1NC---UMich---RD 4

OFF
 OFF
T POLICING
Policing refers to the subset of law enforcement directly involved with the criminal
justice system – it excludes regulatory enforcement and requires the authorization to
use force
James Conser, 11 - Police Academy Instructor at Youngstown State University, also Rebecca Paynich,
Terry Gingerich, Terry E. Gingerich (“The Field of Law Enforcement”, Law Enforcement in the United
States http://samples.jbpub.com/9780763799380/99380_ch01_pass01.pdf //DH

law enforcement
LAW ENFORCEMENT AND POLICING The concept of encompasses all levels (federal, state, and local) of the executive branch of government. It includes agencies that enforce
administrative codes and regulations (rules of agencies) and criminal laws related to the health, safety, and welfare of the people. A broad spectrum of officials with titles such as inspector,
compliance officer, deputy, special agent, trooper, auditor, investigator, ranger, marshal, constable, or police officer can be found in law enforcement agencies. These officials may be employees of agencies that inspect the food supply (Department of Agriculture) and places of
employment (Occupational Safety and Health Administration), investigate the causes of fires (State Fire Marshal), protect abused and neglected children (County Children Services), investigate airplane accidents (Federal Aviation Administration), conduct audits of government

policing refers to a subset of

expenditures (State Auditor's Office), investigate criminal complaints (federal, state, and local law enforcement), and/or apprehend offenders (any agency with arrest authority). The term , on the other hand,

law enforcement that applies to the process of regulating the general health, safety, welfare, and morals
of society as it relates to criminal behavior The policing function is primarily observed through . in the United States

the operations of the criminal justice system in the prevention, detection, investigation, and prosecution
of crime police officials are a unique group of
. The personnel affiliated with agencies who are engaged in policing functions can be referred to as law enforcement personnel; however, in the United States,

law enforcement officials because they are armed and are authorized to use coercive and physical force ,

They are non-military, armed, governmental personnel who are granted the
under certain conditions, when carrying out their duties.

authority to prevent, detect, investigate, and prosecute criminal behavior and to apprehend alleged offenders. Figure 1-2 illustrates the policing agencies as a

The focus is on the policing agencies of the law enforcement community

subset of the law enforcement community. of this text as identified in Figure 1-2.

However, it must be understood that the entire law enforcement community is quite extensive . The term law
enforcement also is used to describe one of the many functions within policing agencies; in fact, the local policing agency personnel normally spend less than 20-30% of their time engaged in crime-related law enforcement functions (Greene and Klockars 1991, 279). Most of their time is
spent on prevention, general public service, and order maintenance functions. This relationship is depicted in Figure 1-3. Today's professional police officials often do not want to emphasize their law enforcement functions; they prefer to be thought of for their service, especially the
public safety functions which do not involve enforcement activities. Some states add to the confusion of terms by using the phrase "peace officer" to refer to an entire class of policing officials who generally are authorized by statu- tory law to make arrests and serve warrants. A sample of
such statutory language for the state of Ohio is reprinted in Figure 1-4. Notice that the state has 23 different types of peace officers. (It is also interesting to note that, for definitional purposes in Ohio, "sheriffs" and "state troopers" are not peace officers. However, there are other statutes
that describe their authority as "law enforcement officers.") As a student of the policing function, you should know that the terminology associated with police officials and their agency affiliations is important and occasionally confusing. Several terms (police powers, law enforcement,
policing officials, and peace officer) have been used above and may appear to be very similar. It is essential to know that titles in the law enforcement field are important, and to know the different titles that distinguish policing officials. At the federal level, such officials are usu- ally
referred to as "agents" or "special agents," although members of the US Marshal's Office are called "deputy marshals." At the state level they may be called "troopers," "state police officers," and/or "agents." At the local level, members of the county sheriffs office are "deputies" or
"deputy sheriffs," and members of municipal and vil- lage police departments are called "police officers." The terms "constable" and "marshal" may be used in some jurisdictions at the local level, particularly in townships and villages. Members of federal and state forestry, park, or wildlife
divisions may have the title of "ranger" or "warden." It does get confusing, but personnel in the law enforcement field do make these distinctions for reasons of courtesy, respect, and clarification of responsibilities. An analogy might be that most of us drive vehicles, but some insist on
referring to their vehicles by name—Focus, Canity, Civic, Tacoma, and so on; not all vehicles are cre- ated equal, and some people want you to know that! In this same vein, police officials are of different types and serve different jurisdictions, and may also possess different legal authority
under the law. All police officials are law enforcement officers, but not all law enforcement officers are called "police." It is possible that you may encounter some police officials who are sensitive about their titles. If you plan to become an employee in the criminal justice field, it is
recommended that you pay attention to titles and job classifications.

(figure 1.2)
Violation---the plan adjusts criminal law
Thomas J. Bernard, 8 - Professor, Criminal Justice and Sociology, Pennsylvania State University
(Encyclopedia Britannica, “Criminal justice” date according to Carbon Dating the Web,
https://www.britannica.com/topic/criminal-justice //DH the bold ‘criminal justice’ is in the original to
denote a definition

Criminal justice, interdisciplinary academic study of the police, criminal courts, correctional institutions (e.g.,
prisons), and juvenile justice agencies, as well as of the agents who operate within these institutions. Criminal justice is distinct from
criminal law, which defines the specific behaviours that are prohibited by and punishable under law , and
from criminology, which is the scientific study of the nonlegal aspects of crime and delinquency, including their causes, correction, and
prevention.
Vote Neg:
1. Limits---any adjustment in criminal law creates thousands of cases by allowing
decrim, legalization or new crimes and lets the AFF impact any part of the criminal
justice system.

2. Ground---saying things are or are not crimes is it’s own topic that obviates core
ground because it doesn’t directly impact the law enforcement officials and how they
do their job, which is what policing is.
 OFF
STATES CP
The fifty states of the United States should
- prohibit the implementation of backdoors to encryption
- prohibit law enforcement from requesting exceptional access to encrypted
information

Solves the first advantage

Meyer 18 [Sarah Meyer, technology writer for more than 10 years. She writes on public policy issues
with a focus on cybersecurity and personal data protection.] “ENCRYPT – Secure Data Act to Tackle
Encryption Backdoors” June 15, 2018 (https://www.cpomagazine.com/data-privacy/encrypt-secure-
data-act-to-tackle-encryption-backdoors/)

The current regulatory framework regarding encryption backdoors and just how law enforcement and
other players can co-opt that framework is causing headaches for both device manufacturers and law
enforcement. As it stands, each state has its own framework for how its law enforcement
representatives can access encrypted information. This situation has been characterized as a “patchwork
system” by lawmakers, including Jim Jordan (R-Ohio). He commented; “Encryption exists to protect us
from bad actors and can’t be weakened without also putting every American in harm’s way. We know
federal agencies have abused warrantless surveillance in the past.” He noted that “the current
patchwork system for encryption makes it easier for further abuses of the system and increases the
problem by creating potential opportunities for abuse by third party actors.”

The issue of access via encryption backdoors was brought into sharp focus when the encryption issue
surfaced after the deadly San Bernardino massacre in 2015. This resulted in the FBI and Apple battling in
court for access to the shooter’s locked phone.

Reaction to Secure Data Act mixed

Craig Young, computer security researcher for Tripwire’s Vulnerability and Exposure Research Team
(VERT) lauded the proposed move but wondered why it was only being applied to the manufacturer
developer or seller of devices.

“This is a nice direct bill to protect state governments from compelling companies to take actions which
dilute or circumvent security functions in their products or services. This includes that states are not
allowed to ban products or services on the basis that they employ strong encryption.

“This is an incredibly important set of protections, but I am left wondering why they couldn’t take this a
step further by applying the same restrictions to the federal government. The risk of government
mandated backdoors can have serious detriment for companies looking to compete in the global
technology markets regardless of what level of government is demanding the backdoor.”

Other industry pundits were of the opinion that it is the end user who must take responsibility for access
their own devices and the data stored on those devices or in the Cloud.
Anthony James, CMO at CipherCloud is one expert who believes that although government is well
intentioned in seeking an encryption backdoor, a codified and nationally implemented (and enforced)
secure data act may infringe on the individual’s right to privacy – and opinion that is hard to refute.

“The trend towards government access to your encrypted data has picked up speed. Many states within
the U.S. are moving forward on policies that would essentially enable ‘back doors’ into encrypted data
sets. At the top of their well-intended agenda is support for law enforcement on a variety of challenges
including, of course, terrorism. This new legislation for a national encryption policy is trying to avoid the
various states from implementing their own legislation and instead, position one clear and more easily
implemented national policy.

“Despite the noble objective of nationally standardized encryption in support of law enforcement and
counter-terrorist activity, the use by government of forced disclosure, whether at the state level or the
federal level, can move the control of your data into someone else’s hands. “Back doors,” or special
API’s that access your data at various points of being used within applications, can also easily circumvent
basic protection such as “at rest” encryption for your databases.

“The only way to maintain firm control over your confidential data is to implement Zero Trust end-to-
end encryption. This level of protection, for example, will not allow anyone using a backdoor into one of
your 3rd party provided cloud applications to access your data without your explicit knowledge, and
approval. Only your decision to deliver your data encryption keys to the requesting party will expose the
data.”

For many, the argument boils down to an emerging conflict between the government and the
organizations that manufacture and market devices. There is a worry that an encryption backdoor, if
enforced, may lead to certain states banning those devices that do not conform to the new standards
of protection and encryption mandated by a secure data act. This may have the unintended
consequence of stifling innovation.
 OFF
COURTS CP
The United States federal judiciary ought to hold the lack of substantial criminal
justice reform of law enforcement hacking that is conducted in the United States for
the purposes of criminal investigations is unconstitutional.

The CP solves and spills over to end the political question doctrine
Jennifer L. Karnes 12, JD Candidate at SUNY Buffalo Law School, BA from New York University, “Pirates
Incorporated?: Kiobel v. Royal Dutch Petroleum Co. and the Uncertain State of Corporate Liability for
Human Rights Violations Under the Alien Tort Statute”, Buffalo Law Review, 60 Buffalo L. Rev. 823, 831-
833, May 2012, Lexis

Judge Bork, on the other hand, dismissed

the case on the ground that "[n]either the law of nations nor any of the
relevant treaties provides a cause of action that appellants may assert in courts of the United States," reasoning that
Congress's grant of ATS jurisdiction did not, in itself, create a cause of action that individuals could enforce in municipal courts. Judge Bork
found that the plaintiffs did not seek to enforce a statutory nor a constitutional right, as required to invoke the power of the court. Relying on
(1) the
political question doctrine --which contends that some issues, such as foreign policy issues, are
better left to the political process than judicial intervention ; and (2) the act of state doctrine --in which sovereign
immunity precludes the U.S. courts from inquiring into the validity of the acts of a foreign sovereign in its own territory, Judge Bork further
reasoned that separation of powers principles prevented the court from establishing a cause of action. Recognizing a new cause of action, in
Judge Bork's opinion, would require [*832] the court to analyze principles of international law that are not clearly defined and may touch
"sharply on national nerves," and create an exception to the general rule that international law only binds state actors. Further, it follows from
Filartiga's reasoning that if there exists an individual right to bring claims under the law of nations, then there also exists a cause of action for
any violation of the treaties to which the United States is a party. Bork cautioned that this line of reasoning was absurd, because it would mean,
"all existing treaties became, and all future treaties will become, in effect, self-executing when ratified." Bork also noted that there was no
international consensus on whether terrorism violated the law of nations, that no treaty provided individuals with a right to seek damages, and
that at the time of the enactment of ATS, the concept of international human rights law simply did not exist. Bork concluded that "unless a
modern statute, treaty, or executive agreement provided a private cause of action for violations of new international norms which do not
themselves contemplate private enforcement," it was not the role of the court to develop new causes of action under ATS.

Judge Bork contended that the Filartiga court's formulation of ATS would run contrary to the Constitution by
allowing the court to meddle in the other branches' powers to decide matters of foreign relations under
Articles I and II. Following this reasoning, Judge Robb found that the case could not be adjudicated on the basis of the
political [*833] question doctrine. Judge Robb further warned that adjudicating controversial foreign policy issues was a
slippery slope, given each nation's differing notions of terrorism, and that "each supposed scenario carries
with it an incredibly complex calculus of actors, circumstances, and geopolitical considerations." This
debate over the foreign policy implications of ATS jurisdiction persists today, and appears in Kiobel as a basis for rejecting
corporate liability. Judges Bork's and Robb's concurrences were very influential during the twenty-year period between Tel-Oren and the
Supreme Court's decision in Sosa v. Alvarez-Machain. During this time, only the Second and Ninth Circuits allowed ATS claims--other courts
continued to rely on Tel-Oren to conclude that ATS jurisdiction did not apply over ATS plaintiffs' alleged claims.

Ending the PQD prevents whale-killing naval sonar that collapses the oceans---
extinction
Rhea Suh 16, Master’s Degree in Education, Administration, Planning, and Social Policy from Harvard
University, BA in Environmental Science from Barnard College, Former President of the Natural
Resources Defense Council, now Fellow at the Watson Family Foundation, “Sounding the Alarm on
Ocean Noise”, NRDC, 5/12/2016, https://www.nrdc.org/experts/rhea-suh/sounding-alarm-ocean-noise
Beneath the surface of our oceans lies a finely balanced, living world of sound, most of which we never hear topside.
But to whales, dolphins, and other marine life, sound is survival, the key to how they navigate, find
mates, hunt for food, communicate over vast distances, and protect themselves against predators in waters dark and deep.

Our oceans, though, have become vast junkyards of industrial noise — often louder than a rock concert — from
commercial shipping, military sonar, and seismic blasts that test for oil and gas. The seas have become so loud, in places, that these great
animals are drowning in noise that threatens their health, their future, and their very lives.
On May 19, the Discovery Channel will premiere an important new NRDC film that documents this shattering underwater peril. Sonic Sea calls
on us to turn down the volume before it’s too late.

Naval sonar drills leave whales disoriented and impaired. They can go silent and abandon their habitat,
and some even become stranded and die in a desperate bid to escape torturous noise . Watermen report entire
populations of fish vanishing across broad ocean regions after oil and gas seismic blasting. And in a world where a staggering 60,000
commercial tanker and container ships are plying the seas at any given time, each one as loud as a nearby thunderstorm to area marine life in
the area, the onslaught of undersea noise has become relentless, doubling roughly every decade.

For animals that live by what they hear, more and more of our oceans are sounding like the factory floor: too loud for conversation at the
center of their life. North
Atlantic right whales off the coast of Boston regularly lose up to 80 percent of their
communications range, their ability to process sound drowned out by commercial shipping. And it’s getting harder to find
sanctuary — anywhere.

To the future of marine life worldwide, deafening noise is hardly the only threat. It is compounding the stress ocean life faces a
growing litany of environmental ills.

Climate change is raising ocean temperatures, threatening coral reefs. When we burn coal, gas, and oil, we put carbon pollution in the air.
Much of that carbon settles into our seas, raising the acidity of global waters in a process called ocean acidification, impairing the ability of
shellfish to grow strong shells. On top of all that, our seas are confronting chronic overfishing, chemical pollution, oil and gas
production, and a global tide of plastic waste.

By compromising the ability of whales, dolphins, and other marine life to feed, reproduce, and protect
themselves, ocean noise is undermining the natural resiliency species need to cope with these other
threats.

The sea is where life on earth begins. If our oceans die, we won’t survive. And here’s the thing: Ocean noise
is a problem we can solve. Like a summer night when the fireworks end, our oceans return to their natural soundscape when we turn
down the noise. That’s what NRDC has been working to do for the past two decades, standing at the forefront of the fight against ocean noise
worldwide.

Last year, we won a court settlement to protect whales, dolphins, and other marine mammals from powerful sonar during
routine U.S. Navy tests and exercises off the coasts of Hawaii and Southern California. Naval security and readiness remain
sound. We don’t have to harm or kill some of the most majestic creatures on earth to safeguard our seas and shores.
We’ve also sued the oil and gas industry over seismic blasting that threatens marine life, winning important improvements in the way such
testing is done in places like the Gulf of Mexico. And we helped persuade the United Nations International Maritime Organization to adopt
guidelines for reducing low-frequency ocean noise from commercial ships. There’s far more, though, that we must do.

Better shipping technology and practices, changes in military exercises and tests, and stronger safeguards against seismic blasting at sea can all
go a long way toward reining in the acoustic assault on our oceans. And we need forward-looking action plans from the U.S. Navy, the Interior
Department, the Transportation Department, and the National Oceanic and Atmospheric Administration, the federal agencies that produce or
manage noise in the sea.

To quiet the world’s waters, though, we all need to raise our voices. That’s what Sonic Sea is all about: increasing
awareness of this growing threat and building a worldwide community of citizen advocates to help us turn down the volume on undersea noise.
 OFF
CYBERCOM DA
The plan requires micromanaging civilian regulations that shred the effectiveness of
CYBERCOM
Sean B. Zehtab 18, JD from the University Of Nebraska College Of Law, BS from University Of
Nebraska-Lincoln, Judge Advocate in the United States Army, “Overseeing or Interfering? A Functional
Alternative to Congressional Oversight in Intelligence and Operations”, Harvard National Security
Journal, 6/13/2018, https://harvardnsj.org/2018/06/overseeing-or-interfering-a-functional-alternative-
to-congressional-oversight-in-intelligence-and-operations/

Recently, the Army has incorporated cyber and electromagnetic capabilities at the Brigade level.[6] Moreover, there is
interest in empowering conventional commands to deploy capabilities such as special forces and cyber in tactical operations.[7] Finally,
gathering open source intelligence has become both easier and more useful at the operational level.[8] All these developments in
Multi-Domain Operations raise oversight concerns, since conventional units do not currently have the kind of oversight systems
designed to ensure respect for the civil liberties of U.S. Persons,[9] and congress and high-level actors are too far removed from day-to-day
tactical operations to provide effective oversight.

Oversight of military decision making is vital to preserving the civilian control of the military, safeguarding democratic accountability, and
ensuring compliance with international law. Excessive
or poorly structured oversight, however, can inhibit flexible
and timely responses to national security threats and can needlessly interfere with the effective use of
expertise by military professionals. Good oversight, then, is a structural balance that both ensures compliance and accountability
and permits flexibility and the effective use of expertise by military professionals.[10] Achieving this balance has been an ongoing challenge,
subject to extensive scholarly debate and practical evolution over the past decade.[11]

Unfortunately, the current oversight regime in tactical cyber and other clandestine operations is in many ways the worst of both
worlds: it chills aggressive action and is not effective at ensuring respect for civil liberties. Over the past decade, oversight has tended
towards being concentrated in various high-level entities and individuals, increasingly far-removed from the
realities and necessities of the modern operational environment . Moreover, Congress has directly involved
itself in military oversight, while important operational decisions are made by field commanders who lack the resources, expertise,
and priorities to ensure the protection of the civil liberties of U.S. Persons. The result is, predictably, violations—scarcely deterred by a
highly bureaucratic, far-removed, and overly politicized system of oversight.
For instance, a single cyber operation could require oversight from intelligence and intelligence-related entities and agencies, congressional
reporting and interagency concurrence, and ordinary operational approval from the military approval authority. In addition to ineffectively
ensuring compliance with domestic and international law, the
bureaucratic work generated by the current oversight
regime takes valuable time and attention away from focusing on the planning and execution of a
mission.[12]
This article argues that the Command Operations Review Board (CORB) of the United States Special Operations Command (USSOCOM) provides a model of effective oversight that should be
applied to the operational and intelligence contexts. The CORB, independent but with military experience, leanly staffed and closer to the action, effectively balances ensuring compliance with
the need for flexible, timely operations, and has provided effective oversight of special operations. This model, if applied more generally in operations and intelligence, could mitigate the
problems, measured in blood, treasure, and legal violations, associated with the trend towards redundant and ineffective oversight of these operations by high-level executive and legislative
organizations.

The core concern of this article is oversight mechanisms of contemporary cyber and special operations. More traditional intelligence activities, such as counterintelligence, signals intelligence
and human intelligence, conducted by DOD under the Secretary of Defense authorities colloquially referred to as “Title 50,” already have multi-layered, robust statutory and agency regulation,
whereas operational activities, such as operational preparation of the environment,[13] information operations, and cyber operations, do not have the same robust oversight framework.
Cyber and special operations are often conducted in a clandestine manner, facing similar oversight challenges as intelligence.[14] But while oversight is necessary, the trend towards greater
congressional involvement[15] reflects a misplaced locus of oversight. It should take place at the operational, not legislative, level.

I. Background: What is Good Oversight?

Oversight is important because it ensures compliance and accountability.[16] However, too much
oversight inhibits the ability of
military and intelligence officials to use their expertise to accomplish necessary missions.[17] Fundamental to
oversight is a basic set of principles: respect for the civil liberties of U.S. Persons; compliance with the law (both domestic and international);
efficient use of resources; transparency to the public and civilian masters of the military; and end-state effectiveness of military operations
towards achieving national security objectives.[18]
Former FBI General Counsel James A. Baker stressed the central importance of oversight: “[a]gencies must earn our trust every day by demonstrating their competence, by acting with integrity and impartiality, and by strictly adhering to the Constitution and laws of the United States. One way for the government to facilitate the public’s trust … is to make sure that there is
appropriate oversight . . . .”[19] Baker identifies several reasons for oversight including ensuring that “taxpayers’ funds are spent appropriately and efficiently on programs and activities . . . .”[20] and to ensure that“agencies avoid mistakes and that appropriate action is taken when mistakes occur.”[21] These mistakes include intelligence failures and abuses of power, such as
unlawfully gathering intelligence on Americans.[22]

Richard Whitaker, director of the USSOCOM CORB outlines two types of oversight: functional and independent.[23] Functional oversight is performed by the operational actor; it takes an introspective view of the operations and whether the activities comply with law, policy, and procedure.[24] Independent oversight is performed by actors from outside the organization engaged in
the relevant activities.[25] Determining whether a given system of oversight is functional or independent helps to identify how the actors involved in oversight approach their roles.[26] Whitaker gives the example of an Inspector General from outside the unit performing oversight as independent, while oversight of operations through inspection and reporting within a particular
command is functional.[27]

Oversight has two key components: the rules for oversight (laws, regulations, and process), and the individuals who carry out the oversight activities. With the rules established, different groups and actors must execute the oversight function; discussion of all of them would be beyond the scope of this Article.[28] The most relevant potential oversight bodies for this Article’s
operational-level oversight proposal are military lawyers, high-level executive officials, and Congress, each of which has distinct advantages and disadvantages that should be considered.

