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NSA still has sufficient surveillance authority despite the PATRIOT Act expiration


Salon, 6/1/2015 ( Marcy Wheeler. “Reports of the Patriot Act’s death are greatly exaggerated,” http://www.salon.com/2015/06/01/reports_of_the_patriot_acts_death_are_greatly_exaggerated/)

The PATRIOT Act-authorized phone dragnet expired last night. For the first time since 2006, the NSA won’t receive records of the phone calls you make within the United States. But that doesn’t mean spying on Americans has stopped. The NSA still obtains records of calls — potentially all calls — you make with people overseas. It still tracks Americans’ Internet communications using metadata obtained overseas. The FBI can still access the content of any communications Americans have with foreigners targeted under PRISM without a warrant or even any evidence of wrong doing. FBI can still, and indeed does, obtain phone records of individuals in conjunction with national security investigations without any court review. Not even the spying conducted under Section 215 — the authority that had been used to collect all of Americans’ phone records, but which is also used to collect certain kinds of Internet data — or the two other expiring provisions will stop. Because they’re tied to more focused investigations (though the Internet collection is probably not targeted at one individual), they will probably continue under a grandfather clause allowing ongoing investigations using those authorities to continue.

Broad authority in domestic surveillance is necessary for counterterrorism – targeted searches restricts preventative measures


Posner 2008 (Richard, Judge, United States Court of Appeals for the Seventh Circuit; Senior Lecturer in Law, The University of Chicago. “Privacy, Surveillance, and Law,” 75 University of Chicago Law Review 245, http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2808&context=journal_articles)

