier to evade ß 1981 liability for
illegal racial discrimination in its passenger ticketing contracts by creating an allencompassing immunity under ß 44902(b). The court's decision, therefore, could spawn
a host of deleterious civil rights consequences, including court-sanctioned racial
profiling in airline operations, because the decision chips away at stalwart
antidiscrimination law that was to this point a hallmark of our nation's civil rights
framework.
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No Limit on Discrimination in Removal Decisions
Total discretion to remove means rampant discrimination
Benjamin Williams, JD Candidate, Journal of Air Law and Commerce, Winter, 2009, CASE
NOTE: ANTIDISCRIMINATION LAW - IN THE FACE OF RACIAL PROFILING, THE FIRST
CIRCUIT HOLDS THAT LONGSTANDING ANTIDISCRIMINATION PRINCIPLES MUST
YIELD TO AIRLINE SAFETY: CERQUEIRA V. AMERICAN AIRLINES, INC., p. 137
While the safety of the traveling public is an unquestionably noble goal, n83 it should not, as
a matter of policy, come part and parcel with court-sanctioned racial discrimination,
especially in a scenario in which government security authorities determine that an individual
is safe to fly. In a world in which terrorism - particularly aimed at the U.S. transportation
industry - is a regrettable reality, airlines must no doubt be afforded the leeway to operate
safely. The safe operation of an airline should not - if we are to preserve the underpinnings of
our nation's deeply rooted antidiscrimination principles - come at the expense of civil rights
infringements, however. In Cerqueira, the jury found that, despite American's wide discretion
to operate its airline safely, its decision to remove Cerqueira was motivated, at its core, by the
racial animus of one or more of American's employees. While split-second removal decisions
are an inevitability in the fast-paced airport environment, it is difficult to understand how a
decision in conflict with trained law enforcement personnel who have investigated the matter
is not arbitrary, and therefore violative of ß 1981. If, under these facts, a court will permit a
carrier to seek ß 44902(b) immunity from ß 1981 racial discrimination liability, then it is
difficult to imagine any scenario where liability would attach - other than perhaps an
employee's outright confession that her removal decision was motivated by racial animus.
Since the outcome of this case almost certainly does not reflect true congressional intent with
respect to an airline's passenger-removal powers, the First Circuit has stretched ß 44902(b)
untenably - and unfairly - far.
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* Airport Screening Uses MALINTENT
MALINTENT Is a DHS program
Justin Florence is an Associate in the Washington, D.C., office of O'Melveny & Myers LLP and a Non-Resident Fellow
of the Georgetown Center on National Security and the Law. J.D., Yale Law School, George Mason Law Review,
Robert Friedman is an Associate in the Washington, D.C., office of Venable LLP, a Non-Resident Fellow of the
Georgetown Center on National Security and the Law, and a Principal in the Truman National Security Project, Winter,
2010, ARTICLE: PROFILES IN TERROR: A LEGAL FRAMEWORK FOR THE BEHAVIORAL PROFILING
PARADIGM,
DHS recently unveiled its next generation of security screening technology: devices that
utilize body scanners that can read travelers' minds. n59 A new system called MALINTENT
uses a series of sensors and imagers that measure body temperature, heart rate, and respiration
for unconscious signs of bad intentions that escape the naked eye. n60 The technology is
currently packaged in a mobile screening laboratory and is in the process of being field tested.
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* Airport Screening Involves Air Marshals
Air Marshalls were created in response to 9-11
P. Paul Fitzgerald, LL.B., B.C.L., M.B.A., has lectured on the regulation of air transport by
governments at McGill's Institute of Air and Space Law and at Chicago's DePaul University.
Journal of Air Law and Commerce, Spring, 2010, AIR MARSHALS: THE NEED FOR
LEGAL CERTAINTY, p. 358-9
In the frenzy of activity that marked the post-September 11th period, the legislation that
created the Transportation Security Administration and dramatically increased the numbers of
air marshals n9 was born. The Aviation and Transportation Security Act was introduced a
mere ten days after September 11th and was signed by President Bush on November 19,
2001, not even seventy days after the attack. Section 105 of the Act gives federal air marshals
responsibility for "air transportation or intrastate air transportation" with a focus on "nonstop,
long-distance flights, such as those targeted on September 11, 2001."
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Airport Screening Involves Air Marshals
US requires other countries to provide air marshals on flights to the US
P. Paul Fitzgerald, LL.B., B.C.L., M.B.A., has lectured on the regulation of air transport by
governments at McGill's Institute of Air and Space Law and at Chicago's DePaul University.
Journal of Air Law and Commerce, Spring, 2010, AIR MARSHALS: THE NEED FOR
LEGAL CERTAINTY, p. 379-80
On December 29, 2003, the U.S. DHS issued "aviation emergency amendments" calling on
foreign airlines serving the United States to equip their flights with air marshals where
necessary as an "added protective measure." The directive stated: "Armed, trained,
Government law enforcement officers must be on flights arriving into, departing from, or
overflying the United States, when directed by the TSA." When asked what he would do if
foreign airlines refused to carry air marshals, U.S. Homeland Security Secretary Tom Ridge
replied, "Any sovereign government retains the right to revoke the privilege of flying to and
from a country or even over their airspace. So ultimately a denial of access is the leverage that
you have."
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Airport Screening Uses Full Body Scanners
TSA uses full body scanners to prevent terrorism
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,” p. 345
To address the security failures that led to the attempted bombing of Flight 253, the TSA
proliferated the use of full-body scanners. n45 The TSA has done so in the belief that such
incidents such as Flight 253 can be prevented by increasing the invasiveness of searches at
airport checkpoints.
How full body scanners work
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,” p. 3456
To address the security failures that led to the attempted bombing of Flight 253, the TSA proliferated
the use of full-body scanners. The TSA has done so in the belief that such incidents such as Flight 253
can be prevented by increasing the invasiveness of searches at airport checkpoints.
B. Full-body Scanning Technology
Currently, there are two types of scanners in wide use: millimeter wave scanners and backscatter
scanners. Millimeter wave scanners use a low-energy radio wave. The radio wave can pass
through a variety of things, including clothing. However, the wavelength is not small enough to
go through human skin. The machine then measures the radiated energy from the radio waves
bouncing off the skin to create a three-dimensional image of the passenger's body. The
measurements are then used to create a viewable image of objects on the body between the
scanner and the human skin. The millimeter wave scanner produces somewhat blurry images,
but objects on a person are fairly distinguishable. n53 In contrast, a backscatter scanner uses
weak X-rays to generate an image. n54 The X-rays from the machine are absorbed or reflected
by different materials, providing an image of everything against the skin. Recently, the TSA
began testing a millimeter wave scanner that does not provide an image of each passenger in a
limited number of airports. n56 Instead of an image of the passenger's actual body, a generic
outline of the passenger is displayed on the screen, with areas where objects may be located
highlighted on the image. The viability of this specific type of millimeter wave scanner has yet to be
determined. Because organic materials tend to reflect X-ray photons, the backscatter machines are able
to generate a much higher resolution image compared to the millimeter wave machines. The resulting
image is extremely detailed, demonstrating precise outlines of objects. Overall, the images are much
better than those of millimeter wave scanners.
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Airport Screening Uses Full Body Scanners
Full body scanners will be used throughout the US
Madson Taylor, JD, Mississippi Law School, Richmond Journal of Law & Technology, Fall,
2010, ARTICLE: BENDING BROKEN RULES: THE FOURTH AMENDMENT
IMPLICATIONS OF FULL-BODY SCANNERS IN PREFLIGHT SCREENING
P4 Not surprisingly, a bill introduced in the Senate on June 24, 2010 sought to mandate
the use of full-body scanners for primary screening throughout the nation's airports. It
is a fair inference that the Department of Homeland Security intends this technology not
merely to supplement current preflight screening systems, but to supplant them. The
implications raised under the proposed mandatory use of full-body scanning technology
during preflight screening require the Court, once again, to determine "what limits
there are upon [the] power of technology to shrink the realm of guaranteed privacy."
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Full Body Scanners Invade Privacy
Full body scanners allow virtual strip searches
Madson Taylor, JD, Mississippi Law School, Richmond Journal of Law & Technology, Fall,
2010, ARTICLE: BENDING BROKEN RULES: THE FOURTH AMENDMENT
IMPLICATIONS OF FULL-BODY SCANNERS IN PREFLIGHT SCREENING
C. Privacy Risks
P19 While the TSA heralds full-body scanners as the future of antiterrorism efforts, it is
necessary to consider the negative effects of using such devices. The American Civil Liberties
Union aptly calls this technology a "virtual strip-search," because the images, while they do
not display typical photographic quality, betray intimate details of passengers' bodies. It is
unquestionable that a serious intrusion occurs when the government takes intimate images of
citizens, blurring algorithms notwithstanding. Thus, each image constitutes a fundamental
intrusion of passenger privacy, a conclusion drawing support from the Supreme Court's
reasoning in Redding, which indicated that simply ensuring the TSOs "will not see
everything" does not align full-body scans with the Fourth Amendment. P20 There are a
growing number of troubling accounts of adverse encounters with full-body scanners. In
addition to body parts, full-body imaging machines display various medical apparatuses, such
as catheters and prosthetics. This leads to invasive follow-up screening to confirm the
innocuous nature of prosthetics and other medical devices.
P21 The potential retention of full-body scan images also threatens passenger privacy.
Although TSOs "will be prohibited from bringing any device into the viewing area that has
any photographic capability," the TSA cannot guarantee this rule will remain inviolate.
Perhaps the most troubling aspect, the scanned images remain on the screen until
affirmatively deleted. Despite the TSA's claims of "automatic" deletion, the screening agent
must take some affirmative act to erase an image. "Automatic" implies the deletion occurs
without any human intervention, but a more thorough review of the process reveals that
deletion is not actually automatic. The retention of images on the screen until affirmatively
deleted widens the conduit for potential abuse.
P22 Regardless of the deletion mechanism, retention of images is not the ultimate privacy
violation. What happens to the images after they are taken is merely symptomatic of the
actual intrusion: the scan producing the images. If a police officer took photographs of a home
while conducting an illegal search, destruction of the photographs would not cure the
constitutional violation. The photographs, like the full-body scan images, are fruits of the
violation, not the actual violation. Thus, the TSA's disingenuous assertions regarding the fate
of the images are relevant to the degree of injury, n86 which comes into play only after the
violation of a passengers' person.
P23 The procedure whereby a TSO views the images from a remote location exacerbates the
privacy violation. In United States v. Skipwith, the Fifth Circuit identified three factors that
mitigate the intrusiveness of pat-downs in the context of secondary searches. n89 The court
reasoned that "[u]nlike searches . . . where often the office and the subject are the only
witnesses, these [pat-downs] are made under supervision and not far from the scrutiny of the
traveling public." In a sense, full-body imaging systems foreclose a passenger's ability to
confront his or her accuser. While it is clear that the degree of intrusiveness is great, the
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question remains whether the technological intermediary between passenger and screener
actually mitigates the invasiveness. Functionally, full-body scans are comparable to a system
where a passenger physically disrobes, dons a mask, and stands before a camera while a
remotely located TSO inspects the passenger via a grainy video feed. The chief difference is
that with a full-body scan, the TSA saves the passenger the inconvenience of physically
disrobing. The same fundamental intrusion occurs in either case: the government peeks under
passengers' clothes.
P24 The potential surreptitious interception of images presents an additional concern. The
remoteness of the TSO viewing the full-body images requires transmission of the images from
the receptors on the scanner to where the images are processed and displayed. Although the
exact process of transmission remains unclear, the interception of images along this path is
quite possible.
P25 Although the TSA claims full-body scanning devices further the goals of safety while
minimizing intrusiveness, the technology has weaknesses. Any discussion of reasonable uses
for full-body scanners must consider the efficacy of the scanners. How much safety is attained
through the sacrifice of liberty to full-body scanners? It seems reasonable to infer that
terrorists who intend to highjack a plane will diligently seek ways to circumvent full-body
scanners. n96 One glaring deficiency is the scanners' potential inability to detect
pentaerythritol tetranitrate, the powdery explosive used in the unsuccessful bombing attempt
of a Northwest Airlines flight on December 25, 2009, remains a glaring deficiency. Because
the images show only the epidermis, subdermal objects escape detection. A British
intelligence agency even intercepted information indicating that female terrorists might use
explosive breast implants to bring down planes. Furthermore, full-body scans do not discover
any objects in the alimentary canal. Of course, quantifying the efficacy of any deterrent
proves difficult when every non-terrorist who flies commercially is a potential false positive.
P26 The Electronic Privacy Information Center ("EPIC") waged a war against the Department
of Homeland Security to prevent the proliferation of full-body scanners. EPIC filed two
lawsuits for injunctive relief and to obtain documentation related to full-body scanners under
the Freedom of Information Act. Additionally, EPIC petitioned the Department of Homeland
Security to suspend the use of full-body scanners at domestic airports. The petition garnered
the support of thirty groups, the diversity of which demonstrates the breadth of opposition to
full-body scanners.
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Full Body Scanners Invade Privacy
Full body scanners are an invasion of privacy
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,” p. 346
Second, in the context of the privacy interest based in religious practice, the full-body scanner
is far from modest. A look at the images generated from machines demonstrates the extreme
detail of which full-body scanners are capable, particularly backscatter scanners, displaying
even the genitals of individuals. Because of the level of invasiveness, the First Amendment's
privacy right of an individual who practices her religion by an expression of religious
modesty is great in comparison to the state's interest in public safety.
The state must consider alternative methods in pursuing its interests such that it narrowly
tailors in accordance with the individual's privacy right. When compared to a metal detector
or wand, full-body scanners offer an infinitely more invasive search, showing a detailed
image of the individual. Generating the image itself is not the problem, assuming the image
cannot be saved or printed. However, the viewing of the image does violate modesty.
Images can be stored
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,” p. 3467
Despite TSA's claims that the scanners "cannot store, print, transmit or save the image,"
documents obtained through the Freedom of Information Act have revealed otherwise. The
images from these devices can in fact be stored. The TSA explicitly required vendors to
implement such features that allow the recording and saving of images. While officials claim
that these features are disabled upon deployment of a scanner, the TSA has not disclosed the
specifics of this process.
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Full Body Scanners Invade Privacy
Full body scans are virtual strip searches
Tobias Mock, Technical Editor, Santa Clara Law Review, 2009, ,49 Santa Clara L. Rev. 213,
COMMENT: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT
IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT
SECURITY CHECKPOINTS, p. 228-9
While praised for their detection capabilities, body-scans present alarming privacy concerns
for air travelers. In its unprocessed form, the technology produces images described as "so
sharp that the shape of a person's navel is visible, along with the shapes of other, more private
parts." The American Civil Liberties Union (the "ACLU") likens the technology to a "virtual
strip search" that is highly invasive and not narrowly tailored, absent probable cause, to meet
the needs of airport security. In response to the TSA pilot program in Phoenix, the ACLU's
Timothy D. Sparapani appeared before the Senate Committee on Commerce, Science, and
Transportation to condemn the TSA's authorization and funding of body-scan machines. His
concerns included that use of the machines will lead to unnecessary secondary searches, that
passengers would be required to display personal details of their bodies, and the possibility
that the images could be reproduced or appear on the Internet. Concerns also exist over the
potential for selective or improper use of the technology based on cultural or racial factors.
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Full Body Scanners Violate First Amendment Rights
Full body scanners violate religious First Amendment rights
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,” p. 347
Outside of these two significant problems with full-body scan images, Islamic religious
organizations have stated that full-body scanners violate the teachings of the Qur'an. On
February 9, 2010, the Fiqh Council of North America (FCNA) stated that "a general and
public use of such scanners is against the teachings of Islam, natural law and all religions and
cultures that stand for decency and modesty." The following day, on February 10, 2010, the
Council on American-Islamic Relations (CAIR) issued a statement supporting the FCNA.
Both organizations are well regarded, led by individuals that include scholars and lawyers.
According to the teachings and religious guidance of these organizations, the Qur'an forbids
the use of such scanners on Muslim women. Following these arguments, full-body scanners
cannot satisfy a strict scrutiny test when evaluated against the right of a Muslim woman to
practice her religion. Even if the state has a compelling interest in ensuring airline safety, fullbody scanners are not a narrowly tailored means for searching a Muslim woman because there
are equally effective ways of searching her without asking her to reveal herself to someone
outside of her mahrem. A mandatory or coercive full-body scan of a practicing Muslim
woman who objects to a scan on religious grounds should be found to violate her First
Amendment rights. Therefore, the TSA must continue to ensure that an alternative to fullbody scanners is always possible in the cases where the First Amendment may be violated.
Self-expression and freedom of religion are the core components of the First Amendment
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,” p. 33940
However, some journalists and scholars have begun to argue in support of Muslim women
freely expressing their beliefs. n4 Some of this work is a backlash against increasing secular
and anti-Islamic sentiments, stemming from an influx of Muslim immigrants into Western
countries. These writers address traditional Islamic clothing as a manifestation of a personal
expression in lifestyle and religion rather than an oppressive culture that stifles expression.
Self-expression, and particularly the expression of religious beliefs, is protected by the
First Amendment. Freedom of religion is a core construct of society in the United
States, enshrined in the Bill of Rights. n8 This protection guarantees that religious beliefs
and the right to express them cannot be sacrificed for mere expedience or convenience at the
whim of the state.
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Full Body Scanners Unconstitutional
Routine body scans are unconstitutional
Tobias Mock, Technical Editor, Santa Clara Law Review, 2009, ,49 Santa Clara L. Rev. 213,
COMMENT: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT
IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT SECURITY
CHECKPOINTS, p. 237-8
The TSA recently indicated that body-scan technology may soon become the centerpiece of
the "checkpoint of the future," replacing magnetometers as the primary, routine search
mechanism deployed at all airport checkpoints. Deploying body-scans in this manner,
however, is an unconstitutional use of the technology. As the following discussion will show,
requiring every domestic airline passenger to display an outlined form of his body, absent
cause, does not strike the appropriate constitutional balance between safety and privacy.
Routine body scan searches are not appropriately tailored
Tobias Mock, Technical Editor, Santa Clara Law Review, 2009, ,49 Santa Clara L. Rev. 213,
COMMENT: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT
IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT SECURITY
CHECKPOINTS, p. 240
In addition to being far more intrusive than magnetometer searches, routine body-scan
searches are not appropriately tailored to satisfy the Fourth Amendment. As discussed above,
the judicial framework of airport screening searches requires that the scope of a given search
is appropriately tailored in a manner that equally considers privacy and safety. Accordingly,
whether routine body-scan searches are unconstitutionally oppressive necessarily requires an
inquiry into whether less-invasive alternatives exist.
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AT: People Have to Walk Through Scanners Now
Body scans are more intrusive than walk-through magnometers
Tobias Mock, Technical Editor, Santa Clara Law Review, 2009, ,49 Santa Clara L. Rev. 213,
COMMENT: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT
IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT SECURITY
CHECKPOINTS, p. 237-8
Airport security systems have evolved over time. Today, walk-through magnetometers are
seen as commonplace and routine, particularly in the setting of airport screening.
Accordingly, magnetometer searches are widely upheld as a minimal invasion of privacy that
"does not annoy, frighten or humiliate those who pass through it." -scan searches, however,
are not constitutionally comparable.
The privacy intrusions of backscatter and millimeter wave devices are significant. Absent the
use of privacy-filtering software, the technology produces extremely detailed images that
expose intimate parts of the body and invade basic privacy expectations. Not only do bodyscans subject travelers to this "virtual strip search," but the search is conducted in front of a
captive audience of fellow travelers, all apparently aware of the fact that this person's naked
body is being remotely viewed. Therefore, as compared to minimally invasive magnetometer
searches, body-scans present a much higher potential for humiliation.
Though the modern form of the technology, which attempts to recapture some elements of
privacy, is less intrusive, the "chalk outline" image continues to present significantly more
privacy concerns than magnetometer searches. First, the potential for humiliation continues to
be a concern. Many individuals desire to conceal highly personal details of their bodies, such
as evidence of surgeries, implants, and medical devices. Though many of these items would
likewise alert a magnetometer, body-scans would detect additional non-metal items.
Additionally, body-scans do more than merely detect the presence of these objects; the fact
that the device produces an image is itself a source of potential humiliation beyond that
presented by magnetometers.
Second, body-scans present an opportunity for abuse that does not exist in magnetometer
searches. Although the TSA assures that the images cannot be saved, some privacy experts
continue to be wary that the images will be reproduced or otherwise exploited by screening
personnel, a concern that simply does not exist with magnetometers.
Third, body-scan searches introduce a subjective element into the primary screening process
that does not exist with magnetometer searches. While magnetometers automatically detect
metallic items, body-scans require the intervention of a human element whereby a screening
officer must subjectively differentiate between threatening and non-threatening items
displayed on a screen.