A. Military Lawyers’ and Judge Advocates’ Involvement in Oversight

Lawyers and Judge Advocates have been instrumental in the development and execution of oversight of DOD activities.[29] The role Judge Advocates and lawyers play in advising commands, by its nature, is a form of oversight. For example, military lawyers conduct legal reviews of operations and targeting decisions during combat operations, providing valuable advice and
perspective to commanders.[30] Judge Advocates are well suited to provide oversight because they are dual professionals, lawyers and military officers, with an independent professional responsibility to provide candid advice.[31] Commands rely on lawyers to ensure compliance with the law in planning and in execution of operations. Military lawyers focus on issues arising in
operations, such as the law of armed conflict and other domestic and international legal requirements. Some activities, such as electronic surveillance involving U.S. Persons, require consultation with legal counsel.[32]

Not everyone thinks lawyers are a positive force for enabling operations. Stewart Baker, former General Counsel of the National Security Agency (NSA), takes the position that there are too many military lawyers involved in cyber warfare, inhibiting the implementation of a strategy.[33] Baker notes military lawyers “have raised so many show-stopping legal questions about cyberwar
that they’ve left the military unable to fight, or even plan for, a war in cyberspace.”[34] Still, the inclusion of military lawyers adds respect and ensures compliance with domestic and international law in operational planning and execution.[35]

B. High-level DOD/Presidential Oversight

Under the “commander-in-chief” clause, the President is vested with the constitutional authority to supervise the armed forces[36] and has a general constitutional responsibility to “take care” that the laws are faithfully executed.[37] The President is also politically accountable through elections in a way that actors internal to DOD are not.[38] The ability to issue orders and direct
appointments in order to effect policy and set priorities give the President authority to shape oversight procedures.[39] Some commenters, such as Samuel J. Rascoff, argue for more top-down oversight of the intelligence community by political appointees.[40] Others have countered that the history of Presidential oversight is a dubious one, in which the President has proved
unwilling to intervene to prevent many egregious abuses, arguably including military detention and the Military Commissions.[41] More fundamentally, however, the primary disadvantage of Presidential oversight is the President’s inevitable reliance on the agencies to do most of the oversight, given the breadth and depth of activities of American military operations executed on a
global scale.[42]

C. Congressional Oversight

Congress does have an important role in overseeing military activities. First, as a practical matter, Congress is perhaps the most accountable to the public and sensitive to the desires of the citizens, as it is subject to frequent elections.[43] Further, under the constitution, Congress is vested with the powers to “declare war”[44] and make laws and regulations pertaining to the armed
forces.[45] It also holds the power of the purse and can wield its oversight and influence through appropriations to the DOD.[46]

One disadvantage is that Congress receives a large amount of written responses from congressional-relations personnel, but does not enjoy close day-to-day relationships with leaders conducting operations.[47] In addition, the existence of what Richard Posner calls “competitive oversight” between various committees with overlapping jurisdiction leads to a tendency to protect the
agencies they oversee and exacerbates a lack of coordination in oversight.[48] Posner further describes congressional oversight in statutory rulemaking for intelligence as “micromanagement,”[49] while explaining that members of Congress and congressional staff lack the expertise in intelligence matters to provide meaningful oversight.[50] A recent survey revealed the average
congressional staffer only serves 3.5 years.[51] Another weakness is the lack of staff to cover an enterprise as large as DOD—“a single Senate Armed Services Committee majority staffer is currently responsible for the majority staff’s oversight of U.S. Central Command, U.S. Southern Command, counter-narcotics, domestic preparedness, and foreign policy in the Middle East and
South and Central America.”[52]

II. The Contemporary Oversight Environment: Trends Towards High-Level Review

Although there have been some positive developments in oversight over the past few years, particularly within DOD, there is a trend towards increased oversight at a high level, often involving Congress itself. This increased oversight has sometimes been beneficial, ensuring compliance with international and domestic law. However, in other instances, congressional interference has
caused concrete harm. This Part first discusses recent oversight developments within DOD. Second, it discusses the framework of congressional oversight and particular instances in which it has been beneficial or harmful.

A. Intelligence Oversight Trends Within DOD

Responsibility for the conduct of operations is inherent in the chain of command as exercised by the Secretary of Defense through Combatant Commanders under the Goldwater-Nichols Act.[53] DOD does have civilian oversight in the form of the various Senate-confirmed Undersecretaries of Defense, each with functional and independent oversight responsibilities.[54] While the
Undersecretaries help drive Presidential policy, they are still too far removed to effectuate the day-to-day oversight required to detect and prevent violation of law and policy.

The DOD recently updated its internal oversight procedures. DOD Manual 5240.01, also known as the intelligence oversight “Procedures,” and DOD Directive 5148.13, Intelligence Oversight, were released in 2016.[55] Responsibility for implementing intelligence oversight under DOD Directive 5148.13 falls to the DOD Component Heads, or designee, which include the commanders of
the Geographic Combatant Commands, the Commander of the Defense Intelligence Agency, and the Military Services, by 1) conducting inspections, 2) developing intelligence oversight policy and guidance, 3) reporting and investigating questionable intelligence activities and serious or highly sensitive matters, and 4) appointing an Intelligence Oversight Officer.[56]

Further, a new addition to DOD Manual 5240.01 provides for review of certain intelligence activities involving U.S. Persons’ information by privacy and civil liberties officials in order to monitor civil liberties.[57] DOD Components must designate a senior military or civilian individual to serve as a Civil Liberties Official, adding the proper emphasis to this position.[58] Appointing a Judge
Advocate would be a good option to serve as a Civil Liberties Official because of their legal education and experience. While certainly a positive development in oversight, it remains to be seen whether this increased bureaucracy will inhibit intelligence gathering and prevent identification of possible terrorists.

B. Congressional Oversight of DOD Operations

There are several congressional committees responsible for conducting congressional oversight. For most DOD activities, the Senate Armed Services Committee and the House Armed Services Committee are responsible for oversight. [59] For intelligence activities, congressional oversight occurs in the House Permanent Select Committee on Intelligence and the Senate Select
Committee on Intelligence.[60]

These committees authorize the funding of operations, constrain through conditions on expenditures, levy reporting requirements for certain operations, conduct investigations and inquiries, and leverage through advice and consent over nominations.[61] The policies and preferences of the congressional committees can have a concrete impact on operational and intelligence-
gathering choices. In some cases, congressional oversight has been effective. Nevertheless, it is a troubling trend far-removed from operational realities. The following are examples of congressional oversight and the building of a separate oversight framework by the Armed Services Committees over a variety of operations.

1. Syria Train and Equip: Section 1209.

In 2015, Congress approved funds to train and equip “Vetted Syrian Opposition” groups, but attached numerous restrictions, including various reporting requirements.[62] This tight supervision reflects the political congressional skepticism of the train and equip strategy.[63] Moreover, the financials of the operation were tightly controlled by using funds from the Overseas
Contingency Operations Fund, rather than a separate appropriation.[64]

The Vetted Syrian Opposition program also provides an example of Congress exercising oversight by compelling testimony. The Commander of U.S. Central Command testified before the Senate Armed Services Committee in September 2015[65] and said that only approximately five members of the Vetted Syrian Opposition, who had been trained by the U.S., were fighting in Syria.
Skeptical Senators declared this testimony “divorced from reality” and condemned the operation entirely.[66] Negative press coverage of the operations followed almost immediately, and they were suspended shortly thereafter. Ultimately, the Obama Administration conceded that train-and-equip outside Syria was not working and reconsidered its strategy.[67] This was an
example, then, of positive congressional oversight and dialogue leading to a more direct advise-and-assist effort within Syria, which was both more strategically effective and in line with the preferences of the American people.

2. Guantanamo Bay Prison Detainee Transfer.

Congress has also used reporting requirements tied to funding as a means of exercising oversight regarding the transfer of detainees held at Guantanamo Bay to other nations.[68] This oversight clashed directly with executive preferences in the case of detainee transfers in exchange of prisoners for captured U.S. Army soldier Private Bowe Bergdahl, which ignited a public backlash.
[69] The case is an example of strong oversight, because the notification requirement in the relevant statute gives Congress sufficient time to scrutinize the transfer ex ante.

3. Sensitive Military Operations and DOD Cyber Operations.

Examples of operational oversight, as opposed to intelligence oversight, include congressional reporting requirements passed recently for sensitive military operations and cyber operations. For example, in the National Defense Authorization Act (NDAA) for Fiscal Year 2018, Congress mandated that DOD develop a plan to integrate strategic information operations and cyber-enabled
information operations into operations against “malign actors.”[70] On the one hand, Congress is acknowledging and supporting the need for operational activities. However, like most sensitive operations, cyber-enabled information operations trigger extensive notification and oversight requirements. These oversight requirements limit DOD’s ability to think critically about
structuring an operational plan. Here, oversight inhibits the ability of DOD to do what Congress has mandated in the realm of strategic information operations.

Following President Trump’s elevation of U.S. Cyber Command to a full combatant command, the FY 2018 NDAA
implements oversight measures for the conduct of sensitive cyber operations and development of cyber weapons.[71] These
oversight measures require notification to Congress within 48 hours after the conduct of new sensitive cyber operations and
the development of cyber weapons.[72] There are exceptions for training and covert operations.[73] This requirement, and other
reporting requirements such as that regarding sensitive military operations,[74] keep Congress informed and allow for timely oversight,
supplementing the quarterly classified reports mandated in 10 U.S.C. § 484[75] for cyber-operations and 10 U.S.C. § 485 for DOD
counterterrorism operations.[76] Together, these provisions will allow for Congress to keep pace with DOD, rather than respond to the formal
reports generated every three months.

Though unlikely, Congress could attempt to take this oversight a step further with notification requirements prior to
operations. This approach would risk creating a de facto congressional approval of operational activities. By any
measure, such action would lead to a risk-averse culture in operations, leading to a loss of tactical
advantage.

Turf battles over CYBERCOM authority spill over---decking domestic law enforcement
of financial crime
Susan W. Brenner 13, NCR Distinguished Professor of Law and Technology at the University of Dayton
School of Law, “Cyber-threats and the Limits of Bureaucratic Control”, Minnesota Law Journal of Science
& Technology, Winter 2013, 14 Minn. J.L. Sci. & Tech. 137, Lexis
As James Q. Wilson notes in his study of bureaucracy, government agencies "view any interagency agreement as a threat to their autonomy."
James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It 192 (2000). He points out that the "chief result of the
[bureaucratic] concern for turf … is that it is extraordinarily difficult to coordinate the work of different agencies." Id. Wilson notes that business
bureaucracies "coordinate their actions by responding to market signals" and, where appropriate, by "entering into explicit agreements … in
which mutual material gain is the criterion for cooperation." Id. "Government
agencies, by contrast, view any interagency
agreement as a threat to their autonomy." Id. They also "resist being regulated by other agencies." Id. at 193.
[END FOOTNOTE]

Before Cyber Command was created, some members of the military argued that branch-specific commands could
not provide an effective cyberwar response system. They claimed the "cultures of today's military services are
fundamentally incompatible with the culture required to conduct cyberwarfare." And they contended that the "core skills" needed to
wage cyberwar differ radically from those needed for conventional war . Those who subscribed to this view believed
the better approach was to create a new, cyber-specific branch of the military and assign it overall
responsibility for cyber operations, just as the Air Force was assigned responsibility for air operations.
I suspect that view did not prevail because it would have required the various branches to give up their cyber commands. Since it has for some time been apparent that cyberspace can be used
for military purposes, I suspect the five branches were reluctant to give up the opportunity to play a role in this new theatre of combat. I also suspect that the proposal to create a new, cyber-
specific branch of the U.S. military may not have prevailed because it would have been difficult, if not impossible, to implement. As we saw above, the rationale for the different branches is
that each is responsible for military activity in a specific spatial domain in the physical world. While the divisions are not precise, it is far easier to parse response authority in a spatial context
than it is with regard to cyberspace.

Cyberspace operations do not take place in a physical [*183] place; instead, they involve activity that occurs in and through computer technology, which is pervasive in today's world. If the
Department of Defense had chosen to create a distinct branch with exclusive combat authority in cyberspace, it would presumably mean this branch would take command of any and all of the

other branches' activities that involved cyberspace. It is difficult to see how this could be a viable strategy. It would presumably mean, for example, that members of the
cyberbranch would monitor, and probably control, the other branches' computers and online activities (i) to ensure a baseline of
security and (ii) to be in a position to respond if and when the cyberbranch believed it necessary to deter or respond to cyberwarfare attacks. That seems to be the only way to functionally allocate operational
responsibility in cyberspace to a new, cyber-specific branch of the U.S. military.

If that is, indeed, the only way to accomplish this, then instead of participating in a carefully-defined, complementary division of responsibility, such as the one the existing branches currently represent, the hypothesized
cyberbranch would essentially subsume the other branches as to its distinct area of responsibility. That could be problematic. It might, for example, create clashes of authority that could have negative consequences for the United
States' ability to respond to cyber-attacks.

This might be one of the reasons the Department of Defense apparently opted, instead, to create a distinct command that unified the cyberspace components of the five traditional branches of the military. This approach is fraught
with its own problems, the most obvious of which is coordinating the activities [*184] of the five branch cyber commands. If cyberspace were divisible into spatial operational domains, Cyber Command could function in a fashion
analogous to that of one of the United States military's conventional Unified Combatant Commands. These Commands incorporate personnel from the five military branches into a unified command with responsibility for a specific
geographical area. The personnel assigned to such a Command respectively carry out the functions that are within their branch's unique expertise, e.g., the Navy carries out operations at sea, the Air Force conducts aerial activities,
and so forth.

As we saw above, cyberspace, unlike real space, cannot be parsed into spatial domains. Unless that changes, Cyber Command faces the unenviable task of trying to sort out what, precisely, should be the respective responsibility of
the Air Force, Army, Marine, and Navy cyber commands. At the moment, it appears that at least these four cyber commands have essentially the same mission, i.e., to conduct offensive and defensive military operations in
cyberspace. This is not only pointless, it is likely to be counterproductive. Unfortunately, as we also saw above, this state of affairs seems likely to continue for some time.

There is yet another issue Cyber Command must resolve. Since the task list cited earlier focuses exclusively on (i) defending the military's assets in cyberspace and (ii) directing and conducting military operations in cyberspace,
many wondered if the new Cyber Command was only going to be responsible for [*185] protecting military assets and networks. In other words, would Cyber Command also be responsible for protecting civilians and civilian-
owned assets?

In the fall of 2010, the newly-appointed head of Cyber Command, General Keith Alexander, told reporters the new unit did "not have a role" in protecting civilian networks and cyber-assets. This caused controversy because, as Part
II noted, the military's role has historically been to protect a state, its citizens, and their assets from external threats. If General Alexander's comment was transposed to the context of kinetic warfare, it would become a declaration
that in the event of nuclear war the U.S. military will protect itself but not civilians. Since that proposition is completely inconsistent with the military's role in society, it is not surprising that the General, at least to some extent,
retreated from that position in a statement he made the next day.

In testifying before the House Armed Services Committee, General Alexander prosposed that Cyber Command "could also have a broader role in the civilian sector through protecting US critical infrastructure networks and
systems." He noted, though, that the White House "was examining the legal authority needed for Cyber Command to take responsibility for protecting civilians and civilian-owned assets." A few days later, the Department of
Defense and the Department of Homeland Security perhaps sought to address this issue, at least in [*186] part, by signing a memorandum of understanding that (i) gives Homeland Security "lead responsibility for protecting the
United States government's civilian networks and critical infrastructure," (ii) makes the Defense Department responsible for "protecting some 15,000 military networks," and (iii) provides that the two will collaborate to "safeguard
cyberspace against state as well as non-state actors."
General Alexander's comments and the memorandum of understanding executed by the Departments of Defense and Homeland Security demonstrate the doctrinal and institutional constraints that impede the U.S.'s ability to
mount a unified response to cyber-threats. The primary constraint is the bifurcation described in Part II: the military (Defense) deals with war, while law enforcement (Homeland Security) deals with crime and terrorism. Due to
historical circumstance, the bifurcation [*187] implicitly assumes attacks from abroad target nation-state assets and/or personnel while crime and terrorism target civilian assets and/or personnel.

Civilians and civilian-owned assets are already a target of cybercrime

As we saw in Part II, that is not necessarily true as threats migrate into cyberspace.

and cyberterrorism, and it has for some time been apparent that they will also be targets in cyberwarfare . The bifurcation, though, does not allow (i) law enforcement officers to
retaliate against cyberwarfare attacks or (ii) members of the military to retaliate against cybercrime and cyberterrorism. That is why General Alexander could not assert that Cyber Command would protect civilians, and that is why the Departments of Defense and Homeland Security
found it necessary to execute the memorandum of understanding noted above.

As matters currently stand, Cyber Command will have to utilize the attribution processes described in Part II to determine, with the necessary level of confidence, that a given attack was state-sponsored before it can reciprocate in kind. Civilians and civilian assets have been targets of
conventional warfare, even though the law of armed conflict calls for minimizing attacks on noncombatants. But those attacks have come from an identified, nation-state enemy, which allowed the targeted nation-state to respond in kind, even if the attack occurred on its territory.

General Alexander's primary problem, therefore, is that it may be impossible for the military to make such a determination for a cyber-attack quickly enough for a timely response because [*188] the "markers" traditionally used to distinguish between internal and external attacks are of
little utility in the cyber context. This is essentially a doctrinal problem, as it arises from the practice of dividing threats into these two categories and categorically parsing threat response authority between them. But as we saw earlier, General Alexander also confronts an institutional
problem: fusing six distinct cyber commands into a coordinated, coherent cyber-response effort. We will return to this issue in Part IV.

As we will see below, United States law enforcement confronts a correlate doctrinal problem and operates in a far more complex institutional structure.

B. Law Enforcement

As we saw in Part II, law enforcement is charged with controlling the "other" threat: the threat to internal order that arises from antisocial conduct on the part of individuals who are "in" the territory of the state under whose authority law enforcement officers operate. Some countries
have a national penal code and a national police agency that enforces that code. But because it is a federal state, the United States has an essentially two-tiered system of penal laws and a two-tiered law enforcement structure.

As to the former, the United States has fifty-two distinct [*189] criminal codes (one for each state, one for the District of Columbia and a federal criminal code). These codes require a corresponding, two-tiered law enforcement structure: one tier consists of the over 15,000 state and
local agencies that respectively enforce state criminal codes. Their geographical jurisdiction is generally linked to the nature of the agency in which they serve: state police have jurisdiction throughout the state, a county sheriff has jurisdiction in that county, and municipal police have
jurisdiction within the territorial boundaries of their municipality.

The other tier is composed of agencies that enforce federal law. Five of them - the Federal Bureau of Investigation, the [*190] U.S. Secret Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Administration, and U.S. Immigration and Customs
Enforcement - are primarily responsible for pursing those who violate the federal criminal code. And because these agencies operate under the authority of the federal government, they have national jurisdiction, i.e., their agents can pursue investigations anywhere that is within the
"maritime and territorial jurisdiction of the U.S." and, under certain circumstances, abroad.

It may seem that this complex enforcement structure, with its often-overlapping federal and state jurisdiction, must inevitably generate turf wars that impede the efficient enforcement of the law. The likelihood that rivalry will occur between state and local law enforcement agencies is
mitigated, at least to some extent, by the fact that each has a clearly defined geographical jurisdiction within which it operates. This reduces, but does not eliminate, the potential for inter-agency conflicts. Instances can and do arise in which, say, the State Police [*191] and the County
Sheriff both have jurisdiction in a given matter, which can create conflicts as to who should take the lead. Over the last few years, state and local agencies have used multi-jurisdictional task forces to reduce, if not eliminate, such conflicts.

Historically, the more serious conflicts arose between state and local agencies and their federal counterparts. There
appears to
have been a corresponding reduction in these conflicts as well, a phenomenon many attribute to a spirit of greater
cooperation brought on by the 9/11 attacks.

That leaves the federal agencies, which have certainly not [*192] been immune to turf wars. And according to recent
reports, turf battles continue to be a problem for federal law enforcement agencies, despite their use of task forces and other, similar efforts.
One reason why such conflicts persist among federal agencies is that, unlike their state and local counterparts, federal agencies'
jurisdictional authority is predicated not on geographical turf, but on what a recent report refers to as "operational turf."
In situations like the hypothetical noted earlier, in which a crime scene falls within the State Police's and the local Sheriff's geographical turf, the
State Police may defer to the Sheriff, because his office has stronger ties to that location and the victim. That calculus does not come into play
at the federal level because, as I noted earlier, the federal law enforcement agencies listed above all have national jurisdiction. This, as noted
above, means their turf is not linked to a specific state, county, city, or other area. The agents employed by these agencies operate out of
specific, geographically located offices, but this is a matter of operational efficiency and, as such, does not define the legitimate scope of an
agency's operations. That is a function of "operational turf," that is, of the statutes that define a given agency's investigative authority.

If these statutes parsed investigative authority out among the five agencies listed above in a fashion analogous to how [*193] combat
jurisdiction is parsed out among the five military branches, this would go a long way toward reducing the turf
wars that currently plague
federal law enforcement. Unfortunately, the statutes rarely do this, which means agencies often have overlapping investigative
jurisdiction, which "can open the doors" to turf battles. In a 2011 investigation of jurisdictional overlap among federal
agencies, many agents reported that they had encountered uncertainty and disagreements about the appropriate
allocation of investigative authority and said these disagreements often negatively affected investigations.
Criminals' increasing use of cyberspace is only exacerbating the difficulties federal agents already face.

While turf wars and overlapping or uncertain investigative jurisdiction continue to impede U.S. law enforcement's ability
to respond to crimes, they are not the only factors that are eroding its ability to respond to cyber-threats. The problem law
enforcement must confront is the civilian correlate of the problem General Alexander faces: we can no longer assume that attacks which
appear to constitute "mere" cybercrime are just that, i.e., are carried out by civilians who are "in" the United States and whose motives are
purely personal. An attack on a financial institution might be a cybercrime committed by a greedy United States
citizen "in" the United States, but it might, instead, be (i) a cybercrime committed by a non-United States citizen operating from abroad or (ii)
a cyber-sortie carried out by a hostile nation-state's own cyber command.
U.S. financial crimes drive global organized crime
W. Joseph Salvador 15, Managing Articles Editor of the Rutgers Computer and Technology Law
Journal, J.D. Candidate at Rutgers School of Law-Newark, B.A. from The George Washington University,
“Dismantling the Internet Mafia: RICO's Applicability to Cyber Crime”, Rutgers Computer & Technology
Law Journal, 41 Rutgers Computer & Tech. L.J. 268, Lexis
III. The Emergence of Cyber Crime

In his 2013 State of the Union address, President Barack Obama stated, on the topic of cyber security, that "we cannot
look back years from now and wonder why we did nothing in the face of real threats to our security and
our economy." It is now estimated that cyber crime solicits $ 110 billion globally every year. The Federal Bureau of
Investigation recognizes three categories of cyber threats: organized crime groups, state sponsors, and terrorist [*280] groups. It is organized
crime groups and terrorist organizations that are susceptible to RICO violations.

International organized criminal syndicates use the Internet in furtherance of more traditional real
world activities like drug distribution and sex trafficking. However, they have also taken advantage of
the digital world to find new outlets for criminal activity including mass fraud schemes, identity theft,
online banking crimes, and money laundering. Also, groups composed of specialized criminals have evolved to
commit all of their crimes online. These groups differ from traditional organized criminals because they gain illicit profits
purely via computer and maintain no clearly defined structural hierarchy. Nevertheless, their loose association in continual criminal
schemes fit the definition of an "enterprise" as defined in RICO.

These specialized
organized cyber crime groups employ new tools to commit their acts. The emergence of
botnets, a network of infected computers, is essential to the profitability of the group. The botnet allows for
an attack on thousands of private users or corporate networks instead of criminally infiltrating the systems on an individual basis. Similarly,
"mules" are essential to the vitality [*281] of the criminal enterprise. A "mule" is recruited for the sole purpose of receiving the illicit funds,
often via bank account, and turning these funds into cash. Generally, mules receive small portions in monetary value and are scattered across
the globe so as not to endanger the entire scheme if one is apprehended by law enforcement.

Extinction
Dr. Michael Miklaucic 13, Adjunct Professor of U.S. Foreign Policy at American University, and of
Conflict and Development at George Mason University, Director of Research, Information and
Publications at the Center for Complex Operations (CCO) at National Defense University, Jacqueline
Brewer, 07/05/2013, “Convergence: Illicit Networks and National Security in the Age of Globalization,”
Government Printing Office, Google Books

Public-Private Partnerships to Combat Illicit Trade and Illegal Economy

The illegal economy poses an existential threat when it begins to create criminalized markets and
captured states, which launch a downward, entropic spiral toward greater insecurity and instability. In
es

countries that have been corrupted by criminal networks, market- and state-building become less
attainable, economic growth is stunted, efforts toward development and poverty eradication are stifled,
and foreign direct investment is deterred.

The United States is supporting the OECD, the World Economic Forum (WEF), and other international
partners to provide knowledge-based platforms for international public and private stakeholders to raise
awareness of the threat posed by illicit trade and illegal economy to economic growth, development,
and global security, and to share experience on practical approaches to the control of illicit activities as
well as of the negative externalities of the illicit economy. Engaging the public and private sectors
through innovative public-private partner-ships will be particularly important for securing the integrity
of the global supply chains and for ensuring long-term sustainable licit commerce and productive
markets.

The steep rise in mobility of goods, people, capital, and information that has accompanied globalization
is largely comprised of lawful and beneficial exchanges, but an increasing share is illicit. Criminal
entrepreneurs and illicit networks sometimes use or exploit legitimate businesses and legitimate global
supply chains to carry out financial frauds, industrial espio-nage, money laundering, and other illicit
activities. Hundreds of billions of dollars of revenue from these activities flow through the global
economy every year, distorting local economies, diminishing legitimate business revenues, deteriorat ing

social conditions, and fueling conflicts.