What is most notable about the amendments, as indeed of the Terrorist Surveillance Program to which they seem addressed, is their backing away from reliance on warrants to prevent abuses of electronic surveillance. The warrant is a poorly designed means for balancing the security and liberty interests involved in counterterrorist surveillance. It is true that instead of requiring probable cause to believe that the target of an interception is a terrorist, FISA could be amended to require merely reasonable suspicion. But even that would be too restrictive from the standpoint of effective counterterrorism; effective surveillance cannot be confined to suspected terrorists when the object is to discover who may be engaged in terrorism or ancillary activities. Further attenuation of FISA's standard for obtaining a warrant might be possible without running afoul of the Fourth Amendment. Conceivably the issuance of a warrant could be authorized on the basis of a showing that while the target was probably not a terrorist, national security required making assurance doubly sure by inter- cepting some of his electronic communications. A model might be the criterion for issuing a search warrant to the Canadian Security Intelligence Service, where a warrant can be issued on the basis of a factually supported "belief, on reasonable grounds, that [it] ... is required to enable the Service to investigate a threat to the security of Canada." 9 Such a criterion might pass muster under the Fourth Amendment, which requires probable cause for the issuance of a warrant but does not state what it is that there must be probable cause to believe. The Supreme Court has said that there must be probable cause to believe that the search will yield contraband or evidence of crime when the search is part of a criminal investigation." The Constitution binds the government more tightly when it is exerting its powers to convict people of crimes than in other areas of government activity. A search intended not to obtain evidence of crime but to obtain information about terrorism might, as under Canadian law, require only probable cause to believe that the search would yield such information. The lower the standard for getting a warrant, however, the more porous the filter that the requirement of a warrant creates, bearing in mind the ex parte character of a warrant proceeding. If all the application need state is that an interception might yield data having value as intelligence, judges would have no basis for refusing to issue the warrant. Alternatively, reliance on warrants could invite legislation to expand the reach of the criminal laws relating to terrorism in order to make it easier to establish probable cause to believe that a search will reveal evidence of a crime. That expansion could raise issues under the First Amendment, since the natural route for expanding criminal laws against terrorism is to criminalize extremist speech or even attendance at extremist (though peaceful) speeches and rallies, as activities that may be preparatory to or encouraging of terrorism. Warrants that satisfy FISA's standard as traditionally understood should continue to be required for all physical searches, because they are far greater intrusions on privacy than electronic interceptions, and for all electronic surveillance for which FISA's existing probable cause requirement can reasonably be satisfied (mainly cases in which the government wanted to intercept communications of a person who they had probable cause to believe was a terrorist). With these exceptions, civil libertarians' preoccupation with warrants is not only harmful to national security (and possibly to civil liberties if it induces legislation to expand the reach of the criminal law) but also anachronistic. The government's ready access to the vast databases that private and public entities compile for purposes unrelated to national security has enabled it to circumvent much of the protection of privacy that civil libertarians look to warrant requirements to secure. There are a number of possible measures, apart from requiring warrants, that Congress could adopt in order to minimize abuses of domestic surveillance. If all were adopted, the risk of such abuses would be slight. The temporary FISA amendments take tiny steps in this direction. Bolder steps would include the following: 1. Congress could create a steering committee for national security electronic surveillance, composed of the attorney general, the director of national intelligence, the secretary of homeland security, and a retired federal judge or justice appointed by the chief justice of the Supreme Court. The committee would monitor all such surveillance to assure compliance with the Constitution and federal statutes. The requirement in the temporary amendments that the attorney general and the director of national intelligence devise procedures for a new warrantless surveillance program is one of the tiny steps to which I referred." The other, and legally dubious one, is requiring submission of the procedures for approval by the Foreign Intelligence Surveillance Court; that court becomes in effect the steering committee. 2. The NSA could be required to submit to the steering committee, to departmental inspectors general, to the Privacy and Civil Liberties Oversight Board (a White House agency created by the Intelligence Reform Act), to the congressional intelligence and judiciary committees, and to an independent watchdog agency of Congress modeled on the GAO every six months a list of the names and other identifying information of all persons whose communications had been intercepted in the previous six months without a warrant, with a brief statement of why these persons had been targeted. 3. The responsible officials of the NSA could be required to certify annually to the watchdog groups that there had been no violations of the statute during the preceding year. False certification would be punishable as perjury. But lawsuits challenging the legality of the Terrorist Surveillance Program should be precluded. Such lawsuits would distract officials from their important duties to no purpose if the kind of statute that I am suggesting were enacted. The statute should sunset after five years. 