This subjective feature implicates two potentially intrusive scenarios not seen with
magnetometer searches. First, there is a fear that the screening officers may consider race,
sex, weight, or other impermissible factors when determining whether the passenger poses a
threat that requires further inquiry. While the officers are remotely located, the images are
detailed in such a manner that a screening officer could potentially be made aware of these
physical characteristics. Again, magnetometers do not present similar concerns.
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Second, even absent the potential for prejudice, the subjective element will likely result in a
greater number of unnecessary secondary searches than magnetometer searches. Regardless of
their level of training, officers will be faced with the difficult task of differentiating between
harmless devices, such as medical implants, and concealed weapons and explosives. While
the accuracy of the machines is somewhat unknown, it stands to reason that devices of similar
shape and density to a threatening object would similarly alert the attention of a screening
officer, regardless of whether the device is in fact threatening. In fact, the privacy software in
the modern form of the technology, while minimizing the initial intrusion, could inevitably
amplify privacy concerns by diminishing the accuracy of the search. Accordingly, primary
body-scan searches would potentially lead to many unnecessary secondary searches that
would not otherwise result from a purely objective primary search. Finally, and along similar
lines, the fact that body-scans are more effective at detecting a wider range of dangerous
items alone increases the likelihood that use of the technology will result in a larger number
of false positive tests. While this fact makes body-scans more effective, it also makes them
more intrusive, in that more harmless passengers will be subject to invasive secondary
searches.
Given these many privacy concerns, body-scans do not present a level of intrusion
comparable to that of "minimally invasive" magnetometer searches. To the contrary, in their
unprocessed form body-scans are more accurately comparable to the "full" search condemned
by the administrative search doctrine, while modified body-scans are more like a "carefully
limited search of the clothing," or a "physical frisk." This fact, while alone not rendering
mandatory body-scans unconstitutional, raises serious questions as to whether the Fourth
Amendment would prevent the TSA from instituting the technology as a routine search
mechanism.
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AT: People Experience Pat-Downs Now
Body scans are more effective than pat-downs
Tobias Mock, Technical Editor, Santa Clara Law Review, 2009, ,49 Santa Clara L. Rev. 213,
COMMENT: THE TSA'S NEW X-RAY VISION: THE FOURTH AMENDMENT
IMPLICATIONS OF "BODY-SCAN" SEARCHES AT DOMESTIC AIRPORT SECURITY
CHECKPOINTS, p. 246-7
Finally, body-scan searches, even in their modified form, are a more effective security tool
than pat-downs. Though the TSA has been somewhat secretive surrounding body-scan test
results, the technology is presumptively more accurate for two primary reasons.
First, while body-scans render an image of the entire body, the effectiveness of a pat-down
search is limited to its permissible parameters. Although pat-downs are invasive, searching
officers are not permitted to search every part of the body, such as inside religious headwear,
or in or around sensitive parts of the body. Furthermore, when searching more sensitive, yet
permissible areas, the officers are required to use the back of their hand, further limiting their
ability to detect hidden items. Therefore, not only does this limit the effectiveness of the
search, but it gives those wishing to surpass the security system the knowledge of where to
hide a dangerous item, i.e. in-between breasts, genitalia, or in a prosthetic. Body-scans,
having the ability to detect items located in these areas, are not similarly limited.
Second, the potential for human error in pat-down searches is more prevalent. While a bodyscan searching officer must recognize an object projected onto a screen, a pat-down officer
must be able to detect a hidden item by touch alone. Therefore, the officer conducting the patdown must be able to differentiate between threatening and harmless objects below one or
more layers of clothing, and further, the officer must be trusted to execute a comprehensive
search without passing over any areas of the body. While similar shortcomings exist in bodyscan searches, they are not as prevalent; the officer is not given as much discretion as to the
extent of the search, nor does it take any further effort on his or her behalf to reach its
permissible scope. It stands to reason, therefore, that image-based detection technology, even
in its modified form, is more effective than a restricted pat-down search. Body-scans are,
therefore, a more effective, yet less invasive search than a pat-down. That being the case, the
most logical use of the technology resides in place of pat-down searches in the secondary
security layer.
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Full Body Scans Threaten Health
Full-body scanners pose health risks
Madson Taylor, JD, Mississippi Law School, Richmond Journal of Law & Technology, Fall,
2010, ARTICLE: BENDING BROKEN RULES: THE FOURTH AMENDMENT
IMPLICATIONS OF FULL-BODY SCANNERS IN PREFLIGHT SCREENING
P27 In addition to threatening passenger privacy rights, the full-body imaging machines
potentially pose health risks to passengers. After conducting a series of tests, the TSA
concluded that "the radiation doses for the individuals being screened, operators, and
bystanders were well below the dose limits specified by the American National Standards
Institute (ANSI)." The TSA compared the energy doses to doses received from other sources:
"For comparison, the energy projected by millimeter wave technology is thousands of times
less than a cell phone transmission. A single scan using backscatter technology produces
exposure equivalent to two minutes of flying on an airplane." P28 Yet members of the
medical profession and a few pilot unions have expressed concern regarding the amount of
radiation emitting from these scanners. In a letter to John P. Holdren, President Obama's
Director and Advisor of Science and Technology, four professors from the University of
California, San Francisco, noted, "The majority of [the backscattering scanners'] energy is
delivered to the skin and the underlying tissue [and] while the dose would be safe if it were
distributed throughout the volume of the entire body, the dose to the skin may be dangerously
high." The professors also acknowledged "that real independent safety data do not exist," and
outlined several concerns including: the high risk for the immunocompromised, such as
individuals with cancer or HIV; the lack of research on radiation exposure for children and the
elderly, who are more susceptible to health complications; the risks to pregnant woman and to
the fetus; and the risks of mutagenesis of testicular and breast tissue. Despite these concerns,
the TSA remains confident in the safety of full-body scanners.
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AT: Full Body Scans Are Just Administrative Searches
Full body scans more invasive than other administrative searches
Madson Taylor, JD, Mississippi Law School, Richmond Journal of Law & Technology, Fall,
2010, ARTICLE: BENDING BROKEN RULES: THE FOURTH AMENDMENT
IMPLICATIONS OF FULL-BODY SCANNERS IN PREFLIGHT SCREENING
n148 Similarly, in United States v. Aukai, the Ninth Circuit upheld a preflight magnetometer
search as a reasonable administrative search despite a lack of individualized suspicion. While
the administrative search doctrine justifies some preflight searches, it does not provide a
license to conduct all searches. The invasiveness of full-body scans is far greater than typical
administrative searches. Therefore, the administrative searches doctrine is not an appropriate
tool to measure the reasonableness of full-body scans.
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AT: You Give Up Your Rights When You Fly
Citizens retain rights when boarding aircraft
Madson Taylor, JD, Mississippi Law School, Richmond Journal of Law & Technology, Fall,
2010, ARTICLE: BENDING BROKEN RULES: THE FOURTH AMENDMENT
IMPLICATIONS OF FULL-BODY SCANNERS IN PREFLIGHT SCREENING
P57 Unlike arrestees, prisoners, and schoolchildren, airline ticketholders should retain full
Fourth Amendment protection. It strains credulity to argue that citizens surrender full
constitutional protection by seeking to board an aircraft; and as such, courts should not
analogize preflight screening to searches of schoolchildren or persons in custody. The
awareness of ticket purchasers that some manner of screening may occur does not exempt the
TSA from normal Fourth Amendment requirements. Even savvy frequent fliers "have the
expectation, or at least under our Constitution the right to expect, that no matter the threat, the
search to counter it will be as limited as possible, consistent with meeting the threat."
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AT: TSA Full Body Scanner Regulations Solve
Full Body Scanner rules and regulations will not be followed or enforced
Rohen Peterson, Executive Internet Publications Editor, Hastings Women's Law Journal
2010-2011, Hastings Women's Law Journal, Summer, 2011, “The Emperor's New Scanner:
Muslim Women at the Intersection of the First Amendment and Full-Body Scanners,” p. 3567
The increased use of body scanners across the nation will undoubtedly result in an increased
number of individuals being scanned, even if scanning is not mandatory under the TSA's
policy. While this process is optional at the moment, the TSA faces many internal problems
that may prevent uniform application of its policies and procedures. The ad hoc decision
making by TSA officers increases the likelihood of encroachment on individuals First
Amendment right to privacy. Additionally, the TSA has demonstrated other failures to respect
human dignity. On March 19, 2009, TSA officials required a four-year-old disabled child to
remove his leg braces, which he needed in order to walk, and walk through a metal detector.
Even after his father, a local police officer, demanded to see a supervisor, the child was forced
to walk through the metal detector without his leg braces. A TSA official later stated that the
boy should not have been required to remove his leg braces. On its blog, the TSA stated that
if a similar situation were to occur, a supervisor should be contacted. It failed to observe that a
supervisor was contacted in the March 19 incident, which did not rectify the immediate
problem. Another case of the TSA's incompetence took place on January 5, 2010. A TSA
officer claimed to find a small plastic bag, full of a white substance, in the bag of a Caucasian
female college student returning to school. The student was shocked and began to cry in fear
of the consequences of drugs in her belongings. nAfter asking her to tell the truth, the TSA
officer told her he was just kidding, having lied about finding the bag of white substance.
n165 While the TSA later fired the employee, it shows that even in today's tense atmosphere
of airport security, the TSA's personnel do not apply procedure uniformly or correctly. If a
four-year-old child and a female college student are forced to undergo degrading, abusive, and
inane screening, a Muslim female wearing traditional garments, like the hijab or the burqa
that some view as the unwanted burdens of an oppressive regime, could easily face a similar
situation. Many Americans have been uneasy, at the very least, with Islamic culture in the
United States since September 11, 2001. It seems easy to imagine that a member of a religion
that has been blamed for global terrorism and the events of September 11 could be singled out
for different treatment is likely. Coupled with the fact that certain minority women are already
disproportionately screened at airports, n168 Muslim women are likely to be
disproportionately subject to screening by full-body scanners in violation of their First
Amendment right that protect their body image outside the private sphere. Moreover, Muslim
women may be mandated or coerced to go through full-body scanners. The policy of using
full-body scanners at airport checkpoints creates the possibility of a violation of the Free
Exercise Clause.
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Full Body Scanners Fail
Full body scanners cannot protect against bomb-making materials
Deborah Meyer, Product Manager, LexisNexis, North American Legal Markets, University of
Maryland Law Journal of Race, Religion, Gender and Class, Fall, 2010, ARTICLE: THE SPOT
PROGRAM: HELLO RACIAL PROFILING, GOODBYE FOURTH AMENDMENT?, p. 237
However, one could argue that SPOT, with all of its untapped potential, is no less flawed than
most of the security features used by the TSA today. More technology becomes the country's
"battle cry" with every attempted terrorist attack. As a result increasingly sophisticated metal
detectors and explosive detection devices are being designed and ordered for the largest
airports around the country. The newest and most highly publicized of these machines is a
full-body scanner which can literally see under clothes to find weapons or explosives taped to
a person's body. But, unfortunately, this type of security cannot detect "powders, liquids, thin
pieces of plastic or anything that resembles skin."
n298 It also cannot detect anything "concealed internally." Proponents of SPOT can then
argue that machines simply do not work all the time. In that case, it may indeed by up to a
human assessment to prevent potential disaster.
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* DC Flight Restrictions
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Small Aircraft Not a Threat
Small aircraft cannot do any real damage
John W. Heck, Major, USAFR, JD, Journal of Air Law and Commerce, Spring, 2009, ARTICLE:
PUSHING THE ENVELOPE: WHY WASHINGTON, DC AIRSPACE RESTRICTIONS DO NOT
ENHANCE SECURITY, p. 368-9
Additionally, previous experience shows that the threat associated with small aircraft is
virtually nonexistent. A single-engine airplane that crashed into a downtown building in
Tampa, Florida in 2001 did little damage, and the majority of repairs from another singleengine crash into a New York City apartment building in 2006 were needed because of water
damage from the fire suppression system, or walls that were destroyed by fire fighters in
search of people and pets. Indeed, in 1994 a small aircraft crashed on the south lawn of the
White House, killing the pilot but causing no damage to anything but the aircraft. Given the
profound lapses in security that led to our current threat environment, it is both unsurprising
and necessary that aviation security be taken very seriously. However, the heavy-handed
implementation of our current policies only marginally enhances security while imposing
great costs on our taxpayers both in terms of dollars spent and freedom sacrificed. There are
simply more elegant and cost-effective solutions than the "do something" approach to security
that currently pervades the general aviation community. Many solutions were offered among
the 21,380 comments the FAA received during its notice-and-comment period when it closed
on February 6, 2006. The large number of comments was largely the result of an enormous
lobbying campaign by concerned aviation organizations, and speaks to the enormously
unpopular nature of this arbitrary airspace rule among aviators and businesses alike.
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DC Flight Restrictions Bad
DC flight restrictions have crippled the aviation community
John W. Heck, Major, USAFR, JD, Journal of Air Law and Commerce, Spring, 2009, ARTICLE:
PUSHING THE ENVELOPE: WHY WASHINGTON, DC AIRSPACE RESTRICTIONS DO NOT
ENHANCE SECURITY, p. 369
General aviation accounts for seventy-five percent of all air traffic, provides more than one
percent of the United States' Gross Domestic Product, and supports 1.3 million jobs in
professional services and manufacturing. Although both the TSA and the FAA assert that
severe restrictions over D.C. offer a great deal of protection, they have crippled the aviation
community, forcing many businesses to close and preventing new pilots from entering flight
school. Because similar restrictions do not exist for any other city in the U.S., the public
outcry has been somewhat muted. Now that the airspace has been made permanent, the DC
SFRA and FRZ may be used as a template for other large cities. At that point, it may be
difficult to reclaim the freedom of the skies that has so long been an essential part of aviation.
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* Personal Identity Verification System
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Personal Identity Verification System Violates Rights
Personal Identity Verification Standard (PIVS) violates privacy
Colin M. O’Brien, JD, Mississippi Law Journal, Fall, 2010, “ARTICLE: HOMELAND
SECURITY PRESIDENTIAL DIRECTIVE-12, BACKGROUND INVESTIGATIONS,
AND INFORMATIONAL PRIVACY RIGHTS,” p. 301-2
In fall 2007, Dr. Robert Nelson, a contractor-employee and a leading researcher at NASA's
Jet Propulsion Laboratory, challenged the federal government's balancing of employee
privacy with the need to safeguard federal facilities and information systems. n3 Dr. Nelson
filed suit alleging the Department of Commerce's, as well as NASA's, interpretation and
implementation of President Bush's Homeland Security Presidential Directive-12 (HSPD-12)
violated contractor-employees' constitutional right to informational privacy by requiring them
to submit to a background investigation. n4 On appeal from a denial of the JPL contractorsemployees' request for a preliminary injunction, the Ninth Circuit concluded that the plaintiffs
had presented a case with an adequate likelihood of success to warrant a preliminary
injunction. The Supreme Court, however, granted certiorari and heard arguments in October
2010.
HSPD-12 directed the Department of Commerce, in conjunction with other agencies, to
develop a uniform federal standard for the identification credentials to be used by federal
employees and contractor-employees, such as Dr. Nelson, to access federal facilities and
information systems. In response, the Department of Commerce promulgated the
Personal Identity Verification (PIV) Standard, n8 a standard that applies to millions of
federal employees, contractor-employees, and applicants for federal employment. The PIV
Standard requires federal workers to submit to a background investigation in order to
obtain the PIV Credential. As the workers must obtain a PIV Credential to access the
facilities and information systems necessary to perform their jobs, the workers, in effect, must
either acquiesce to the investigation or forfeit their jobs. n11 Among other things, the
background investigation requires the federal workers to disclose information about treatment
for prior substance abuse as well as sign a release that facilitates further investigation into
their financial history, mental and emotional stability, and general behaviors. Yet, the
purpose of the investigation is solely to verify the identity of the individual; it is not intended
to assess their qualifications for employment or security clearances.
This Article contends the PIV Standard violates the constitutional right to informational
privacy of those federal employees and contractor-employees subject to the background
investigation. Part I provides a brief overview of Homeland Security Presidential Directives,
a newly developed form of executive legislation, as well as an overview of HSPD-12, the PIV
Standard, and the required background investigations. While Part II generally discusses the
Supreme Court and circuit court jurisprudence on the constitutional right to informational
privacy, Part III identifies the aspects of the background investigation that trigger the
protection of the informational privacy right and balances the government's narrow interest in
identity verification against the federal workers' privacy interests. This Article concludes that
the PIV Standard's background investigation violates the workers' informational privacy rights
because the workers' privacy interests outweigh the government's narrow interest in obtaining
the information sought, much of which bears no relation to identity verification.
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The "reasonable expectations" analysis of the majority of circuits largely follows the
guideposts set forth by the Supreme Court in Whalen and Nixon to determine if information is
protected. Here, we consider the nature of the information, particularly whether it is a type of
information an individual would not customarily disclose. To the extent an individual may
disclose such information, we take into account whether it is a private disclosure to a small
group, such as family members physicians, and close friends, or a broader disclosure to those
in less intimate relationships with the individual.
Here, there are several aspects of the PIV Standard's NACI investigation, detailed supra Part
I.D, which collect and store (or authorize the collection and storage of) information that is of
an intimate personal nature not customarily disclosed to individuals outside an individual's
inner circle. In particular, the investigation requires disclosure of various aspects of protected
medical, financial, and private behavioral information.
1. Protected Medical Information
SF 85 requires the applicant for a PIV Credential to disclose medical information in which he
or she holds a privacy interest. First, the applicant must identify any "treatment or counseling
received" for illegal drug use as well as those drugs used in the past year. This question
requires disclosure not merely of the existence of a doctor or therapy visit, but also the
purpose of the visit: substance abuse treatment. An individual holds a reasonable expectation
of privacy in his medical treatments for substance abuse, particularly given the social stigma
associated with the underlying conduct.
Moreover, this disclosure may, in effect, disclose an applicant's medical condition as an addict
to illegal substances (prescription or otherwise). Cases finding a reasonable expectation of
privacy in medical conditions tend to deal with one's HIV status, but have extended at least as
far as physical disabilities and defects. Despite the historical view of habitual drug abuse as a
"moral failing," medical authorities "recognize drug addiction as a brain disease . . . ." Thus,
the effective disclosure of one's status as a drug addict is a disclosure of a medical condition
bearing on one's psychological health. Although AIDS arguably carries a greater social stigma
than drug addiction, "information about a person's psychiatric health and substance-abuse
history in particular, is information of the most intimate kind."
The investigative request forms sent to the applicant's personal references, former employers,
and residential contacts n194 also collect information that triggers informational privacy
protection. The forms request these contacts relay any information, favorable or unfavorable,
about the applicant's "mental or emotional stability." Thus, this question overtly collects
information about the applicant's psychological health, some of which may not be facially
apparent or known by members of the public, but merely disclosed by the individual to
intimate acquaintances, i.e. information in which the individual retains a reasonable
expectation of privacy.
2. Protected Financial Information
While SF 85 does not directly solicit protected financial information from the applicant, the
investigative request forms distributed to the applicant's contacts as part of the background
investigation do solicit such information. These forms request the applicant's three
references, former employers, and residential contacts to disclose and discuss any adverse (or
favorable) information about the applicant's "financial integrity." Such a vague inquiry could
logically result in the collection of protected information about the applicant's unpaid debts,
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fluctuating income, or depreciating property that is known only by the applicant's intimate
acquaintances or a restricted few individuals. Moreover, in the context of a release
comparable to the one authorizing the dissemination of investigative request forms, the
Seventh Circuit has found, by analogy, that inquiries into a "virtually limitless range of
confidential financial information" trigger informational privacy protection even if the
individual cannot identify a specific piece of protected financial information
3. Protected Private Behavioral Information
The investigative request forms sent to the applicant's employers, residential contacts, and
references seek private behavioral information as they request the contact to disclose any
information about the applicant's "abuse of alcohol and/or drugs" and "general behavior or
conduct." In so far as this question seeks information about the individual's private, legal use
of alcohol and other legal activities, particularly if engaged in one's home, it seeks protected
information. Moreover, just as with financial information, a vague and virtually limitless
inquiry into adverse information about the applicant's "general behavior" suffices to trigger
informational privacy protection even if the applicant cannot identify a specific protected
piece of information.