 OFF
FEDERALISM DA
National policing regulations undermine federalism and worsen policing quality – the
squo is headed in the right direction
Matt Mayer 12, Heritage visiting fellow, 3-26-2012, “Federalism Allows Law Enforcement to Determine
Counterterrorism Policies That Work Best,” https://www.heritage.org/terrorism/report/federalism-
allows-law-enforcement-determine-counterterrorism-policies-work-best

The 10th Amendment of the U.S. Constitution simply states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively,
or to the people.” Those 28 words confirm that states possess the ability to tailor policies that best address the issues they

confront. Because of the various demographic differences among the states, a one-size-fits-all policy may not work or may not work most effectively and efficiently in a
particular state. When the federal government nationalizes an inherently state or local issue, it ensures
that whatever policy it produces will fail to solve the problems. We know from the welfare reforms in the 1990s that a policy solution in one state may not
work well in another state, which demonstrated the importance of states maintaining the flexibility and authority to tackle issues as they see fit. A robust policy competition among the states will enable America to find out what

Each Community Presents Unique Challenges Requiring Unique

works and what does not. Domestic counterterrorism policy is no different.

Solutions America, thankfully, does not have a national police force. The Federal Bureau of Investigation (FBI) has authority over federal crimes, including
terrorism, and exercises its authority by investigating and arresting suspected terrorists. With only 15,000 agents for the entire United States, the FBI lacks the resources to protect every American city. Because of this inherent

America’s law enforcement community is not covered by a one-size-fits-all

limitation, outside of constitutional and legislative protections,

policy on how best to protect U.S. cities. State and local law enforcement entities are not displaced by federal
authorities (except in some very narrow areas of national control) and instead retain their inherent sovereign authority to design counterterrorism
programs that are tailored to the needs of each community. These needs are typically defined by
demographics, risk assessments, community norms, and other factors unique to each jurisdiction. The ideal
outcome for Americans is one where there is strong cooperation and true partnering between the FBI and other federal law enforcement agencies and state and local law enforcement entities. We are getting

closer to that ideal with each passing year. The NYPD Example Recently, the New York Police Department (NYPD) received potentially unfair negative media coverage about its
counterterrorism policies, specifically its Muslim surveillance program. The focus of criticism involves the NYPD’s surveillance of Muslim college students, restaurants, and mosques throughout the northeast United States. The
NYPD insists that its policies and practices adhere to the 1985 Handschu v. Special Services Division guidelines, as modified via judicial approval in 2002 after the September 11, 2001, terrorist attacks. Recent events in France may
bolster the NYPD’s case on the importance of conducting surveillance of individuals based on leads. In Handschu, the court held that the NYPD’s surveillance of political activity had violated the First Amendment’s free speech
clause. The decision resulted in a set of guidelines that regulated the NYPD’s programs covering political activity. To engage in surveillance, the 1985 guidelines required a warrant based on suspicion of criminal activity and
prohibited certain activities absent unlawful conduct. In 2002, a federal judge modified the Handschu guidelines to reflect the new realities arising from the terrorist threat. In response to the criticism, New York City Mayor Michael
Bloomberg stated: “They are permitted to travel beyond the borders of NYC to investigate cases. They can look at websites [and] they can watch television to detect unlawful activities or where there might be unlawful activities to
get leads. We don’t target individuals based on race or religion. We follow leads and we are consistent, I think, with the guidelines resulting from the Handschu federal court decision.” In a speech at Fordham Law School, NYPD
Commissioner Ray Kelly indicated that the NYPD surveillance program has helped stop more than a dozen terrorist plots against New York City, despite the fact that “no other police department in the country is bound by these
rules, which restrict police powers granted under the Constitution.” Time will tell if the NYPD adhered to the Handschu guidelines. The point here is that a dual sovereignty has provided the NYPD and its leaders with the flexibility
and authority to develop policies specific to the enormous challenges faced in New York City, which is America’s most at-risk city with the highest population density and countless vulnerabilities. No other American city must
confront the terrorist threats that New York City faces. On the Other Coast Across the country in Los Angeles, the policies implemented by the NYPD may not work. Los Angeles faces a different set of challenges, so the Los Angeles
Police Department (LAPD) may choose to utilize different methods for securing its city. For example, under the leadership of Deputy Chief Michael Downing, the commanding officer of the Counterterrorism and Special Operations
Bureau, the LAPD launched a Liaison Section to serve as the face of the LAPD to the various Muslim communities. Because of the community norms in Los Angeles and the importance the LAPD has placed on developing strong
relationships with its Muslim communities, the Liaison Section is specifically walled off from the intelligence and investigation elements at the LAPD. Officers in the Liaison Section routinely spend time among the Muslim
population, including at restaurants, mosques, and even private celebratory events. The relationships developed through this outreach program are genuine and stronger because of the compartmentalization policy. When an
event occurs that causes conflict, LAPD Liaison Section officers can serve as honest brokers to reduce or eliminate any tensions. If an LAPD investigation results in counterterrorism actions within a particular part of the Muslim
community, the Liaison Section officers can seriously state they did not have any knowledge of the investigation and did not provide any information to the investigators. Again, this critical fact leads to a far more positive and

Without a federalist approach, the nationalization

productive environment in Los Angeles. These two examples present two different approaches to the same issue.

of domestic counterterrorism policies by the FBI would result—as does every other nationalized program—in a one-size-fits-all
policy that would be less effective and, therefore, a less secure America. Forbearance Is Okay With all of the media and civil
liberties attention being given to the NYPD and its surveillance policy, pressure will build on Congress to do
something—hold a hearing or pass a law. State or local oversight entities, including the courts, will review what has actually

occurred in New York City and either affirm the work done or require changes to the policy. Either way, Congress
should exercise forbearance and respect the constitutional right of those state or local entities to do their jobs. Federalism Is
Alive and Well Despite the belief that state and local involvement in law enforcement is no longer relevant or useful, it is being used responsibly across

America by state and local entities. These entities must have the flexibility and authority to design policies based on each entity’s particular
demographics and needs. These unique approaches will help counterterrorism officials identify best practices and

implement better programs. More critically, federalism will keep us safer.

Federalism’s modeled – solves global war
Steven G. Calabresi 95, Associate Professor at Northwestern University School of Law, “‘A
GOVERNMENT OF LIMITED AND ENUMERATED POWERS’: IN DEFENSE OF UNITED STATES v. LOPEZ,”
Michigan Law Review, Dec, 94 Mich. L. Rev. 752

Small state federalism is a big part of what keeps the peace in countries like the United States and
Switzerland. It is a big part of the reason why we do not have a Bosnia or a Northern Ireland or a Basque country
or a Chechnya or a Corsica or a Quebec problem. 51 American federalism in the end is not a trivial matter or a
quaint historical anachronism. American-style federalism is a thriving and vital institutional
arrangement - partly planned by the Framers, partly the accident of history - and it prevents violence and war. It prevents religious
warfare, it prevents secessionist warfare, and it prevents racial warfare. It is part of the reason why
democratic majoritarianism in the United States has not produced violence or secession for 130 years,
unlike the situation for example, in England, France, Germany, Russia, Czechoslovakia, Yugoslavia, Cyprus, or Spain. There is nothing in the U.S. Constitution

that is more important or that has done more to promote peace, prosperity, and freedom than the
federal structure of that great document. There is nothing in the U.S. Constitution that should absorb more completely the attention of the U.S. Supreme
Court. So far, I have focused on the advantages of American-style small-state federalism in defusing centrifugal devolutionary tendencies, alleviating majority tyranny, and accentuating
crosscutting social cleavages. But what about the advantages of international federalism; what are the ad- [*771] vantages of consolidating states into larger federal entities, as happened in
North America in 1787 or in Europe in 1957? A first and obvious advantage is that consolidation reduces the threat of war. Because war usually occurs when two or more states compete for
land or other resources, a reduction in the number of states also will reduce the likelihood of war. This result is especially true if the reduction in the number of states eliminates land
boundaries between states that are hard to police, generate friction and border disputes, and that may require large standing armies to defend. In a brilliant article, Professor Akhil Amar has
noted the importance of this point to both to the Framers of our Constitution and to President Abraham Lincoln. 52 Professor Amar shows that they believed a Union of States was essential in
North America because otherwise the existence of land boundaries would lead here - as it had in Europe - to the creation of standing armies and ultimately to war. 53 The Framers accepted
the old British notion that it was Britain's island situation that had kept her free of war and, importantly, free of a standing army that could be used to oppress the liberties of the people in a
way that the British navy never could. These old geostrategic arguments for federalist consolidation obviously hold true today and played a role in the forming of the European Union, the
United Nations, and almost every other multinational federation or alliance that has been created since 1945. Sometimes the geostrategic argument is expanded to become an argument for a
multinational defensive alliance, like NATO, against a destabilizing power, like the former Soviet Union. In this variation, international federalism is partly a means of providing for the common
defense and partly a means of reducing the likelihood of intra-alliance warfare in order to produce a united front against the prime military threat. Providing for the common defense, though,
is itself a second and independent reason for forming international federations. It was a motivation for the formation of the U.S. federation in 1787 and, more recently, the European Union. A
third related advantage is that international federations can undertake a host of governmental activities in which there are significant economies of scale. This is one reason why federations
can provide better for the common defense than can their constituent parts. Intercontinental ballistic missiles, nuclear-powered aircraft [*772] carriers and submarines, and B-2 stealth
bombers tend to be expensive. Economies of scale make it cheaper for fifty states to produce one set of these items than it would be for fifty states to try to produce fifty sets. This is true even
without factoring in the North American regional tensions that would be created if this continent had to endure the presence of fifty nuclear minipowers, assuming that each small state could
afford to own at least one Hiroshima-sized nuclear bomb. Important governmental economies of scale obtain in other areas, as well, however, going well beyond national defense. For
example, there are important economies of scale to the governmental provision of space programs, scientific and biomedical research programs, the creation of transportation infrastructure,
and even the running of some kinds of income and wealth redistribution programs. A fourth and vital advantage to international federations is that they can promote the free movement of
goods and labor both among the components of the federation by reducing internal transaction costs and internationally by providing a unified front that reduces the costs of collective action
when bargaining with other federations and nations. This reduces the barriers to an enormous range of utility-maximizing transactions thereby producing an enormous increase in social
wealth. Many federations have been formed in part for this reason, including the United States, the European Union, and the British Commonwealth, as well as all the trade-specific
"federations" like the GATT and NAFTA. A fifth advantage to international federations is that they can help regulate externalities that may be generated by the policies and laws of one member
state upon other member states. As I explain in more detail below, these externalities can be both negative and positive, 54 and, in both situations, some type of federal or international action
may sometimes be appropriate. A wellknown example of a problematic negative externality that could call for federal or international intervention occurs when one state pollutes the air or
water of another and refuses to stop because all the costs of its otherwise beneficial action accrue to its neighbor. 55 [*773] Sixth and finally, 56 an advantage to international federation is
that it may facilitate the protection of individual human rights. For reasons Madison explained in the Federalist Ten, 57 large governmental structures may be more sensitive than smaller
governmental structures to the problems of abuse of individual and minority rights. 58 Remote federal legislatures or courts, like the U.S. Congress and Supreme Court, sometimes can protect
important individual rights when national or local entities might be unable to do so. 59 As I have explained elsewhere, this argument remains a persuasive part of the case for augmented
federal powers. 60 Some of the best arguments for centripetal international federalism, then, resemble some of the best arguments for centrifugal devolutionary federalism: in both cases -

federalism helps prevent bloodshed and war. It is no wonder, then, that we live in an age
and for differing reasons -

of federalism at both the international and subnational level. Under the right circumstances, federalism can help to
promote peace, prosperity, and happiness. It can alleviate the threat of majority tyranny - which is the
central flaw of democracy. In some situations, it can reduce the visibility of dangerous social fault lines, thereby preventing bloodshed and violence. This
necessarily brief comparative, historical, and empirical survey of the world's experience with federalism
amply demonstrates the benefits at least of American-style small-state federalism . 61 In light of this evidence, the
United States would be foolish indeed to abandon its federal system. [*774] B. Economic and Political Science Arguments for Federalism We have seen that both historical and contempora ry experience teach us that federalism, under certain circums tances, is valuable in practice. What theoretical explanations can be produce d, then, to add analy tical rigor to the normative case for federalism in the United States?