4. The use of intercepted information for any purpose other than investigating threats to national security would be forbidden. Information could not be used as evidence or leads in a prosecution for ordinary crime-this to alleviate concern that wild talk bound to be picked up by electronic surveillance would lead to criminal investigations unrelated to national security. Violations of this provision would be made felonies punishable by substantial prison sentences and heavy fines. But the punishments must not be made too severe lest they cause intelligence officers to steer so far clear of possible illegality that they fail to conduct effective surveillance. The risk of abuses is not great enough to justify savage penalties in order to deter them, because intelligence officers have no interest in assisting in the enforcement of criminal laws unrelated to national security. A neglected point is that violations of privacy and civil liberties tend to emanate from the White House and the top management level of executive branch agencies rather than from the working or middle-management levels. 5. To limit the scope of surveillance, "threats to national security" should be narrowly defined as threats involving a potential for mass deaths or catastrophic damage to property or to the economy. That would exclude, for the time being anyway, ecoterrorism, animal-rights terrorism, and other political violence that, though criminal, does not threaten catastrophic harm (yet). Congressional action is also needed to protect the phone companies that cooperated with the NSA's surveillance program from potentially immense liability for allegedly having violated federal law protecting the privacy of telephone records; a number of suits are pending. The intelligence system is enormously dependent on informal assistance from private companies in communications, banking, and other industries. At times such assistance is made a legal duty, as in the federal law requiring banks to report cash transactions of $10,000 or more; and this is also a feature of the new amendments to FISA. Were it not for the threat of liability, which the amendments do not address, voluntary assistance would probably as in the past be all the government needed. But if voluntary assistance-even when tendered in a national emergency, as in the wake of the 9/11 terrorist attacks- places companies in legal jeopardy, such assistance will dry up. FISA needs to be amended not only to authorize more extensive domestic surveillance than its anachronistic terms permit but also to insulate from liability conduct that may have violated the Act or some other statute but that would be permitted under the amended regime. Until the temporary amendments were enacted, the type of approach that I am advocating (call it the "nonwarrant" approach) for regularizing domestic surveillance was getting little attention from Congress and the Bush Administration, possibly because the Administration wanted to retain a completely free hand and thought it could fend off the sort of restrictions that I have sketched. (It is remarkable how tepid the public reaction to the Terrorist Surveillance Program has been.) A related possibility is that the Administration's aggressive claims of presidential power prevented it from acknowledging the legitimacy of congressional controls over intelligence and hence of a legislative solution to the controversy over the program. Still another possibility was (and is) that because no one is in charge of domestic intelligence, authority over which is divided among the attorney general, the FBI director, the Department of Homeland Security, and the director of national intelligence (among others), no one is formulating a comprehensive legislative and public relations strategy for ending the controversy over the role of electronic surveillance in such intelligence. (At this writing, the only confirmed senior official in the Justice Department is the solicitor general.) And another possibility is the grip of our legalistic culture, which makes us think that the regulation of national security must be modeled on the regulation of criminal law enforcement. The temporary amendments suggest, however, that the logjam may be breaking, though one of the reasons, it appears, is that the Administration's decision to bring the Terrorist Surveillance Program under FISA resulted in a paper jam at the Foreign Intelligence Surveillance Court as the number of warrant applications soared. We should be playing to our strengths, and one of the greatest of them is technology. We may not be able to prevail against terrorism with one hand tied behind our back. Critics of surveillance argue that since our enemies know that we monitor electronic communications, they will foil us by simply ceasing to use such communications. That is wrong. We know it is wrong because we do intercept terrorist communications. 24 But if it were true that our monitoring caused the terrorists to abandon the telephone and the internet, that would be an enormous victory for counterterrorism, as it is extremely difficult to coordinate and execute a major terrorist attack if all communications among the plotters must be face to face to avoid detection. The greater danger is that encryption and other relatively cheap and simple countermeasures will defeat our surveillance. Opponents of efforts to amend FISA point out that the Foreign Intelligence Surveillance Court has almost never turned down an application for a warrant. In 2005, for example, although more than 2,000 applications were filed, not a single one was denied in whole or in part. 5 The inference the critics wish drawn is that FISA is not inhibiting surveillance. The correct inference is that the Justice Department is too conservative in seeking warrants. The analogy is to a person who has never missed a plane in his life because he contrives always to arrive at the airport eight hours before the scheduled departure time. The effect of our legalistic culture is to cause law enforcement agencies, notably the FBI, to avoid not only violating the law but also steering so close to the wind that they might be accused, albeit groundlessly, of violating the law or of being "insensitive" to values that inform the law, even when those values have not been enacted into law.