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* “Enemy Combatant” Still US Law
Government can still declare someone an enemy combatant
David Harris, law professor, Missouri Law Review, Winter, 2011, On the Contemporary Meaning
of Korematsu: "Liberty Lies in the Hearts of Men and Women", p. 30-31
During the twelve months after the attacks, the Bush administration began using a tactic that
upped the ante further: they declared three individuals to be "enemy combatants." While the
term was not new, its use and context were. The government had detained all three
individuals, Yasser Hamdi, Jose Padilla, and Ali al Marri, as terrorist suspects. Hamdi, an
American citizen, was taken into custody on the battlefield in Afghanistan; Padilla, also an
American, was arrested in Chicago, Illinois; and al Marri, a citize of Qatar, was arrested in
Peoria, Illinois. All three were designated enemy combatants by order of President Bush,
based on his power as commander in chief. These presidential orders were factually grounded
in short affidavits submitted by mid-level officials of the Department of Defense. Once
designated as enemy combatants, the men were put in military custody, held in isolation, and
not allowed to have counsel or other visitors. They faced - and could defend against - no
charges, and there would be no trials. The government contended that their detention could
effectively be indefinite, with no access to the court system to challenge their confinement.
The Supreme Court eventually reined in some of the government's power over enemy
combatants in Hamdi v. Rumsfeld, mandating that the enemy combatants receive at least
some semblance of due process. Nevertheless, no court has ever overruled the presidential
power to declare someone an enemy combatant by fiat.
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* FISA Enables Warrantless Wiretaps
FISA enables the government to conduct warrantless searches without probable cause
Robert Power, Associate Dean for Faculty Research and Development and Professor of Law,
Widener University School of Law, Winter 2010, Pace Law Review, “Intelligence" Searches
and Purpose: A Significant Mismatch Between Constitutional Criminal Procedure and the
Law of Intelligence-Gathering,” p. 625
This Article addresses the role of constitutional criminal procedure in national security
investigations, focusing on the role of government's purpose in taking action. This is the key
question, given Ashcroft's redirection of the Department of Justice. The same tools are used in
both criminal and intelligence investigations. If the government searches a home or conducts
electronic surveillance, it intrudes on the same privacy interests and learns the same type of
data - physical evidence that is located in the home or words that are spoken in the vicinity of
a microphone. What differs is the government's purpose - the reason for taking the action.
Purpose inquiries are critical to this issue because it is the purpose of the investigation that
determines the applicable law. Here, a subtle part of the USA-PATRIOT Act and its
amendments to FISA have had a major impact, as considered by the courts in Abu-Jihaad
and Mayfield. This Article therefore examines FISA, with particular attention to the
2001 amendments, to determine if the distinction between a criminal investigatory purpose
and a foreign intelligence purpose can and should be dispositive of Fourth Amendment issues.
Most courts have concluded that the change was appropriate, but this Article argues that,
under a totality of the circumstances approach consistent with Fourth Amendment
analysis generally, the courts have overlooked both the significance of the change and
the fact that it has created an easy road to conduct extraordinarily intrusive warrantless
searches without probable cause. It would be too strong to say that the 2001 amendments
were a paving stone on the road to the hell of a police state - but it would not be too much to
say that they permit the government to play bait-and-switch with the courts in a fashion
that denigrates constitutional rights without any apparent gain in serving national
security.
C. The USA-PATRIOT Act Amendment
1. The Statutory Change
As noted above, the USA-PATRIOT Act included a provision that was intended to break
down the wall. According to Assistant Attorney General Kris, after the September 11
attacks, the Department of Justice sent to Congress an amendment to FISA that would
allow foreign intelligence electronic surveillance when "a purpose" rather than "the
purpose" of the electronic surveillance or surreptitious search was to obtain foreign
intelligence information. Congress later changed the standard, opting for "a significant
purpose," which was far more limited than the Department had wanted, but
significantly more generous than the previous statutory requirement that "the" purpose
be to obtain foreign intelligence information. This would seem likely to change the test that
has been followed in most courts, which requires that intelligence be the primary purpose of
the investigation.
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This subtle distinction was potentially important. Under the previous test, the main
purpose had to be intelligence gathering - the government had to be seeking information
to help in its future responses to international developments or terrorism. Collection of
evidence for criminal prosecution was welcome and could be anticipated if the targets
revealed their involvement in actions punishable under U.S. criminal law, but obtaining
such evidence could not be the primary objective. The wall, of course, was one way of
indicating adherence to this principle. Agents from the intelligence side dominated the
planning and execution of FISA surveillance, and information was shared with criminal
investigators only where it could be established that such action was subsidiary to a dominant
intelligence purpose. Under the revised version, apparently the only requirement was
that the agents establish that seeking foreign intelligence was a non-trivial part of the
enterprise. This would seem self-evident in most cases. As such, the wall was anachronistic,
at least as far as FISA was concerned. The Department responded by dismantling the wall
internally to some degree, and then by seeking to have the FISC modify requirements in
FISA orders to reflect the greater power of the government to share information
obtained in electronic surveillance.
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AT: Courts Check FISA
No real judicial review for FISA
Robert Power, Associate Dean for Faculty Research and Development and Professor of Law,
Widener University School of Law, Winter 2010, Pace Law Review, “Intelligence" Searches and
Purpose: A Significant Mismatch Between Constitutional Criminal Procedure and the Law of
Intelligence-Gathering,” p. 671-2
Many, if not all, of these problems could be remedied by meaningful judicial review. Such review is
lacking in FISA.
Judicial review purportedly occurs in two settings. First, it occurs in the initial authorization of the
FISA order. Second, it occurs in litigation in which FISA searches are challenged, most commonly
through motions to suppress FISA-based evidence. Yet the judicial role in authorization is limited in
several respects. First, as noted above, FISA permits electronic surveillance in the United States in
several settings without any judicial role at all. Section 102 of FISA allows warrantless electronic
surveillance of non-U.S. persons for as long as one year. Another provision provides for electronic
surveillance without prior judicial authorization in an emergency situation. The Bush Administration
reportedly found this provision too burdensome and therefore sought additional powers to conduct
warrantless electronic surveillance and apparently conducted such electronic surveillance outside of
FISA on its own reading of constitutional law. 237 FISA similarly allows physical searches for up to
one year on authorization of the Attorney General under similar standards.
Judicial review of FISA applications is also highly limited. Courts simply do not make the sort of
decisions they make in criminal cases. Rather, they serve largely as receivers of certifications from the
government, such as the certification that a significant purpose of the action is foreign intelligence.
The only probable cause requirements are that the target is a foreign power (or an agent of a foreign
power) and that the facilities are used by such person or agent. The FISC is not required to find
probable cause that the electronic surveillance or search will result in acquisition of foreign
intelligence information. This, of course, is a far lower standard than the applicable test in criminal
investigations. The judicial approval process is little more than judicial recordkeeping of an executive
branch fishing expedition. That may be fine for a true foreign intelligence investigation, but it is not
sufficient judicial involvement where the primary purpose of the government's action is to secure
evidence for a criminal prosecution.
These limitations on the judicial role in the authorization process might be less of a problem if a judge
could fully consider the relevant facts behind an application (or a warrantless search) in the context of
later litigation. In other words, if a court had to retroactively decide if in fact there was probable cause
to support a search or seizure, the search might be reasonable. FISA provides, however, that the role of
the trial judge is more limited. The judge's only role is essentially to see that the paperwork underlying
the search was in order.
The key factor making judicial review at this stage fairly shallow is Section 1806(f) of Title 50 of the
U.S. Code, which prevents disclosure of FISA documents and requires ex parte review in most cases.
The history of FISA suppression hearings reveals that the Department of Justice always files an
affidavit stating that national security requires FISA documents remain under seal, that courts always
honor these requests, and that the resulting judicial evaluations are ritualistic.
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FISA Searches Invade Privacy
FISA searches invasive of privacy
Robert Power, Associate Dean for Faculty Research and Development and Professor of Law,
Widener University School of Law, Winter 2010, Pace Law Review, “Intelligence" Searches and
Purpose: A Significant Mismatch Between Constitutional Criminal Procedure and the Law of
Intelligence-Gathering,” p. 678-80
No one can doubt that the electronic surveillance and physical searches authorized by FISA
are extremely intrusive on personal privacy. Electronic surveillance has been recognized as
among the most invasive of government investigative techniques since Berger v. New York,
n263 where the Court stated: "Few threats to liberty exist which are greater than that posed by
the use of eavesdropping devices." The Court was equally clear in Keith:
There is, understandably, a deep-seated uneasiness and apprehension that this [electronic
surveillance] capability will be used to intrude upon cherished privacy of law-abiding citizens.
We look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is
the chief evil against which the wording of the Fourth Amendment is directed, its broader
spirit now shields private speech from unreasonable surveillance.
Interceptions of telephone conversations or face-to-face meetings, and physical invasions of a
person's home, even with a warrant, are frightening and degrading and a strong reason for the
prominence of the Fourth Amendment in constitutional text and history.
Two additional aspects of FISA searches illustrate the fact that their impact is unmatched
among generally lawful intelligence-gathering activities. First, the lack of a criminal probable
cause requirement opens the door to government action based on general notions of
subversion, disloyalty, or vocal policy disagreement. It is for this reason that FISA explicitly
provides that "no United States person may be considered a foreign power or an agent of a
foreign power solely upon the basis of activities protected by the first amendment to the
Constitution of the United States." While this should help protect many within the class of
U.S. persons, the need to include it proves the potential threat to liberties. Here again the
Keith Court was direct:
Official surveillance, whether its purpose be criminal investigation or ongoing intelligence
gathering, risks infringement of constitutionally protected privacy of speech. Security
surveillances are especially sensitive because of the inherent vagueness of the domestic
security concept, the necessarily broad and continuing nature of intelligence gathering, and
the temptation to utilize such surveillances to oversee political dissent.
Second, FISA searches are exceptionally lengthy. Electronic surveillance can be authorized
for a year, and extensions are possible; the same authorization periods apply even to physical
searches. In contrast, electronic surveillance orders in criminal investigations can only be
valid for up to thirty days. n270 Under typical search law, a physical search occurs once,
within fourteen days of the issuance of the search warrant.
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The question of surreptitious searches raises other questions that arise only in rare and
extreme criminal cases. A search authorization for ninety days, without notice at that time to
the owner or occupant, and without the purpose of seizing tangible evidence, is obviously an
authorization for one or more secret searches. Secret searches are by definition more intrusive
on personal freedom and security than even a full-scale item-by-item police search. The fear
of being subject to such continued violations, and the possibility of learning about them only
months or years after the fact, are unquestionably severe invasions of Fourth Amendment
interests. The facts of Mayfield illustrate some aspects of the intrusion on both his rights and
those of his family:
The family's most intimate conversations were recorded. They were followed. When the FBI
thought the Mayfields were not at home or at work, FBI agents on multiple occasions
surreptitiously entered their house and law office, looking at and copying their personal and
private documents, legal files and computer hard drives. The government admits that over 300
photographs were taken inside the Mayfield home, and additional photographs inside Mr.
Mayfield's law office.
The intrusive effect of FISA electronic surveillance and searches is in stark contrast to the
sort of intrusion permitted in most special needs cases. As Professor Dressler notes, police
officers rarely conduct special needs searches; instead it is usually civilian, non-lawenforcement employees, who lack the intimidating appearance of armed officers. Courts
upholding special needs searches often stress that the search was not excessively intrusive,
n275 or involved only a minimal privacy interest. The Supreme Court has repeatedly
emphasized that a search was reasonable in part because it was short in duration. Special
needs searches are often very limited, looking only for specific items, thus the searches are
closely tailored to fit that special need. The attempt to expand the special need of foreign
intelligence to encompass searches primarily directed to law enforcement completely
undercuts the principle, and therefore undercuts this rationale for exemption from standard
Fourth Amendment requirements.
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Warrantless Wiretaps Destroy Liberty
The US government is engaging in extensive spying on potentially millions of u.s. citizens
without probable cause
WORLD SOCIALIST WEB, December 31, 2005, http://www.wsws.org/articles/2005/dec2005/spyd31.shtml
Recent articles in the US media indicate that the illegal spying organized by the Bush administration
has extended far beyond what was initially reported. It is becoming increasingly clear that the US
government has been engaging in a massive operation that violates fundamental democratic and
constitutional rights. Following an initial report by the New York Times on December 15, Bush
acknowledged that he issued a Presidential order authorizing the National Security Agency (NSA)
to spy on some calls made to or from the United States without obtaining the approval of the
Foreign Intelligence Surveillance Court. In issuing the order, the administration acted in violation of
US law, which requires the NSA to receive a court warrant to monitor any communications
involving individuals within the United States. The administration initially stated that the spying
was limited to a relatively small number of individuals connected to Al Qaeda, and that no entirely
domestic communications were spied on. Subsequent repots have undermined both of these claims.
Citing unnamed current and former government officials, the Times reported on December 24 that
“the volume of information harvested from telecommunication data and voice networks, without
court-approved warrants, is much larger than the White House has acknowledged ... It was collected
by tapping directly into some of the American telecommunication system’s main arteries.” Much of
the communications that go in and out of the United States pass through switches that relay large
amounts of data and are controlled by a handful of private corporations. The officials said that this
data was turned over to the NSA, which was able to use various search, or “data mining”
techniques to find information it was looking for. Essentially, this means that the government was
not spying on a few hundred individuals at a time, as had been previously reported, but potentially
thousands or millions of separate communications, including phone conversations and emails. The
figure previously reported in the press of several hundred individuals tracked at any given time may
account for only those calls or e-mails that the NSA determined were suspicious, when in fact the
databases that the government was using to track these communications involved much greater
numbers. The issue of switches had come up previously in discussions between the administration
and the Foreign Intelligence Surveillance Court. The Times quotes a Justice Department official as
saying that “there was a lot of discussion about the switches” and that the court expressed
skepticism about the legality of using this information. This gives some insight into why the
administration decided to go outside of the court, which typically grants all requests for warrants
and allows for up to 72 hours of spying before a warrant has to be obtained. The government
wanted to pursue a program that is far broader in scope than even the FISA court would allow. The
new revelations highlight the degree to which the US government relies on the secret collaboration
of private corporations in violating the democratic rights of the population. In a December 25
article, the Los Angeles Times reported on one database that is being kept by telecom giant AT&T,
code-named Daytona, which records phone numbers and call durations. According to a business
executive quoted by the newspaper, the NSA has direct access to the entire database. This means
that the government has the ability to monitor the calling habits of all individuals tracked by the
database, presumably including calls entirely within the US. An article published December 20 in
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the New York Times also reported that the communications monitored by the administration
included purely domestic calls and e-mails. Administration officials claimed that the interception of
such communications was accidental, due to the alleged difficulty of determining their origin and
destination. However, it raises the possibility that the scope of the spying extends to include large
swaths of domestic e-mails and phone calls of US citizens. All of these activities are in clear and
direct violation of the 1978 Foreign Intelligence Surveillance Act (FISA), enacted following the
Church Committee investigations into illegal spying and other activities carried out by US
intelligence agencies during the 60s and 70s, culminating in the Watergate scandal. Among the
programs investigated by the Committee was “project SHAMROCK,” whose task was to collect
and analyze all telegram communications going into and out of the United States. FISA was
designed in part to explicitly prohibit this activity, which Senate Intelligence Committee Chairman
Frank Church called “probably the largest government interception program affecting Americans
ever undertaken.” Internet security expert Bruce Schneier noted that the government spying
program approved by the Bush administration was “explicitly anticipated in 1978, and made illegal
by FISA. There might not have been fax machines, or e-mail, or the Internet, but the NSA did the
exact same thing with telegrams.” The administration is claiming that any restrictions that the law
might place on the spying activities that Bush has authorized are an unconstitutional violation of his
powers as commander-in-chief. The spying programs that are now coming to light are only a part of
a broader move by the administration to make greater use of vast databases and data mining
techniques to monitor the activity of the population. These plans were initially intended to be brought together in
the so-called Total Information Awareness program (TIA), the brainchild of Defense Department official John Poindexter, who
became infamous for his actions as National Security Adviser to President Ronald Reagan during the Iran-Contra scandal. TIA was to
accumulate vast stores of data—everything from credit card purchases to travel histories and Internet activity—in a centralized
spying operation within the Department of Defense. When the program’s existence was revealed in the media, it produced intense
popular opposition, and Congress eventually passed a bill denying any funding for the program. However, the basic premise of the
TIA program has continued in other forms. A May 2004 report by the Government Accountability Office found that nearly 200 datamining operations are ongoing or planned, including 29 for intelligence or police activities. In 2004, the American Civil Liberties
Union obtained documents relating to the Multi-state Anti-Terrorism Information Exchange (MATRIX), an ostensibly state-run but
federally-funded data-mining operation. The ACLU argued that the program was in part an attempt by the government to continue
the TIA project in a way that would attract less public attention. There can be do doubt that these recent revelations are only a very
small indication of the types of illegal activities being carried out by the government. Earlier in the month, reports emerged of a
Pentagon program that included the spying and collection of information on anti-war protesters and other individuals considered to be
“threats” to military installations. Last week, the US News & World Report revealed a joint FBI-Energy Department program to test
for radiation near mosques and other Muslim or Arab-American organizations. On December 22, the New York Times published an
article documenting the infiltration by New York City police of anti-war protests. Not only did the police collect information on the
protestors, but they also engaged in provocations. The Times reported that at the Republican National Convention last year, “the sham
arrest of a man secretly working with the police led to a bruising confrontation between officers in riot gear and bystanders.”
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Warrantless Wiretaps Destroy Liberty
The monitoring of communications is widespread
UPI, December 24, 2005
The Bush administration has acknowledged monitoring communications into and out of the United States
without warrants since the Times revealed the practice. But President Bush insists that the monitoring was
legal and limited to people with known ties to al Qaida. The Times said the monitoring was much larger than
the government has admitted, and involves tapping into the main communication arteries of the United
States. Government officials and current and former employees of telecommunications companies said that
the NSA has also been engaged in pattern analysis, the Times said. A former telecommunications manager
said that the companies have been storing information since the 2001 terrorist attacks. "All that data is
mined with the cooperation of the government and shared with them, and since 9/11, there's been much more active involvement
in that area," the former manager told the Times.
Such monitoring puts us on the path to 1984-style totalitarianism
T.J Rodgers is the CEO of Cypress Semiconductor in San Jose. He wrote this article for the Mercury News,
SAN HOSE MERCURY NEWS, December 29, 2005, http://www.commondreams.org/views05/1229-35.htm
With only the need to combine two real-world technologies for spying and tracking, the vision of 1984 -once just a dark philosophical concept -- becomes an engineering project. The president and those to whom
he delegates his authority can now authorize government spooks to listen to us in our homes and on our cell
phones. When we are not home, they can track us in our automobiles. The system could be airtight and could
be used to control our actions. It's simple enough for most Silicon Valley companies to create a chip to detect
a valid GPS signal and disable an automobile's ignition system to prevent citizens from the ``unauthorized
use'' of their own vehicles. The final move into the totality of 1984 requires only a bit of philosophical drift,
as exemplified by J. Edgar Hoover's directive to spy on the Rev. Martin Luther King because he was a
subversive. If Bush's latest acts are left unchallenged, the government will become bolder at spying on
whomever it wants and secretly jailing those it deems a threat to national security -- all with no troublesome
warrants or messy public trials. In this environment, acts other than terrorism will certainly be put on the
subversive activities list, all in the name of protecting our freedom. Why should law-abiding citizens fear
these trends? Because the government cannot be trusted. I don't trust President Bush to honor my rights, nor
did I trust President Clinton, who was caught with secret FBI files on his political enemies. It's not that I'm
unpatriotic. The founders of our country did not trust any government -- either that of George III or an
uncontrolled democracy. That's why we have the Bill of Rights to protect American citizens from their own
government -- by demanding, for example, that ``Congress shall make no law abridging the right of free
speech.'' Our property is also protected from illegal search and seizure, and we are not to be put in jail
without knowing the charges against us or having the right to confront our accusers in a public trial. Secret
courts are inconsistent with the Bill of Rights, the defining document of American freedom. What's the worst thing
that Al-Qaida can do to America? We have probably already seen it. Of course, the government can talk about bigger things, like the use of weapons
of mass destruction, to justify its use of totalitarian tactics. I would much rather live as a free man under the highly
improbable threat of another significant Al-Qaida attack than I would as a serf, spied on by an oppressive
government that can jail me secretly, without charges. If the Patriot Act defines the term ``patriot,'' then I am
certainly not one. By far, our own government is a bigger threat to our freedom than any possible menace
posed by Al-Qaida.