Two of the social sciences, economics and political science, provide help here. Let us look at the case, drawn from both of these disciplines, for American federalism. Section 1 con siders the normative case for state government in this country. Sec tion 2 considers the normative case for the U.S. national government. And, section 3 considers the case for our joint state national federal structure as an integrated and working whole. 1. The Argument for the States As a matter of pure theory, why should we not abolish the fifty states tomorrow? What purposes do they serve after 200 years giv en that we have grown together as a nation and as a people? The answers to these questions are suggested in three wonderful recent publications written by Professor David Shapiro,62 Professor Michael McConnell,63 and by Mr. Jacques LeBoeuf, assisted by my colleague Tom Merrill,64 as well as in a burgeoning , if overly ab 62. See SHAPIRO, supra note 46, at 58-106. Professor Shapiro's important and outstand ing book grows out of his 1994 Rosenthal Lectures at the Northweste rn University School of Law. In the dialectical fashion once used to great
effect by his Harvard predecessor, Profes sor Henry Hart, Professor Shapiro first sets forth the case for strong national authority, then sets forth the case for federalism as a constraint on national authority, and, finally, discusses how to strike the balance. In the process, he produces a first- class masterpiece on the eco nomics of federalism. 63. See Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484 (1987). McConnell offers a powerful summary of the case for decentralized political decisionmaking by state governments. His pithy account of what constitutes great constitutional scholarship is worth noting for the inspiration of all who write in the field: Great constitutional scholarship is ... attentive to the details of the document and true to its sources. But it also does something more (and this something is what makes con stitutional law a worthwhile scholarly enterprise): it makes the Constitution a window through which we learn about humankind as a political creature. The United States Constitution inspires reverence not just because it was drafted and ratified by our forefa thers, who were an
uncommonly clever lot, but because it is the most successful attempt in history to construct a polity consistent with both the baser passions and the higher aspirations of its citizens. Studying the Constitution has some of the same intellectua l delight as reading Aristotle: it opens the mind on a subject of the first importance. Id. at 1486. McConnell's article qualifies as "great" under this definition. 64. See Jacques LeBoeuf, The Economics of Federalism and the Proper Scope of the Fed eral Commerce Power, 31 SAN DIEGO L. REV. 555 (1994) (article written by a recent graduate of Northweste rn under Professor Merrill's supervision). This article does a superb job of presenting and treating the subject of the economics of federalism. 774 [Vol. 94:752 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/te rms Limited and Enumerated Powers stract, literature on the economics of federalism.65 Let me recount the familiar but fundamental steps of the argument for state power: a. Responsiveness to Local Tastes and Conditions. The open ing argument for state power is that
social tastes and preferences differ, that those differences correlate significantly with geography, and that social utility can be maximized if governmental units are small enough and powerful enough so that local laws can be adapted to local conditions, something the national government, with its uniform lawmaking power, is largely unable to do.66 Con sider here the following example offered by Professor McConnell: [A]ssume that there are only two states, with equal populations of 100 each. Assume further that 70 percent of State A, and only 40 percent of State B, wish to outlaw smoking in public buildings. The others are opposed. If the decision is made on a national basis by a majority rule, 110 people will be pleased, and 90 displeased. If a separate deci sion is made by majorities in each state, 130 will be pleased, and only 70 displeased. The level of satisfaction will be still greater if some smokers in State A decide to move to State B, and some anti-smokers in State B decide to move to State A.67 As McConnell's example shows, federalism can produce, at least in some admittedly abstract situations, a net gain in social utility. This lends
credence to the argument made above that federalism some times can alleviate the problem of raw majority rule, the key prob lem generated by democratic government. b. The Tiebout Model and Competition Among Jurisdictions. The second argument for state power follows ineluctably from the first. If social tastes and preferences differ and if states are allowed to exist and take those differences into account in passing laws, then the states will compete with one another to satisfy their citizens' preferences for public goods. An advantage to federalism then is that while unitary governments may have no means of determining their citizens' preferences for public goods, decentralize d systems [do]. The necessary 'market type' preference-revelation mechanism was the citizens' ability to move freely among local jurisdictions. ... [S]ocial welfare can be maximized by allowing citizens to choose from among a number of jurisdictions, each of which provides a different bundle of public goods.68 65. Professor Shapiro summarizes and discusses the highpoints of this literature and of fers a useful selected bibliography. See SHAPIRO, supra note 46.
66. See McConnell, supra note 63, at 1493; see also SHAPIRO, supra note 46, at 91-94; LeBoeuf, supra note 64, at 558-59. 67. McConnell, supra note 63, at 1494. 68. LeBoeuf, supra note 64, at 560; see also Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956). December 1995] 775 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Michigan Law Review Because it often may be unclear what bundles of public goods are desirable at what cost, competition among juris dictions holds out the potential for a market mechanism that can provide an empirical answer to the most important questions of governance.69 This argu ment has built into it two crucial assumptions: first, that the policies adopted by the states do not generate significant externalities, a point I come back to; and second, that there be free movement of capital and labor across state borde rs with no important residency requirements of any kind. Obviously, a right of exit is crucial to any competition among jurisdictions because it is that right that allows market
discipline of those juris dictions that provide less desirable bundles of public goods.70 Without a right of exit, a situation of juris dictional monopoly prevails like that which exists under all uni tary national governments. Jurisdictional monopoly is conducive not only to a low-quality bundle of public goods; at the extreme , it could be said also to lead to the denial of fundamental individual liberties. Jurisdictional competition, then, is also beneficial because it leads to the protec tion of liberty. If I dislike the laws of my home state enough and feel tyrannized by them enough, I always can preserve my freedom by moving to a different state with less tyrannous laws. Some may think this liberty argument for federalism is just another form of the argument already made that federalism leads to competition in the provision of public goods. And, of course, if one wrongly believes that fundamental private liberties are "provided" by government as a public good, then these two points indeed do collapse into each other. In fact, however, it turns out that fundamental private liber ties are actually antecedent to government,71 and, therefore, the
protection of those liberties through jurisdictional competition is a great and additional benefit of federalism. 69. See SHAPIRO, supra note 46, at 78; LeBoeuf, supra note 64, at 559-61; see also McConnell, supra note 63, at 1498-500. Competition among states is limited importantly, however, by the fact that citizens must choose between bundles of public goods that are tied together. A citizen of New Hampshire who likes that state's tax rates but dislikes its criminal procedural rules may have to choose which issue matters more to him. The bundling of public goods together into only 50 packages limits the potential degree of personal choice and competition. Nonetheless, a choice among 50 bundles is still much better than only the option of one nationally uniform bundle which is all that is available to citizens of a central ized nation-state. 70. See Richard A. Epstein, Exit Rights Under Federalism, 55 LAW & CONTEMP. PROBS. 147 (1992). 71. See, e.g., THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) ("We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the Consent of the governed ... ."). 776 [Vol. 94:752 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Limited and Enumerated Powers c. Experimentation. The possibility of competition among ju risdictions creates incentives for each jurisdiction to provide bun dles of goods that will maximize utility for a majority of the voters in that jurisdiction. These bundles will not be the same, of course , because we have stipulated already that juris dictional tastes and preferences differ, and, therefore , juris dictional utility curves differ as well. Many jurisdictions will seek to maximize utility by trying to gain the tax dollars of residents and industry from other states. Some juris dictions conceivably might put less emphasis on this par ticular goal so as to maintain a higher quality of life for current residents. In any event, the possibility of competition will lead inexorably to experimentation and
product differentiation.72 In a competitive situation, state governments, as competing sellers of bundles of public goods, must strive constantly to improve the desirability of their bundle lest they lose out. The end result is an incentive for state governments to experiment and improve. This is the point of Justice Brandeis's famous statement that: To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experime nt may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic ex periments without risk to the rest of the country.73 Competition leads inexorably to innovation and improvement. d. Improved Quality of Governmental Decisionmaking and Administration. Decentralized governments make better decisions than centralized ones for reasons additional to the whip they feel from competition. Decentralization ensures that "those responsible for choosing a given social policy are made aware of the costs of that policy."74 This helps
ensure a more informe d weighing of costs and benefits than often occurs at the national level where taxpayers often may be less cognizant of the social costs of particular legislation. In addition and just as importantly, governmental agency costs often may be lower at the state level than at the national level be 72. See SHAPIRO, supra note 46, at 85-88; LeBoeuf, supra note 64, at 561-63; see also McConnell, supra note 63, at 1498. 73. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). For a nice discussion of the laboratory perspective and how federalism structures competition in the political market, see Akhil Reed Amar, Fiv e Views of Federalism: "Converse-1983" in Context, 47 VAND. L. REV. 1229, 1233-40 (1994). 74. LeBoeuf, supra note 64, at 563. December 1995] 777 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms 778 Michigan Law Review [Vol. 94:752 cause monitoring costs may be lower where fewer programs, em ployees, and amounts of tax revenue are involved. The smaller size of the state governmental jurisdictions
thus makes it far easier for citizens to exercise a greater and more effective degree of control over their government officials.75 For this reason, it often makes sense to lodge dangerous and intrusive police powers over crime and over controvers ial social issues in the states where government officials may be monitored more easily by the citizenry. Conversely, state governments also may find that they are able to enforce criminal laws and regulations of social mores less coer cively than the national government because of the lower costs and greater ease of monitoring citizen behavior in a smaller juris dic tion.76 Indeed, ideally small jurisdictional size will lead to less pop ulous state legislative districts, thus producing a greater congruence between the mores of the legislators and of the people than can exist in a continental-sized national republic that necessarily must have enormously large legislative districts and other units of repre sentation.77 The greater congruence of mores between citizens and representatives in state governments in turn may produce greater civic mindedness and community spirit at the state level.78 This might
ameliorate the highly corros ive decline of public spirite dness at the national level that has occurred as a result of the current perception that there exists a discongrue nce of mores between members of Congress and the public. Finally, decentralization improves the quality of governmental decisionmaking by improving the information flow from the popu lace to the relevant government decisionmakers. Centralized com mand and control decisionmaking is often economically inefficient beyond a certain point in all social organizations. This point holds true for the military, for corporations that contract out for many goods and services, and for government as well. Large, multi layered bureaucracies cannot process information successfully.79 Decentralization alleviates this crucial problem by leading to better informed decisionmaking. As our society and economy grow in complexity, the amount of information that government must pro 75. See McConnell, supra note 63, at 1504. 76. See id. at 1508-09. 77. See id. at 1509-10. 78. See id. at 1510. 79. This sort of difficulty was at least partially instrume ntal in the breakdown of the large
centralized government of the former Soviet Union. This content downloade d from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/te rms Limited and Enumerated Powers cess increases as well.80 This is why overly centralized, top-down command and control mechanisms are even less desirable in today's complex modern economy than they were during the Model-T era of Franklin Roosevelt's New Deal. Ironically, the decentralize d federalism of the horse-and-buggy era is better suited to the needs of our information economy than is the overly centralized, outmo ded nationalism of the New Deal. e. Prevents State and Local Attempts To Benefit One Region at the Expense of Another. One of the gravest dangers that could be set any large nation, particularly one as large and populous as the United States, is that one region or state or alliance of states might try systematically to gain benefits for itself while imposing the costs on other states or regions. Nothing could destroy more surely any large country over time than the tolerance of this type of internal redistributive robbe ry. Nation-states all
over the world are plagued by tensions that are created when one region concludes that this type of internal redistributive robbery is going on: indeed, tensions of this very type led to the dissolution of Czechoslovakia because the Slovaks believed they had been systematically abused in this way.81 Federalism greatly raises the costs of this type of regional redis tribution by forcing the states or regions to put together large and unstable coalitions that include the representatives of other states and regions if they wish to redistribute , in geographically targeted ways, the national treasure. Moreover, as to a large range of issues left at the state governmental level, no such redistribution is even possible at all. Federalism thus protects against one of the chief dangers and sources of instability that any large government will face. By creating collective action problems , it makes more costly mutually disadvantageous attempts by communities to take advan tage of their neighbors.82 2. The Argument for the National Government Lest we all conclude that the Union should be dissolved forth with, conside r now the very powerful economic and
political science 80. See generally THOMAS SOWELL, KNOWLEDGE AND DECISIONS (1980) (arguing that decentralized social orders process dispersed information better than centralized social or ders); 1 FRIEDRICH HAYEK, LAW, LEGISLATION, AND LIBERTY (1973) (same); 2 id. (1976) (same); 3 id. (1979) (same). 81. See Langerova, supra note 41. 82. See SHAPIRO, supra note 46, at 83-85; McConnell, supra note 63, at 1494-98. December 1995] 779 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms 780 Michigan Law Review [Vol. 94:752 arguments for the normative desirability of our national government. a. Economies of Scale. As already mentioned, there are many vital government activities that are characte rized by the existence of increasing economies of scale.83 The provision of nuclear weap ons and national defense is an obvious and much-mentioned exam ple, but other such examples abound. Negotiation of trade agreements with foreign nations, ambassadorial and foreign policy apparatuses, large-scale transportation infrastructures , programs of space
exploration and basic scientific and medical research, and programs to redistribute social wealth - all of these and more are examples of government-provided public goods that are cheaper when purchased in bulk than when purchased in smaller increments. The point is so easily and well understood that it need not be belabore d. These vital public goods, public goods that we all have come to expect from government and that have contribute d to enormous human progress,84 would be underproduced seriously by smaller governmental regimes, thereby reducing general social utility. b. Costs of Decentralization. Second, centralization and uni formity, under some circumstances , can reduce social costs. A sin gle national curre ncy is cheaper to use than would be fifty state currencies. As a result, more exchanges occur causing enormous utility gains. A uniform national gauge for railway tracks similarly may produce general utility gains with minimal losses to the people of any one state. Sometimes variety is not the spice of life; as to some items it may be a downright nuisance and an expensive one at that. National government eliminates
these potential deadweight social costs with general gains in social utility as a result.85 In theory, of course , state governments always can negotiate over these issues with the goal of producing a uniform law code whenever the savings achieved by uniformity seem as if they would be great.86 In practice, however, it is costly for fifty state govern ments to negotiate such codes and costlie r still to keep them up to 83. See SHAPIRO, supra note 46, at 46-50; LeBoeuf, supra note 64, at 565-66; see also McConnell, supra note 63, at 1494. 84. For example, the extraordinary expansion in human knowledge and wealth that has occurred from 1492 to the present would not have been possible without the central govern ment financed exploration and scientific research. 85. See SHAPIRO, supra note 46, at 46-50. 86. For a discussion of the uniform law model, see Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489 (1954). This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Limited and Enumerated Powers date. Here again, centralization
promotes general utility gains by eliminating those negotiation costs. Absent such costs, more uni form national laws will exist, and the presence of such laws may encourage greatly both commercial activity and leisure activity by making it cheaper to engage in.87 Particularly where government planning and wealth redistribu tion is involved, centralized government becomes an essential cost saver. State redistribution and planning are frustrate d constantly by exit and competition;88 this is the flip side of the claim that feder alism preserves liberty. Thus, critics of federalism complain that it always produces a race to the bottom: the states end up competing with each other to impose the most minimal tax levels possible for the provision of vitally needed public goods. Thus, we are presented with a classic collective action problem. All states would agree to pay for these goods if they could be sure that by doing so they would not impoverish themselves to the benefit of their neigh bors, but, because they cannot be sure, they all end up with a suboptimal bundle of public goods. This is precisely the bind the thirteen original states found
themselves in under the Articles of Confederation.89 Absent a central government, public goods were being underprovide d because it was too costly for any one state to spend what was needed given the policy choices being made in other states. For this reason, a national role often will be appropri ate where redistribution concerns predomina te. c. Externalities. The need for a national role in wealth redistri bution points to another powerful argument for centralized govern ment: the existence of externalities resulting from state governmental activity. Many important social benefits may be ob tained, with major net gains in utility, as a result of national regula tion that eliminates the external effects of state governmental activity.90 As Jacques LeBoeuf notes, "The problem of interjuris dictional spillovers was assumed away by Tiebout in his model of 87. A more complicated example is a uniform army, in place of 50 state militias. Not only are there increasing economies of scale here, there is also the cost saving that results from the fact that 50 armies might fight one another instead of a common enemy, whereas one army usually will not
consume itself. 88. But see Richard Revesz, Rehabilitating Interstate Competition: Rethinking the "Race to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992) (disproving the race-to-the-bottom thesis in environme ntal law); Ralph K. Winter, Private Goals and Competition Among State Legal Systems, 6 HARV. J.L. & PUB. POLY. 127 (1982) (disproving the race-to-the-bottom thesis in corporate and commercial law). 89. See generally LeBoeuf, supra note 64, at 592-607. 90. See SHAPIRO, supra note 46, at 39-44; LeBoeuf, supra note 64, at 567-74; see also McConnell, supra note 63, at 1495. December 1995] 781 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms 782 Michigan Law Review [Vol. 94:752 interjurisdictional competition, but it is a pervasive feature of real ity."91 Externalities exist for present purposes whenever a state governmental policy, law, or activity imposes costs or confers bene fits on residents of other states. Imposition of costs is a negative externality; conferral of benefits is a positive externality. Absent a
national government, the states will overindulge in activities that produce negative externalities and underindulge in activities that produce positive externalities. A few quick examples make this point clear. State A will pro duce too much air pollution if the costs of that pollution are borne significantly by the residents of State B while all the benefits of the polluting activity accrue to its own residents. A national govern ment perceiving this dilemma might intervene and bring State A's costs more nearly in line with the total social costs of the activity. Absent a national government, however, State A either will con tinue to produce excessive amounts of pollution or it will extract an unjustified rent from State B for ending the pollution or the situa tion will escalate to a conflict of a potentially violent sort if the residents of State B are aggrieved sufficiently to make that worth their while. As to positive externalities, consider the following case. State A invests heavily in education, a public good, only to find that the beneficiaries of that education routinely move out of state in dis proportionate numbers to escape its high tax rates which taxes pay for
the education. State B, a low-tax state, benefits from this juris dictional flight as well-educated residents of A relocate to B. Re luctantly, State A concludes that it must cut back on its investment in public education because, due to federalism, it is unable to reap the full benefits of its investment, many of which are accruing to the freeloading residents of State B. State A thus ends up underinvest ing in education, a public good, because federalism prevents it from recouping on its investment.92 91. LeBoeuf, supra note 64, at 567 (citation omitted). 92. This hypothetical illustrates vividly the importance of time framing in determining whether a state policy has a substantial effect on inters tate commerce. If your time frame is broad enough, then, as in my education example, there is an effect. Similarly, in Lopez, Justice Breyer used a very expansive time frame to justify his conclus ion that schoolyard violence was a federal problem. See United States v. Lopez, 115 S. Ct. 1624, 1659-62 (1995) (Breyer, J., dissenting). Breyer's argument does not work on the facts of Lopez, however, where the proximate effects are local in place and current in time
and where control over local schoolyards and local crime implica tes policy areas traditionally reserved to state gov ernment. All this shows is that it matters a lot where we start the story and where we end it. For a discussion of time framing in criminal law, see Mark Kellman, Interpretive Construction in the Criminal Law, 33 STAN. L. REV. 591 (1981). This content downloade d from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/te rms Limited and Enumerated Powers These two classic and well-known situations demonstrate the normative value in many contexts of national lawmaking. The na tional government can prevent serious negative externalities caused by state governmental action by adopting policies that force the states generating those externalities to pay for the associated costs. Alternatively, in cases in which that is too difficult to do, the na tional government simply may occupy the field altogether and take over, itself, the provision of the relevant service or activity. Simi larly, the national government can subsidize state programs that generate positive externalities to ensure that
they are provided at nationally optimal levels. Or it can provide those public goods it self, using national resources. In both situations, the normative case for the national govern ment is powerful and, in this instance, stronger than it was in 1937 or 1787. The enormously greater size and complexity of the state economies and government and the added number of public goods needed today means that state lawmaking generates more positive and negative external effects than ever before. Moreover, there are today fifty state governments whose laws can have external effects, whereas in 1787 there were potentially only thirteen. In this re spect, at least, the normative case for centralization has grown stronger. Nonethe less, it should be noted that not every external effect of state lawmaking can justify national intervention. Otherwise, the competition among states, with all its beneficial effects, would have to come to an end. Competition among states can work only if there are winners and losers, and this in turn means that, in some circumstances, it is legitimate for there to be external effects of one state's policies on other states. The
answer, I think, is to acknowledge a national role in sup pressing external effects to furthe r necessary redistributive con cerns, to prevent discrimination against minority groups, to prevent damage to the property or environment of other states, and to fur ther distinctively national interes ts stimulated by foreign policy or uniform law coordination concerns. A national role is not appro priate, however, where the external effects of state laws are the re sult of the desire of state citizens to have their own social, cultural, and community fabrics or where state citizens seek to maintain a close local hold on local law enforcement functions. A national role also is not appropriate in implementing and administering redistrib utive programs if the result is to produce a large and unresponsive December 1995] 783 This content downloade d from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/te rms Michigan Law Review bureaucracy. In these circumstances , national block grants adminis tered by the states may work much better. d. Protection of Minorities. Lastly, there is the powerful argu ment that a large
and populous national government may protect unpopular minority groups more effectively than will a small homo geneous state government.93 This famous argument, made by James Madison in Federalist Ten, already has been thoroughly ex plained, so there is little more for me to say about it here.94 Con sider though, in passing, how the accuracy of Madison's predictions reinforce the truth of his arguments. Although Madison was writ ing about state majoritarian oppression of the rich,95 his arguments of 200 years ago describe with pinpoint accuracy our whole subse quent history of race relations in this country from the Civil War era, to the era of legal apartheid, and right on down to the present when we find most pressure for affirmative action coming from the federal level. The Madisonian argument for nationalism has proven true, as much as any argument from political science ever can. Indeed, it has proven so true that some reasonably question whether certain undeserving factions and minorities are too well prote cted at the federal level.96 In Europe and around the world, we consistently observe international courts and
quasi-legislative entities paying more attention to human rights concerns than do national courts and legislatures. The need to protect minority fundamental rights, then, constitutes an important component of the normative case for national power. 3. Why Federalism Is Normatively More Appealing than Either Nationalism or Disunion The case for federalism over nationalism or disunion begins first with the observation that it may allow us to obtain the benefits of both worlds. There are plainly some decisions that are made best in a decentralized fashion and some that are made best in a central ized fashion. This is a truism of all forms of social activity, from the 93. See SHAPIRO, supra note 46, at 50-56; McConnell, supra note 63, at 1501; Calabresi, supra note 30, at 1403-10. 94. See supra notes 57-60 and accompanying text. 95. See THE FEDERALIST NO. 10, supra note 29, at 84 ("A rage for paper money, for an abolition of debts, for an equal division of property, or for any other wicked project, will be less apt to pervade the whole body of the Union than a particular of it, in the same propor tion as such a malady is more likely to taint a
particular county or district than an entire State."). 96. See SHAPIRO, supra note 46, at 79-81; McConnell, supra note 63, at 1495-98. 784 [Vol. 94:752 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Limited and Enumerated Powers corporate world to the milita ry to our own daily family lives.97 Fed eralism acknowledges this fundamental reality of human existence and provides institutional forms that may allow us, under some cir cumstances, to achieve at least some of the best of both worlds. This structure , no doubt, is one reason why an institution that grew up out of historica l accident nonetheless continues to thrive. There may well be other forms American federalism could have taken, either more nationalist or more localist, but the American people and their elites do not seem very anxious to explore them. This could be simply a failure of imagination, but, more likely, it suggests that, most of the time, federalism giv es us at least enough of the best of both worlds so that it is worth the costs of keeping it around. Those costs, of course, are not
insubstantial. They include not only the actual out-of-pocket expense of two sets of government officials, along with their sometimes wacky ideas, but also the costs of coordination and lost accountability that inevitably accompany any multiplication in the number of governmental entities. On bal ance, however, it must be remembered that as a continental-sized nation, we need the benefits of federalism more than a small homo geneous nation like Britain, which may well be moving toward fed eralism itself. We are both more heterogeneous than Britain and, because of our geographical position, we are more in need of ex pensive national items with increasing economies of scale. Experi ence and theory both suggest that American federalism fits this country's needs quite nicely. Second, there is another important advantage to American fed eralism. With two levels of government, the citizenry, to some ex tent, can play each level off against the other with concomitant reductions in the agency costs of government. History teaches that government agency costs, even in a democracy, can become quite high. It is thus no accident that
Americans have thought from the time of the founding onward that liberty would be preserved by having two levels of government that could serve as checks on one another.98 We have seen already that national government cannot be ex pected to process all dispersed social knowledge as if it were omni scient. Similarly, it cannot be expected to exercise total governmental power as if it were benign. "Power corrupts and ab 97. See supra note 80 and accompanying text. 98. See McConnell, supra note 63, at 1504-07. December 1995] 785 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms 786 Michigan Law Review [Vol. 94:752 solute power corrupts absolutely."99 A national government un checked by state power would be more rife with agency costs and more oppressive than the national government we have. The exist ence of the states as constitutionally indissoluble entities provides a vital bulwark from which citizens can organize against tyranny. As Andrzej Rapaczynski brilliantly has shown, the existence of state governments helps citizens solve the
collective action problem of organizing against tyranny.100 The states do help preserve freedom because they can rally citizens to the cause of freedom, helping to overcome the free rider problems that otherwise might cause na tional usurpations to go unchallenged by the "silent" majority of unorganized citizens.101 Conversely, the national government can organize a "silent" majority of citizens against state oppression - as it did in 1861 or 1964 - more effectively than could a loose confederation, military alliance, or free trade association. Constitutionally indissoluble na tional government also helps citizens to overcome collective action problems in fighting usurpation or tyranny at the state level. The success of the American Union in fighting might be contrasted here with Europe's inability to police Bosnia. It turns out that there is a great deal to be said for having "an indestructible Union, composed of indestructible States."102 Federalism, like the separation of pow ers, is a vital guarantor of liberty. I should be very clear that the advantages of federalism differ in this respect from the advantages of decentralization. Professors Edward
Rubin and Malcolm Feely have challenged the recent Supreme Court renaissance of federalism by arguing that all the real benefits of what we call federalism are in fact benefits of decen tralization.103 They claim that a decentralized system with no con stitutional protection for state power and with redrawn state lines would yield the same benefits as the proponents of federalism claim 99. Letter from Lord Acton to Bishop Mandell Creighton (Apr. 5, 1887), quoted in GERTRUDE HIMMELFARB, LORD ACTON: A STUDY IN CONSCIENCE AND POLITICS 160-61 (1952). 100. See Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprude nce of Feder alism After Garcia, 1985 SUP. CT. REV. 341. 101. For a thoughtful description of some other ways in which states can preserve liberty, see Amar, supra note 73, at 1240-49. 102. Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1968). For an argument that the Guaran tee Clause constitutionally protects the structures and autonomy of state government, see Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988). 103. See Edward L.
Rubin & Malcolm Feely, Federalism: Some Notes on a National Neu rosis, 41 UCLA L. REV. 903 (1994). for federalism. In so arguing, Rubin and Feely completely overlook the difference between our constitutionally mandated system of de centralization and a system like France's where decentralization is merely a policy option easily reversed - a matter of temporary national legislative grace. Rubin and Feely's argument is wrong, however, more funda mentally because it also totally overlooks the value of the states in helping citizens resolve the serious collective action problems that must be overcome to halt national usurpation. Admittedly, the state militias pose much less of a check on the U.S. Army than they did in 1787 or 1861, but, nonetheless , the tremendous constitution ally protected dispersion of political, law enforcement, and military resources in this country does check national power. Movements for social change and even U.S. presidential campaigns usually commence from some regional or state base and then spread across the country. This phenomenon should not surprise us. The consti tutionally indestructible states do
play a useful role in lowering the costs of organizing to fight for change or to resist tyranny.104 Feder alism is about more than constitutionally mandated decentraliza tion, as important as it is that decentralization be mandated constitutionally and not merely an act of grace from our national overlords in Washington. Federalism is also about the fear of con centrated national power and the grave abuses of individual and minority rights to which that power can be put. This is why the advocates of federalism , ancient and modern, always have defended it as preserving liberty and protecting against tyranny. The advo cates of federalism are right, and Rubin and Feely are wrong. Finally, it might be objected that the arguments for state and national power listed above all cancel each other out - that each is just the flip side of the coin from the other. From this, it could be said that American Federalism is intelle ctually incoherent - that it is a mishmash of arguments invoked on behalf of policies favored for other reasons. Again, I respectfully must disagree. Broadly speaking, I think history, political science, and economics suggest a powerful case
for national control over defense, foreign policy, free trade, minority protection, redistribution to keep the social peace, and certain environmental spillover effects. Conversely, I think his tory, political science, and economics suggest a powerful case for state control over social, cultural, educational, and community is sues, over nonredis tributive aspects of domestic law, over law en 104. See Rapaczynski, supra note 100. December 1995] 787 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Michigan Law Review forcement, and over the administration and adjudication of most questions of national and state law. There is a role in "Our Federal ism" for both the national and the state governments to play. The proper line of distinction between the two levels may not always be easy to discern, but it does exist. C. Assessing the Historical and Normative Case for Federalism We now have considered in sections A and B both the historical, empirical case for federalism and the normative, economic case for federalism. How should we assess the weight of these
arguments? What conclus ions are we led to with respect to the importance of federalism as a structural component of the American system of government? A few brief observations should seem almost obvious at this point. First, and probably counterintuitively, I should say that I think the historical case for American federalism is stronger than the eco nomic case. The economic case is more analytically rigorous, a fea ture that commends it to academics, but it rests on countless artificial assumptions that turn out to be highly relevant if not dis positive. The historical case, by contrast, rests on experience, and, while the past fortunately is not always predictive of the future, it remains the best predictor to which we mortals have ready access. Let us pause for a moment here to consider one key overlooked assumption in the economic model that history has shown is of dis positive importance. The normative economic case for federalism takes no account of geography. The normative case made for state government would work just as well if the "state entities" were initially segmented not territorially but by race, religion, or social class.
Thus, one could hypothesize a regime in which people initially were assigned to one such "state" and freely could exit it and join other "states." There fore, virtually all of the economic benefits alleged to flow from state government still should obtain - under this model - absent terri toriality.105 Less absurdly, but still wrongly, the economic case for federalism appears to suggest that federalism will work equally well in Canada or the United States, the former Soviet Union or Swit zerland, or Yugoslavia or Australia. Obviously, as the economists would say, something is missing from the model. The economic model that we reviewed - the 105. See LIJPHART, DEMOCRACY IN PLURAL SOCIETIES, supra note 32, at 43-44 (referring to nonterritorial European federalism based on the personality principle). 788 [Vol. 94:752 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Limited and Enumerated Powers standard economic model used by lawyers - fails to mention the importance of territoriality and geography. As our historical exege sis demonstrates, however,
federalism works best if there are both many jurisdictions, an economic point, and if there is not an ex treme territorial segmentation of socially competing and rivalrous groups, a federalism market-structure point. These points would be overlooked and an opportunity to refine the economic model missed, if we did not look first to history to see what actually has happened in practice. Analytical models are extremely useful, if sometimes daunting in their complexity, but we should not follow them over a cliff. It is vital, in this context as well as in others , that we study social institu tions and practices from both a historical comparative point of view and from an analytical social science point of view. Any other course of action is dangerous folly. Having said this, the historical comparative case and the eco nomic political science case for American federalism seem quite strong. No other feature of our governmental system can be so sys tematically defended. Our presidential- separation-of-powers, two party political system has not swept the global marketplace as has federalism.106 Nor has it been defended in as analytically rigorous a fashion
as federalism can be defended, although some of us have tried to remedy this defect.107 Our Bill of Rights and system of judicial review have attracted more interest from "purchasers" in the global marketplace for pub lic law and governmental institutions. Moreover, many in this country have defended the desirability of those institutional struc tures in analytically rigorous ways. The problem here is that it is obvious that Bills of Rights and judicial review will go only so far i
U.S. 251 (1918). 155. 312 U.S. 657 (1941). 156. Federal judicia l enforcement of national prerogatives against the states, pursuant to the Supremacy Clause, is universally accepted. It is only when state prerogatives are at issue that federal judicial competence suddenly comes into question. This content downloade d from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/te rms Limited and Enumerated Powers some important cases but that fact does not excuse New Deal ex cesses like Wickard v. Filburn.157 The assertion of judicial incompetence in enumerated power federalism cases is also surprising because when we look closely at modern judicial doctrine we see that the Court routinely protects many federalism interests in a whole host of both controvers ial and largely uncontroversia l ways. Professor David Shapiro provides a useful listing of these ways in his new book on federalism.158 Con sider here the rule of Murdock v. Memphis159 that the state courts are the final arbite rs of state law; the Erie160 decision governing diversity cases; the abstention doctrine of Younger v. Harris;161 the
growing willingness in recent years of the Court to limit federal habeas;162 the Court's continuing broad construction of the Elev enth Amendment so as to protect the states from federal judicial scrutiny;163 the Court's hesitancy to conclude that Congress has pre empted state law;164 the guarantee of Texas v. White165 that ours is an indestructible union of indestructible states; the guarantee of Coyle v. Smith166 holding that the states had residual powers as to a few questions on which their sovereignty is predominant; and, fi nally, the guarantee of New York v. United States167 that state law making functions cannot be drafted into service for purposes of federal lawmaking. These rules and cases and a host of others all provide instances in which the Court widely is considere d to be perfectly competent to protect and adjudicate the national-state balance of power. Some of the doctrines alluded to above are highly controversial; others are not controversia l at all. But one thing surely seems clear. It is simply not true that the national courts generally are perceived as lacking the institutional competence to take federalism into ac count
and to help preserve the national-state balance of power. That perception may arise in Commerce Clause cases but it does 157. 317 U.S. 111 (1942). 158. See SHAPIRO, supra note 46, at 1-3. 159. 87 U.S. (20 Wall.) 590 (1874). 160. Erie R.R. v. Tompkins, 304 U.S. 64 (1938). 161. 401 U.S. 37 (1971). 162. See SHAPIRO, supra note 46, at 2 & n.9 (collecting cases). 163. See id. at 2 & n.10 (collecting cases). 164. See id. at 3 & nn.11-12 (discussing Supreme Court preemption jurisprude nce and collecting cases). 165. 74 U.S. (7 Wall.) 700 (1868). 166. 221 U.S. 559 (1911). 167. 112 S. Ct. 2408 (1992). December 1995] 801 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Michigan Law Review not arise more generally. Is there then something peculiar about the Commerce Clause or about the list of powers more generally in Article I, Section 8 of the Constitution that suggests that the Court is incompe tent to decide issues and cases arising under those parts of the Framers' Constitution? I submit there is not. Admittedly, the Commerce Clause raises serious interpretive