Nuclear terrorism risks extinction --- high probability


Hellman 2008 (Martin E. Hellman, emeritus prof of engineering @ Stanford, “Risk Analysis of Nuclear Deterrence” SPRING 2008 THE BENT OF TAU BETA PI, http://www.nuclearrisk.org/paper.pdf)

The threat of nuclear terrorism looms much larger in the public’s mind than the threat of a full-scale nuclear war, yet this article focuses primarily on the latter. An explanation is therefore in order before proceeding. A terrorist attack involving a nuclear weapon would be a catastrophe of immense proportions: “A 10-kiloton bomb detonated at Grand Central Station on a typical work day would likely kill some half a million people, and inflict over a trillion dollars in direct economic damage. America and its way of life would be changed forever.” [Bunn 2003, pages viii-ix]. The likelihood of such an attack is also significant. Former Secretary of Defense William Perry has estimated the chance of a nuclear terrorist incident within the next decade to be roughly 50 percent [Bunn 2007, page 15]. David Albright, a former weapons inspector in Iraq, estimates those odds at less than one percent, but notes, “We would never accept a situation where the chance of a major nuclear accident like Chernobyl would be anywhere near 1% .... A nuclear terrorism attack is a low-probability event, but we can’t live in a world where it’s anything but extremely low-probability.” [Hegland 2005]. In a survey of 85 national security experts, Senator Richard Lugar found a median estimate of 20 percent for the “probability of an attack involving a nuclear explosion occurring somewhere in the world in the next 10 years,” with 79 percent of the respondents believing “it more likely to be carried out by terroriststhan by a government [Lugar 2005, pp. 14-15]. I support increased efforts to reduce the threat of nuclear terrorism, but that is not inconsistent with the approach of this article. Because terrorism is one of the potential trigger mechanisms for a full-scale nuclear war, the risk analyses proposed herein will include estimating the risk of nuclear terrorism as one component of the overall risk. If that risk, the overall risk, or both are found to be unacceptable, then the proposed remedies would be directed to reduce which- ever risk(s) warrant attention. Similar remarks apply to a number of other threats (e.g., nuclear war between the U.S. and China over Taiwan). his article would be incomplete if it only dealt with the threat of nuclear terrorism and neglected the threat of full- scale nuclear war. If both risks are unacceptable, an effort to reduce only the terrorist component would leave humanity in great peril. In fact, society’s almost total neglect of the threat of full-scale nuclear war makes studying that risk all the more important. The cosT of World War iii The danger associated with nuclear deterrence depends on both the cost of a failure and the failure rate.3 This section explores the cost of a failure of nuclear deterrence, and the next section is concerned with the failure rate. While other definitions are possible, this article defines a failure of deterrence to mean a full-scale exchange of all nuclear weapons available to the U.S. and Russia, an event that will be termed World War III. Approximately 20 million people died as a result of the first World War. World War II’s fatalities were double or triple that number—chaos prevented a more precise deter- mination. In both cases humanity recovered, and the world today bears few scars that attest to the horror of those two wars. Many people therefore implicitly believe that a third World War would be horrible but survivable, an extrapola- tion of the effects of the first two global wars. In that view, World War III, while horrible, is something that humanity may just have to face and from which it will then have to recover. In contrast, some of those most qualified to assess the situation hold a very different view. In a 1961 speech to a joint session of the Philippine Con- gress, General Douglas MacArthur, stated, “Global war has become a Frankenstein to destroy both sides. … If you lose, you are annihilated. If you win, you stand only to lose. No longer does it possess even the chance of the winner of a duel. It contains now only the germs of double suicide.” Former Secretary of Defense Robert McNamara ex- pressed a similar view: “If deterrence fails and conflict develops, the present U.S. and NATO strategy carries with it a high risk that Western civilization will be destroyed” [McNamara 1986, page 6]. More recently, George Shultz, William Perry, Henry Kissinger, and Sam Nunn4 echoed those concerns when they quoted President Reagan’s belief that nuclear weapons were “totally irrational, totally inhu- mane, good for nothing but killing, possibly destructive of life on earth and civilization.” [Shultz 2007] Official studies, while couched in less emotional terms, still convey the horrendous toll that World War III would exact: “The resulting deaths would be far beyond any precedent. Executive branch calculations show a range of U.S. deaths from 35 to 77 percent (i.e., 79-160 million dead) … a change in targeting could kill somewhere between 20 million and 30 million additional people on each side .... These calculations reflect only deaths during the first 30 days. Additional millions would be injured, and many would eventually die from lack of adequate medical care … millions of people might starve or freeze during the follow- ing winter, but it is not possible to estimate how many. … further millions … might eventually die of latent radiation effects.” [OTA 1979, page 8] This OTA report also noted the possibility of serious ecological damage [OTA 1979, page 9], a concern that as- sumed a new potentiality when the TTAPS report [TTAPS 1983] proposed that the ash and dust from so many nearly simultaneous nuclear explosions and their resultant fire- storms could usher in a nuclear winter that might erase homo sapiens from the face of the earth, much as many scientists now believe the K-T Extinction that wiped out the dinosaurs resulted from an impact winter caused by ash and dust from a large asteroid or comet striking Earth. The TTAPS report produced a heated debate, and there is still no scientific consensus on whether a nuclear winter would follow a full-scale nuclear war. Recent work [Robock 2007, Toon 2007] suggests that even a limited nuclear exchange or one between newer nuclear-weapon states, such as India and Pakistan, could have devastating long-lasting climatic consequences due to the large volumes of smoke that would be generated by fires in modern megacities. While it is uncertain how destructive World War III would be, prudence dictates that we apply the same engi- neering conservatism that saved the Golden Gate Bridge from collapsing on its 50th anniversary and assume that preventing World War III is a necessity—not an option.


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