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Intelligence/Criminal Surveillance Wall Did Not Hinder Terror Investigations
“Primary purpose” requirement/wall did not hinder terror investigations
Robert Power, Associate Dean for Faculty Research and Development and Professor of Law,
Widener University School of Law, Winter 2010, Pace Law Review, “Intelligence" Searches and
Purpose: A Significant Mismatch Between Constitutional Criminal Procedure and the Law of
Intelligence-Gathering,” pp. 682-3
6. The Hardship to the Government is Largely Illusory
The implication, by those who support the USA-PATRIOT Act's expansion of FISA, is that
modification was necessary in order to allow intelligence officers to "connect the dots." This
claim does not withstand analysis. No one has suggested, let alone proved, that appropriate
foreign intelligence actions were prevented by the primary purpose requirement or the wall
that the Department of Justice developed to show that its FISA investigations were in fact
motivated by foreign intelligence objectives. Statistics indicate that FISA orders have
increased somewhat over the last decade, but there is no reason to believe that this results
from use of FISA for what are primarily criminal investigations. Logic suggests that the
increased use of FISA has resulted largely from the increased human and material resources
devoted to the war on terrorism after the September 11 attacks. Unless and until anyone can
prove that worthwhile foreign intelligence investigations had to be derailed due to the primary
purpose requirement, it is hard to give credence to claims that the requirement imposes a
serious burden on legitimate intelligence investigations. In fact, if the intelligence officials
were making good choices about targets, and government attorneys were reasonably
interpreting FISA and the Fourth Amendment, the only FISA searches that should have been
prevented by the primary purpose requirement would be those primarily directed at collecting
evidence against U.S. persons for criminal prosecution. Unless we change the Fourth
Amendment, our system treats that as a tolerable burden.
In the end, that is what the Special Needs Doctrine seems to be about. The policies underlying
programmatic searches, from drug tests to D.U.I. roadblocks to foreign intelligence electronic
surveillance, are debatable and require legislative rather than judicial oversight. If those
policies are sufficiently compelling, and the burdens on individuals comparatively light, it
makes sense for courts not to bring into play the full panoply of Fourth Amendment
requirements. But the cost to the public of the government obtaining search and seizure
powers without meeting those requirements is that it must avoid conducting its criminal
investigations using those enhanced foreign intelligence powers.
If the price of robust powers to protect the nation is that the government bend over backwards
to avoid using criminal law remedies, it is a price worth paying. There are many examples of
governments having to forego criminal prosecutions because of choices made at the
investigative stage. Some involve typical criminal justice system actions, such as grants of
immunity. Others, more applicable to the current international scene, result from government
actions that include overly aggressive tactics, such as harsh interrogations, in which the
resulting evidence may be inadmissible in court. Sometimes criminal cases are quashed
because of other legal or political realities, such as where Diplomatic or Consular Immunity
prevents prosecution, or spies are traded back to their own nations. Insisting on the legality of
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electronic surveillance without probable cause, and in some cases without warrants, in order
to achieve criminal law enforcement purposes runs the real risk that the techniques will be
marked off-limits, even for intelligence purposes, because it can no longer be stated with
confidence that the searches are reasonable, special needs searches.
The wall, as developed over several presidential administrations and as revised by the FISC in
2002, really served to enhance government power. Its existence allowed the intelligence
agencies to operate, confident that they could prove that their investigations were motivated
by the need for foreign intelligence. At the same time it allowed the Department of Justice to
use the results of FISA searches in criminal prosecutions. In a sense, the wall allowed the
government to prove that its foreign intelligence searches were in fact special needs searches.
It cannot do so today.
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Intelligence/Criminal Surveillance Wall Did Not Hinder Terror Investigations
FISA DIDN’T BLOCK THE MOUSSAUI INVESTIGATION
WASHINGTON POST, December 24, 2005
In their zeal to defend President Bush for ordering the National Security Agency to eavesdrop on
communications of American citizens, William Kristol and Gary Schmitt got key things wrong
regarding the FBI's terrorism investigation of Zacarias Moussaoui ["Vital Presidential Power," oped, Dec. 20]. They are wrong about Moussaoui being a "U.S. person" who required a higher
standard of probable cause under the Foreign Intelligence Surveillance Act (FISA). Moussaoui was
a French citizen in the United States with an expired temporary visa, which means that the higher
FISA standard did not apply. More important, and contrary to Kristol and Schmitt's assertion that
"the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow
the inspection of his computer files," no evidence of Moussaoui's suspicious flight training and ties
with terrorism was presented to the Justice Department. The department was never contacted and
so did not decide anything; therefore, no decision was ever made regarding the given evidence and
its subsequent application to FISA standards. That means the FISA procedures were not the reason
the FBI failed to inspect Moussaoui's computer files. Rather, the FBI's failure to share and analyze
intelligence sufficiently is what enabled Moussaoui to escape further investigation.
SLOWNESS ARGS ARE SILLY – FISA HAS A 72 HOUR EXEMPTION
Marty Luster is a former state assemblyman and retiring Ithaca city attorney, ITHACA JOURNAL, December
26, 2005,
http://www.theithacajournal.com/apps/pbcs.dll/article?AID=/20051226/OPINION02/512260312/1014
Equally specious is his claim that existing procedures are too slow and cumbersome to deal with the
terrorist threat. A special court, set up under the post-Watergate Foreign Intelligence Surveillance
Act of 1978, exists to authorise electronic surveillance of targets in the US. The law even has a 72hour retroactive clause; in other words the government is entitled to read a target's e-mails and
listen in to his phone calls for three days without prior authorisation. In short, a perfectly good tool
already exists.
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Intelligence/Criminal Surveillance Wall Did Not Hinder Terror Investigations
THE FBI HAS MONITORED ARAB GROUPS WITHOUT CAPTURING TERRORISTS
INSIGHT ON THE NEWS, December 26, 2005,
http://www.insightmag.com/Media/MediaManager/wiretaps_0.htm
Documents obtained by the American Civil Liberties Union confirm that the FBI
has monitored and infiltrated a range of Muslim and Arab groups, including the
Washington-based American-Arab Anti-Discrimination Committee.
But despite the huge amount of raw material gathered under the legislation, the
FBI has not captured one major al Qaeda operative in the United States. Instead,
federal authorities have been allowed to use non-terrorist material obtained
through the surveillance program for investigation and prosecution.
SURVEILLANCE HAS BEEN USELESS
INSIGHT ON THE NEWS, December 26, 2005,
http://www.insightmag.com/Media/MediaManager/wiretaps_0.htm
"The problem is not the legislation but lack of intelligence and analysis,"
another source said. "We have a huge pile of intercepts that never get
translated, analyzed and thus remain of no use to us. If it [surveillance] was
effective, that's one thing. But it hasn't been effective."
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Spying on Domestic Opposition Groups
MONITORING WILL BE ABUSED AND USED AGAINST POLITICAL OPPONENTS,
RESULTING IN TYRANNY
ALTERNET.ORG, December 31, 2005, http://mathaba.net/0_index.shtml?x=496592
As the late Sen. Frank Church said, "That capability could at any time be turned around on the
American people, and no American would have any privacy left, such is the capacity to monitor
everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide."
And if a dictator took over, the NSA "could enable it to impose total tyranny." Then we always get
that dreadful goody-two-shoes response, "Well, if you aren't doing anything wrong, you don't have
anything to worry about, do you?" Folks, we KNOW this program is being and will be misused. We
know it from the past record and current reporting. The program has already targeted vegans and
People for the Ethical Treatment of Animals -- and, boy, if those aren't outposts of al-Qaida, what
is? Could this be more pathetic?
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Millions of Intercepts
MILLIONS OF MESSAGES HAVE BEEN INTERCEPTED
ROCKY MOUNTAIN NEWS, December 25, 2005, http://www.msnbc.msn.com/id/10595448/
The Aurora facility, with its white "golf ball" domes, gathers communications intercepted by
satellites, including calls on cell phones, said John Pike, director of GlobalSecurity.Org, a Virginiabased intelligence research firm. John Spann, a Buckley spokesman, said he only knows about the
missile detection system and added that he couldn't comment on Pike's assertion. "That's his guess,"
he said. Pike said the top-secret program probably has intercepted millions of e-mail, fax and voice
communications. The Bush plan likely started out as a search for "sleeper cells" of unknown
terrorists, making it impossible to get a warrant in an ordinary fashion, Pike added. Instead, he said
he believes millions of communications were intercepted and then sifted through by computers run
by the NSA. They look for key words, or patterns of speech, he said. "If you say 'send money' and
the reply is 'the quick gray fox jumped through the loop,' it could come in for further review."
Spann confirmed that "other entities" use Buckley's white-domed facilities, though he said he didn't
know their mission or identity. Officials in Washington, D.C., were unavailable for comment. Pike's
assessment of the American spying campaign is bound to raise eyebrows. He long has been a
frequent player in interpreting the nation's defense and intelligence policies, and was the former
director of space policy and military analysis for the American Federation of Scientists. In addition
to Buckley's role, Pike said the NSA has tapped into transoceanic fiber optic cables, and that those
probably produced the bulk of the intercepted communications. Several facilities are involved in
NSA's extensive eavesdropping matrix, including bases in the United Kingdom, Australia, Japan
and West Virginia.
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Millions of Intercepts
MILLIONS OF CALLS HAVE BEEN MONITORED
John W. Dean, a FindLaw columnist, is a former counsel to the president, GEORGE BUSH AND
THE NEW NIXON, December 30, 2005, http://writ.news.findlaw.com/dean/20051230.html
Indeed, here, Bush may have outdone Nixon: Nixon's illegal surveillance was limited; Bush's, it is
developing, may be extraordinarily broad in scope. First reports indicated that NSA was only
monitoring foreign calls, originating either in the USA or abroad, and that no more than 500 calls
were being covered at any given time. But later reports have suggested that NSA is "data mining"
literally millions of calls - and has been given access by the telecommunications companies to
"switching" stations through which foreign communications traffic flows.
THOUSANDS OF INDIVIDUALS HAVE BEEN MONITORED
NEWSDAY, December 26, 2005
Under Bush's program, secret until it was revealed by the New York Times, the National Security
Agency electronically monitored overseas calls and e-mails by hundreds, perhaps thousands, of
Americans, based on suspicion that one party to the communication had a suspected link to alQaida. Acting under a series of executive orders, the monitoring was approved by NSA shift
supervisors rather than by a judge on the secret federal court the FISA law set up to review such
spying.
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Answers to: “Only Foreign Calls Are Monitored”
MORE THAN FOREIGN CALLS AND EMAILS ARE MONITORED
INSIGHT ON THE NEWS, December 26, 2005,
http://www.insightmag.com/Media/MediaManager/wiretaps_0.htm
The sources provided guidelines to how the administration has employed the
surveillance program. They said the National Security Agency in cooperation with
the FBI was allowed to monitor the telephone calls and e-mails of any American
believed to be in contact with a person abroad suspected of being linked to al
Qaeda or other terrorist groups. At that point, the sources said, all of the
communications of that American would be monitored, including calls made to
others in the United States. The regulations under the administration's
surveillance program do not require any court order.
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Answers to: “Other Presidents Act Outside the Court”
NO HISTORICAL SUPPORT TO ACT OUTSIDE OF THE FISA COURT ON A SUSTAINED
BASIS
NEWSDAY, December 26, 2005, p. online
As a Carter administration lawyer in the late 1970s, Kenneth Bass found himself in the middle of
negotiations between Congress and the White House over passage of the Foreign Intelligence
Surveillance Act, the law governing national security wiretaps that has been at the center of the past
week's firestorm Even as he signed the bill, Democratic President Jimmy Carter - like Bush, a
quarter-century later - insisted that he retained "inherent powers" as president to act outside the
law's requirement of court approval, if such action was necessary to protect national security. And
against that history, Bass wasn't particularly shocked that Bush would sidestep the law But he
found the scope of the sidestep astounding - not a single emergency case, but an extended anti-terror
program to monitor hundreds of communications, an entire class of Americans who probably could
not have been surveilled under the law Congress passed. "We had advised Congress that the
president retains constitutional authority to act contrary to FISA in exceptional circumstances on a
case-by-case basis," Bass said. "That was the historic posture. I was very surprised that the White
House would invoke that doctrine not for case-by-case surveillance in exceptional cases, but for a
programmatic exception overriding FISA for three years."
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Answers to: “Warrantless Wiretaps Pre 9-11”
PRIOR TO 9-11 THERE WAS NO DOMESTIC SPYING
ROCKY MOUNTAIN NEWS, December 25, 2005, http://www.msnbc.msn.com/id/10595448/
How many messages are intercepted is not known, though in 1992 a former NSA director said that
2 million messages were being intercepted hourly. Data processing speed and storage capacity since
then have mushroomed. Pike said that before Sept. 11 parts of intercepted conversations originating
from Americans were blanked out. It is the procedure, or at least part of it, that he believes was
switched off after the attacks.
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Alien/Immigrant Detention – Government Targets
The government is targeting immigrants for detention
Lawyers Committee for Human Rights, ASSESSING THE NEW NORMAL: CIVIL LIBERTIES
AFTER SEPTEMBER 11TH, 2003,
http://www.humanrightsfirst.org/pubs/descriptions/Assessing/AssessingtheNewNormal.pdf
Through the expenditure of enormous resources, the civil immigration system has become a
principal instrument to secure the detention of .suspicious. individuals when a government trawling
for information can find no conduct that would justify their detention on any criminal charge. And
through a series of nationality-specific information and detention sweeps. from special registration
requirements to .voluntary. interviews to the detention of all those seeking asylum from a list of
predominantly Muslim countries . The administration has acted on an assumption that all such
individuals are of concern.
On September 17, 2001, well before the patriot act was passed, the code of federal regulations
was amended to permit indefinite detention of aliens without arrest or bringing charge against
them.
Immigrant Rights Clinic, New York University School of Law, New York University Review of
Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, p. 398
The amendment to 8 C.F.R. 287.3(d), effected September 17, 2001, published in 66 Fed. Reg.
10,390 (Sept. 20, 2001) [hereinafter "amended rule" or "amended regulation"], has gone a long way
toward creating this fear. In times of "emergency or extraordinary circumstance," as the current
situation un-doubtably has been called, the INS now may detain individuals indefinitely following a
warrantless arrest without bringing any charges against them. The amended rule provides no
definition of emergency or extraordinary circumstance nor any explanation of how long "an
additional reasonable period" of detention may be.
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Alien/Immigrant Detention – Government Targets
And, new directives issued since then further expand the power of the federal government to
engage in detention without charge
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, p. 416
The government did not rely on the newly minted USA Patriot Act for these detentions, n15 for the
Act only provides the Attorney General with authority to detain suspected non-citizen terrorists for
as long as seven days without being charged with a crime and provides for judicial review. Instead
the Administration relied on an extraordinary emergency interim regulation announced by the
Attorney General on September 17, 2001 prior to the passage of the Patriot Act, which permits the
INS, in times of "emergency or extraordinary circumstances" to detain an alien whom it believes
may have violated the law "for a reasonable period of time" while it investigates the detainee.
Indeed, many detainees were held for many weeks prior to being charged with any violation
whatsoever.
The amended regulation gives the INS too much discretion
Immigrant Rights Clinic, New York University School of Law, New York University Review of
Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, p. 411
Second, the amended regulation gives the INS an unconstitutional level of discretion. Amended 8
C.F.R. 287.3 plainly suggests that INS officials have the unchecked discretion to determine whether
an emergency or extraordinary circumstance exists, triggering its ability to indefinitely detain
individuals. Under McLaughlin, this grant of authority exceeds constitutional bounds. The Court in
McLaughlin intended the existence of an emergency or extraordinary circumstance to be
determined by judges in individual circumstances, not by law enforcement officials as the amended
regulation contemplates. Regardless of whether the government determines that an emergency
exists, the justification will be subject to de novo review by a judge, the delay will be presumed
unconstitutional, and the government will bear the burden of defeating that presumption by
establishing the existence of a bona fide emergency justifying the delay. Thus, even if INS officials
decide generally that circumstances constitute an emergency, the INS will still be found to have
acted unconstitutionally and will be subject to liability if a judge finds that the INS failed to prove
its case or erred in its judgment. Since the amended regulation endows INS officials with the
authority to make decisions which will subject the INS to liability for conduct in violation of the
Fourth Amendment, it is unconstitutional.
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Unauthorized Detention Threatens Rights
NOTHING THREATENS INDIVIDUAL FREEDOM MORE THAN UNAUTHORIZED
DETENTION
Philip Hayman, Professor, Harvard Law, Julliette Kayyem, Professor, JFK School of Government,
PRESERVING SECURITY AND DEMOCRATIC FREEDOM IN THE WAR ON TERRORISM,
November 2004, http://bcsia.ksg.harvard.edu/BCSIA_content/documents/LTLS_final_02_05.pdf
Finally, any form of congressional authorization should be unmistakable — giving clear indication
that it is deliberate — if it is to permit exceptions to such broadly assumed limits on executive
power in dealing with citizens and others as the prohibition of detention without trial. In particular,
for hundreds of years since the Magna Carta, it has been recognized that no power is more plainly
threatening to individual freedom and the rule of law than the power to detain without a showing to
a judicial officer of a violation of a statute. This is especially pertinent if the legislation is intended
to overcome the explicit terms of 18 U.S.C. § 4001, which prohibits the administrative detention
(that is, the detention without charge or trial, authorized by administrative order rather than by
judicial decree) of U.S. citizens without express congressional authorization
INDEFINITE DETENTIONS THREATEN ALL CONSTITUTIONAL RIGHTS
The Committee on Federal Courts, THE RECORD OF THE ASSOCATION OF THE BAR OF
NEW YORK CITY, v. 59, 2004, pp. 43-4
There is also the danger of further extensions of the war power to curtail other civil liberties. A
jurisprudence that holds that the domestic war on terror is indistinguishable from the "total war"
circumstances of World War II and the Civil War, and on that basis defers to the President all
decisions on the best means to prosecute the war on terror within the United States, leaves the door
wide open to an almost unlimited expansion of executive power. Why should the First Amendment
right of free speech, or the Fourth Amendment right to be free of unreasonable searches, be any less
subordinate to the President's war power than the core due process right to remain free of unilateral
executive detention? Pick your favorite constitutional amendment or right: its survival during the
war on terror cannot be assumed if the legitimacy of these indefinite detentions is sustained.
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Government Has Widespread Detention Authority
SECTION 412 SAYS THE ATTORNEY GENERAL CAN DETAIN ANYONE SUSPECTED
OF BEING A TERRORIST
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, p. 433)
Section 411 greatly expands the class of noncitizens who are subject to deportation on grounds of
terrorism through its expanded definitions of the terms "terrorist activity," "engage in terrorist activity,"
and "terrorist organization." Section 412 substantially enlarges the authority of the Attorney General to
place noncitizens he suspects engage in terrorist activities in detention while their deportation
proceedings are pending.
UNDER SECTION 412 OF THE PATRIOT ACT, THE GOVERNMENT CAN DETAIN
SOMEONE THEY THINK IS A TERRORIST EVEN IF THAT PERSON IS NOT DEEMED
TO BE A FLIGHT RISK
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, p. 439-40
At the same time that section 411 expands the class of noncitizens who are deportable on grounds of
terrorism, section 412 inflates the Attorney General's power to detain noncitizens who are suspected of
terrorism and radically revises the rules governing detention of noncitizens. Prior to September 11,
2001, noncitizens in removal proceedings were subject to preventative detention under essentially the
same standards that apply to defendants in criminal proceedings they could be detained without bond if
they posed a danger to the community or a risk of flight. If the government could not make such a
showing in a hearing before an immigration judge, noncitizens were entitled to release on bond.
Conversely, Section 412 of the Patriot Act authorizes the Attorney General to detain noncitizens without a
hearing and without showing that they pose a threat to national security or a flight risk. He need only
certify that he "has reasonable grounds to believe" that a noncitizen is engaged in terrorist activity or in
any other activity endangering the national security of the United States, and the noncitizen is then
subject to potentially indefinite mandatory detention.
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Answers to: “The Courts Have Prohibited Detention Without Charge”
ZADVYDAS DID NOT PROHIBIT INDEFINITE DETENTION IN ALL
CIRCUMSTANCES – IT
NEW YORK LAW SCHOOL REVIEW, Fall 2003, p. 412
The Zadvydas majority did state that there might be "special circumstances" that would outweigh an
alien's right to due process or allow Congress to utilize the doctrine of plenary power. For example, the
Court reasoned that due process can be overcome if the preventative detention is limited to "specially
dangerous individuals." The Court stated that the provision authorizing detention in Zadvydas "did not
apply narrowly to 'a small segment of particularly dangerous individuals,' [like] suspected terrorists, but
broadly to aliens ordered removed for many and various reasons." Therefore, a key factor in the
Zadvydas holding was the unlimited scope of the detention provision. With regard to plenary power, the
majority holding in Zadvydas noted, "neither do we consider terrorism . . . where special arguments
might be made for forms of preventative detention and for heightened deference to the judgments of the
political branches with respect to matters of national security." In sum, the dictum in Zadvydas has left
the door open for litigation with regard to alien-terrorist detention.