problems , problems that are raised by the tax ing and spending power provisions as well.168 It is difficult to say with exactitude where interstate commerce ends and education or local law enforcement or wholly intrastate commerce begins. Any first-year law student can show by cumulating individua lly insignifi cant effects that any given congressional regulation of commerce rationally might be based on the belief that a state activity was gen erating significant external effects on other states and thus on inter state commerce. Similarly, it would be easy to run this analysis in reverse and show that all congressional exercises of the interstate commerce power were invalid because they significantly affect the exclusive power of the states over education or tort law or family law or local law enforcement. The New Deal Court was right in Wickard that if you follow the chain of causation far enough everything seems to affect everything else.169 This is not a profound observation or a novel insight. It certainly provides no excuse for the Court's refusal for the past fifty years ever to invalidate even a single tenuous, farfetched exercise of the
commerce power even in cases such as Lopez in which Congress was bearing down very close to the re served power of the states over education and local law enforcement. There was no plausible claim in Lopez that external effects justi fied a national law. To the contrary, the effects of gun carrying within 1000 yards of a school are overwhelmingly local, which is why over forty170 states have laws against this practice. Carrying guns near a school is undoubtedly a national problem , as Justice Breyer argues powerfully in the dissent.171 But, it is not a federal problem.172 It is a problem that generates serious local costs and 168. Professor McConnell offers an intriguing suggestion on the proper scope of the spending power. See McConnell, supra note 63, at 1497-98. He suggests that the power may allow spending for more than the enumerated purposes so long as it is for the general welfare of the country as a whole and not for the benefit of only one state or region. 169. See Wickard v. Filbum, 317 U.S. 111, 123-25, 128-29 (1942). 170. See United States v. Lopez, 115 S. Ct. 1624, 1641 (1995) (Kennedy, J., concurring). 171. See 115 S. Ct. at
1659-61. 172. I am indebte d to Akhil Amar for this point. 802 [Vol. 94:752 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Limited and Enumerated Powers that only experimentation and innovation will help solve. The ex ternal effects on other states are minor when compared to the in state effect. Nothing in the exhaustive historical or economic case for feder alism canvassed in Part I above suggests that this is a problem that we need federal action to solve. On the other hand, there is much in that historical and normative case that suggests that education and local law enforcement are functions that we do well to leave to the states. There may be a case for federal subsidization of educa tion and local law enforcement through general appropriations bills because education and local law enforcement are public goods that the states may underprovide for various reasons. But, there is noth ing to be gained and much to be lost from allowing the federal be hemoth to get involved in matters as overwhelmingly local in their impact as the ones involved in Lopez.
The historical and normative arguments against a federal law here are overwhelming: the value of experimentation among differing juris dictional approaches to fighting juvenile crime; the danger to liberty of a national criminal law; the peculia r value of state control over the content of educa tion, both as a vehicle for reflecting cultural diversity and for fear of what a national power might do with education; the absence of seri ous negative externalities; the absence of any showing of increasing economies of scale; and on and on. The only thing that is surpris ing about Lopez is that it was a five-to-four decision. This is an incredi bly easy case of sloppy congressional usurpation of power. Well, what about the next case one might ask? If the Court starts down this road again, where should it stop? Do we follow Justice Thomas and Professor Epstein, who would restore the case law of 1937?173 Is that case law at all likely to work in modern circumstances , and, if it does not, what intermediate positions are there? One institutionalist judicial response might be the one that four out of five members of the Lopez majority adopted, which is to
preserve the form of the New Deal doctrine, at least initially, but apply it with more bite. Under this approach the Court could strike down clear excesses like Lopez or Wickard, if it came up de novo today, while preserving such cases as Heart of Atlanta174 or Mc 173. See Lopez, 115 S. Ct. at 1648-51 (Thomas, J., concurring); see also Epstein, The Proper Scope of the Commerce Power, supra note 150. 174. Heart of Atlanta Motel v. Unite d States, 379 U.S. 241 (1964). December 1995] 803 This content downloade d from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/te rms Michigan Law Review Clung175 or Darby,176 which provided the foundation for much of the modern national law that regulates intrastate activities that gen erate severe external costs on the residents of other states. Does anyone doubt that the pre-1964 southern practice of racial discrimi nation generated severe negative externalities while benefitting the white majorities in the South? Of course not! Was it necessary and desirable as a practical matter to expunge that system so that any federal law targeted against it applied
nationally and not only in the South. Yes, again. Reasoning analogically, on a case-by-case basis as first-year law students are taught to do, is there even the remot est resemblance between the severity of the negative externalities generated in Heart of Atlanta or Darby and those generated in Lo pez or Wickard? Of course not. We do not need a whole grand and unified theory of the scope of the commerce power to decide Lopez or to overrule Wickard, something the Lopez Court explicitly, conspicuous ly, and foolishly refused to do.177 It is enough to say that Lopez is not remotely a close case and that we will worry about the close ones when they come up and when a new body of Commerce Clause case law, in formed by the teachings of history and economics set forth in Part I of this article, has been assembled. If we still are worried, then we will defer to Congress because excessive restraint is less dangerous than excessive activism. But there was no reason for deference on the facts of Lopez and no reason for the Court's extreme show of respect for atrocities such as Wickard. Some assertions of the fed eral commerce power are truly
beyond the pale, and this was one of them. In fact, the line-drawing and fact-finding problems here are no more difficult than they are in the context of determining what con stitutes an impermissible endorsement of religion or when an abor tion law violates the doctrinally recognized right to privacy or when unprotecte d obscenity becomes protected pornography. In these and a whole host of other similar situations, the Court does not think twice about promulgating nationally binding rules, minute in their detail, and concerning cultural, social, and religious matters on which people can and do quite validly and sincerely disagree. One would think it is on some of these contentious social issues that the Court should hesitate before it draws necessarily arbitrary and con troversial lines. One would think it is on these issues that the Court 175. Katzenbach v. McClung, 379 U.S. 294 (1964). 176. United States v. Darby, 312 U.S. 100 (1940). 177. See Lopez, 115 S. Ct. at 1630. 804 [Vol. 94:752 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Limited and Enumerated
Powers might show some deference to the fact finding of democratic state legislatures, which are close to the people and attuned to their needs and prefere nces. This is all the more true when we remember that the Court rou tinely enforces the Commerce Clause in its negative "dormant" as pect, the aspect that is judicially enforceable against the states. Here the Court has no trouble invalidating state laws that generate significant negative externalities while upholding those that do not.178 Never in this context does the Court worry that it may have gone beyond its institutional competence by weighing and assessing the significance of the external effects of state laws. Why then should the Court worry about its competence to make precisely the same determination as a basis for deciding whether Congress has a Commerce Clause rationale that would support a national law? It seems to me, as it has to others,179 that the Court's dormant Commerce Clause case law belies the cries of judicial inca pacity here. The contexts are different and the case is strong for giving Congress deference where there is doubt, but still the paral lel is useful.
Moreover, in this context, the commerce power is being used to nationalize state criminal law, a decision that is fraught with danger and controversy. This process of nationalization, which is rapidly gathering steam, threatens to have severe adverse consequences for liberty and for the crowde d dockets of the federal courts, a matter on which the Supreme Court has special claims to institutional com petence. For this reason, too, the Court should not worry about its competence to decide cases like Lopez. What national entities know more about the costs and benefits of federalization of the criminal law than do the national courts? There is no very good argument to support the claim that the Court lacks institutional competence to enforce enumerated powers limitations against Congress. Indeed, this was one of its most visi ble activities for a long time, and it is an activity that many other federations expect their supreme courts or constitutional courts to play.l80 The German Constitutional Court has no trouble enforcing 178. For fascinating discussions, see Eskridge & Ferejohn, supra note 110; Farber & Hudec, supra note 24; Donald H.
Regan, The Supreme Court and State Protectionism: Mak ing Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091 (1986). 179. See, e.g., LeBoeuf, supra note 64, at 609-15. 180. Historically, Canada and Australia, for example, have judicia lly enforced their ana logues to the Commerce Clause quite vigorously. See RICHARD E. JOHNSTON, THE EFFECT OF JUDICIAL REVIEW ON FEDERAL-STATE RELATIONS IN AUSTRALIA, CANADA, AND THE UNITED STATES 233-78 (1969). December 1995] 805 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Michigan Law Review enumerated powers.181 Indeed, it appears that judicial review and federalism often go hand in hand all over the world. A major impe tus in the global spread of judicial review has been the need for cen tral judicial umpiring of federalism guarantees.82 It is ridiculous to pretend that reasons of judicial capacity make the decision of cases like Lopez difficult. Whatever difficult interpretive problems the Commerce Clause raises, this is not one of them. B. Why the Fear of Judicial Activism Is Misplaced
A fear that often is stated in this context is that national judicial enforcement of the Constitution's federalism guarantees will lead again to a crisis like the one that the Supreme Court narrowly es caped in 1937.183 Such a crisis presumably could occur on either one or both of the following two dimensions. It might involve a national judicial crippling of the vital functions and role of the na tional government, thereby seriously harming the interests of the United States. Alternatively , or additionally, it might involve as well the destruction or the permanent damaging of the Supreme Court's power of judicial review due to some fatal or near-fatal col lision with the political branches. Either of these concerns could present a reason for total judicial abstention in constitutional feder alism cases, if they had any basis in reality. To begin with, it seems unlikely in the near future that the Court again would get itself into as serious a bind as it found itself in 1937. Presumably, the Justices have learned from that experience and would be more deferential about repeatedly invalidating the popu lar program of a popular president during a major national
crisis. In addition, no such major crises seem to be remotely on the hori zon anytime soon nor are we likely soon to have a President, backed up by a Congress of his own party, who is determined to take on the Court. History may repeat itself sometimes but rarely does it do so mechanically, and "generals" who assume such mechanical repetition of history usually are accused disparagingly of "fighting the last war." There is no prima facie reason to think that judicial enforcement of constitutional federalism inevitably will produce a train wreck any more than we should assume that judicial 181. See DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 69-120 (1989). 182. See MAURO CAPPELLETTI & WILLIAM COHEN, COMPARATIVE CONSTITUTIONAL LAW 10-11 (1979); see also ALLEN R. BREWER-CARIAS, JUDICIAL REVIEW IN COMPARATIVE LAW (1989) (discussing contemporary trends toward constitutionalism, judicial review, and federalism). 183. See, e.g., United States v. Lopez, 115 S. Ct. 1624, 1652 (1995) (Souter, J., dissenting). 806 [Vol. 94:752 This content downloaded from
128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Limited and Enumerated Powers enforcement of the Due Process Clauses inevitably will produce a train wreck.184 This being said, what are the chances that the national courts will seriously incapacitate the national government, preventing it from perform ing its vital constitutional functions? As Professor McConnell accurately has pointed out, "Of the two classes of judi cial error - striking down constitutional legislation and upholding unconstitutional legislation - the former is more dangerous since the political corrective is so much more difficult."185 This is espe cially true in this context because, as we have seen, there is a pow erful normative case to be made for national governmental power in situations in which there are economies of scale or in which state laws produce seriously disruptive externalities or in which minority rights are threatened. Improper or frequent Supreme Court invali dation of such vital national laws arguably might be worse, giv en the difficulty of correcting judicia l errors, than adoption of Profes sor Choper's
federalism proposal. Fortunately, there is absolutely no likelihood that this will happen. The implausibility of this scenario is made clear if we stop and think for even a moment about the incentive structure faced by Supreme Court Justices and by federal judges in general. These powerful and prominent government officials are officers of the na tional government. They are picked essentially by the President or his aides, again national officers, and usually are confirmed in a pro forma fashion by the Senate.186 They receive very large national appropriations for their office space and staff, which can be reduced at any time by Congress. They work in Washington, D.C., live nearby, and have long since given up riding circuit, a practice that at least had the virtue of getting the Justices out of the Capital City. The Justices are accountable to liberal national journalists who cover the national courts and confer gushing praise on any juris t who does their bidding and biting scorn and sarcasm on those who refuse to go along. Their opinions are dissected in detail in national law reviews by law professors and law students at elite national 184. But see
Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992). 185. McConnell, supra note 63, at 1487. 186. Very rarely, the Senate will reject a nominee, usually when there is an important vacancy on the U.S. Supreme Court, but sometimes also when there is an important lower court vacancy as well. The Senate usually recovers from these exertions swiftly and confirms the next nominee post haste. This course of action allows a majority of the senators to be both against and in favor of whatever was controversia l about the first nominee. Thus, for example, a majority of the Senate was both against Judge Bork and in favor of Justices Kennedy and Thomas. December 1995] 807 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Michigan Law Review schools from which they also must hire their law clerks. Should they ever hope to be promoted or receive a pay increase, they must look again to the national government from whence that promotion or pay raise must come. In sum, the Justices and judges of the U.S. federal courts are national officers in every possible
sense of that term. Every good thing they have to hope for and every bad thing that they have to fear will happen to them as a result of some national political or social institution. Such Justices and judges are far more nationalis tic in their outlooks than Members of Congress or even federal bu reaucrats, who may have to deal personally with state and local officials on a regular basis. Thus, even national jurists who arrive on the federal bench from a state court soon may end up with a very nationalistic perspective on the world.187 All of this federal judicial nationalism is not always a horrible thing, although obviously nationalism is an outlook that I do not share. But, it certainly does tend to suggest that the idea that the national courts somehow are going to go wild and cripple the na tional government is really pretty far-fetched. Why on earth would we expect an institution with a nationalist outlook to behave that way? Certainly not because that is what it usually has done in the past. To the contrary, the Supreme Court's past record is one of ferocious scrutiny of state laws and general deference to national ones. There is absolutely
nothing , and I mean nothing, either in history or in the incentive structure faced by the Supreme Court to support the notion that there is any prospect that the Supreme Court is likely to cripple the federal government by construing its powers too narrowly.188 There is plenty of evidence, however, that if it ever does attempt to do any such thing Congress and the Presi dent will bring it to heel quite fast.189 Conside r thus the famous article writte n by Professor Robert Dahl of the Yale Political Science Department.190 Professor Dahl argues convincingly that the Supreme Court is powerless to resist the major policy objectives of lawmaking majorities. 187. Without meaning to be critical, I would suggest that Justice Souter, like Justice Brennan before him, presents an example of this. 188. See Eskridge & Ferejohn, supra note 110, at 1398 ("[N]ational courts are unlikely to have either the desire ... or the opportunity ... to restrain sustained congressional assertions of authority over the states."). 189. See ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 113-20 (2d ed. 1994). 190. See Robert A. Dahl. Decision-Making in a Democracy: The
Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957). 808 [Vol. 94:752 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/te rms Limited and Enumerated Powers The fact is ... that the policy views dominant on the Court are never for long out of line with the policy views dominant among the law making majorities of the Unite d States. Consequently it would be un realistic to suppose that the Court would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority.191 According to Dahl, this conclusion follows from the fact that, on average, a President can expect to appoint two new Justices per term in office. "[I]f this were not enough to tip the balance on a normally divided Court, he is almost certain to succeed in two terms."'92 Given the President's power to appoint Justices, it is ex tremely unlikely that the Court ever will stray for very long from the view of national power held by a convinced majority of the na tional electorate. Moreover, even when the Court is determined to resist the pol icy objectives of
a lawmaking majority, Dahl demonstrates that "Congress and the president do generally succeed in overcoming a hostile Court on major policy issues."193 Dahl shows that when the Court strikes down a major national policy initiative, Congress and the President typically repass the law in defiance of the Court. These arguments, confirmed in recent scholarship,194 constitute an important rebuttal to those who profess fear that national judicial activism someday might lead to a dangerous weakening of the con stitutional powers of the national government. At most, we are likely to get from the federal courts a federal ism second-look doctrine. Under such an approach, the courts might strike down a law the first time Congress passes it only to uphold substantially the same law if Congress passes it a second time. Such a second-look federalism doctrine poses no threat what soever to the national government, while holding out the possibility for real benefits by giving constitutional federalism guarantees at least some meaning. The fact of the matter is that to the extent that we rely for feder alism enforcement on the national courts, we are
relying on a na tional umpire to resolve state-national disputes. It should come as no great surprise to anyone that, historically, national judicial um 191. Id. at 285. 192. Id. at 284. 193. Id. at 288. 194. See Gerald N. Rosenberg , Judicial Independence and the Reality of Political Power, 54 REV. POL. 369 (1992); see also GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991). December 1995] 809 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Michigan Law Review piring has favored and is likely to continue to favor claims of na tional power against the states. C. Why the Only Danger Is Excessive Judicial Deference The only realistic fear that anyone should entertain about na tional judicial enforcement of constitutional federalism guarantees is that it may favor claims of national power so consistently as to be worse than no enforcement mechanism at all. This fear arises be cause the occasional judicia l invalidation of some national excess may not do enough good to compensate for the harm that is done by giving the
public a false sense of security that the courts really are enforcing the federal-state balance of power when, in fact, they are not doing so. The very real danger is that the Supreme Court will end up con ferring legitimacy on congressional and presidential usurpations of state power that might be resisted more vigorously in the absence of federal judicial review. The advantages of constitutional federal ism will not be obtainable if the Court hands down decisions like Lopez only once every ten years. National judicial umpiring of fed eralism boundaries will be useful only if the courts invalidate usur pations with some frequency, thus justifying the public confidence that the judiciary really is doing its duty in this category of cases. Unfortunate ly, there is no good way to assess whether judicial enforcement of constitutional federalism guarantees can be made to be worth the costs in this regard. Recent history is not reassuring, and the incentive structure of national judges is less reassuring still. But, as a practical matter, there really is no better alternative out there on the horizon right now. We already have seen in Part II that there is no reason
whatsoever to hope for congressional or presidential enforceme nt of federalism boundaries. The states themselves are powerless to provide enforcement, unless they sur prise us all and call a Constitutional Convention under Article V. Accordingly, for the moment at least, the situation we face suggests that it is going to have to be national judicia l enforcement of feder alism or no enforceme nt at all. While the question is a close one, I think the better call is to encourage the national courts to do their best, while maintaining a drumbeat of pressure and scrutiny to try to keep them from falling down on the job too badly. That being said, there is no reason for optimism. Lopez probably offers little more than a glimmer of hope that the courts actually will resume doing their job in this area. 810 [Vol. 94:752 This content downloade d from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/te rms Limited and Enumerated Powers Real and effective enforcement of constitutional federalism guarantees would require a constitutional amendment that either would alter the composition of the Supreme Court
or create some new federalism enforcement entity that was not stacked with na tional umpires. So long as we must rely upon national umpires to resolve state-national disputes , we will be unable to obtain anything remotely resembling the full normative advantages of federalism outlined above in Part I. IV. THE INSTITUTIONAL COMPETENCE OF THE SUPREME COURT: IS THE COURT BETTER AT ENFORCING THE FOURTEENTH AMENDMENT THAN IT IS AT ENFORCING CONSTITUTIONAL FEDERALISM? The conventional wisdom, accumulated over the past sixty years, is that Supreme Court judicial review is most needed and is most valuable in what sometimes misleadingly are called "individ ual rights cases."'95 Here again, Professor Choper has provided one of the most intellectually rigorous and honest statements of the reigning constitutional orthodoxy - a set of viewpoints shared by virtually all law professors and judges alike.196 Professor Choper's argument is that judicial review is uniquely valuable in "individual rights cases" but that it is inherently fragile because its use gener ates intense controversy, thus drawing down the Supreme
Court's institutional capital of popular support.197 Thus, Choper concludes that the Supreme Court should conserve its political capital by de ciding "individual rights cases" while leaving enumerated powers limitations to be enforced by the political branches.198 Professor Choper's claim is one of comparative institutional competence: he thinks the Supreme Court is better at deciding "in dividual rights cases" and is needed more in that area than else where. If corre ct, this argument would provide a powerful 195. This terminology, used by Professor Choper and many others , see CHOPER, supra note 8, at 169, presumes wrongly that federalism and separation of powers claims raised by individual litigants do not involve claims of individual right. For reasons well developed by others , I disagree. See, e.g., REDISH, supra note 8, at 3-6 ("[A]ny purported dichotomy be tween constitutional structure and constitutional rights is a dangerous and false one."). What Choper and others really mean when they use the label "individual rights claims" is: (1) claims against state entities based on the Fourteenth Amendment or on Article I, ? 10, or (2) where,
only a federal entity is concerned, claims based on the Bill of Rights or on Article I, ? 9 or on some similar provision of the original Constitution. 196. See CHOPER, supra note 8, at 60-128. 197. See id. at 129-70. 198. See id. at 169-70. December 1995] 811 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms 812 Michigan Law Review [Vol. 94:752 justification for Choper's proposal that the Court abstain from en forcing all federalism and separation of powers limitations and rules. The claim is not correct, at least as stated by Choper. First, we should reject Choper's general and misleading "indi vidual rights cases" label both because it is inadvertently tenden tious and because it overlooks and obscures a crucial and central distinction between claims against the national government and claims against a state government.199 I submit, for reasons ex plained in the margin, that what Professor Choper is really con cerned about might more accurately be called "Fourteenth Amendment cases"200 - cases that involve claims of individual right against state government or
against state officials.201 Adjudi cation of these Fourteenth Amendment constitutional cases has be come the U.S. Supreme Court's central and most visible constitutional law preoccupation since the New Deal. Has this been entirely a good thing? Is Professor Choper right that the Supreme Court is really institutionally better at enforcing the Four teenth Amendment than it would be at enforcing the boundaries of constitutional federalism? The answer to these questions depends first on whether it is nor matively desirable that we nationalize each and every subject that has been nationalized by the Court in its Fourteenth Amendment case law and, second, on whether the Supreme Court in fact is best suited institutionally to be the national lawmaking agent on these 199. Or, to be more precise: (1) individua l rights claims against federal entities (based on the U.S. Constitution) and, on the other hand: (2) individual rights claims against state enti ties (based on the U.S. Constitution). 200. I submit that both Professor Choper and I are really only interes ted in this second state category of U.S. constitutional claims for two reasons. First, this
category is by far the larger and more important of the two. As everyone knows, the U.S. Supreme Court's "indi vidual rights law" overwhelmingly involves national judicial review of state laws and prac tices, in part, because the Court is afraid of Congress and the President but is not afraid to take on the states. Second, I submit the first federal category of U.S. constitutional claims are really federalism claims anyway. Claims against the national government that are based on the Bill of Rights or on Article I, ? 9 or on other similar provisions of the original Constitu tion are really claims that the federal government lacks the enumerated power to take some action that bears down harshly on a particular litigant or group of litigants. This was the original understanding of the Bill of Rights, and, although we now think of the matter differ ently and use a different "rights talk" terminology to describe federal "individual rights" cases, the fact remains that analy tically these are claims of "limited and enumerated" federal power just as Mr. Lopez's claim was a claim of "limited and enumerated" federal power. 201. A few U.S. constitutional claims against
state government are based not on the Fourteenth Amendment but instead on provisions in Article I, ? 10 of the original Constitu tion. These individual rights claims, however, are not the ones that seem to interes t Professor Choper. The "Fourtee nth Amendment cases" label, which I use here, describes accurately enough the body of case law that Professor Choper and I are intereste d in. Remember that all state-level cases dealing with the incorporated Bill of Rights are, in fact, technica lly Four teenth Amendment cases. This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/te rms Limited and Enumerated Powers matters. I take up these questions, respectively, in sections A and B below. I conclude only that Professor Choper is wrong when he claims that the Supreme Court has a comparative institutional ad vantage when it decides Fourteenth Amendment cases instead of enumerated powers cases. I do not mean to suggest, of course, that the Court should stop deciding Fourteenth Amendment cases nor would I deny that, on balance, the Court's Fourteenth Amendment
case law has done far more good than bad. A. Have the Corre ct Subjects Been Nationalized Under the Fourteenth Amendment Given the Theoretical Case for Federalism Developed Above? For purposes of my argument here, I will assume that the legal materials of the Fourteenth Amendment are open-ended and inde terminate and that the Court therefore has substantial discretion to make national law while telling the public that it is interpreting the Constitution. I do not myself actually believe that the Amendment is this open-ended nor do I think that if it were that would consti tute a license for national judicial lawmaking.202 Nonethe less, I think it useful in this context to assume that the Court is so empow ered, as so many wrongly believe, and to ask whether, in light of this, the Court has used its power to nationalize issues wisely. I propose to consider this question by reviewing four key areas of Supreme Court nationalization under the Fourteenth Amendment in light of the comparative and economic arguments for and against nationalization developed in Part I. 1. Political Rights Supreme Court decisions under the Fourteenth
Amendment have been very successful when they have involved providing fed eral protection for the exercise of political rights in the states. Fed eralism theory explains and would predict this result for several reasons. Before I explain further, let me pause here to make clear more precisely what political rights are involved. Basically, they in clude the right to engage in political speech, publication, assembly, and petition, as well as the right to have electoral districts appor tioned according to the rule of one person, one vote. All of these 202. As a matter of legal interpretation, I am largely persuaded that the original meaning of the Amendment is explained accurately in two recent law review articles. See Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193 (1992); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385 (1992). December 1995] 813 This content downloade d from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/te rms Michigan Law Review are protected at the state level by a national Supreme Court inter pretation of
the Fourteenth Amendment. The normative federalism case for a national rule here is over whelmingly strong for several reasons. First, state laws that dis criminate against political activities or that malapportion electoral districts will tend greatly to entrench some current state majority against competition from curre nt state minorities. In such a situa tion, it becomes easy, indeed it becomes likely, that the curre nt state majority will discriminate more harshly against the curre nt state minority because the self-dealing majority will be much more thoroughly and permanently entrenched. This situation is likely to cause severe external negative effects on the residents of other states. First, it is not unlikely that a group that is a minority in one state might be a majority in another. If so, laws that abridge political rights and close off the political process in one state may annoy greatly the citizens of other states who may identify with or be members of the abused minority group. This will create needless tension in the federation - tension that can be avoided if a na tional rule keeps open the democratic political processes of the states. The
negative externalities generated then by state discrimi nation justify normatively a national rule. Second, national political process rules ultimately may make it easier to leave more areas of substantive lawmaking to the states. If the state political processes are open and less subject to self dealing, they should produce better laws of all kinds - particularly better laws that will generate fewer negative external effects for other states. Fewer such laws means less of a need for national pre emptive law and more scope for variety and competition in the sub stance of state laws. Because this is normatively desirable in and of itself, this becomes a separate argument for a national judicial rule protecting political process rights. Third, such a national rule makes sense because of the Madisonian Federalist Ten203 argument that state political processes are more likely to discriminate against minority groups than are federal processes. Because state discrim ination against a minority group that closed up the political processes would be fearsomely difficult to undo, it makes sense to use federal power to keep the political processes of change open at
the state level. This core in sight from the theory of federalism should help us to appreciate 203. THE FEDERALIST No. 10 (James Madison). 814 [Vol. 94:752 This content downloade d from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/te rms Limited and Enumerated Powers better why John Hart Ely's theory of federal judicial review of state laws in fact has so much intuitive appeal.204 In sum, the normative case is overpowering for national prote c tion of political speech, of other related political rights, and of fairly apportioned - one person, one vote - legislative districts. This perhaps helps explain why the Supreme Court has found itself al ways on the most solid ground politically in cases like Reynolds v. Sims205 in which it was enforcing rights of political participation against the states.206 2. Antidiscrim ination Rights A second area in which Supreme Court decisions under the Fourteenth Amendment have been very successful involves the Court's enforcement of the antidiscrim ination principle of the Four teenth Amendment. This principle , which is popularly identified with the Equal Protection
Clause,207 is used to invalidate state clas sifications based on race, national origin, gender, illegitimacy, or some other forbidde n classification. Great equal protection victo ries include , of course, Brown v. Board of Education,208 Loving v. Virginia,209 Frontiero v. Richardson,210 and many others. Some of the Court's greatest and most historic victories have come in this area. Here again, the normative federalism theory case for a national rule is quite strong. State laws that discriminate against minority groups will tend to generate severe out-of-state negative externali ties. The apartheid laws of the old South raised a big federalism problem, aside from the local and state injustice that was perpe trated. Thus, race relations in the nonsouthe rn states were affected adversely; enormous waves of political refugees from the South 204. See ELY, supra note 142; see also Calabresi, supra note 30. 205. 377 U.S. 533 (1964). 206. Ironically, the best legal arguments in support of the Court's case law on reappor tionment and its case law on the protection of political rights against the states more gener ally may be based on the Guarantee Clause of
Article IV. See U.S. CONST. art. IV, ? 4; see also BORK, supra note 18, at 84-87; ELY, supra note 142, at 122-23; Vik ram David Amar, Jury Service as Political Participation Akin to Voting, 80 CORNELL L. REV. 203, 222-42 (1995) (developing a Fifteenth Amendment argument for federal protection from state discrimina tion against the political right of jury service). 207. For a clever and persuasive argument that the Supreme Court found the right equal ity principle but attached it to the wrong clause of ? 1 of the Fourteenth Amendment, see Harrison, supra note 202. 208. 347 U.S. 483 (1954). 209. 388 U.S. 1 (1967). 210. 411 U.S. 677 (1973). December 1995] 815 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Michigan Law Review moved permanently north and west; and national trade, commerce, and the free flow of goods throughout the nation all were severely impaired. To the extent that national equal protection law has helped to override and eliminate the state laws that generated such severe negative externalities, it is not only consistent with but is
mandated by the theory of federalism laid out above in Part I. Na tional equal protection law has prevented state majorities from en acting legislation to benefit themselves while imposing huge costs on disenfranchise d voters living out of state. It is no wonder, then, that such laws have proved to be very popular. Southern apartheid also created serious foreign policy problems for the United States during the Cold War era when we were com peting with the Soviet Union for the hearts and minds of many leaders of third world countries. It was embarrassing to say the least that emissaries from those countries could not travel freely throughout the United States or even to Washington, D.C. and be assured that they would be able to find a hotel room or eat in a restaurant. This, too, then provided a federalism rationale for na tional laws against discrimination, including laws against private discrim ination.211 A second normative federalism argument for the Supreme Court's equal protection case law stems obviously from Madison's Federalist Ten.212 Here again, national judicial protection against state discrim ination seems quite consistent
with, if not compelled by, the theory of federalism developed above.213 In addition, none of the federalism theory arguments for state power turn out to have much application here. No point is served by state competition in discriminatory laws nor is this an area where one would want to encourage different states to indulge their differ ent illegitimate preferences. Decentralization produces no saving efficiencies but does generate many severe external costs. There is simply no normative case for letting the sates have power over the making of suspect classifications, and there is a very strong norma tive case for national review and invalidation of such classifications. The powerful normative federalist case for the Supreme Court's an 211. See Mary Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L. REV. 61 (1988). 212. THE FEDERALIST NO. 10 (James Madison). 213. It could be argued that the Federalist Ten does not support a national role in combat ing gender discrimination because women constitute a majority of the population. Given the extent, however, to which women historically were shut out of politics and given the
lingering effects of that history, I think it is a mistake to conclude that they are not functionally like a minority group for these purposes. 816 [Vol. 94:752 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Limited and Enumerated Powers tidiscrim ination case law, at least as it stands to date, no doubt again helps us understand why that case law has been so uniquely popular. Before closing out this brief discussion of antidiscrimination rights, I should note that some national judicial enforcement of the Takings Clause, the Contract Clause, and the bar on regulatory tak ings may be warrante d given the antidiscrimination principle. Those deceptively substantive clauses actually protect a particular social class of property holders from being forced disproportion ately to bear general social costs. In this sense, then, Takings and Contract Clause doctrine are simply a particularized economic form of broader antidiscrimination doctrine. To the extent, then, that there is a general federalism case for national antidiscrimination doctrine there also might be such a case for
Takings and Contract Clause doctrine. 3. Crimina l Procedural Rights In the two areas of Fourteenth Amendment law considere d so far, we saw that there was a strong case for a national role. We also saw that the Supreme Court as the agent of national control in those areas generally has enjoyed great political success. We turn now to the two areas of Fourteenth Amendment law that have not been such a success, in my judgment, the first of these is constitu tional criminal procedure. The Warren Court is almost entirely responsible for the expan sion and nationalization of our law of criminal procedure. With its decisions applying national Bill-of-Rights-derived criminal proce dure and sometimes civil procedure to all state proceedings, the Court swept aside numerous conflicting rules and imposed some ex pansive and nationally uniform rules, many of which have turned out to be both unpopula r and of questionable wisdom. Problematic rules, like the exclusionary rule, which had gone unnoticed prior to their imposition at the state level, suddenly became major items of popular controversy. Although a few innovations were received well
enough, the bulk of them were resented bitterly and gave the Warren Court its politically lethal image of being "soft on crime." Putting the merits of both that label and of the Warren Court's procedural innovations aside, there was and is no good reason for a set of uniform , expansive, national rules on state criminal proce dure. The normative theory of federalism suggests that nationaliza tion was inappropriate here except to the extent it was necessary to make sure facially neutral state rules were not being used to achieve December 1995] 817 This content downloaded from 128.163.239.232 on Thu, 08 Mar 2018 01:08:52 UTC All use subject to http://about.jstor.org/terms Michigan Law Review racially discriminatory results. Because the Warren Court did far more than try to make state criminal procedure nondiscriminatory, it got itself into a great deal of trouble - trouble from which the Court still has not extricate d itself fully even after twenty-six years of trying. There is no normative national case for federalizing all of state criminal procedure through adoption of a very expansive set of rules. No appreciable economies of scale or
efficiencies are gener ated by such a uniform code. While a few law enforcement officers may save time as a result of these nationally uniform rules, these minor savings are offset because criminals probably benefit from the existence of such rules as well. More importantly, state criminal procedure, so long as it is nondiscrim inatory, generates few, if any, serious externalities. By and large, the effects of a state's criminal procedure fall within its own borders and upon its own citizens. Consequently, there is little reason to fear in this area that state political processes will be corrupte d by some process of imposing out-of-state costs for in-state gains. Most individual criminal de fendants either will be state residents or will have committed of fenses in-state. It is hard to see how the procedure used to prosecute them could have serious negative external effects, unless they were discriminatory. Out-of-state corporate defendants in the ory could be victimized by unfair state criminal procedures, and, if they were, this might necessitate a national rule. But, this was not the problem the Warren Court was addressing, and the criminal procedure
problem the Warren Court was addressi