THE ZYDAS DECISION DOES NOT REQUIRE THE RELEASE OF ALIENS BECAUSE
IT ALLOWS FOR DETENTION IN SPECIAL CIRCUMSTANCES SUCH AS
TERRORISM
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, pp. 462-3
Despite the Court's expression of serious doubt about the constitutionality of the INA's post-order
detention mandate, the majority did recognize, in language that now appears prescient, that the cases
before it did not require it "to consider terrorism or other special circumstances where special arguments
might be made for forms of preventative detention and for heightened deference to the judgments of the
political branch with respect to matters of national security." In doing so, the Court essentially carved out
a potential exception for certain noncitizen terrorists and recognized that terrorism creates a type of
public fear that may not be present with other national threats of security. The acknowledgment by the
majority of the genuine danger represented by terrorism or other exceptional circumstances seems to
eerily foreshadow the events of September 11, 2001 and the subsequent struggles now facing our nation.
While lessons from the past may counsel against such a rule that affords heightened judicial deference to
the political branch in cases that implicate national security, this loophole created by the majority
undoubtedly gives the political branch room to maneuver and for the Court to utilize detention in the
current war on terrorism. The Zadvydas decision, therefore, would not require the release of noncitizens
held on allegations of terrorism who have no prospect of being able to return to their home country. What
the Patriot Act appears to do is effectively codify this exception requiring the continued detention of
removable noncitizens suspected of terrorism.
EXISTING SUPREME COURT DECISIONS WILL NOT LIMIT THE DETENTION OF
TERROR SUSPECTS BY THE EXECUTIVE
NEW YORK LAW SCHOOL REVIEW, Fall 2003, pp. 395-6
The war on terrorism is unlike any other war this country has ever faced; our enemy targets innocent civilians - on American soil. In
response to this unprecedented dilemma, Congress enacted the USA Patriot Act, legislation that was designed to grant the
government the tools necessary to effectively fight terrorism. One such tool is 412 of the Act, which enables the Attorney General to
detain a terrorist suspect until he is no longer deemed a threat. Of course, this may lead to the indefinite detention of suspected
terrorists, if doing so is necessary for national security. Critics argue that the prospect of indefinite detention conflicts with the
Supreme Court's holding in Zadvydas v. Davis. There, the Court stated that the indefinite detention of aliens was unconstitutional,
but left open the possibility of detaining terrorist suspects. This Note argues that the holding in Zadvydas would not apply to the
USA Patriot Act since Congress acted pursuant to the doctrine of plenary power. Moreover, the war on terrorism represents a "special
circumstance" that may necessitate preventative detention.
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PATRIOT Act Allows Detention Without Charge
UNDER THE PATRIOT ACT, NON-CITIZENS CAN BE DETAINED ON THE BASIS OF
SUSPICION ALONE
Daniel Kanstroom. Clinical Professor and Director, Boston College Immigration and Asylum Project, New
England Journal of International and Comparative Law, v. 9, 2003, p. 58
Statutory changes also proceeded apace. The so-called USA Patriot Act, proposed in its first form by
Attorney General Ashcroft (as MATA) shortly after the attacks and signed by President Bush on October
26, 2001, contained dramatic expansions of government surveillance authority and criminal provisions
that applied to both citizens and non-citizens. Some of its most specific provisions authorize the Attorney
General to incarcerate and detain non-citizens on the basis of suspicion alone.
SECTIONS 411 AND 412 AUTHORIZE INDEFINITE DETENTION OF ANY
NONCITIZEN DEEMED A TERRORIST BY THE ATTORNEY GENERAL
FLORIDA JOURNAL OF INTERNATIONAL LAW, June 2004, p. 410
These provisions stand out as radical in the degree in which they sacrifice freedom in the name of
national security. More specifically, the focus will be limited to sections 411 and 412 of the Patriot Act and
part 4 of the ATCSA, which provide the governments of the United States and United Kingdom with
extensive powers to take into custody and detain noncitizens suspected of terrorism. Each piece of
legislation respectively enables the Attorney General of the United States and the Secretary of State of
the United Kingdom to certify any noncitizen whom he suspects to be a terrorist. Upon certification, the
provisions which will be examined require the mandatory detention of these individuals until the
noncitizen is either ordered removed from the country or found not to be removable, and authorize the
potential indefinite detention of these noncitizens who have been certified as terrorists.
THE PATRIOT ACT WLLOWS DETENTION OF AN IMMIGRANT ON ANY SUSPICION
THAT HE OR SHE HAS BEEN ASSOCIATED IN ANY WAY WITH A TERRORIST
GROUP
David Cole, Law Professor, Georgetown, TERRORISM AND THE CONSTITUTION, 2003, p.
152
‘The PATRIOT Act: (1) imposes guilt by association on immigrants, extending the reach of that philosophy beyond the 1996 Act; (2)
authorizes executive detention on mere suspicion that an immigrant has at some point engage in a violent crime or provided
humanitarian aid to a proscribed organization.
UNDER THE PATRIOT ACT, AND IMMIGRAANT CAN BE DETAINED THROUGHOUT
THE ENTIRE DEPORTATION HEARING IF THE ATTORNEY GENERAL
DETERMINES HE IS A THREAT TO SAFET
NEW YORK LAW SCHOOL REVIEW, Fall 2003, p. 399-400
Congress eventually agreed on the provisions for the "Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001." Under this Act, 8 U.S.C 1101 of the
Immigration and Nationality Act was amended to allow officials to detain individuals suspected of terrorist activity for
up to seven days without filing charges against them or allowing them to petition a court for their release. After the
seven days, pursuant to 412(a)(5), the alien will either be released or detained if there is any immigration violation,
subject to deportation hearings. Most notably, the Patriot Act affords the Attorney General the ability to detain an
immigrant during the entire deportation hearing if he "reasonably believes" the alien may have engaged or assisted in
any terrorist activity and his removal is unlikely in the reasonably foreseeable future
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INS Has Extensive Detention Without Charge Authority
THE INS ONLY NEEDS REASONABLE SUSPICION, NOT PROBABLE CAUSE TO
DETAIN
David Cole, Law Professor, Georgetown, TERRORISM AND THE CONSTITUTION, 2003, pp.
157-8
Third, the evidentiary standard for detention raises serious Constitutional concerns It is important to
keep in mind that the law authorizes potentially indefinite detention. That is a far more severe
deprivation of liberty than holding a person for interrogation or trial. Yet the INS has standard now
for detention is essentially equivalent to the “reasonable suspicion” standard. But if “reasonable
suspicion” does not even authorize a full arrest in criminal law enforcement it surely cannot
authorize indefinite detention in immigration law enforcement to the constitutionality of any
detention provision that the government bear the burden of justifying any preventive detention
promptly in a scrupulously fair proceeding. Few intrusions on liberty are more severe than being
locket up. Yet the PATRIOT Act imposes no affirmative burden of proof on the government,
provides for no hearing, and authorizes detention on the Attorney Grnenil’s say-so. The only
“process” the alien is afforded is the right to go to federal court and sue the government for its
actions. But due process requires that the agency seeking to deprive a person of his liberty afford
him a fair procedure in which to be heard; the availability of a lawsuit after the fact is not sufficient.
THE EXECUTIVE IS DETAINING ON SUSPICION, NOT ON EVIDENCE THAT A
CRIME WILL BE COMMITTED
Jules Lobel, Professor, University of Pittsburgh Law School; Vice President, Center for
Constitutional Rights, THOMAS JEFFERSON LAW REVIEW, Spring 2003, p. 331
Domestically a centerpiece of the Administration's response to terrorism has been its use of
prolonged preventive detention of suspected terrorists without judicial review. Through a myriad of
mechanisms, none explicitly authorized by Congress, the Executive has detained people under harsh
conditions on the mere suspicion that they may commit a crime, rather than any evidence that
they've done so or will do so.
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Precedent for Future Rights Abuses
TEMPORARY ABUSES OF CIVIL LIBERTIES WILL CREATE A PRECEDENT FOR
FUTURE ABUSES
The Committee on Federal Courts, THE RECORD OF THE ASSOCATION OF THE BAR OF
NEW YORK CITY, v. 59, 2004, p. 44
Nor can the assertion of this detention power be comfortably assumed to be only a temporary
departure from the rule of law. The war on terror is likely to be a prolonged, if not a permanent
feature of our times. Thus, extraordinary departures from due process justified by the existence of
this war may prove to be enduring features of the constitutional landscape, not short-term measures
easily reversed.
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Detention Threatens Core Liberty Interests
A KEY PROTECTION OF LIBERTY IS THE REQUIREMENT THAT THE
GOVERNMENT JUSTIFY DETENTION
Richard Leone, THE WAR ON OUR FREEDOMS, 2002, p. 63)
A cardinal protection of liberty in this country,” the Washington Post said in one of a remarkable
series of editorials on the Haindi case, is the requirement that the government justify deprivations
of freedom. Yet the emerging hallmark of the enemy combatant cases is the unwillingness of the
government to do precisely that. In Hamdi’s case, the Justice Department initially argued that its
designation was unreviewable by any court. Even now the government contends that the courts
should rightly look beyond the sketchiest of evidentiary statements it has offered in justifying its
view of Hamdi. . . It is critical that Judges remember how the doctrine they are creating could be
used against people other than the ones whose cases they are currently seeing. The government’s
case against Hamdi may be solid. But if it is allowed to detain him without some procedure that
requires a persuasive showing, it will create a rule that allows Americans to be exempted from the
protections of the Bill of Rights on the strength of a two-page statement the government
condescends to present in court.
IF THE EXECUTIVE RETAINS THE AUTHORITY TO DETAIN INDEFINETLY, THERE
IS NO FREEDOM
Philip Heyman, Political Scientist, MIT, TERRORISM, FREEDOM, AND SECURITY, 2003, p. 91
Quite simply, a country cannot
be free if the Executive retains the power, on its own determination
that certain conditions are met, to detain citizens for an indefinite period. In both the case of citizens
and the case of aliens there was an explicit effort to deny judicial review of the crucial findings on
the basis of which it was claimed that the individual could be detained indefinitely
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Fourth Amendment Violations
REFUSING TO RESTRICT DELAYS IN CHARGING BEYOND 48 HOURS VIOLATES
THE FOURTH AMENDMENT
Immigrant Rights Clinic, New York University School of Law, New York University Review of
Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, pp. 409-11.
The amended regulation's exception to the forty-eight hour rule, allowing detention for an undefined
period beyond forty-eight hours, also clearly violates the Fourth Amendment. Amended 8 C.F.R.
287.3 provides that "a determination will be made within 48 hours of the arrest, except in the event
of an emergency or other extraordinary circumstance in which case a determination will be made
within an additional reasonable period of time, whether the alien will be continued in custody or
released." This exception is blatantly at odds with the Fourth Amendment as it deliberately
institutes a scheme permitting delays of probable cause determinations for more than forty-eight
hours, and failing to specify that the emergency or extraordinary circumstance must be the reason
for the additional delay. In a case where an individual has not received a probable cause
determination within forty-eight hours, the Supreme Court in McLaughlin considered an arrested
individuals' continued detention presumptively unreasonable. The court stated: Where an arrested
individual does not receive a probable cause determination within 48-hours, the calculus changes. In
such a case, the arrested individual does not bear the burden of proving an unreasonable delay.
Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency
or other extraordinary circumstance. The Court thus narrowed the issues in contention after a delay
of more than forty-eight hours to one: whether the delay was unreasonable. In addition, the Court
allocated to the government the burden of persuasion on the issue of delay, consistent with the
Court's view that the detention is presumptively unreasonable. The Court also provided the
government with only one affirmative defense to holding a particular individual beyond forty-eight
hours - demonstration that a bona fide emergency was the reason for the specific delay. The
McLaughlin Court held that any delay violates the Fourth Amendment, except in the narrow
circumstance where the delay resulted from an emergency or extraordinary circumstance. In
contrast, the amended rule authorizes "an additional reasonable period of time" whenever delay
coincides with a situation deemed an emergency or extraordinary circumstance. The Court did not
intend for mere coincidence to justify delay. It made this clear by condemning "delay for delay's
sake" as an illegitimate reason. To justify the delay, the emergency must be the cause of it. In
addition to failing to require a causal link between delay and the emergency, the amended
regulation fails to set a firm limit on how long a person can be held before proceedings are initiated.
The amended rule's language of an "additional reasonable period of time" provides no assurance
that individuals will not be arbitrarily held for indefinite lengths of time because the phrase has no
clear meaning. The McLaughlin Court's strong presumption that a delay of over forty-eight hours
was unreasonable strongly suggests that such an open-ended indefinite authorization cannot pass
constitutional muster
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Fourth Amendment Violations
THE AMENDEDED REGULATION THREATENS CRITICAL FOURTH AMENDMENT
PROTECTIONS – A 24 HOUR RULES SOLVES
Immigrant Rights Clinic, New York University School of Law, New York University Review of
Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, pp. 411-2
The Repealed Twenty-Four Hour Rule Properly Accommodated Fourth Amendment Rights
Prior to September 20, 2001, 8 C.F.R. 287.3(d) required the INS to determine whether to initiate
proceedings within twenty-four hours of arrest. The prior rule was superior in a number of respects. First,
it properly accommodated Fourth Amendment rights and limited the potential for excessive delay.
Although it was not entirely free from abuse, abuse was minimized. Given the few documents and
procedures which accompany a warrantless arrest, even an officer who sought to delay for the full
twenty-four hour period was in danger of violating the rule. This danger acts as a natural deterrent for
violating an arrested individuals' Fourth Amendment rights. The twenty-four hour rule ensured that
individuals properly arrested were processed with the utmost speed - an important goal of the
enforcement of the immigration law - and also ensured that someone unlawfully arrested will likely not
spend the night in jail. Second, the twenty-four hour rule deterred wrongful arrests. By limiting the time
available to gather evidence after the fact, a prompt probable cause determination helped to ensure that
illegal arrests would not subsequently be unlawfully justified. A speedy determination ensured that the
assessment of probable cause would be accurate, avoiding the inaccuracies in the officer's and suspect's
accounts caused by the passage of time Third, the twenty-four hour rule provided clear guidelines to INS
officers who operate under this regulation. The INS has always had a high work burden. In past years,
INS officers averaged 500 arrests each per year. INS officers under such workloads will inevitably take
the time allotted to them to process individuals arrested without a warrant. At a minimum, the INS will
take the full forty-eight hours to make a probable cause determination even when twenty-four hours or
less would suffice. The critical advantage of the previous rule was that its lack of exceptions effectively
discouraged INS from running past the twenty-four hour deadline. The amended rule's vague exceptions
create the opposite effect: the benefit of greater leeway in times of "emergency' may cause INS officials
to claim emergency conditions more frequently. The amended rule thus invites abuse and inefficient
operation. The twenty-four hour rule respected constitutional rights, helped to prevent illegal arrests,
and contributed to the efficient operation of INS enforcement better then the amended rule's forty-eight
hour clause and emergency exception. These benefits, when compared with the serious deficiencies of
the amended regulation call for its rejection and the reinstitution of the rule in its pre-amended form.
III. The Proposed Regulation Violates Immigrants' Constitutional Guarantees by Conflating Civil and
Criminal Arrests and Failing To Extend Full Criminal Constitutional Protections When Applicable
Both citizens and noncitizens, when arrested for mixed civil and criminal purposes, are guaranteed the
full panoply of protections pursuant to the Fourth, Fifth and Sixth Amendments that are attendant to
arrests and detentions for criminal charges. Individuals also are accorded criminal procedural protections
when they are arrested for a civil violation as a pretext for developing a criminal charge. Amended 8
C.F.R. 287.3, in its attempt to regulate both pretextual and mixed civil and criminal warrantless arrests,
triggers and violates these criminal procedural rights, in addition to violating immigrants' Fourth
Amendment rights guaranteed during civil proceedings as discussed in the previous section.
The text and purpose of the amended regulation, as well as the public statements Attorney General John
Ashcroft has made regarding the government's anti-terrorism law enforcement strategies, indicate that
this regulation applies to arrests for mixed civil and criminal purposes. The express purpose for the
immediate implementation of the amended regulation is to allow for additional time to process cases due
to the "emergency posed by the recent terrorist activities perpetrated on United States soil." Terrorist
activity is predominantly prosecuted and regulated under criminal laws, although there are related civil
repercussions as well. This mixed character of counterterrorist law enforcement requires the INS to work
with criminal law enforcement agencies as it arrests and charges immigrant suspects. The INS
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acknowledges these necessary ties in its justification for holding detained individuals for an indefinite
period of time during emergencies, explaining that it needs the time "to coordinate with other law
enforcement agencies" and to process cases. The INS similarly explains its need to extend its standard
holding period of individuals arrested without a warrant from twenty-four to forty-eight hours so it can
"check domestic, foreign, or international databases and record systems for relevant information
regarding the alien; and to liaise with appropriate law enforcement agencies in the United States and
abroad." Together, these justifications for extending the detention period and the anti-terrorist purposes
underlying the creation and immediate implementation of the amended regulation intimates that the
amended regulation will be applied to individuals arrested in connection to both civil and criminal
offenses. Criminal law enforcement purposes can also be inferred from the indefinite amount of time the
INS requires under amended 8 C.F.R. 287.3 before it can prove adequate cause to justify the warrantless
arrests. As discussed in Part II, the only permissible reasons the INS can delay bringing an immigrant
arrested without a warrant in front of an examining officer are administrative, mainly to secure the
personnel to confirm that a prima face case existed to support the arrest. The INS should not require an
indefinite period of time to find an officer and confirm that probable cause existed at the time of the
arrest. The INS is not permitted to use this time to build its case post hoc to establish that it had cause at
the time of the arrest. Attorney General John Ashcroft publicly has confirmed that the amended
regulation is designed for a mixed criminal and civil purpose: "we seek to hold them as suspected
terrorists, while their cases are being processed on other grounds." n83 In a speech to the National
Conference of Mayors, Attorney General Ashcroft reemphasized this point: "Let the terrorists among us
be warned... . If you overstay your visas even by one day, we will arrest you... If you violate a local law,
we will ... work to make sure that you are put in jail and ... kept in custody as long as possible." The
government is open and unequivocal in its intent to hold individuals pretextually on civil charges while it
investigates criminal allegations or, at a minimum, to arrest immigrants for both immigration and criminal
purposes. Amended 8 C.F.R. 287.3 is a critical component of the government's pretext strategy, as it
regulates the procedures for civil arrests. These mixed civil and criminal purposes of the amended
regulation, however, require the regulation to be in line with rights specifically safeguarded during
criminal arrests. Courts have extended constitutional and statutory criminal procedural protections during
mixed civil and criminal arrests and charges in various situations. First, immigrants are guaranteed
criminal procedural protections when arrested for both a civil and a criminal charge. Second, immigrants'
criminal-related protections are triggered when the civil detention is used as a "ruse" for criminal law
enforcement purposes. Courts have found foul play in situations where there has been evidence of
collusion between the INS and criminal law enforcement or when the INS did not act with deliberate
speed on immigration charges. In several cases where the government used civil detention to advance
criminal charges, courts have actually dismissed criminal charges with prejudice to sanction the INS for
its unlawful behavior. n88 Courts also have protected immigrants' criminal procedural rights when the
charges underlying both the civil offense and criminal offense were identical. In safeguarding immigrants'
criminal rights in pretextual and mixed civil and criminal cases, courts have been motivated by the need
to prevent the government from abusing the rules in civil detention to undercut immigrants' substantive
rights. As the Ninth Circuit pointed out, "requirements [of Speedy Trial Act protections] ... would lose all
meaning if federal criminal authorities could collude with civil or state officials to have those authorities
detain a defendant pending federal criminal charges solely for the purpose of bypassing the requirements
of the Speedy Trial Act."
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General Rights Extensions
INDEFINITE DETENTION VIOLATES FUNDAMENTAL RIGHTS
Immigrant Rights Clinic, New York University School of Law, New York University Review of
Law & Social Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, p. 398)
Amended 8 C.F.R. 287.3 stands contrary to the federal statute that authorizes its promulgation. The
amended regulation infringes upon Fourth Amendment rights both in the context of immigration law
enforcement itself and in the Attorney General's repeated suggestion that immigration law enforcement is
being used to effectuate criminal law enforcement purposes. The amended rule also violates fundamental
principles of due process rights by detaining individuals for indefinite periods of time without establishing
cause. Finally, the rule creates a policy that undermines its purposes by simultaneously sweeping up
thousands of innocent individuals whose rights effectively have been terminated, and creating a sense of
fear in communities already reeling from violence directed at them by the public
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Answers to: “Illegals Don’t Have Constitutional Protections”
ALIENS ENTITLED TO 4A PROTECTIONS
David Cole, Law Professor, Georgetown, TERRORISM AND THE CONSTITUTION, 2003, p.