W h n h a des re for both nternationa and

devo utionary federa sm has swept across the wor d n recent years this is due to o n fi n n

global fascination with and emulation of our own American federalism success story
The g oba trend toward federa sm s an enormous y pos tive deve opment that great y ncreases the
ke hood of future peace free trade econom c growth respect for soc a and cu tura d vers ty and
protec tion of nd v dua human r ghts d p nd o u on h w n n o o n n tion o d md n h b h ho d

w b p 233 The U S Supreme Court can do ts part to encourage the future str k ng of such dea s by

enforc ng v gorous y our own Amer can federa sm dea op ou d b fi p n h p o on h u ti nd h d m

wou d w up o h mpo n o wh
 OFF
NEOLIBERALISM K
Reform focus on process that sanitizes violence while displacing systemic
transformation
Chris Hedges 15, Pulitzer Prize–winning journalist who was a foreign correspondent for fifteen years
for The New York Times, where he served as the Middle East Bureau Chief and Balkan Bureau Chief for
the paper, 7-6-2015, "Corporate Capitalism Is the Foundation of Police Brutality and the Prison State,"
Common Dreams, https://www.commondreams.org/views/2015/07/06/corporate-capitalism-
foundation-police-brutality-and-prison-state

Our national conversation on race and crime is based on a fiction. It is the fiction that the organs of
internal security, especially the judiciary and the police, can be adjusted, modernized or professionalized
to make possible a post-racial America. We discuss issues of race while ignoring the economic,
bureaucratic and political systems of exploitation —all of it legal and built into the ruling apparat us—that
are the true engines of racism and white supremacy. No discussion of race is possible without a discussion of
capitalism and class. And until that discussion takes place, despite all the proposed reforms to the
criminal justice system, the state will continue to murder and imprison poor people of color with
impunity. More training, body cameras, community policing, the hiring of more minorities as police officers, a better probation service and
more equitable fines will not blunt the indiscriminate use of lethal force or reduce the mass incarceration that
destroys the lives of the poor. Our capitalist system callously discards surplus labor, especially poor
people of color, employing lethal force and the largest prison system in the world to keep them under
control. This is by design. And until this predatory system of capitalism is destroyed, the poor, especially
people of color, will continue to be gunned down by police in the streets , as they have for decades, and
disproportionately locked in prison cages. “The strength of ‘The New Jim Crow’ by Michelle Alexander is that, by equating mass incarceration
with Jim Crow, it makes it rhetorically impossible to defend it,” said Naomi Murakawa, author of “The First Civil Right: How Liberals Built Prison
America,” when we met recently in Princeton, N.J. “But, on the other hand, there is no ‘new’ Jim Crow, there is just capitalist white supremacy
in a state of constant self-preservation.” “We
should talk about what we are empowering police to do, not how
they are doing it, not whether they are being nice when they carry out arrests ,” she said. “Reforms are
oriented to making violence appear respectable and courteous. But being arrested once can devastate someone’s life.
This is the violence we are not talking about. It does not matter if you are arrested politely. Combating
racism is not about combating bad ideas in the head or hateful feelings. This idea is the perfect formula
to preserve material distributions in their exact configuration.” Murakawa, who teaches at Princeton University, laid out
in her book that liberals, in the name of pity, and conservatives, in the name of law and order—or as Richard Nixon expressed it, the right to be
safe and free of fear—equally shared in the building of our carceral state. “Liberal racial pity mirrored conservative racial contempt,” she writes.
These “competing constructions of black criminality, one callous, another with a tenor of sympathy and
cowering paternalism,” ensured that by the time these forces were done, there was from 1968 to 2010 a
septupling of people locked in the prison sys tem. “Counting probation and parole with jails and prisons is even more
astonishing still,” she writes. “This population grew from 780,000 in 1965 to seven million in 2010.” Racism in America will not be
solved, she writes, by “teaching tolerance and creating colorblind institutions.” The refusal to confront
structural racism, which in the 1930s and ’40s among intellectuals “situated domestic racism and
colonialism abroad in an integrated critique of global capitalism ,” led to a vapid racial liberalism that, as
Penny Von Eschen writes, conceived of racism as “ an anachronistic prejudice and a personal and
psychological problem, rather than as a systemic problem rooted in specific social practices and
prevailing relations of political economy and culture.” Police brutality will not be solved, Murakawa
points out, by reforms that mandate an “acceptable use of force.” The state may have outlawed
lynching and mob violence—largely because of international outcry and damage to the image of the
United States abroad—but insisted that capital punishment “could be fair with adequate legal defense
for the poor, proper jury instructions, and clear lists of mitigating and aggravating circumstances.” Racial
violence was seen as an “administrative deficiency.” Murakawa goes on in the book: Liberal lawmakers would
come to evaluate fairness through finely honed, step-by-step questions : Did legislators enact a sufficiently clear
criminal statute? Did police properly Mirandize? Did prosecutors follow protocol in offering a plea bargain or filing charges? Did parole officers
follow administrative rules of revocation? And, in any single step, did a specific actor deviate from the protocol or intentionally discriminate?
As a methodology for ‘finding racism’ in the criminal justice system, liberal law-and-order reinforced the
common sense that racism is a ghost in the machine, some immaterial force detached from the
institutional terrain of racialized wealth inequality and the possessive investment in whiteness . At the
core of liberal law-and-order was the promise to move each individual qua individual through a system
of clear rules that allow little room for individual bias . In effect, a lasting legacy of liberal law-and-order
is this: we evaluate the rightness of criminal justice through the administrative quality by which each
individual is searched, arrested, warehoused, or put to death. All penal reform, from President Truman’s 1947
Committee on Civil Rights report to the Safe Streets Act of 1968 to the Sentencing Reform Act of 1984 to contemporary calls for more
professionalization, in effect only hand more power and resources to the police. It does nothing to blunt police abuse or reverse mass
incarceration. It does nothing to address the bias of white supremacy. “Truman’s version of the civil rights agenda came through lynching,”
Murakawa said. “It illuminates how the rule of law and white supremacy operate hand in hand. Lynching hurt U.S. credibility. It hurt its force
projection abroad. The concern over lynching was not a concern for black lives. It was a concern that mob and state violence were too easily
conflated. The objective became to make a sharp difference between white supremacist mob violence and white supremacist state violence.
The difference is not that one is white supremacist and one is not. The difference is one [is] proceduralized, one is rights based, one is orderly,
bound by rule of law with ever more elaborate procedures. That is the only thing that makes it different from the lynch mob.” The real
crime—poverty, institutional racism and capitalist exploitation—is rarely discussed. Therefore, the blame for
crime is easily shifted to the “pathology” of black families. The Moynihan report, for example, argues that black criminality results from
dominant black mothers and absent black fathers. “You can perfect due process so it operates like a machine and
have perfect quality control,” Murakawa said. “This is what the due-process-right revolution was. You
can have full adherence to the panoply of rights. And yet you also have a machine that only grows.
Everyone thought the Miranda decision would stop the rate at which police arrest people. They thought
it would curtail the scale and scope of policing. Instead, Miranda rights are used to protect police
officers in civil litigation. Police officers say they got the waiver. They say people were informed of their
rights. Miranda is used mostly to deflect lawsuits against police departments. These little procedural
interventions give the system a patina of legitimacy. If we are processing at the same scale and at the
same racial concentration, then the machinery of death only gets bigger and bigger.” The more that “carceral
machinery was rights-based and rule-bound, the more racial disparity was isolatable to ‘real’ black criminality.” In other words, as
liberals and conservatives became convinced that the machinery of the judiciary and the police was
largely impartial and fair, the onus for punishment shifted to the victims . State-sponsored white violence remained
entrenched. Institutionalized murder remained acceptable. In the minds of liberals and conservatives, those who were
arrested, locked up or shot deserved to be arrested, locked up or shot. Federal mandatory minimum statutes tripled
under President Bill Clinton, and this is one example Murakawa points out of how “with each administrative layer to protect African Americans
from lawless racial violence, liberals propelled carceral development that, through perverse turns, expanded lawful racial violence.” By 1993,
she points out, “African Americans accounted for 88.3 percent of all federal crack cocaine distribution convictions.” And because the judicial
system is stacked against poor people of color, it does not matter, she said, if the arresting officers are also people of color. “There is no
evidence that having a minority police officer changes arrest or use of force,” she said. “The better evidence suggests that black police officers
tend to arrest everyone at higher rates across races. I interpret this as black professionals having to over-perform in any number of professions
to get to comparable ranking. Maybe interpersonally, people will find it a little less offensive. But it does not diminish the violence.” By the
Clinton administration, liberals and conservatives were competing with each other to be “tough” on crime. Murakawa notes that between 1968
and 1976, no one was executed in the United States. But this changed under Clinton. Democrats and Republicans proposed bill after bill until
the number of crimes punishable by death leapt from one in 1974 to 66 in 1994. The two parties engaged in “a death penalty bidding war.”
Then-Sen. Joe Biden was one of the most enthusiastic proponents of expanding the death penalty—he boasted that he had “added back to the
Federal statutes over 50 death penalties”—and the Democrats effectively “neutralized soft-on-crime accusations with punitive outbidding.” But
while this may have been politically advantageous to the Democrats, it was devastating to poor people of color and in particular blacks.
Change, Murakawa said, requires us to formulate a very different vision of society. “We should follow Angela
Davis’ call to ask the question: What is it we have to imagine if we abolish the social functions of police and prisons?” she said. “What is it we
have to build if we can no longer jail people who are mentally ill or suffering from long-term addiction or homeless? We are going to have to
build a lot.” But few people, and perhaps no one in the political establishment, are asking these questions. “These bipartisan coalitions are
conjoined in the rhetoric of cost cutting,” Murakawa said, referencing Marie Gottschalk’s book “Caught: The Prison State and the Lockdown of
American Politics.” “They may say there is bias, that it is not racially fair. They may attack prisons as big government, as inefficient or as a bad
investment. But once you follow the logic of austerity, you push the cost of punishment on those who are punished. You are not committed to
building anything. The reason Portugal has been so successful with drug legalization is because of the Portuguese National Health Service.
Fighting addiction requires pharmacological and medical intervention, along with psychological and financial support. “I
worry that we
are once again moving toward more professionalized police who have had more training but still have
the scope to arrest and issue citations and summonses the same way they do now,” Murakawa said. “Indeed,
there will probably be an increase in arrests, citations and summonses if the police forces get bigger. Even with scaling back the war
on drugs, I worry that we will still have a massive number of people embroiled in the criminal justice
system. It will be death by a thousand cuts rather than the 20-year mandatory minimums for drug
conspiracy. Bipartisan coalitions that are about cutting costs justify pushing the cost of punishment on punished populations. I worry
we are moving toward a population, mostly black and poor, that is cycling through jail and effectively
serving 20-year sentences but in stints of about 90 days at a time. With each jail stay they accumulate
more debt for room and board. A municipality in Missouri is billing people for the Tasers used against them—$26 per Taser
discharge. Roughly half of all states are now charging people for the services of indigent criminal defense. A 2013 Supreme Court decision said
that extended families could be held responsible for the debts of those incarcerated. “There
are 10 to 12 million arrests every
year; about half will never be processed because these arrests are for charges so trivial they are not
worth pursuing or there is no evidence,” she said. “Maybe 5 percent of these arrests are for charges of
violent crime and 15 percent for property crimes.

Neoliberalism guarantees extinction and social crisis---the judge has an intellectual

obligation to evaluate the social relations that underpin the plan prior to evaluating
the outcome of the policy---vote NEG because the system the AFF partakes in is
fundamentally unethical
Pala Basil Mera 14, Victoria University of Wellington philosophy PhD, Accounting For Apocalypse Re-
Thinking Social Accounting Theory And Practice For Our Time Of Social Crises And Ecological Collapse,
https://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/3686/thesis.pdf?sequence=2

Ecologically too, the situation is dire. Of the many measures of ecological well-being – topsoil loss, groundwater
depletion, chemical contamination, increased toxicity levels in human beings, the number and size of “dead zones” in the
Earth’s oceans, and the accelerating rate of species extinction and loss of biodiversity – the increasing evidence suggests that the
developmental trajectory of the dominant economic culture necessarily causes the mass extermination of non-human communities, the
systemic destruction and disruption of natural habitats, and could ultimately cause catastrophic destruction of the
biosphere. Ecological drawdown, increasing toxicity, habitat destruction, and mass extinction The latest Global Environmental Outlook
Report published by the United Nations Environment Program (UNEP), the GEO-5 report, makes for sobering reading. As in earlier reports, the
global trends portrayed are of continuing human population growth, expanding economic growth,6 and as a consequence severe forms of
ecological degradation (UNEP, 2012; see also, UNEP, 1997, 1999, 2002, 2007). The
ecological reality described is of ecological
drawdown (deforestation, over-fishing, water extraction, etc.) (UNEP, 2012, pp. 72, 68, 84, 102-106, ); increasing toxicity
of the environment through chemical and waste pollution, with severe harm caused to human and non-human communities alike (pp. 173-
179); systematic habitat destruction (pp. 8, 68-84) and climate change (33-60), which have decimated the number of
species on Earth, threatening many with outright extinction (pp. 139-158). Climate disruption The most serious ecological threat
on a global scale is climate disruption, caused by the emission of greenhouse gases from burning fossil fuels, other industrial activities, and land
destruction (UNEP, 2012, p. 32). The GEO-5 report states that “[d]espite attempts to develop low-carbon economies in a number of countries,
atmospheric concentrations of greenhouse gases continue to increase to levels likely to push global temperatures beyond the internationally
agreed limit of 2° C above the pre-industrial average temperature” (UNEP, 2012, p. 32). Concentrations of atmospheric methane have more
than doubled from preindustrial levels, reaching approximately 1826 ppb in 2012; the scientific consensus is that this increase is very likely due
predominantly to agriculture and fossil fuel use (IPCC, 2007). Scientists
warn that the Earth’s ecosystems are nearing
catastrophic “tipping points” that will be marked by mass extinctions and unpredictable changes on a scale
unseen since the glaciers retreated twelve thousand years ago (Pappas, 2012). Twenty-two eminent scientists warned recently in the journal,
Nature, that humans are likely to have triggered a planetary-scale critical transition “with the potential to transform Earth rapidly and
irreversibly into a state unknown in human experience”, which means that “the biological resources we take for granted at present may be
subject to rapid and unpredictable transformations within a few human generations” (Barnofsky et al., 2012). This means that human beings
are in serious trouble, not only in the future, but right now. The pre-industrial level of carbon dioxide concentration was about 280 parts per
million (ppm). The Intergovernmental Panel on Climate Change (IPCC) estimates concentrations could reach between 541 and 970 ppm by the
year 2100. However, many climate scientists consider that levels should be kept below 350 ppm in order to avoid “irreversible catastrophic
effects” (Hansen et al., 2008). “Catastrophic warming of the earth” would mean a planet that is too hot for life – that is, any
life, and all life (Mrasek, 2008). Where are we heading? We need to analyze the above information and ask the simple questions: what does
it signify and where will it lead? In terms of the social crises of inequalities, the pattern of human development suggests clearly that
although capitalism is capable of raising the economic productivity of many countries as well as international trade,
it also produces social injustices on a global scale. The trajectory of capitalist economic development that people appear
locked into is of perpetual growth that also produces significant human and social suffering. In terms of the
ecological situation, the mounting evidence from reports, such as those published by UNEP, suggest that a full-scale ecocide will
eventuate and that a global holocaust is in progress which is socially pathological and biocidal in its scope (UNEP, 2012; see also, UNEP,
1997, 1999, 2002, 2007). Assuming the trends do not change, the endpoint of this trajectory of perpetual economic growth,
ecological degradation, systemic pollution, mass species extinction and runaway climate change, which human beings appear locked into, will
be climate apocalypse and complete biotic collapse. 1.1 ACCOUNTING RESEARCH AND INTELLECTUAL FAILURE Given the serious and life-
threatening implications of these social and ecological crises outlined above, it would be reasonable to expect they should be central to
academic concerns, particularly given the responsibilities of academics as intellectuals. As the people whom society subsidizes to carry out
intellectual work,7 the primary task of academics is to carry out research that might enable people to deepen their understanding of how the
world operates, ideally towards the goal of shaping a world that is more consistent with moral and political principles, and the collective self-
interest (Jensen, 2013, p. 43). Given that most people’s stated philosophical and theological systems are rooted in concepts of
justice, equality and the inherent dignity of all people (Jensen, 2007, p. 30), intellectuals have a particular responsibility to
call attention to those social patterns of inequality which appear to be violations of such principles, and to
call attention to the destructive ecological patterns that threaten individual and collective well-being. As a “critic and conscience of society,” 8
one task of intellectuals is to identify issues that people should all pay attention to, even when – indeed, especially when – people
would rather ignore the issues (Jensen, 2013, p. 5). In view of this, intellectuals today should be focusing attention on the hard-to-
face realities of an unjust and unsustainable world. Moreover, intellectuals in a democratic society, as its “critic and conscience”, should serve
as sources of independent and critical information, analyses and varied opinions, in an endeavour to provide a meaningful role in the formation
of public policy (Jensen, 2013c). In order to fulfil this obligation as “critic and conscience,” intellectuals
need to be willing to
critique not only particular people, organizations, and policies, but also the systems from which they emerge. In other words,
intellectuals have to be willing to engage in radical critique. Generally, the term “radical” tends to suggest images of extremes, danger, violence,
and people eager to tear things down (Jensen, 2007, p. 29). Radical, however, has a more classical meaning. It comes from the Latin –radix,
meaning “root.” Radical critique in this light means critique or analysis that gets to the root of the problem. Given that the patterns of
social inequality and ecocidal destruction outlined above are not the product of a vacuum, but instead are the product
of social systems, radical critique simply means forms of social analysis, which are not only concerned about these social
and ecological injustices but also trace them to the social systems from which they emerged, which would subject these
very systems to searching critiques. Such searching critique is challenging because, generally, the dominant groups which
tend to subsidize intellectuals (universities, think tanks, government, corporations) are the key agents of the social
systems that produce inequalities and destroy ecosystems (Jensen, 2013, p. 12). The more intellectuals choose
not only to identify patterns but also highlight the pathological systems from which they emerge , the
greater the tension with whoever “pay[s] the bills” (ibid .). However, this may arguably be unavoidable today, given that
the realities of social inequality and ecological catastrophe show clearly that our social systems are already in crisis, are pathological, and in
need of radical change.9 To adopt a radical position, in this light, is not to suggest that we simply need to abolish capitalism, or to imply that
if we did so all our problems would be solved. For one thing, such an abstract argument has little operational purchase in terms of specifying
how to go about struggling for change. For another thing, as this thesis will discuss, capitalism is not the only social system that we ought to be
interrogating as an important systemic driver of social and ecological crises. Moreover, to adopt
a radical position does not mean
that we have any viable “answers” or “solutions” in terms of the alternative institutions, organizations and social
systems that we could replace the existing ones with. There is currently no alternative to capitalism that appears to be viable,
particularly given the historical loss of credibility that Marxism and socialism has suffered. As history has shown, some of the self-proclaimed
socialist and communist regimes have had their own fair share of human rights abuses and environmental disasters, and the global left has thus
far not been able to articulate alternatives that have managed to capture the allegiances of the mainstream population. Furthermore, given
the depth, complexity, and scale of contemporary social and ecological crises, I am not sure if there are
any viable alternatives or, for that matter, any guarantees that we can actually prevent and change the disastrous course of
contemporary society. I certainly do not have any solutions. What I would argue, however, is that if we are to have any chance
of not only ameliorating but also substantively addressing these social and ecological problems,
before we can talk about alternatives or potential “solutions”, we first need to develop a clear
understanding of the problems. And, as argued above, this involves, amongst other things, exploring why and how
the existing social systems under which we live are producing the patterns of social inequality and
ecological unsustainability that make up our realities today.10 To adopt a radical stance, in this light, is simply to insist that we
have an obligation to honestly confront our social and ecological predicament and to ask difficult questions
about the role that existing social systems might be playing in producing and exacerbating them.
Encryption ADV
 AT Nuke Terror
No nuke terror NOR retal
---Technical barriers, op costs, organizational schisms, deterrence