100
“There are literally millions of aliens within the jurisciction of the United States. The Fifth Amendment, as well as the Fourteenth
Amendment, protects everyone of these persons from deprivations of life, liberty, or property without due process of law. Even one
who presence in this country is unlawaul, involuntary, or transitory is entitled to that constitutional protect (Matthews v. Diaz, 426
U.S. 67, 77 (1976).
ALIENS ENJOY THE PROTECTIONS OF THE BILL OF RIGHTS
Immigrant Rights Clinic, New York University School of Law, New York University Review of Law & Social
Change, REVIEW OF LAW & SOCIAL CHANGE, 2000/1, pp. 402-3
Although Congress retains plenary power to designate the nation's policy with respect to immigration,
that power is "subject to judicial intervention under the paramount law of the constitution." Aliens
present in the United States are within the fold of the Constitution's protection, substantially enjoying the
rights guaranteed by the Bill of Rights and the Fourteenth Amendment.
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Advantage: Detention Without Charge Threatens Due Process
DETENTION WITHOUT CHARGE THREATENS DUE PROCESS RIGHTS
Victor Romero, Professor of Law, Penn State, The Dickinson School of Law, JOURNAL OF
GENDER, RACE, AND JUSTICE, Spring 2003, pp. 203-4
Why, then, has Attorney General Ashcroft used immigration proceedings to seek out terrorists?
Following the September 11 attacks, the Immigration and Naturalization Service (INS) arrested and
detained approximately one thousand mostly Arab and Muslim noncitizens for immigration code
violations in an effort to uncover possible terrorists among them. Notwithstanding the questionable
desirability of deporting a known terrorist, using immigration rather than criminal proceedings to
screen persons makes sense from the government's perspective. First, the process gives the
government the most number of remedial options: if it decides a noncitizen is not a terrorist, it can
deport her; if she is a terrorist, it can charge her criminally. In addition, the government is able to
take advantage of the administrative and civil nature of immigration proceedings to aggressively
prosecute its claims without providing as much due process protection to the individuals charged.
For example, because attorneys are not automatically provided to noncitizens in deportation
proceedings, the government is at a distinct advantage in investigating possible terrorist links in the
context of deportation than if it had to proceed in a criminal court.
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Detention Without Charge Threatens Due Process
DETENTION UNDER SECTION 412 OF THE PATRIOT ACT VIOLATES DUE PROCESS
BECAUSE NO REVIEW IS POSSIBLE
STANFORD LAW REVIEW, April 2003, p. 1429
The procedural due process claim, considered first in this Note, finds constitutional fault in the absence of
fair procedures protecting against wrongful certification. The opportunity for a meaningful hearing is a
critical component of procedural due process, yet the USA Patriot Act offers an alien no opportunity for a
hearing before certification and only tenuous and uncertain opportunities for judicial review after
certification. As argued below, whether or not this problem amounts to an actual constitutional violation
will depend largely on how courts construe the scope of habeas corpus review of certification. Meanwhile,
the substantive due process challenge stems from the excessive scope of the grounds for certification in
section 412: The USA Patriot Act authorizes the certification of individuals who may neither be dangerous
nor present a risk of flight, permitting detention for substantively inadequate grounds.
MANDATORY DETENTION OF IMMIGRANTS VIOLATES DUE PROCESS
STANFORD LAW REVIEW, April 2003, p.1420
This Note argues that the USA Patriot Act's provisions for certification and mandatory detention
contravene the Fifth Amendment's guarantee of due process of law. By denying noncitizens the
opportunity for meaningful review of the certification decision, and by authorizing the detention of aliens
on substantively inadequate grounds, the USA Patriot Act raises serious constitutional concerns under
both the procedural and substantive prongs of the Due Process Clause.
DETAINING INDIVIDUALS WHO ARE NOT A SECURITY OR A FLIGHT RISK
VIOLATES SUBSTANTIVE DUE PROCESS
STANFORD LAW REVIEW, April 2003, p. 1441
While the procedural due process argument finds section 412 deficient in not providing constitutionally
adequate procedures, the substantive due process claim derives from the wrongfulness of the detention
irrespective of the procedures available. This challenge rests on the arbitrariness of government detention
legislated in the USA Patriot Act: Section 412 violates substantive due process by authorizing government
detention of some aliens who pose neither a danger to the community nor a risk of flight. While it is
constitutional to detain an alien charged with a deportable offense if the individual endangers society or
appears likely to abscond, the detention of an alien who meets neither of these criteria violates the
individual's substantive rights. This argument, therefore, rests not on the absence of an individualized
hearing to determine whether an alien should be detained, but on the fact that section 412 authorizes
certification and detention of aliens who meet neither justification for detention.
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Torture
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Torture at Guantanamo Bay
There is mounting evidence that Guantanamo has, in fact, become a torture chamber. Time
Magazine in 2005:
[Time Magazine, June 6, 2005; Pg. 30]
HAVE DETAINEES BEEN ABUSED? In its recently issued annual report on human rights, Amnesty
International said Guantanamo had become the "gulag of our times." While disputing many of the detainees'
allegations of beatings, sexual taunts and other mistreatment, the U.S. is nonetheless investigating them. One
of those inquiries, the findings of which are expected to be issued soon by Air Force Lieut. General Randall
Schmidt, was spurred by eyewitness accounts from FBI agents at Gitmo from mid-2002 to mid-2004.
According to just-released memos, agents reported seeing captives shackled in a fetal position for 24 hours
without food or water and left in their own excrement, another gagged with duct tape that covered much of his
head and another who had torn out his hair after being chained all night in a hot room. Former Army Sergeant
Erik Saar, who served at Gitmo and wrote Inside the Wire with TIME correspondent Viveca Novak, has
described an instance in which a female interrogator smeared fake menstrual blood on a captive's face. It may
have been a measure of how detainees are treated that when Army Specialist Sean Baker played the role of an
inmate in a 2003 training exercise, he says he was beaten so badly by MPs, who did not know he was one of
them, he now has seizures. The Army is investigating the incident, and Baker has filed suit against the
government, seeking damages for his injuries.
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Torture Bad
Torture must be flatly rejected as immoral and dehumanizing. Amnesty International in
2004:
[Amnesty International, United States, Human Dignity Denied, Torture and accountability in the ‘war on terror,’
October 27, 2004, http://web.amnesty.org/library/Index/ENGAMR511452004]
In the end, however, the absolute prohibition of torture and cruel, inhuman or degrading treatment in international law
rests firmly on moral grounds. It is about what sort of society we aim to build. Ariel Dorfman’s country, Chile, suffered
gross human rights violations on and following 11 September 1973, the day of the coup that brought Augusto Pinochet
to power. Dorfman has written: "[T]orture is not a crime committed only against a body, but also a crime committed
against the imagination. It presupposes, it requires, it craves the abrogation of our capacity to imagine someone else’s
suffering, to dehumanise him or her so much that their pain is not our pain. It demands this of the torturer, placing the
victim outside and beyond any form of compassion or empathy, but also demands of everyone else the same distancing,
the same numbness, those who know and close their eyes, those who do not want to know and close their eyes, those
who close their eyes and ears and hearts."(371)
Torture is a deontological evil that must always be rejected. Professor Oren Gross of the University of
Minnesota Law School cautions in 2004:
[Oren Gross, Professor, University of Minnesota Law School, Minnesota Law Review, June, 2004, 88 Minn. L. Rev.
1481, p. 1492-3]
Absolutists - those who believe that an unconditional ban on torture ought to apply without exception regardless of
circumstances - often base their position on deontological grounds. For adherents of the absolutist view of morality,
torture is intrinsically wrong. It violates the physical and mental integrity of the person subjected to it, negates her
autonomy, and deprives her of human dignity. It reduces her to a mere object, a body from which information is to be
extracted; it coerces her to act in a manner that may be contrary to her most fundamental beliefs, values, and interests,
depriving her of any choice and controlling her voice. Torture is also wrong because of its depraving and corrupting
effects on individual torturers and society at large. Moreover, torture is an evil that can never be justified or excused.
Under no circumstances should the resort to torture be morally acceptable or legally permissible. It is a reprehensible
action whose wrongfulness may never be assuaged or rectified morally even if the consequences of taking such action
in any particular case are deemed to be, on the whole, good. Indeed, one may argue that the inherent wrongfulness of
torture and possible good consequences are incommensurable, i.e., they cannot be measured by any common currency
and therefore cannot be compared, or balanced, one against the other. The conclusion drawn from such a claim is that
"the wrong of torture can be taken as a trump or side constraint on welfare maximization in all possible cases."
We have a moral duty to treat those in our custody humanely. Amnesty International in
2005:
[Amnesty International, USA, Response to the proposed “Interrogations Procedures Act, February 16, 2005,
http://web.amnesty.org/library/Index/ENGAMR510392005]
What should matter even more is that the absolute duty to treat all prisoners with dignity without exception is a moral
value reflecting fundament principles of humanity, as well as part of the bedrock of international law. The proposed
legislation threatens to destroy all that and replace it by a legalized, regularized, supervised, and officially approved
form of cruelty. The act of one individual terrorizing another serves only to destroy the values it claims to be protecting.
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Gitmo Policies Create Environment Conducive to Torture
INDEFINITE, INCOMMUNICADO DETENTION FACILITATES TORTURE
UN Commission on Human Rights, April 2004, in Amnesty International, United States, Human Dignity Denied,
Torture and accountability in the ‘war on terror,’ October 27, 2004,
http://web.amnesty.org/library/Index/ENGAMR511452004
[P]rolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of
cruel, inhuman or degrading treatment or even torture.
US DETENTION POLICY HAS CREATED AN ENVIRONMENT CONDUCIVE TO
TORTURE
Amnesty International, USA, Guantanamo and Beyond: The Continuing Pursuit of Unchecked Executive Power, May
13, 2005, http://web.amnesty.org/library/Index/ENGAMR510632005
In its October 2004 report on torture and accountability in the "war on terror", Amnesty International concluded that
senior US military and civilian officials had set a climate, both through words and actions, conducive to torture and illtreatment.(95) Indeed, one of the members of the Independent Panel to Review Department of Defense Detention
Operations (Schlesinger Panel), which reported in August 2004, suggested that a degree of responsibility "for the
confusion about permissible interrogation techniques extend[s] all the way up the chain of command to include the Joint
Chiefs of Staff and the Office of the Secretary of Defense". (96) Evidence of a permissive climate contributing to abuses
is provided among documents released in April 2005 to the ACLU.
GOVERNMENT POSITION IS THAT NO COURT COULD ENTERTAIN ANY GITMO
CLAIM—INCLUDING THOSE OF TORTURE
Retired Military Officers, Amicus Brief, Rasul v Bush, 2003 U.S. Briefs 334, January 14, 2004, p. 2
The government's contention is that no court anywhere on earth has jurisdiction even to entertain the Guantanamo
prisoners' claims--that the federal courts could not intervene even if prisoners there were being executed or tortured. The
government's position is based on the proposition that only Cuba, not the United States, has sovereignty over the base.
But under the governing agreements with Cuba--which afford the United States "complete jurisdiction and control" over
the base in perpetuity--the United States exercises, at a minimum, some sovereign powers over the base. Military
officials have long regarded the lease, executed in 1903, as providing that Cuban sovereignty is interrupted while the
lease remains in force; Cuba has only residual sovereignty. In the meantime, the United States acts as the "pro tanto
sovereign" of the base, as the State Department's Office of the Solicitor concluded in 1912. Scholars have agreed that
the United States exercises at least some sovereign powers at Guantanamo.
UNCHECKED EXECUTIVE POWER OVER GITMO HAS RESULTED IN SERIOUS
HUMAN RIGHTS ABUSES
Amnesty International, USA, Guantanamo and Beyond: The Continuing Pursuit of Unchecked Executive Power, May
13, 2005, http://web.amnesty.org/library/Index/ENGAMR510632005
Yet, still, the Pentagon document asks the reader to take its claims on trust. The problem faced by the US administration
is that its record in relation to detentions in the "war on terror" has undermined the credibility of its assertions, whether
those assertions take the form of a stated commitment to human rights, or claims of threats averted due to intelligence
gathered through interrogation. The administration has sought, and continues to seek, unchecked power for itself. As it
has done so, violations of fundamental human rights have occurred or been proposed, including prolonged
incommunicado, secret and arbitrary detentions, torture and other cruel, inhuman or degrading treatment, unfair trial
proceedings, detainee transfers without protections, and denial of and resistance to judicial review.
SECRECY FACILITATES TORTURE
Amnesty International, Report 2005, May 25, 2005, http://web.amnesty.org/library/Index/ENGPOL100012005
In 1973 AI published its first report on torture. It found that: "torture thrives on secrecy and impunity. Torture rears its
head when the legal barriers against it are barred. Torture feeds on discrimination and fear. Torture gains ground when
official condemnation of it is less than absolute." The pictures of detainees in US custody in Abu Ghraib, Iraq, show
that what was true 30 years ago remains true today.
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US Refusal to Apply International Prohibitions on Torture to Gitmo Causes Torture
SELECTIVE APPLICATION OF GENEVA CONVENTION IN GITMO CREATED
ENVIRONMENT OF TORTURE IN ABU GHARIB
Amnesty International, United States, Human Dignity Denied, Torture and accountability in the ‘war on terror,’ October
27, 2004, http://web.amnesty.org/library/Index/ENGAMR511452004
The White House, which maintains that the USA is "steadfastly committed to upholding the Geneva Conventions", has
"categorically reject[ed] any connection" between the decision to reject the application of the Geneva Conventions to
detainees in Afghanistan and Guantánamo and the torture committed in Abu Ghraib prison in Iraq. Yet its selective
disregard for the Geneva Conventions has been part of a policy which has at best sown confusion about interrogation
rules among its armed forces, and at worst given a green light to torture or other cruel, inhuman or degrading treatment.
Official investigations have concluded that versions of interrogation techniques developed for use against detainees in
Afghanistan and Guantánamo, unprotected by the Geneva Conventions, later emerged in Iraq, where the Conventions
were held by the US Government to apply.
It is clear that the decision to reject the protections of the Geneva Conventions in the "war on terror" outside Iraq has
infected official thinking in the USA.
REFUSAL TO ACKNOWLEDGE GENEVA CONVENTION ENCOURAGES TORTURE
OF DETAINEES
Amnesty International, USA, Human Rights, Not Hollow Words: An appeal to President Bush on the Occasion of his
Re-Inauguration, January 19, 2005, http://web.amnesty.org/library/Index/ENGAMR510122005
Your administration’s pick and choose approach to the Geneva Conventions has caused widespread international
concern. Amnesty International believes that this selective disregard for international humanitarian law principles has
contributed to torture and ill-treatment by US forces and to the degree of lawlessness which has marked the USA’s
waging of the "war on terror". It is now known that you were advised by White House Counsel Alberto Gonzales in
January 2002 that a determination that the Geneva Conventions would not apply to those captured in the international
armed conflict in Afghanistan would free up US interrogators and make their future prosecution for war crimes less
likely. Since your decision, allegations of torture and ill-treatment by US forces in Afghanistan and Guantánamo – and
the subsequent migration of this phenomenon to Iraq – have been persistent, and such allegations continue to emerge
from both detainee and non-detainee sources.
OFFICIAL POSITION IS THAT THE US IS NOT BOUND BY INTERNATIONAL
PROHIBITIONS ON TORTURE
Amnesty International, USA, Guantanamo and Beyond: The Continuing Pursuit of Unchecked Executive Power, May
13, 2005, http://web.amnesty.org/library/Index/ENGAMR510632005
On the second question, the administration still does not consider itself legally bound by the absolute international
prohibition on cruel, inhuman or degrading treatment. Alberto Gonzales said in his written responses to the Senate that
the US Justice Department "has concluded that under Article 16 [of the Convention against Torture (CAT)] there is no
legal prohibition under the CAT on cruel, inhuman or degrading treatment with respect to aliens overseas". Linked to
this is the third question – namely what legal guidance the Justice Department has offered to the CIA. Previously secret
documents appear to point to an attempt within the executive to immunize the CIA from prosecution for torture and war
crimes. In one memorandum, written in response to a CIA request for legal protections, the Justice Department argued
that the President can override national and international prohibitions on torture, offered legal defences for anyone
accused of torture, narrowed to almost vanishing point the definition of torture, and suggested that there was a
"significant range of acts that though they might constitute cruel, inhuman or degrading treatment or punishment fail to
rise to the level of torture" and could therefore not lead to prosecutions under the Anti-Torture Act..
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*** Con – Rights Good ***
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Rights Critical to Freedom/Freedom Absolute
Rights secure freedom
Wellman, Prof. Philosophy, Washington U. of St. Louis, 1985, “A Theory of Rights,”p199
What I do know, and what is most significant about the connection of rights to freedom is that rights
articulate freedom. Rights carve up, as it were, an undifferentiated generic freedom into specific
freedoms. It is the associated elements within any right that, if respected, confer dominion, and thus
freedom, upon the right-holder; but it is the defining core that specifics the domain of that
dominion. Thus, rights constitute complex norms governing who is to have which freedom in face
of whom. Rights are essentially connected with freedom because of the way in which they govern
the allocation of freedoms.
Freedom is absolute, all invasions must be rejected
Sylvester Petro, professor of law, Wake Forest University, Spring 1974, TOLEDO LAW REVIEW,
p. 480. (PDSS10)
However, one may still insist, echoing Ernest Hemingway �"I believe in only one thing:
liberty." And it is always well to bear in mind David Hume's observation: "It is seldom that
liberty of any kind is lost all at once." Thus, it is unacceptable to say that the invasion of
one aspect of freedom is of no import because there have been invasions of so many
other aspects. That road leads to chaos, tyranny, despotism, and the end of all human
aspiration. Ask Solzhenitsyn. Ask Milovan Djilas. In sum, if one believes in freedom as a
supreme value, and the proper ordering principle for any society aiming to maximize
spiritual and material welfare, then every invasion of freedom must be emphatically
identified and resisted with undying spirit.
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Freedom Necessary to Stop Tyrannical State Power and Nuclear War
The protection of individual rights is necessary to stop destruction from the nuclear state
George Kateb, Professor of Politics, Princeton, THE INNER OCEAN, 1992, p. 116-7
I have rehearsed platitudes. The justification is that these platitudes of individualism are not really
platitudes. They are fundamental considerations that can wither through complacent or irritable
inattention. In their withering, the way is eased for massive ruin and for the possibility of extinction.
From these considerations—presumably the considerations that guide our lives—the absolute
impermissibility of using nuclear weapons emerges. Individualism in the form of personal and
political rights bars a government whose legitimacy rests on acknowledging and protecting those
rights from acting in any way that risks or causes massive ruin at home or that threatens or inflicts it
abroad. The emphasis is on the death of millions of individuals. The subjects of illegitimate
governments—for example, the people of despotic states—are covered equally by this imperative:
the claim to individual rights is not an enclosed, parochial matter, but universalist in nature. Kven
though their own government does not acknowledge and protect their rights, any legitimate
government which has an effect on them must do so insofar as it can. (Michael Walzer has already
made this point in just and Unjust Wars[ 1977].) Above all, in dealing with foreigners, a legitimate
government must not inflict massive ruin. The theory of the just war and elementary notions of
common humanity may disallow any policy that risks or causes massive ruin, but the underlying
moral principles of the American political system independently and clearly do so. If officials of a
legitimate government use nuclear weapons or threaten to do so, and whether or not their people
suffer retaliation, the officials have so grossly violated the principles of the system that they must be
understood as having intended its moral destruction and therefore to have created a situation in
which a revolution against them is abstractly justified in behalf of the very system they have
subverted. They are the real revolutionaries. Notice what underlies the pretended right to use or
threaten to use nuclear weapons. In the case of the United States, government rhetoric invokes
freedom as the value that may be defended by nuclear weapons. Freedom is the term used to refer to
all those rights to which the U.S. Constitution is devoted. Yet how can there be consistent faith in
rights when masses of people become passive victims? American citizens would not be acting to
defend their freedom; they would simply be enlisted in mass death. Further, how can there be
consistent faith in rights when mass death is inflicted on others? The theory of rights recognizes no
difference between one's fellows and foreigners so far as negative moral entitlements are concerned:
everyone has an equal claim not to have rights violated, even if positive claims to increased wellbeing may be nationally confined. If political freedom institutionally survived the use of nuclear
weapons, its essence would have been spiritually maimed, perhaps destroyed irretrievably. The
users of nuclear weapons would have engaged in a revolution against freedom.
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Privacy Necessary to Prevent Tyranny
PRIVACY IS NECESSARY TO PREVENT TYRANNY
Ferdinand Schoeman, Professor of Philosophy, University of South Carolina, PHILOSOPHICAL
DIMENSIONS OF PRIVACY, 1984, p.21. (DRGCL/B1128)
Benn suggests that part of our notion of a person as free is that he is subject to the authority and scrutiny of
others only within reasonable and legally safeguarded limits. In other words, people have a right to a private
life. People can be held socially accountable only for respecting the rights of others, and can be thought to
have obligations to promote the welfare of society only if these obligations have been voluntarily assumed or
if especially pressing reasons are operative. George Orwell’s novel 1984 presents one picture of what life
would be like in a society which did not limit itself in the way Benn prescribes.