Christopher McIntosh & Ian Storey 18. McIntosh is visiting assistant professor of political studies at Bard
College; Storey is a fellow at the Hannah Arendt Center for Politics and Humanities at Bard College.
06/01/2018. “Between Acquisition and Use: Assessing the Likelihood of Nuclear Terrorism.”
International Studies Quarterly, vol. 62, no. 2, pp. 289–300.
When looked at in isolation, each of the three areas of potential loss presents significant disincentives for immediate attack. In combination—as
they would be considered in practice—the higher strategic value of available alternatives appears decisive. In other words, even if one reads
our analysis as affirming the importance of nuclear acquisition, when considering competing options and the dangers that attach to any
detonation attempt, nuclear attack is highly unlikely. Strategic Opportunity Costs Future opportunities available for “using” a nuclear weapon
are effectively foreclosed depending on the aggressiveness of the option a group chooses. The two-by-two matrix of nuclear strategies in Figure
1 is only a rough guide encompassing many possible permutations in the nuclear sphere. The organization always retains non-
nuclear options, even once they acquire nuclear weapons. As evidenced by the Cold War and in Kargil, the stability-
instability paradox holds empirical weight. Nuclear acquisition by two opposing actors does not necessarily
foreclose conventional and/or asymmetric attacks (Cohen 2013; Kapur 2005). Given the unique relationship between a state and
terrorist organization, we can expect similar and even exacerbated levels of instability. This can expand even beyond aggression. Remaining
options range all the way from the pacific—pursuing negotiations, cooption, entrance into the legitimate political arena (for example, Sinn Fein)
—to heightened conventional attacks and the usage of non-nuclear forms of WMDs. This last point is worth emphasizing. Even
in the
remote case where an actor successfully acquires a nuclear weapon and primarily seeks raw numbers of
casualties—whether due to outbidding or audience costs— other forms of WMDs are likely to be more
appealing. As Aum Shinrikyo indicates, this is particularly the case for the group that overcomes the
inevitable political and technological hurdles (Nehorayoff et al. 2016, 36–37). For these groups, chemical, biological, and
radiological weapons (CBRW) are considerably easier to acquire, use, and stockpile. This is especially true when
considered over time, rather than a single operation.18 While there are certainly downsides to CBRWs
vis-à-vis nuclear weapons (delivery may paradoxically be easier and the maintenance risks comparatively smaller), they are
undoubtedly easier to procure and produce (Zanders 1999). More importantly, CBRWs are perceived as
easier to produce and thus likely to be viewed by targets as iterable. Unlike a nuclear attack, CBRW
threats are more credible because a single CBRW attack can likely precipitate an indefinite number of
follow-ups. In addition to the problem of iterability, a terrorist organization must always worry about
the possible ratchet effect of an attack—a problem Neumann and Smith (2005, 588– 90) refer to as the “escalation trap.”
A terrorist organization is different than a state at war because it manipulates other actors primarily
through punishment. Campaigns are a communicative activity designed to convince the public and the leaders that the status quo is
unsustainable. The message is that the costs of continuing the target state’s policy (such as the United States in Lebanon, France in Algeria, or
the United Kingdom in Northern Ireland) will eventually outweigh the benefits. Once
an organization conducts a nuclear
attack, it lacks options for an encore. Not even the most nightmarish scenarios involve an indefinite supply
of weapons. If a single attack plus the threat of one or two others does not induce capitulation, the
organization might unwittingly harden the target state’s resolve. The attack could raise the bar such that
any future non-nuclear attack constitutes a lessening of costs vis-à-vis the status quo. There are also heavy
opportunity costs involved in pursuing, developing, and maintaining a nuclear capacity, let alone
actually deploying and delivering it. As Weiss puts it, “even if a terror group were to achieve technical nuclear
proficiency, the time, money, and infrastructure needed to build nuclear weapons creates significant
risks of discovery that would put the group at risk of attack. Given the ease of obtaining conventional
explosives and the ability to deploy them, a terrorist group is unlikely to exchange a big part of its
operational program to engage in a risky nuclear development effort with such doubtful prospects” (Weiss
2015, 82). Organizational Survival Terrorist organizations are not monolithic entities, nor are they wholly self-sufficient actors. Historically
speaking, these groups consider the public reception of their attacks in a complex manner. As Al Qaeda, the Palestine Liberation Organization
(PLO) of the 1970s, the IRA, and anarchist groups of the nineteenth and twentieth centuries all demonstrate, these groups’ thinking about
public reception is nuanced and complex, regardless of time or place. We focus on two types of audiences that would be affected by decisions
to attack: those internal to the group itself, and their own broader public. While many claim that terrorists are undeterrable, the argument
misconstrues the relational dynamics between a terrorist organization, target state, international community, and the internal dynamics of the
organization itself (Talmadge 2007). It is undoubtedly the case that deterring a terrorist organization in the traditional sense is difficult
(Whiteneck 2005; Mearsheimer and Walt 2003). Many lack a recognized territorial base, work on the fringes of the global economy, and are
internally structured to be difficult to combat directly. Nearly all possess some permutation of these factors. Combined with the symbolic
importance of even relatively small terror attacks—especially given the role of international media—physically denying a group the ability to
conduct attacks is uniquely challenging. It is minimally a vastly different proposition than precluding a state’s ability to successfully invade its
neighbor or conduct ongoing missile strikes.19 Despite these concerns, there are important reasons deterrence can and empirically does work
in the case of terrorist organizations. This is especially possible when the state-terrorist relationship is not zero-sum and the target retains some
influence over the realization of the group’s eventual goals (e.g., by denying the group access to territory or withholding international
recognition) (Trager and Zagorcheva 2006, 88–89). Nuclear attack presents two significant threats to the organization’s continued existence:
internal threats of disintegration and external threats to their continued operations and survival. Terrorist organizations are not unitary,
homogenous organizations. This is especially true for groups possessing the size and competence likely necessary for operational nuclear
capacity. As many have noted, the terrorist organizations of the present are vastly different from those Marxist- Leninist groups that terrorized
Europe and the United States in the 1970s and early 1980s. There is a well theorized psychological value of the organization to individual
terrorists themselves (Post 1998), but there is more to the organizational valuation of survival than captured in this atomistic picture. Modern,
large-scale terrorist organizations are typically heavily intertwined with the social fabric of the groups from which they originate (Cronin 2006;
Hoffman 2013). Beyond significant networks of financial connections, accounts, and moguls (Hamas, for example, draws funding from a massive
international system of mosque-centered charities, while the IRA’s extensive connections to the Irish diaspora in the United States were well
documented), many terrorist organizations build extensive networks of sub-organizations that tie them to the communities in which they are
based. Hezbollah, like the IRA, is internally divided between a military arm and a political arm and has run an extensive network of community
schools, medical care centers, and religious outreach groups. Together they are designed to embed the organization in the social life of
(predominantly southern) Lebanon’s Muslim population and provide Hezbollah with fresh recruits (Parkinson 2013). The group’s persistence as
a dominant political force in southern Lebanon nearly two decades after the initial Israeli decision to withdraw demonstrates terrorist
organizations grow to exceed their initial military objectives. The spread of Al Qaeda and its affiliates has followed a similar path. Maintaining
the continued support of these multiple audiences is therefore a crucial consideration for these organizations. While these audiences could
conceivably be more casualty-acceptant than the individuals deciding the group’s operations, the broader public will usually moderate extreme
behavior. The literature assessing so-called “radical- ization” and violence by individual actors emphasizes that there isn’t a one-to-one
relationship between ideological extremism and acceptance of extraordinary violence in pursuit of those goals (McCauley and Moskalenko
2014; Jurecic and Wittes 2016). It
is important to resist the assumption that a politically extreme ideology
automatically corresponds to shared assumptions regarding casualty-acceptance. Some argue that the move
toward “mass-casualty” terrorism obviates these concerns. Aside from the fact that the trend line is
either flat or receding in terms of the death toll of individual attacks (even if campaigns themselves might be
becoming deadlier), there is an orders of magnitude distinction in casualties between a nuclear attack and
even the 2001 attack in the United States. While the psychological restraints on nuclear use among states
do not translate precisely to this context, there is good reason to believe that transgressing the
longstanding nuclear taboo would have dramatic and negative effects on broader public support. In an urban
environment, the media would inevitably capture the attack and its gruesome after-effects in photography or
video. This imagery would be inconceivable, ubiquitous, and inescapable. Even if supporters accept a
highly retributive mentality, or as Hamid (2015) argues about the Islamic State, actively accept the potential of death,
this would pose a severe problem for all but the most extreme supporters.20 Beyond these supporters, a
nuclear attack affects the internal dynamics of the terrorist organization in multiple ways. There could
be divisiveness regarding the most effective use of the weapon. This would be magnified by the scale of the
opportunities and perceived opportunity costs. Such debates have the potential to splinter the organization as
a whole (Cronin 2009, 100–02). Factional conflict in terrorist organizations appears frequently over questions of goals and tactics (Crenshaw
1981; Chai 1993). A decision to attack with a nuclear weapon risks considerable internal alienation over a
variety of issues—targeting decisions, method of attack, campaign goals, potential deaths of supporters,
and the domestic and international response (Mathew and Shambaugh 2005, 621–22). Finally, a nuclear attack would
exponentially raise the threat to each individual who composes the extended organization. Post-nuclear attack, the greatest
strengths of a terrorist organization—its lack of material territory, economy, or overt institutions and
reliance on individuals—could turn into its greatest weaknesses (Eilstrup-Sangiovanni and Jones 2008). Currently, a
wealthy financier found to have ties to a terrorist group would be monitored for intelligence, arrested, and
brought up on criminal charges. Post-nuclear attack, the consequences would be immediate and rather worse.
Externally, in a world post-nuclear attack, international cooperation would be instant and deep. One of the
only international treaties to even define a terrorist in international law post-2001 has been the Nuclear Terrorism Convention (Edwards 2005).
A nuclear attack would be far outside the norm of international politics . It would disrupt the dominance of state-
actors and likely stimulate unparalleled cooperation to apprehend the responsible parties to prevent future attacks. Moreover, many large
terrorist organizations require (some) tacit acquiescence by a host state. Even those with hostile host states have territory where they remain
relatively unaffected by local governments (Korteweg 2008). Post-nuclear attack, these host states face an enormous incentive to find the
actors responsible before the target state does. After an attack, regimes would find it difficult to claim that they “didn’t know” or “couldn’t stop
them.” Claims of corruption or ineffective institutions would be unlikely to find much sympathy. Faced with potential organizational extinction
itself, a host state/government will likely be much less committed to the survival of the terrorist group. This is likely to vary significantly from
how they might otherwise behave after a more conventional attack. For these states, there would be a real fear of “Talibanization” and ruthless
attempts at regime change post-attack. From
the perspective of the group, it would know that it could be facing a
unified international community and the removal of tacit state support. It would take a particularly
confident leadership to presume it could continue to function post-attack without massive disruptions.
Most strategic actors are risk-averse when facing the potential of complete elimination. There is little
reason to believe terrorist groups would act any differently.

Nuke terror has insurmountable barriers.

Mueller 18 John Mueller, Political Science Professor at Ohio State University. [Nuclear Weapons Don’t
Matter but Nuclear Hysteria Does, Foreign Affairs, https://www.foreignaffairs.com/articles/2018-10-
15/nuclear-weapons-dont-matter]//BPS

As for nuclear terrorism, ever since al Qaeda operatives used box cutters so effectively to hijack commercial airplanes, alarmists
have warned that radical Islamist terrorists would soon apply equal talents in science and engineering to make and deliver
nuclear weapons so as to destroy various so-called infidels. In practice, however, terrorist groups have exhibited only a limited
desire to go nuclear and even less progress in doing so. Why? Probably because developing one’s own bomb from
scratch requires a series of risky actions, all of which have to go right for the scheme to work. This includes trusting foreign
collaborators and other criminals; acquiring and transporting highly guarded fissile material; establishing a
sophisticated, professional machine shop; and moving a cumbersome, untested weapon into position
for detonation. And all of this has to be done while hiding from a vast global surveillance net looking for and trying
to disrupt such activities.
 AT Tech Leadership
China doesn’t hurt US tech leadership---most recent studies.
Economist 18, 5-3-2018, “Fears that China has hurt innovation in the West are overblown,”
https://www.economist.com/finance-and-economics/2018/05/03/fears-that-china-has-hurt-innovation-
in-the-west-are-overblown

POPULAR concern about free trade with China has focused on the loss of manufacturing jobs in America and Europe. Policymakers have an
additional worry: that China’s rise is hurting innovation in the West . This fear is among the small set of issues that unites
American Democrats and Republicans. In 2016 Barack Obama’s commerce secretary said that China’s state-driven economy would weaken the world’s innovation
ecosystem. Donald Trump’s advisers allege that China makes it harder for foreign firms to invest in
innovation by squeezing their returns. Mr Trump’s trade team was expected to raise this complaint, among others, with Chinese officials
during talks in Beijing on May 3rd and 4th, as The Economist went to press. There is one problem. Data suggest that competition

with China has coincided with more innovation in America, not less. The relationship between competition and innovation
is complex, even before considering trade with China. Economists agree that the right competitive landscape fosters innovation. But they disagree about what
exactly that landscape looks like. More competition might prod companies to try harder to develop new products in the hope of gaining market share. Alternatively,
if competition is cut-throat, profits might evaporate to the point that companies have little incentive to take risks. The
fear is that China generates
the wrong kind of competition and stunts the good kind . Businesspeople elsewhere worry that when the Chinese government
decides to fund this or that industry, investment soars and margins collapse. Overcapacity in steel was caused in part by Chinese investment in steel processing;
semiconductor firms think their industry might be next. At the same time, argues Robert Lighthizer, the US Trade Representative, foreign companies that beat their
Chinese competitors are not adequately rewarded because China presses them to transfer their intellectual property. The
two main academic
papers on this question looked at the years around China’s accession to the World Trade Organisation in
2001. Far from settling the matter, they were contradictory . Economists studying European companies found that competition
from Chinese imports both caused firms to improve their technology and led to a shift in jobs to the most advanced firms. They concluded that 15% of the upgrading
of technology in Europe between 2000 and 2007 could be attributed to the increase in imports from China. But economists examining the impact on America
argued that, on the contrary, Chinese competition had led companies to spend less on research as profits fell. They calculated that imports from China explained
40% of a slowdown in American patenting between 1999 and 2007, compared with the preceding decade. The IMF has now weighed in with
more recent figures. Its conclusion is rather more cheerful, at least for those who think a trade war with
China is a rotten idea. In a report published in April the fund showed that, following an extended period
of decline, high-quality patents granted to American companies had risen sharply between 2010 and
2014. It also pointed to a big increase in American spending on research and development during the
same years—even as America’s trade deficit with China rocketed (see chart). The growth in patents was more sluggish in Europe and Japan. But both
patents and research spending soared in South Korea, the country most directly exposed to
manufacturing competition from China. A separate IMF working paper late last year unpicked some of what is happening in America.
Competition from Chinese imports has caused research spending to be reallocated within certain
industries, away from also-rans and towards the most productive and profitable firms . At the same
time, many researchers left manufacturing industries and moved into service sectors such as data-
processing and finance. Both results are consistent with an American economy that is playing to its
strengths. The IMF’s analysts concluded that Chinese imports were not a threat to innovation in
America, after all, and that policymakers could take a deep breath . No loud inhaling sounds have yet been reported from
the White House.
Hacking ADV
 AT Cyber War
No cyber war or retaliation
Jasmine Rodet 18, Master’s Degree in Cyber Security, Strategy, and Diplomacy from the University of
New South Wales, Cyber Security Program Manager at Fortescue Metals Group, “The Threat of Cyber
War is Exaggerated”, 11/11/2018, linkedin.com/pulse/threat-cyber-war-exaggerated-jasmine-rodet/

For the regular person on the street, the term ‘cyber war’ is more likely to bring to mind the 1983 movie “WarGames” and the doomsday
articles that appear regularly in the media about the ‘cyber battlefield’ and an impending World War III. This
essay argues that the threat of cyber war is exaggerated and although it can, by definition, be stated that we are already in a
state of cyber war, the impact on states is negligible compared to conventional war domains.

The argument is presented in 3 steps. The first step is to define cyber war and cyber weapons, referencing scholars and experts in the area of conventional war and the cyber domain. The
second step is to explore who has been exaggerating the threat of cyber war and what their motivations might be. The third is to explore the evidence and quantify the probability and impact
that cyberwar has had on states to date.

‘Cyber war’ is a term often used interchangeably in media with cyber-crime, cyber-attacks, cyber-conflict and cyber-incidents, creating confusion amongst the public and scholars alike.
Clausewitz (1989, 75), in his book, On War, defines war as ‘an act of force to compel the enemy to do our will’. Rid (2012, 7) on the other interprets Clausewitz use of ‘force’ as meaning
‘violent’ force. According to Rid, if an act is not potentially violent, it is not an act of war. However, Stone (2013, 107) describes ‘cyber war’ as a politically motivated act of force, not necessarily
lethal and not necessarily attributable. The definition by Powers and Jablonski states more simply that cyber war is the utilisation of digital networks for geopolitical purposes (Nocetti 2016,
464). Neither of the latter two definitions requires violence to qualify as cyber war. Under these definitions, the Stuxnet cyber-incident in 2010 and the Estonia incident in 2007 would
constitute an act of cyber war, and as such we could say that nations have been at cyber war in the past and are likely to continue to engage in cyber war in years to come.

For this essay, I will use Stones definition to argue that even though states may engage in cyber war, the concept of cyber war is exaggerated. It
seems that cyber war is deliberately exaggerated in the media and by politicians for financial and political
gains. There are countless examples in the media and in politics of the exaggeration of the threat of cyber war and the language used plays a
big factor in creating a sense of fear in the community.

The Four Corners report, Hacked, is a classic example where the reporter, Andrew Fowler describes the current situation in Australia as ‘… a secret war where the body count is climbing every
day’ (Fowler 2013). The documentary reveals nothing violent or lethal about cyber incidents. The documentary is actually about hackers working from locations overseas, having targeted key
Federal Government departments and major corporations in Australia.

In another example, NATO may be interpreted as exaggerating the threat of Cyber War when they invited Charlie Millar to present at their Conference for Cyber Conflict at the NATO
Cooperative Cyber Defence Centre of Excellence in 2017. Millar is an independent security evaluator, and his presentation was titled ‘Kim Jong-il and me: How to build a cyber army to attack
the US’. He later presented similar content at Def Con 2018. His presentation described the steps he would take to mount a cyber war, including the types of people he would engage, how
much he would pay them, what his strategy would be and how much it would cost in total.

Who stands to gain from the exaggeration and hype? Logically, one
group would be those that gain financially from the
sale of cyber protective services and software . According to Valerino, 57% of technical experts surveyed said that we are
currently in a cyber arms race and 43% said that the worst-case scenarios are inevitable (Valeriano and Ryan 2015). Translate this into sales and
Gartner projects worldwide security spending will reach $96 Billion in 2018, up 8 Percent from 2017 and to top $113 billion by 2020 (Gartner
2017).

Additionally, there may be political motivations to exaggerate the threat of cyber war . Cyberspace is not well
understood by the general public and fear is natural. In the US’s cyber security debate, observers have noted there is a tendency for
policymakers, military
leaders, and media, among others, to use frightening ‘cyber-doom scenarios’ when
making a case for action on cyber security (Dunn 2008, 2).
There is some evidence to suggest that more recently in the political arena; we may be maturing in our understanding of the real threat of cyber war. The Tallinn Manual, an academic, non-
binding study on how international law applies to cyber conflicts and cyber warfare, was written at the invitation of the Tallinn-based NATO Cooperative Cyber Defence Centre of Excellence. It
was first published in 2013 with the title ‘The Tallinn Manual on the International Law of Cyber War’. In 2017, it was re-released with the revised title ‘Tallinn Manual 2.0 on the International
Law of Cyber Operations’. The change in title from ‘war’ to ‘operations’ signifies a more moderate use of language from NATO and is an acknowledgement that cyber incidents generally fall
below the threshold at which International Law would declare them to be a formal act of war. Experience over the 4 short years from 2013 to 2017 has demonstrated that cyber incidents tend
to have a low-level impact on the target state. As the book’s authors put it ‘the focus of the original Manual was on the most severe cyber operations, those that violate the prohibition of the
use of force in international relations, entitle states to exercise the right of self-defence, and/or occur during armed conflict’ while the new version ‘adds a legal analysis of the more common
cyber incidents that states encounter on a day-to-day basis and that fall below the thresholds of the use of force or armed conflict’ (Leetaru 2017).

To get a better sense if cyber war is exaggerated, we must also consider the probability of cyber war in the future. The probability of cyber war should be weighed up against the probability of
conventional war. Where tensions are already high, for example, between North Korea and the US or Russia and Estonia, I would argue that cyber war is more likely than conventional war.
This is due to factors including; cyber warfare is less costly than conventional warfare, states are less rational in their decision space in the cyber realm, states find cyber attribution very
difficult to achieve so attacks can be undertaken covertly and cyber war is considered ‘a challenge’ and central to the hackers’ ethos (Junio 2013, 128). Further, Sanger describes in his book,
The Perfect Weapon, cyber weapons (such as cyber vandalism, Distributed Denial of Service (DDOS), intrusions and advanced persistent threat (APT)) as the ‘perfect weapons’ for the following
reasons;

They are cheap: When compared to Nuclear weapons, there are only a handful of nations globally that can afford the technology to create a nuclear weapon.
They are easily accessible: Unlike a Nuclear bomb that requires uranium, a highly protected metal, in the production process, a cyber weapon can be created with minimal investment and
highly available IT infrastructure.