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Rights Critical to Human Dignity
The protection of human rights is critical to human dignity
Kateb, Philosopher, Princeton, 1992, “The Inner Ocean”, pp. 8-9
A brief and unrigorous defense of individual rights, then, can perhaps suffice. The protection of
personal and political rights is the only true protection of everybody’s human dignity. But a religious rejection of
human dignity as the highest standard in favor of the superior dignity of the more-than-human is always possible. Undeniably, the theory of rights with which I work issued from religious people in
England. Yet they were heterodox and they were intent on freeing society from religious superintendence and making unsectarian political morality the rule for society. They were politically secular,
even if their political theory had some religious inspiration. The framers of American rights were even more heterodox, if they were religious at all. These days, if religious views are political
introduced, debate becomes impossible after a while. Everyday reasoning runs up against belief or faith and becomes futile. The advocate of rights cannot persist in discussion but must try to blunt any
Rights emerge as the only or best
way of protecting human dignity, and human dignity remains the highest standard.
religiously inspired attack on individual rights. In sum, there seems to be no generally credible foundation for a critique of rights.
Absent freedom and dignity, millions die
Kopplemen, US Ambassador to CSCE, WORLD AFFAIRS, Summer 1990, p. unknown
Yet, these great advances in the human condition have been paralleled in this century by what often
seem to be intractable political conflicts. Hundreds of millions of lives have been lost: tens of
millions in war, and an even greater number through political violence and repression. It as if the
world of politics remained in the dark ages while our scientific, technological, and communications
worlds moved ahead to the tomorrows of modern civilization. A secure peace, within and among
nations, can be built only on the foundation of the institutions of freedom that protect and develop
the inherent dignity and inviolable worth of every human being. It is peace and liberty that we seek.
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AT: Rights Undermine Community
Individual rights provide the only basis for peaceful social relations
Chris Matthew Sciabarra, AYN RAND: THE RUSSIAN RADICAL, 1995, p.378. (PDNSS50158)
Politically, the doctrine of individual rights is the only moral vehicle for peaceful "human
coexistence," because it bars physical force from social relations. It sanctions a plethora of
voluntary material and spiritual exchanges by which people earn the values that sustain their lives.
The "Universal" brotherhood is not achieved on the sole basis of species identity or even kinship
ties, but on the basis "of holding the same values."
Individualism doesn't eliminate human bonds
George Kateb, political theorist, Princeton, THE INNER OCEAN, 1992, p.226. (PDNSS50165)
Communitarians are usually reluctant to take in the fact that individualism redefines human bonds;
it does not foolishly try to eliminate them. In a liberal society, ideally, the state is changed into
government, and ruling into governing; society ceases imagining itself as a natural growth or
cyclical process and becomes more consensual and voluntary; and the people becomes an entity
held together by agreement rather than religion, ethnicity, a long and unforgiving memory, or the
mimesis of traditional roles and customs. Love and friendship, marriage and the family, are also
transformed. A liberal society is explicit, to an unusual degree, in its transactions and therefore in its
bonds. People are connected, yet in a new way.
Excessive deference to the laws of the community leads to injustice
Henry David Thoreau, WALDEN AND CIVIL DISOBEDIENCE (Riverside edition), 1849, p.3467. (PDNSS50175)
Law never made men a whit more just; and, by means of their respect for it, even the well-disposed
are daily made the agents of injustice. A common and natural result of an undue respect for law is,
that you may see a file of soldiers, colonel, captain, corporal, privates, powder-monkeys, and all,
marching in admirable order over hill and dale to the wars, against their wills, ay, against their
common sense and consciences, which makes it very steep marching indeed, and produces a
palpitation of the heart. They have no doubt that it is a damnable business in which they are
concerned; they are all peaceably inclined. Now, what are they? Men at all? Or small movable forts
and magazines, at the service of some unscrupulous man in power?
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AT: Rights Undermine Community
Rights air conflicts, mending relationships
Goldfarb, Associate Professor of Law, 1992 (New England Law Review, V26:665) p. 697
(PDCL2341)
Viewed through Minow’s eyes, rights talk represents a demand for public airing that makes
pre-existing conflicts “audible and unavoidable.” It is a “process by which hurts that once
were whispered or unheard have become claims, and claims that once were unsuccessful,
have persuaded others and transformed social life.” Rights, Minow argues, can remake
relationships; in relating her view, Minow helps us remake our relationship to rights. This
transformative approach to rights, adopted by movements of the disempowered, is a view that
feminist scholars and scholars of color have urged proponents of Critical Legal Studies to
embrace.
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AT: Terrorists Don’t Have Rights
Argument that the detainees are “terrorists” does not alter their constitutional rights
Judge Joyce Hens Green, Opinion, In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443;
January 31, 2005, p. 443 (HARVCL1988)
It must be added that the liberty interests of the detainees cannot be minimized for purposes of
applying the Mathews v. Eldridge balancing test by the government's allegations that they are
in fact terrorists or are affiliated with terrorist organizations. The purpose of imposing a due
process requirement is to prevent mistaken characterizations and erroneous detentions, and
the government is not entitled to short circuit this inquiry by claiming ab initio that the
individuals are alleged to have committed bad acts. See Hamdi, 124 S. Ct. at 2647 ("our
starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding
the particular detainee or the organizations with which he is alleged to have associated").
Moreover, all petitioners in these cases have asserted that they are not terrorists and have not
been involved in terrorist activities, and under the standards provided by the applicable rules
of procedure, those allegations must be accepted as true for purposes of resolving the
government's motion to dismiss.
Core of due process is protection against unlawful restraint has historically been applied to
aliens
Petitioners’ Brief on the Merits, Rasul v Bush, 2003 U.S. Briefs 334, January 22, 2004, p. 178 (HARVCL1989)
At its core, the Due Process Clause protects against unlawful bodily restraint. See, e.g., Zadvydas, 533
U.S. at 690 ("Freedom from imprisonment -- from government custody, detention, or other forms of
physical restraint -- lies at the heart of the liberty that Clause protects."). The Executive may not
imprison people for more than brief periods unless it acts pursuant to narrowly circumscribed criteria
and strict procedural restraints. Id. at 690-91 ("We have upheld preventive detention based on
dangerousness only when limited to specially dangerous individuals and subject to strong procedural
protections."); cf. Kim, 123 S.Ct. at 1720 (contrasting the "indefinite" and "potentially permanent"
detention condemned in Zadvydas with the "brief" detention upheld in Kim). n18 Statutory schemes
that subject a particular class of aliens to potential restraint have consistently been interpreted so as to
respect these principles. Aliens detained pursuant to these schemes enjoy at least the right to a fair
hearing to determine whether they fall within the defined class. See, e.g., Ludecke v. Watkins, 335
U.S. 160, 171 n.17 (1948) (administrative hearing followed by judicial review to determine whether
person detained was in fact an "enemy alien"); Carlson v. Landon, 342 U.S. 524, 540-41 (1952)
(administrative hearing followed by judicial review to determine whether detained alien was an active
member of the communist party); Kim, 123 S.Ct. at 1722 (Kennedy, J., concurring) (detainee entitled
to hearing "to demonstrate that he was not improperly included in a mandatory detention category.");
Zadvydas, 533 U.S. at 721 (Kennedy, J., dissenting on other grounds) ("Inadmissible aliens are
entitled to be free from detention that is arbitrary or capricious.").
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AT: Terrorists Don’t Have Rights
Other countries give alleged “terrorists” right to challenge detention
Global Rights, Amicus Brief, Rumsfeld v Padilla, 2003 U.S. Briefs 1027, April 12, 2004, p.
18-9 (HARVCL1990)
A principal source of this requirement under customary international law is foreign case law
reviewing challenges to alleged arbitrary detentions. n13 Judiciaries in foreign countries
facing ongoing terrorist threats have required their governments to provide detainees a
meaningful opportunity to challenge the basis of detention, even when the detainees are
suspected either of committing or conspiring to commit terrorist acts or of being members of a
terrorist organization. See, e.g., Further Hearing 7048/97, Anon. v. Minister of Defence, 54(1)
P.D. 721, 743 (2000) (permitting Hezbullah detainees the opportunity to challenge the basis
of their detentions by the Israeli government and invalidating detention past the limit of the
detainees' sentences); Queen on the Application of Abbasi & Anor. v. Secretary of State, 2003
U.K.H.R. Rep. 76 para. 60 (C.A. 2002), available at 2002 WL 31452052 (finding that "the
underlying principle, fundamental in English law, . . . that every imprisonment is prima facie
unlawful" is applicable to British citizens "in war as in peace," as "'no member of the
executive can interfere with the liberty . . . of a British subject except on the condition that he
can support the legality of his action before a court of justice.'" (quoting R v. Home Secretary
ex p. Khawaja (1984) 1 A.C. 74)). n14
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Constitution Must Always Be Followed
You must uphold the constitution
Stephen L. Carter, professor of law at Yale, 1-1986 66 B.U.L. Rev. 71, p. 83-4
The fact that any rule can constrain creative freedom is sometimes missed by those who assert
that constitutional theories fall into two categories, "interpretive" and "non-interpretive." The
error is the assumption that one school assigns to the Constitution a different importance than the
other. This simply isn't so. When Aloysius cries "intent of the Framers" and Bernadette ripostes
"emergent moral consensus" their disagreement is not over the weight to be assigned to the
Constitution, but rather over the rules that will bind the interpreter in the creative act of
transforming its symbols into policy. Paul Brest and Laurence Tribe do not respect the
Constitution any less than do Robert Bork and Raoul Berger; their argument is over what
demands that respect places on the interpreter. Each theorist's view on the best means for
channeling the creative imagination of the reader is put forth as a set of interpretive rules.] The
crucial question for many constitutional theorists is whether the rules governing interpretation
can be set out with clarity sufficient to render constitutional adjudication something other
than the judge's imposition of her own value preferences. Those I call "delegitimizers" are of
the view that mainstream liberalism cannot resolve this question: liberals, if they seek rules to
cabin judicial freedom, are stuck with a Bickelean exaltation of process and a process that
occasionally produces repugnant results. The only answer liberals can come up with, so the
argument goes, is the fundamental rights form of judicial review, that is, to ignore the process -and any coherent rules for interpretation that the process might require -- and impose better
results. But this of course is what classical liberalism forbids, for there must, in liberal theory,
be a way of recognizing law and distinguishing it from simple power. Judges in the liberal
state are to enforce this recognizable law. If they do something else -- for example, enforcing
their preferences and calling them law -- they are violating the rules that make liberal
constitutional adjudication possible. Thus the essence of the critique is not that the fundamental
rights jurisprudence reaches substantive results that are good or bad -- such notions are quite
irrelevant 54 -- but rather, that liberal political theory cannot explain it. And if even liberals
admit that they must sometimes step outside their own system in order to avoid morally
repugnant results, then their system must on its own terms be immoral.
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Rule Of Law Is Good
1. THE RULE OF LAW IS CRITICAL TO CHECK OUR TENDENCIES TO IGNORE THE
CONCERNS OF THE OTHER
Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC LAW
REVIEW, Is the Rule of Law Cosmopolitan? p. 276)
We should also be suspicious of the deadening logic to which it leads: to claims of difference
themselves traceable to the need to excommunicate and use, rather than equally regard, the lives or
services of others. To guard against this, we should assume, and insist, and re-affirm, that those
whose lives are affected by our actions are fundamentally, essentially and in material, emotional
and biological ways like us, and act accordingly. The rule of law, and the mandate of legal justice it
implies, might be best understood today as a bulwark - institutional, to be sure, but also deeply
ingrained in our nature - against our human tendency to self-servingly do otherwise.
2. THE LAW PROMOTES HUMAN SOLIDARITY
Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC LAW
REVIEW, Is the Rule of Law Cosmopolitan? pp. 276-7)
The point of law presupposed by this egalitarian and communitarian understanding of the rule of
law, is neither to preserve tradition, nor to maximize individual freedom, but rather, to ensure the
preconditions for a community of equal individuals. Law itself exists to ensure that we draw the
circle of our civic concern broadly - not just around those human beings we would be naturally
inclined to defend in any event in a state of nature, whether defined by reference to family,
neighborhood, or nationalist ties. It exists to ensure that we act on our capacity for recognizing the
equal entitlements of all persons to our considerate regard rather than act on our natural
predisposition to discredit those obligations. Law exists so as to ensure a civic fraternity even when,
or especially when, the obligations of such a fraternity impose burdens on our differentiated,
particularized, natural loyalties, and whether or not those differentiated and particularized natural
loyalties find expression in past traditions - cultural, legal or constitutional. It exists so as to
institutionalize our egalitarian and communitarian conviction that the excommunication and then
differential treatment of some for the exploitative use of others is not justified, and can never be
justified by the perceived or actual differences which that excommunication and exploitation
eventually create.
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Rule of Law Is Good
3. THERE IS NO VALUE TO LIFE IN A WORLD WITHOUT THE LAW
Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC LAW REVIEW, Is the Rule
of Law Cosmopolitan? p. 278)
A human being protected by the rule of law so conceived, is neither the creature of tradition nor the stark potential for
free will presupposed and protected by traditional and libertarian accounts of the rule of law respectively. A human
being protected by a law that exists so as to ensure the conditions of a community of equal individuals is a human being
in need, specifically of that law's protection. It is the human being with material needs, emotional ties, cultural
ambitions, and intellectual aspirations that are frustrated, denied, threatened, or annihilated by not only the natural
wilderness, but also by the flow of the unchecked antipathies and sympathies of extra-or pre-legal human nature. It is
the human being whose needs for survival are going to be denied or unmet by an unregulated market economy that
presupposes only the universalizability, and hence rationality, of will, rather than need. It is the human being whose
maternalism is denied or crushed by an unregulated social order hostile to the dependency and neediness of mothers and
children. It is the human being whose materiality and mortality are ignored by a technologically advanced warrior
society that shields the eyes and hearts of its citizens from the evidence of the bodily suffering and death that its
aggression engenders. It is the human being, with needs, capacities, ambitions, connections to others, and aspirations,
that is left outside of natural, societal, or traditional circles of concern that in turn define that person, or that person's
needs, as lesser, or as of lesser moment. The "outsider," no matter what makes her such, simply is the human being for
whom the rule of law, understood as the guarantor of those conditions that sustain a community of equal individuals,
exists. This egalitarian and communitarian understanding of the rule of law strongly implies an ethical, rather than
economic cosmopolitanism. If we should treat likes alike because justice requires it, and if justice requires it because
doing so reaffirms our conviction that, by virtue of a shared humanity, all humans should be equally regarded, and if we
sustain that conviction and institutionalize it in law precisely because of our temptation to draw our circle of
communitarian concern more narrowly, then such a mandate obviously does not stop at our borders. The mandate exists
as an injunction to question both the coherence and motivation of borders of exclusion, whether national or cultural. If
we should "treat likes alike" in law, because by so doing we create and affirm a community of equal persons, then we
obviously should be as concerned with the justice or injustice of a dropped bomb in the Sudan to fight international
terrorism as we are concerned with the injustice of a dropped bomb in Philadelphia to fight the domestic equivalent.
These are like cases. We should be as concerned with the lack of an economic safety net around the globe in those
regions making rocky transitions to market economies as we are concerned with the lack of a safety net in this country
that might cope with the same economic trauma experienced by American families. These are like cases. We should be
as outraged by the environmental costs and the lack of rights for laborers entailed by the internationalization of contract
law as we are by the miseries entailed by a deregulated laissez faire regime in our own. These are like cases. In all of
these cases, our relative nonchalance in the face of the evil visited on distant others, when contrasted with the outrage
we feel when the same evil strikes close to home, is an instance of failing to treat likes alike. In all of these cases we
reap the benefits of the state policy in question by drawing a narrow circle of egalitarian concern. Furthermore, in all of
these cases of injustice, we profit. Like Sally, we celebrate as well as enjoy the profits of industry and commerce, while
expressing the admirable concern that sometimes people get hurt, and like Sally, we are secure in our knowledge that it
is other and distant and lesser lives, rather than real people, that pay the price of our comforts.
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Rule of Law Is Good
4. THE RULE OF LAW PROTECTS US AGAINST CULTURALLY DESTRUCTIVE
UNIVERSALISM
Robin West, Professor of Law, Georgetown University Law Center, 2000 (QUINNAPAC LAW
REVIEW, Is the Rule of Law Cosmopolitan? , p. 259)
This traditional account of the rule of precedent, of legal justice and the rule of law, is not simply
non-cosmopolitan; it is anti-cosmopolitan. The very point of precedent, and of law, so understood,
is to forge a cultural or national identity separate and distinct from undifferentiated humanity; it is
to create and maintain bonds of civic obligation distinctively grounded in particularistic tradition
rather than in universal essence. We treat likes alike - masters like masters, servants like servants,
one promise backed by consideration like another promise backed by consideration - because by
doing so we create, affirm and differentiate particular and shared identities, and by doing so, we
create, affirm and differentiate our culture from all others. We do all of this, in part, through law.
Law should be valued, then, not only and not primarily because it handily insures order, safety, a
less brutal, longer, and possibly freer life for all, but precisely because it wards off the danger of a
creeping cosmopolitan universalism - a universalism that threatens our national identity, and hence
our human and cultural identity, profoundly.
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*** Related – Internment Still Possible
Korematsu is still “good” law
David Harris, law professor, Missouri Law Review, Winter, 2011, On the Contemporary
Meaning of Korematsu: "Liberty Lies in the Hearts of Men and Women" p. 2-3
When the Court decided the case in 1944, the United States was at war with Japan, and with
this came considerable suspicion of anyone who looked Japanese. Since 2001, America has
faced another external threat - this time, from al Qaeda terrorists - and, once again, there is
fear of those who resemble them or who come from the same ethnic or religious group. Thus,
the principle of law Korematsu articulated no longer constitutes a relic of a past era; rather, it
poses a set of live questions. Since Americans face a foreign threat from an identifiable group,
can the government discriminate against that particular group, as it did in Korematsu? Can the
government discriminate with no evidence of any particular wrongdoing by identifiable
persons? Before the [*3] terrorist attacks of September 11, 2001 (9/11), these questions
would have seemed unthinkable, but no longer. Now, many believe that the time has come to
dust off Korematsu and apply its principles once again. n6 Contrary to widespread belief,
Korematsu does not require a revival; it remains alive - it is "good law" in legal parlance.
Nothing in American constitutional law would keep any branch of government from relying
on Korematsu. n7
The Korematsu precedent is not dead
David Harris, law professor, Missouri Law Review, Winter, 2011, On the Contemporary
Meaning of Korematsu: "Liberty Lies in the Hearts of Men and Women" p. 12-13
But a closer look reveals that what Mark Twain once said of himself n52 also goes for
Korematsu: reports of Korematsu's death have been greatly exaggerated. To put the matter in the
legal vernacular, Korematsu remains "good law" - a case that continues to stand as governing
law, and which has never actually been overruled. In fact, Korematsu continues to serve as
authority for Supreme Court rulings well into the present era. It retains more vitality than most
observers either realize or admit, and, for that and other reasons discussed here, the case has
continuing relevance.
1. Not Overruled
The first thing to notice about Korematsu might seem the most obvious: no court has ever
overruled the case. The Court never overturned its decision, and no lower federal court has
ever refused to follow the case as law. Thus, to paraphrase Laurence Tribe's observation, n53
regardless of the verdict of the court of history, no court of law has ever disturbed the case.
n54
But surely, observers might say, this overlooks the actions and the opinion of the court that
threw out Mr. Korematsu's conviction in 1984. n55 That [*13] decision cannot appear as
anything but a repudiation of the Court's Korematsu opinion, because it even points out that
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the Court's 1944 opinion rested on lies and untruths. n56 Surely this undermines Korematsu it could not possibly withstand analysis now.
However, that reading of the 1984 opinion vacating the conviction does not really grasp the
essence of what the district court did: it reversed the conviction because of egregious errors of
fact introduced into the record by the government. The 1984 decision that overturned the
conviction was based on a writ of coram nobis. n57 The writ allows the reviewing court to
correct errors of fact, but nothing more. n58 Judge Marilyn Hall Patel, who heard the petition
for the writ of coram nobis in 1984, carefully noted that her decision reversing the conviction
did not, in any way, change or challenge the legal principles laid out by the Supreme Court in
the original Korematsu case in 1944. n59 The court's decision did not reach any errors of law.
n60 The writ of coram nobis, Judge Patel said, is "not used to correct legal errors and this
court has no power, nor does it attempt, to correct any such errors. Thus, the Supreme Court's
decision stands as the law of this case and for whatever precedential value it may still have."
n61 Judge Patel did what the law allowed and took the action that the facts required: she
called the government's factual basis for the internment of Mr. Korematsu nothing but a
combination of lies and racism without substance, as the new evidence showed, and she
righted the monstrous wrong done to Mr. Korematsu by vacating his conviction. But, just as
importantly, she did no more, because the writ of coram nobis would not allow her to do
more.
2. Korematsu as the Source of Suspect Class Analysis Under the Equal Protection Clause
Korematsu may have a different meaning for lawyers whose careers began less than twenty
years ago than it does for those whose careers began earlier. For the post-World War II
generations - attorneys who came of age professionally in the 1950s and 1960s - Korematsu
embodied the Japanese internment. But for those who came later, the case might have an
entirely different primary importance. The Supreme Court has used Korematsu in majority
opinions, concurrences, and dissents to establish the important principle that the government's
use of racial distinctions in the treatment of its [*14] citizens is immediately suspect.
Korematsu lives today primarily because it serves as the source of suspect class analysis and
strict scrutiny. The heart of Justice Black's majority opinion began by declaring:
All legal restrictions which curtail the civil rights of a single racial group are immediately
suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts
must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify
the existence of such restrictions; racial antagonism never can. n62
If history has overruled the majority opinion and vindicated the dissenters, as Laurence Tribe
said, n63 Justice Black's analysis of discrimination under the Equal Protection Clause still
stands. Indeed, the Supreme Court's modern thinking about equal protection begins with
Korematsu. Every subsequent case that construes the Equal Protection Clause descends
directly from Korematsu.
For example, in the 1967 case Loving v. Virginia, the Supreme Court addressed the
constitutionality of Virginia's miscegenation law. n64 The statute at issue made it a criminal
offense for a white person and a black person to leave the state to marry and return to Virginia
to live together as spouses. n65 The Supreme Court found the law unconstitutional, and its
discussion of why the law violated the Equal Protection Clause put Korematsu in a central
position. "At the very least, the Equal Protection Clause demands that racial classifications,
especially suspect in criminal statutes, be subjected to the 'most rigid scrutiny,'" the Court
said, quoting Justice Black's key phrase. n66 The statutory scheme could pass muster under
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the Korematsu standard only if the racial classifications it established proved necessary to
accomplish a "permissible state objective, independent of the racial discrimination which it
was [*15] the object of the Fourteenth Amendment to eliminate." n67 Virginia's
miscegenation law failed this test. n68
Loving's embrace of Korematsu's Equal Protection Clause standard did not prove an
anomaly. n69 In fact, this standard has carried over into many equal protection cases testing
various contemporary claims involving racial classifications by the government. In Adarand
Constructors, Inc. v. Pena, a 1995 case challenging affirmative action based minority set
asides, the Court invoked the key phrases of Korematsu. n70 "'All legal restrictions which
curtail the civil rights of a single racial group are immediately suspect . . . and courts must
subject them to the most rigid scrutiny.'" n71 In Missouri v. Jenkins, a school desegregation
case, the Court relied on Korematsu when it declared that "we must subject all racial
classifications to the strictest of scrutiny," which was almost always fatal to the government's
action. n72 In Grutter v. Bollinger, one of the Court's two most recent cases challenging
affirmative action in university admissions, n73 the Court quoted portions of Loving and
Adarand Constructors (both of which referenced Korematsu's equal protection standard) to
declare that governments cannot treat people differently based on race without a compelling
reason. n74 In an even more recent case, Parents Involved in Community Schools v. Seattle
School District No. 1, n75 Justice Thomas amplified the point in his concurring opinion. "We
have made it unusually clear that strict scrutiny applies to every racial classification," he said,
citing as authority the passage in Adarand Constructors. n76 Thomas also noted that strict
scrutiny applied to racial classifications as early as 1967 in Loving, which relied upon
Korematsu. n77 [*16]
Thus, even though it seems a bit paradoxical, Korematsu lives as a vital part of the modern
equal protection jurisprudence. The case and its direct descendants still show up in
contemporary cases. n78 Of course, when current decisions cite Korematsu, they do so not to
show acceptance of racial discrimination but to support discussion concerning the odiousness
of these practices. Thus, for current law students reading only modern cases, Korematsu will
stand out as one of the great cases presaging and supporting the dawning of the civil rights
era. As Professors John Nowak and Ronald Rotunda wrote, "if you only read the cases citing
Korematsu, and not Korematsu, itself, you would never know Mr. Korematsu lost." n79
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*** Additional Bibliographic Resources ***
This note examines the Ninth Circuit's decision in United States v. Aukai n4 that held that
airport screenings are justifiable under the administrative search exception to the
Fourth Amendment, and that consent is not required to conduct these searches. n5 The
note will explore airport security searches by first briefly discussing the Fourth Amendment
and giving an overview of its requirements and exceptions to the rule.
See Andrea J. Ritchie & Joey L. Mogul, In the Shadows of the War on Terror: Persistent
Police Brutality and Abuse of People of Color in the United States, 1 DEPAUL J. SOC.
JUST. 175, 208 (2008).
Id. But see Timothy M. Ravich, Is Airline Passenger Profiling Necessary?, 62 U. MIAMI L.
REV. 1, 41 n.191 (2007) (citing Naureen Kamdar, Editorial, Muslim Americans Are
Americans, Too: Airport Security's Stereotypical Act Shames System, ATLANTA J.
CONST., Feb. 20, 2007, at A11).
See Ruth Singer, Race Ipsa? Racial Profiling, Terrorism and the Future, 1 DEPAUL J. SOC.
JUST. 293, 299-300 (2008
Ric Simmons, Searching for Terrorists: Why Public Safety Is Not a Special Need, 59 DUKE
L.J. 843, 850 (2010).
Kyle P. Hanson, Note, Suspicionless Terrorism Checkpoints Since 9/11: Searching for
Uniformity, 56 DRAKE L. REV. 171, 172 (2007).
See Julie Solomon, Comment, Does the TSA Have Stage Fright? Then Why Are They
Picturing You Naked?, 73 J. AIR L. & COM. 643, 646-47 (2008).
Tobias W. Mock, Comment, The TSA's New X-Ray Vision: The Fourth Amendment
Implications of "Body-Scan" Searches at Domestic Airport Security Checkpoints, 49 SANTA
CLARA L. REV. 213, 218-19 (2009).
Justin Florence & Robert Friedman, Profiles in Terror: A Legal Framework for the
Behavioral Profiling Paradigm, 17 GEO. MASON L. REV. 423, 428 (2010).
U.S. DEP'T OF HOMELAND SEC., PRIVACY IMPACT ASSESSMENT FOR THE
SCREENING OF PASSENGERS BY OBSERVATION TECHNIQUES (SPOT) PROGRAM
2 (2008), available at http://www.dhs.gov/xlibrary/assets/ privacy/privacy_pia_tsa_spot.pdf.
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Cam Simpson & Daniel Michaels, TSA Pressed on Full-Body Scans Despite Concerns,
WALL ST. J., Jan. 9, 2010, at A2, available at
http://online.wsj.com/article/SB126296286103421603.html.
ACLU Backgrounder on Body Scanners and "Virtual Strip Searches," ACLU (Jan. 8, 2010),
http://www.aclu.org/technology-and-liberty/aclu-backgrounder-body-scanners-and%E2%80%9Cvirtual-strip-searches%E2%80%9D; ACLU Urges Senate to Examine TSA's
Privacy Violations in Post-9/11 Record, ACLU (Oct. 16, 2010), http://www.aclu.org/nationalsecurity/aclu-urges-senate-examine-tsa%E2%80%99s-privacy-violations-post-911-record; see
also Mock, supra note 26, at 229.
Gary Stoller, Backlash Grows Vs. Full-Body Scanners, Fliers Worry About Privacy, Health
Risks, USA TODAY, July 13, 2010, at A1, available at http://www.usatoday.com
money/industries/travel/2010-07-13-1Abodyscans13_ST_N.htm (providing one frequent
traveler's lamentations on the length of the procedure).
n77 Statement of Timothy D. Sparapani, ACLU Legislative Counsel, at a Hearing Regarding
the U.S. Transportation Security Administration's Physical Screening of Airline Passengers
and Related Cargo Screening Before the U.S. Senate Committee on Commerce, Science, and
Transportation, ACLU, http://www.aclu.org/cpredirect/24856 (last visited Nov. 18, 2010).
See generally EPIC v. Department of Homeland Security - Body Scanners, ELEC.
PRIVACY INFO. CTR., http://epic.org/privacy/airtravel/backscatter/epic_v_dhs.html (last
visited Nov. 18, 2010).
See Tobias W. Mock, The TSA's New X-Ray Vision: The Fourth Amendment Implications of
"Body--Scan" Searches at Domestic Airport Security Checkpoints, 49 SANTA CLARA L.
REV. 213, 215 (2009).
n4 497 F.3d 955 (9th Cir. 2007).
n25 United States v. Davis, 482 F.2d 893, 905 (9th Cir. 1973) (overruled by U.S. v. Aukai,
497 F.3d 955 (9th Cir. 2007)).
n1 Transp. Sec. Admin., BDOs SPOT More Than Just Opportunities at TSA [hereinafter
BDOs SPOT], http://www.tsa.gov/press/happenings/bostonbdospot.shtm (last visited Oct. 16,
2009); see also Kip Hawley, Assistant Sec'y, U.S. Dep't of Homeland Sec., Transp. Sec.
Admin., Prepared Statement Before the United States Senate Committee on Commerce,
Science, and Transportation (Jan. 17, 2007), available at
http://www.tsa.gov/press/speeches/aircargotestimony.shtm.
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n4 Transp. Sec. Admin., Master Transportation Security Officer--Behavior Detection Officer,
http://www.tsa.gov/join/benefits/soar/tsa/masterbdo.shtm (last visited Nov. 19, 2009)
[hereinafter Master Transportation Security Officer]; see also Press Release, Transp. Sec.
Admin., TSA Expands Career Opportunities for Transportation Security Officers (July 17,
2006) [hereinafter TSA Expands Career Opportunities], available at
http://www.tsa.gov/press/releases/2006/pressrelease0684.shtm.
n5 Sally B. Donnelly, A New Tack for Airport Screening: Behave Yourself, TIME, May 17,
2006, http://www.time.com/time/nation/article/0,8599,1195330,00.html.
Lenese Herbert, Othello Error: Facial Profiling, Privacy, and the Suppression of Dissent, 5
OHIO ST. J. CRIM. L. 79, 82 (2007); Ekman, supra note 8.
Bernard E. Harcourt, Behavioral Profiling at U.S. Airports (Aug. 20, 2006), http://www.law.
uchicago.edu/files/files/harcourt-search-defend.pdf.
n35 David A. Harris, New Risks, New Tactics: An Assessment of the Re-Assessment of
Racial Profiling in the Wake of September 11, 2001, 2004 UTAH L. REV. 913, 941.
n57 Clive Thompson, Why the Next Civil Rights Battle Will Be Over the Mind, WIRED,
Mar. 24, 2008, http://www.wired.com/techbiz/people/magazine/16-04/stthompson.
n59 Allison Barrie, Homeland Security Detects Terrorist Threats by Reading Your Mind,
FOX NEWS, Sept. 23, 2008,
http://www.foxnews.com/printerfriendlystory/0,3566,426485,00.html.
n71 See, e.g., Justin Florence, Note, Making the No Fly List Fly: A Due Process Model for
Terrorist Watchlists, 115 YALE L.J. 2148, 2152 (2006).
n83 We do not address religious profiling. On that, see Murad Hussain, Note, Defending the
Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to
Counterterrorism Profiling, 117 YALE L.J. 920 (2008).
n84 R. Richard Banks, Racial Profiling and Antiterrorism Efforts, 89 CORNELL L. REV.
1201, 1206 (2004);
n12. Transportation Security Administration, Where We Stand: TSA Trains Hard for New
Threats, http://www.tsa.gov/press/where_we_stand/training.shtm (last visited January 1,
2010).
n13. Transportation Security Administration, Behavior Detection Officers (BDO): Layers of
Security, http://www.tsa.gov/what_we_do/layers/bdo/index.shtm (last visited Jan. 3, 2010)
(the BDOs are "designed to detect individuals exhibiting behaviors that indicate they may be a
threat to aviation and/or transportation security").
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Liliana Segura, Feeling Nervous? 3,000 Behavior Detection Officers Will Be Watching You
at the Airport This Thanksgiving, AlterNet, Nov. 24, 2009
(http://www.alternet.org/rights/144101/feeling_nervous_3,000_behavior_detection_officers_
will_be_watching_you_at_the_airport_this_thanksgiving).
Comment from Phil Boyer, President, Aircraft Owners and Pilots Ass'n, to Ellen Crum, U.S.
Dep't of Transp. (Nov. 2, 2005), available at http://www.aopa.
org/whatsnew/newsitems/2005/051102aopa-comments.pdf [hereinafter AOPA Comment].
Paul Stephen Dempsey, Aviation Security: The Role of Law in the War Against Terrorism, 41
Colum. J. Transnat'l L. 649, 653 (2003). Professor Dempsey notes that in 1968 there were
thirty successful hijackings, seventeen of which had U.S. registration. Id. In 1969 there were
eighty-two, more than in all previous years combined. Id.
n23. Paul R. Verkuil, Symposium: Terrorism, Globalization and the Rule of Law: The
Publicization of Airport Security, 27 Cardozo L. Rev. 2243, 2244 (2006).
n119. Scott McCartney, Is Tougher Airport Screening Going Too Far?, The Wall Street
Journal, July 16, 2009 available at
http://online.wsj.com/article/SB10001424052970204556804574261940842372518.html.
n122. Wilber and Nakashima, Searching Passengers' Faces for Subtle Clues to Terror, Wash.
Post, Sept. 19, 2007, at D01.
Behavior Detection Program Hitting Stride with TSA, SecuritySolutions.com, Jan. 8, 2008
http://securitysolutions.com/news/tsa-behavior-detection/.
Albert W. Alschuler, Racial Profiling and the Constitution, 2002 University of Chicago Legal
Forum 163 at n.24 (2002).
Generally, decoding facial expression requires analyzing many different factors associated
with the face, taking master decoders several hours to interpret. Id. See also Patti Davis, Smile
... Or Else:"Behavior Detection Officers' Are Now Watching Passengers' Facial Expressions
for Signs of Danger, Newsweek, 2007 (reprinted at http://www.911blogger.com/node/10721)
(last visited January 2, 2010); and Dr. John M. Grohol, Behavior Detection Officers at U.S.
Airports, World of Psychology, http://psychcentral.com/blog/archives/2007/08/18/behaviordetection-officers-at-us-airports/ (last visited January 2, 2010).
n275. Transportation Security Administration, The Truth Behind the Title: Behavior
Detection Officer, The TSA Blog, Feb. 29, 2008 available at
http://blog.tsa.gov/2008/02/truth-behind-title-behavior-detection.html (last visited Sept. 1,
2010) (noting that behavior analysis is "based on the fear of being discovered").
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n292. Jim Harper, Not Just a Program with Problems, a Program with Constitutional
Problems, Cato@Liberty, Nov. 21, 2008 http://www.cato-at-liberty.org/2008/11/21/not-justa-program-with-problems-a-program-with-constitutional-problems/ (last visited 10.27.2009).
n296. Sammy Elrom, TSA and Aviation Security: What is Wrong with Their Concepts and
Strategy, Global Politician, Oct. 12, 2007.
n298. Cynthia Boll, Can Airport Body Scanners Stop Terrorist Attacks?, Time.com, Jan. 5,
2010 available at http://www.time.com/time/world/article/0,8599,1951529,00.html (last
visited Aug. 31, 2010).
n300. Donnell, Sally B., A New Tack for Airport Screening: Behave Yourself, Time.com,
May 17, 2006.
n301. Transportation Security Administration, Behavior Detection Officers (BDO) Layers of
Security, http://www.tsa.gov/what_we_do/layers/bdo/index.shtm (last visited Jan. 3, 2010).
John Derbyshire, In Defense of Racial Profiling: Where is Our Common Sense?, National
Review, Feb. 19, 2001 (available at
http://www.nationalreview.com/19feb01/derbyshire021901.shtml). "Which is to say, massive
declines in the apprehension of criminals." Id.
n24. See John Ashcroft, Never Again: Serving America and Restoring Justice 124-26, 133
(2006) (describing a need for new infrastructure and a culture of preventing terrorism rather
than prosecuting terrorist crimes). See also infra note 25.
Tillie Fong, Ashcroft Defends the Patriot Act, RockyMountainNews.com, Nov. 28, 2007,
http://www.rockymountainnews.com/news/2007/nov/28/ashcroft-defends-the-patriot-act/.
Seth Kreimer, Watching the Watchers: Surveillance, Transparency, and Political Freedom in
the War on Terror, 7 U. Pa. J. Const. L. 133 (2004).
See also generally Richard Henry Seamon, Domestic Surveillance For International
Terrorists: Presidential Power and Fourth Amendment Limits, 35 Hastings Const. L.Q. 449
(2008) (placing unilateral executive actions in historical and constitutional perspective);
James G. McAdams III, Foreign Intelligence Surveillance Act (FISA): An Overview, U.S.
Dep't of Homeland Sec., March 2007, http://www.fletc.gov/training/programs/legaldivision/downloads-articles-and-faqs/articles/foreign-intelligence-surveillance-act.html/.
Dan Fenske, Comment, All Enemies, Foreign and Domestic: Erasing the Distinction Between
Foreign and Domestic Intelligence Gathering Under the Fourth Amendment, 102 Nw. U. L.
Rev. 343, 353-55 (2008).
See, e.g., Adam Burton, Fixing FISA For Long War: Regulating Warrantless Surveillance in
the Age of Terrorism, 4 Pierce L. Rev. 381, 386-89 (2006);
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Beryl A. Howell & Dana J. Lesemann, FISA's Fruits in Criminal Cases: An Opportunity For
Improved Accountability, 12 UCLA J. Int'l L. & Foreign Aff., 145, 147-51 (2007
); Richard Henry Seamon, Domestic Surveillance For International Terrorists: Presidential
Power and Fourth Amendment Limits, 35 Hastings Const. L.Q. 449 (2008);
William Pollack, Note, Shu'ubiyya or Security? Preserving Civil Liberties by Limiting FISA
Evidence to National Security Prosecutions, 42 U. Mich. J.L. Reform 221, 224-31 (2008).
See also John Cary Sims, How the Bush Administration's Warrantless Surveillance Program
Took the Constitution on an Illegal, Unnecessary, and Unrepentant Joyride, 12 UCLA J. Int'l
L. & Foreign Aff. 163 (2007).
n95. See, e.g., Concerning the Foreign Intelligence Surveillance Act: Hearing on S. 2248
Before the S. Comm. On the Judiciary, 110th Cong. (2007) (statement of Kenneth L.
Wainstein, Assistant Attorney General, National Security Division, Department of Justice),
available at http://www.justice.gov/archive/ll/docs/final-wainstein-sjc-testimony-103007.pdf;
Michael B. Mukasey, Op-Ed., A FISA Fix, L.A. Times, Dec. 12, 2007, at 31; Eric Lichtblau,
Deal is Struck to Overhaul Wiretap Law, N.Y. Times, June 20, 2008, at A1.
. See U.S. Dep't of Justice, National Security Division: Mission and Function,
www.justice.gov/nsd/bio.htm (last visited Jan. 29, 2010). He has written a detailed study of
the wall.
See David S. Kris, The Rise and Fall of the FISA Wall, 17 Stan. L. & Pol'y Rev. 487 (2006).
Kris is no supporter of the wall, but his description of its history is more measured than that of
most articles by people on either side of such hot-button topics.
Robert Bloom & William J. Dunn, The Congressional Infirmity of Warrantless NSA
Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment, 15
Wm. & Mary Bill Rts. J. 147 (2006); Burton, supra note 60; Pikowsky, supra note 94.
See Anthony C. Coveny, When the Immovable Object Meets the Unstoppable Force: Search
and Seizure in the Age of Terrorism, 31 Am. J. Trial Advoc. 329 (2007).
Saletan, supra note 67; see also Transportation Security Administration, Our Approach:
Mythbusters, http://www.tsa.gov/approach/mythbusters/liquids ban.shtm (last visited Aug. 30,
2008).
n108. See Transportation Security Administration, Our Approach: Whole Body Imaging,
http://www.tsa.gov/approach/tech/body imaging.shtm (last visited Sept. 11, 2008).
n138. Barbara Yost, Nudity Has Become an Option, Globe and Mail (Toronto), Apr. 25,
2007, at R6, available at
http://www.theglobeandmail.com/servlet/story/RTGAM.20070425.wphoenix25/BNStory/Per
sonalTech/home.
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