They can be dialled-up or dialled-down relatively easily. A ballistic missile, the force of the explosion cannot be adjusted as easily as a DDOS attack. A DDOS attack can be adjusted to last an
hour, a few days or a few weeks.

They have a huge range in how they are used: Sabotage as with Stuxnet, Espionage as with the Chinese industrial spying on the US, North Korea’s infiltration of Sony, the Iranians attack on Las
Vegas Sands Corp. casino operators.

The significant factor is that cyber weapons can and are being used every day for discrete, low-level
cyber conflicts to undermine and
disrupt rivals, but historically it has not progressed to open conflict, nor has it warranted a military response
(Sanger 2018). Additionally, massive cyber operations would necessarily impact the civilian population and
violate the immunity of non-combatants. The conditions of war dictate that this is “taboo” and to date,
rival states have shown restraint in their use of cyber weapons for this reason (Valeriano and Ryan 2015). It
appears that the threat that cyber weapons represent to national security is overstated and the threat
of cyber war is overstated.

The US and likely other highly networked nations appear reticent about using cyber weapons for significant cyber
conflict given their vulnerabilities. Ironically, NSA programs such as PRISM have made the US more of a target given the sheer volume
of sensitive information stored in one place. Regardless of US defences, there is no way to make this information completely secure from
intrusion, and as such, the very act of storing the information makes them more vulnerable.

Rid (2012) is among some academics who argue that cyber war has never and will likely never eventuate. The benefits of being on
this side of the debate mean that public funding can be allocated away from offensive cyber security initiatives to other, potentially more
important initiatives, such as public health and housing. The government is constantly under pressure to prioritise public spending and it is
imperative that they have realistic, accurate projections regarding the risk of cyber war, the probability and the impact, to allow them to focus
spending on the most important areas.

No nuclear retal
Patrick Tucker 18, Technology Editor for Defense One, MA from Johns Hopkins University, BA from
Sarah Lawrence College, Former Deputy Editor for The Futurist, “No, the US Won’t Respond to A Cyber
Attack with Nukes”, Defense One, 2/2/2018, https://www.defenseone.com/technology/2018/02/no-us-
wont-respond-cyber-attack-nukes/145700/

No, the US Won’t Respond to A Cyber Attack with Nukes

Defense leaders won’t completely rule out the possibility. But it’s a very, very, very remote possibility.

The idea that the U.S. is building new low-yield nuclear weapons to respond to a cyber attack is “not
true,” military leaders told reporters in the runup to the Friday release of the new Nuclear Posture Review.
“The people who say we lowered the threshold for the use of nuclear weapons are saying, ‘but we want these low-yield nuclear weapons so
that we can answer a cyber attack because we’re so bad at cyber security.’ That’s just fundamentally not true,” Gen. Paul Selva, vice chairman
of the Joints Chiefs of Staff, said Tuesday at a meeting with reporters.

It’s an idea that military leaders have been pushing back against since the New York Times ran a Jan. 16
story headlined, “Pentagon Suggests Countering Devastating Cyberattacks With Nuclear Arms.”

When would the U.S. launch a nuclear attack in response to a non-nuclear event? The Defense Department says the threshold hasn’t
changed since the Obama administration’s own nuclear posture review in 2010, but a draft of the new review that leaked online caused
a bit of drama in its attempts to dispel “ambiguity.”

The new review gives examples of “non-nuclear strategic attacks,” Robert Soofer, deputy assistant secretary for nuclear and missile defense
policy, told reporters on Thursday. “It could be catastrophic attacks against civilian populations, against infrastructure. It could be an attack
using a non-nuclear weapon against our nuclear command-and-control [or] early-warning satellites. But we don’t talk about cyber.”
In his own conversation with reporters, Selva broadened “early warning” systems to include ones that provide “indications of warning that are
important to our detection of an attack.” He also emphasized, “We never said ‘cyber.’”

There’s a reason for that. While cyber attacks on physical infrastructure can be very dangerous, they are unlikely to kill
enough people to provoke a U.S. nuclear response.

An National Academies of Science and Engineering analysis of the vulnerability of U.S. infrastructure makes that point. A major cyber
attack could cut off electrical power, resulting in “people dying from heat or cold exposure, etc.,” said Granger Morgan, co-
director of the Carnegie Mellon Electricity Industry Center and one of the chairs of the report. “A large outage of long duration could cover
many states and last for weeks or longer. Whether and how many casualties there could be would depend on things like what the weather was
during the outage.”

It’s a huge problem but not an event resulting in tens of thousands of immediate deaths.
Contrast that with a nuclear attack on a city like Moscow, even one using a device of 6 kilotons, much smaller than the ones the United States
used against Japanese targets in World War II. The immediate result: there would be 40,000 deaths, according to the online nuclear simulation
tool NukeMap.

Russia has demonstrated a willingness to take down power services with cyber attacks, as they did in Ukraine on Christmas Eve
2015. But these attacks were brief and occured in the context of actual fighting.

In other words, the

worst cyber physical attack that top experts believe credible likely does not meet the
threshold that the Defense Department has set out for deploying a nuclear weapon.
 AT New Scenario
Other countries make authoritarian surveillance inevitable
Kendall-Taylor et. al 20. Andrea Kendall-Taylor. senior fellow and director of the Transatlantic Security
Program at the Center for a New American Security, co-author of Democracies and Authoritarian Regimes; Erica
Frantz is Assistant Professor of Political Science at Michigan State University; Joseph Wright is Professor of Political
Science at Pennsylvania State University. “The Digital Dictators”. Mar/Apr 2020. Foreign Affairs.
https://www.foreignaffairs.com/articles/china/2020-02-06/digital-dictators

Instead, aspiring
dictatorships can purchase new technologies, train a small group of officials in how to use
them—often with the support of external actors, such as China —and they are ready to go. For example,
Huawei, a Chinese state-backed telecommunications firm, has deployed its digital surveillance
technology in over a dozen authoritarian regimes . In 2019, reports surfaced that the Ugandan
government was using it to hack the social media accounts and electronic communications of its political
opponents. The vendors of such technologies don’t always reside in authoritarian countries. Israeli and
Italian firms have also sold digital surveillance software to the Ugandan regime. Israeli companies have
sold espionage and intelligence-gathering software to a number of authoritarian regimes across the
world, including Angola, Bahrain, Kazakhstan, Mozambique, and Nicaragua. And U.S. firms have
exported facial recognition technology to governments in Saudi Arabia and the United Arab Emirates.

Democracy is resilient, but it solves nothing.

Doorenspleet 19 Renske Doorenspleet, Politics Professor at the University of Warwick. [Rethinking
the Value of Democracy: A Comparative Perspective, Palgrave Macmillan, p. 239-243]//BPS

The value of democracy has been taken for granted until recently, but this assumption seems to be under threat now more
than ever before. As was explained in Chapter 1, democracy’s claim to be valuable does not rest on just one particular merit, and scholars tend
to distinguish three different types of values (Sen 1999). This book focused on the instrumental value of democracy (and hence not on the
intrinsic and constructive value), and investigated the value of democracy for peace (Chapters 3 and 4), control of corruption (Chapter 5) and
economic development (Chapter 6). This
study was based on a search of an enormous academic database for certain
keywords,6 then pruned the thousands of articles down to a few hundred articles (see Appendix) which statistically
analysed the connection between the democracy and the four expected outcomes. The frst fiding is that a
reverse wave away from democracy has not happened (see Chapter 2). Not yet, at least. Democracy is not doing
worse than before, at least not in comparative perspective. While it is true that there is a dramatic decline in democracy in
some countries,7 a general trend downwards cannot yet be detected . It would be better to talk about ‘stagnation’, as not
many dictatorships have democratized recently, while democracies have not yet collapsed. Another fnding is that the instrumental value of
democracy is very questionable. The feld has been deeply polarized between researchers who endorse a link between democracy and positive
outcomes, and those who reject this optimistic idea and instead emphasize the negative effects of democracy. There
has been ‘no
consensus’ in the quantitative literature on whether democracy has instrumental value which leads some
beneficial general outcomes. Some scholars claim there is a consensus, but they only do so by ignoring
a huge amount of literature which rejects their own point of view . After undertaking a large-scale analysis of carefully
selected articles published on the topic (see Appendix), this book can conclude that the connections between
democracy and expected benefts are not as strong as they seem. Hence, we should not overstate the links between the
phenomena. The overall evidence is weak. Take the expected impact of democracy on peace for example. As Chapter 3 showed, the
study of democracy and interstate war has been a fourishing theme in political science, particularly since the 1970s. However, there are four
reasons why democracy does not cause peace between countries, and why the empirical support for the popular idea of democratic peace is
quite weak. Most statistical studies have not found a strong correlation between democracy and
interstate war at the dyadic level. They show that there are other—more powerful—explanations for war
and peace, and even that the impact of democracy is a spurious one (caveat 1). Moreover, the theoretical foundation
of the democratic peace hypothesis is weak, and the causal mechanisms are unclear (caveat 2). In addition,
democracies are not necessarily more peaceful in general, and the evidence for the democratic peace hypothesis at
the monadic level is inconclusive (caveat 3). Finally, the process of democratization is dangerous. Living in a
democratizing country means living in a less peaceful country (caveat 4). With regard to peace between countries, we cannot defend the idea
that democracy has instrumental value. Can the (instrumental) value of democracy be found in the prevention of civil war?
Or is the evidence for the opposite idea more convincing, and does democracy have a ‘dark side’ which makes civil war more likely? The
findings are confusing, which is exacerbated by the fact that different aspects of civil war (prevalence, onset, duration and severity) are mixed
up in some civil war studies. Moreover, defining civil war is a delicate, politically sensitive issue. Determining whether there is a civil war in a
particular country is incredibly diffcult, while measurements suffer from many weaknesses (caveat 1). Moreover, there is no linear link:
civil wars are just as unlikely in democracies as in dictatorships (caveat 2). Civil war is most likely in times of political
change. Democratization is a very unpredictable, dangerous process, increasing the chance of civil war s

ignificantly. Hybrid systems are at risk as well: the chance of civil war is much higher compared to other political systems (caveat 3). More
specifcally, both the strength and type of political institutions matter when explaining civil war. However, the type of political system
(e.g. democracy or dictatorship) is not the decisive factor at all (caveat 4). Finally, democracy has only limited
explanatory power (caveat 5). Economic factors are far more significant than political factors (such as having a
democratic system) when explaining the onset, duration and severity of civil war. To prevent civil war, it would make more sense to make
poorer countries richer, instead of promoting democracy. Helping
countries to democratize would even be a very
dangerous idea, as countries with changing levels of democracy are most vulnerable, making civil wars most likely. It is true that there is
evidence that the chance of civil war decreases when the extent of democracy increases considerably. The problem however is that most
countries do not go through big political changes but through small changes instead; those small steps—away or towards more democracy—
are dangerous. Not only is the onset of civil war likely under such circumstances, but civil wars also tend to be longer, and the confict is more
cruel leading to more victims, destruction and killings (see Chapter 4). A more encouraging story can be told around the value for democracy to
control corruption in a country (see Chapter 5). Fighting corruption has been high on the agenda of international organizations such as the
World Bank and the IMF. Moreover, the theme of corruption has been studied thoroughly in many different academic disciplines—mainly in
economics, but also in sociology, political science and law. Democracy has often been suggested as one of the remedies when fghting against
high levels of continuous corruption. So far, the statistical evidence has strongly supported this idea. As Chapter 5 showed, dozens of studies
with broad quantitative, cross-national and comparative research have found statistically signifcant associations between (less) democracy and
(more) corruption. However, there are vast problems around conceptualization (caveat 1) and measurement (caveat 2) of ‘corruption’. Another
caveat is that democratizing countries are the poorest performers with regard to controlling corruption (caveat
3). Moreover, it is not democracy in general, but particular political institutions which have an impact on the control of corruption; and a free
press also helps a lot in order to limit corruptive practices in a country (caveat 4). In addition, democracies seem to be less affected by
corruption than dictatorships, but at the same time, there is clear evidence that economic factors have more explanatory power (caveat 5). In
conclusion, more democracy means less corruption, but we need to be modest (as other factors matter more) and cautious (as there are many
caveats). The perceived impact of democracy on development has been highly contested as well (see Chapter 6). Some scholars argue that
democratic systems have a positive impact, while others argue that high levels of democracy actually reduce the levels of economic growth and
development. Particularly since the 1990s, statistical studies have focused on this debate, and the
empirical evidence is clear:
there is no direct impact of democracy on development. Hence, both approaches cannot be supported (see caveat 1). The
indirect impact via other factors is also questionable (caveat 2). Moreover, there is too much variation in levels of economic
growth and development among the dictatorial systems, and there are huge regional differences (caveat 3). Adopting a one-size-
ftsall approach would not be wise at all. In addition, in order to increase development, it would be better to focus on alternative factors such as
improving institutional quality and good governance (caveat 4). There is not suffcient evidence to state that democracy has instrumental value,
at least not with regard to economic growth. However, future research needs to include broader concepts and measurements of development
in their models, as so far studies have mainly focused on explaining cross-national differences in growth of GDP (caveat 5). Overall, the
instrumental value of democracy is—at best—tentative, or—if being less mild—simply non-existent. Democracy is
not necessarily better than any alternative form of government. With regard to many of the expected benefts
—such as less war, less corruption and more economic development—democracy does deliver, but so
do nondemocratic systems. High or low levels of democracy do not make a distinctive difference. Mid-range democracy levels do
matter though. Hybrid systems can be associated with many negative outcomes, while this is also the case for democratizing countries.
Moreover, other explanations—typically certain favourable economic factors in a country—are much more powerful to explain the expected
benefts, at least compared to the single fact that a country is a democracy or not. The impact of democracy fades away in the powerful
shadows of the economic factors.8
 NUQ---1NC
Congress is allowing hack-back in the squo
Jeff Jones, 05-2020, Lieutenant Colonel Jeffrey Jones is an Army Reserve Judge Advocate General who
recently worked as an Operational Law Planner, Joint Enabling Capabilities Command, Norfolk, Virginia. 
Previously, Jeff served as a Prosecutor for the Office of Military Commissions as well as a Soldier's
Counsel at Walter Reed Army Medical Center, Belfer Center for Science and International Affairs,
"Confronting China’s Efforts to Steal Defense Information",
https://www.belfercenter.org/publication/confronting-chinas-efforts-steal-defense-information#toc-4-
0-0//zach

If DOD is not going to be authorized to operate on the periphery of private networks to offer
cybersecurity protection, the country must consider giving the private sector some limited authority to
reach into the Internet and take back that which has been stolen from them . Typically referred to as “hack
back,” this proposal refers to the ability of a company whose information is being stolen to respond by stopping the theft from occurring and
deleting the information from the thieves’ network, thus preventing the adversary from benefitting from the theft. This is a form of self-
help that acknowledges that government agencies are oftentimes reluctant to effectively respond to an
intrusion or are incapable of dedicating resources or expertise to the problem. 

This may seem like a radical proposal; however, the concept is not much different from how governments dealt with
the confounding problem of pirates on the high seas for centuries. Starting as early as the 13th century, countries began authorizing
privateers to act as an arm of the state to confront their enemies during a state of conflict.82 Likewise, up until the 19th century, states in
peacetime environments issued letters of marque to victims of pirate attacks authorizing the holder of the letter of marque to pursue
retribution for the theft by attacking ships belonging to the aggressor nation in order to procure property that would compensate for the
victims’ losses.83 Currently, the Computer Fraud and Abuse Act (CFAA) prevents companies from hacking back; however, Congress has
been considering legislation that would permit companies to hack back to “establish attribution”,
“disrupt unauthorized activity” and “monitor the behavior to assist in developing future intrusion
prevention”.84
 Hack Backs Defense---1NC
No escalation from hack-backs
Patrick Lin 16, PhD, California Polytechnic State University, Ethics + Emerging Sciences Group, “Ethics of
Hacking Back: Six arguments from armed conflict to zombies,” 09/26/16, US National Science
Foundation, http://ethics.calpoly.edu/hackingback.pdf
As declared by the United Nations Charter, article 2(4): “All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United
Nations.”62Nonetheless, it is also within the natural rights of the attacked nation to defend itself, possibly allowing for hackbacks. As the U.N.
Charter, article 51 declares: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed
attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace
and security.”63 So, inside a cyberwar, hacking back by the state could be permitted. But what about before a cyberwar has started: would
hacking back exacerbate the conflict and trigger that war? If so, this is a worst-case scenario that we
would be right to guard against.

Yet, international cyberattacks have been ongoing for more than two decades without too much
escalation or actual war. It makes sense that cyberattacks are tolerated and not too incendiary if we view
cyberspace as a borderland: it is an ephemeral, unfamiliar domain that slips between a purely informational world and the physical
world.64

In this framing, it is unclear whether a cyberconflict threatens territorial integrity, because said integrity requires
borders to be clearly defined or asserted, and the borders of cyberspace are hard to locate in the first place. While cyberspace has an
underlying physical reality in the servers, routers, transoceanic cables, and so on, and these physical items may reside within sovereign
territories, cyberspace itself is difficult to place within those territories.

In philosophy, this is the notion of an emergent property: a whole that is greater than the sum of its parts. For instance, a human brain is
composed of neurons, synapses, axons, hormones, and so on, and these parts can be located in time and physical space. However, the mind or
consciousness that emerges from the brain is transcendent; an idea, emotion, or memory is not “physical”, as we commonly understand it,
even if it has physical origins.

And so it is with cyberspace.65 Where an offensive idea is not an attack on a person’s brain, likewise we should not assume that a conflict in
cyberspace is an attack on sovereign territories, though it can be if physical assets are damaged and possibly under other conditions. That
assumption would be too quick, committing something like a fallacy of composition or a genetic fallacy: improperly ascribing a feature about a
part to its whole or to its origins.

Exiting our philosophical detour, if we are to accept the construction of cyberspace as contested frontier, then the following legal case is
relevant. In the International Court of Justice (ICJ) case of Nicaragua vs. United States of America in 1984, the court’s judgment distinguished an
armed attack from a “mere frontier incident”; the latter is a less serious attack or use of force that does not trigger U.N. Charter’s article 51 to
justify a counterattack.66 However, that does not mean the victim cannot counterattack at all, only that it cannot invoke its right to self-
defense.

How a “mere frontier incident” is different than the more provocative “armed attack” and “use of force” is crucial to understand, since many
international disputes are marked by such low-intensity violence. But it remains an underexplored distinction, surprising given its implications
and controversy.67 In the ICJ judgment itself, only a passing mention was made to the distinction, with no further explanation.

Legal defensibility aside, the distinction seems relevant to ethics, at least. Consider this situation: If
you were jostling through a
crowd, you may get bumped by other people, both intentionally and not. Either way, though, that unwanted physical
contact does not usually rise to the level of assault. It may cause you some harm, but it is not so serious
an offense that you would be justified in punching back in the name of self-defense, as opposed to pushing
back as a natural reaction. Likewise, your bumping into others does not make you an assailant, and it is usually not
considered criminal to bump back.68 This is something like a frontier incident: it takes place in an environment to which no one has a firm
claim, and the conflict is limited in its scale and effects. This
unsettled environment affects your claim to bodily
autonomy or state sovereignty, enabling certain transgressions to be taken less seriously
.69 By nature, frontiers are fraught with tests and misunderstandings.

While the states

involved in a frontier incident cannot legally claim national self-defense and formally
authorize war, it is understandable that the state agents—such as the explorers or military scouts at the frontier—would want to defend
their own lives and deter future attacks. This might be achieved by returning fire at anything shooting at them, without escalating into war. So,
personal self-defense could justify a counterattack, even if a state’s sovereignty is not at stake.

Returning to hacking back, even if the initial cyberattack were foreign-based and raised the possibility of cyberwar or worse, a
counterattack seems to be reasonably treated as a “frontier incident” and not necessarily escalatory. It
can usually be seen as a use of force short of war.70 The rules and borders of the cyber frontier are unclear, as are its
governing authorities.71 This cyber frontier lines up with what military observers call a “gray zone” of conflict, an emerging space between war
and peace.72 These gray zones “involve some aggression or use of force, but in many ways their defining characteristic is ambiguity—about the
ultimate objectives, the participants, whether international treaties and norms have been violated, and the role that military forces should play
in response.”73

Thus, it is not a radical idea to treat some attacks, either kinetic or cyber, as conflicts that are short of war but certainly
disrupting the peace. We are still working out the rules. In cyber particularly, most attacks can then be considered to be frontier
incidents, insofar as their ultimate objectives, participants, cybernorms, and so on are unclear. One exception would be when a cyberattack is
known to be an act of war, for instance, if the aggressor declared it as such or was otherwise engaged in a kinetic war with the victim, in which
cyberspace is one of several channels used to strike at the adversary.

A possible objection at this point again invokes attribution, as a key thread across various arguments. The objection is that the parties involved
in a cyberattack might not be statesponsored. Rather, they will likely be private entities, as most cyberattack victims are today. Thus, warfare
often will not be the right frame in thinking about cyberattacks, and in cases where it is not, the subsequent analysis may be led astray.

Hacking back, however, is a case where this difference does not make a difference. In fact, the objection makes the argument for hacking
back even easier. The state would be even less likely to be implicated and dragged into war, if there is less
reason to believe that the involved parties were state-sponsored. Instead, perhaps it becomes a business-
ethics problem between private entities from different countries. Even in that frame, cyber could still be viewed as a market
frontier—sometimes chaotic and unfriendly. Economic conflict and crimes, of course, can and have escalated into
full-blown war. The East India Company and piracy in the Caribbean from the 17th to 19th centuries are examples of private actors that
have helped to spark wars. So, the risk of escalation into war is not zero, as a historical matter .

There is reason to think that economic cyber conflict is different, however. Again, there is no example in
cyber’s short but aggressive history that escalation is likely. The lack of precedent is perhaps owed to
the difference in stakes, at least, as death is usually not on the line in cyber conflict. Also, unlike physical conflicts across
borders or in contested territory, the borders of cyberspace are quite unclear. Cyberattacks are invisible, less visceral, and
therefore less provocative, even though the economic costs may be quite high.

Former NSA and USCYBERCOM chief Keith Alexander called the costs “the greatest transfer of wealth in
history.”74 Still, that harm has not provoked a kinetic battle or even escalation of cyberattacks. This, however, is
no guarantee that serious escalation or political retaliation will never happen.

Even if a conflict rises to the level of war, attribution does not seem to be a firm requirement, at least for the individual soldier in times of
imminent danger. It is enough to know that a sniper is shooting you from a certain position, without first identifying who the sniper is, which
side he is on, his intentions, or anything else.75 Notably, even if private entities were the only ones involved, the state might not be fully
released from responsibility. Cyber norms have been proposed to hold the state liable if it fails to stop cyberattacks originating from its territory
or otherwise fail to fully cooperate in their investigation.76, 77 But staying out of such frontier incidents at least creates distance between the
state and the parties involved, to lessen the risk of cyber or kinetic war.

But in the frontier event, we can grant that the initial attacker did something wrong. Outside of boxing and other sports, attacking first is usually
wrong. Rather, the relevant question is whether the victim may return fire or push back. In both cases where the instigator is and is not
blameworthy, it seems that the answer is yes, at least under certain conditions. This retaliation certainly holds special risks when it involves a
foreign-based attacker, since LOAC may apply. But even exceptions or nuances exist in LOAC, as the ICJ ruling in Nicaragua shows.

Even without appealing to self-defense, it may be enough to observe that frontier incidents are an inherent risk to frontiers. Bad things happen
here, and pushing back is one of those unfortunate but natural responses. It would be better if frontiers were more orderly and governed by
law, but they fall in the legal gap between civil society and war, which are governed by different legal regimes.

Curiously, many people continue to conduct business and store data online, despite the relentless waves of cyberattacks. Coupled with the
state’s inaction to prosecute, this speaks to the risky, frontier-like environment of cyberspace. Therefore, operating in this environment is very
much an assumed risk, just as building a house in a lawless frontier assumes the higher-than-average risk of being attacked.

Now, the frontier analogy is not perfect, like the others. More work can be done here to explore its strengths. For instance, frontiers typically
imply a desired outcome that one group eventually wins control over some or all of it. But not all actors have plans for cyberspace domination;
it is often understood to be a shared commons. Plausibly, cyber is more a loose community of people who have different interests and play in
different areas, looking to get along, and less a battleground for nations. Does this difference matter? Maybe not, as we do not need to make
that implication in the frontier analogy for it to be useful.

Thus, criticizing hacking back on the grounds that it may escalate a conflict is too broad an objection . Again,
any case of self-defense could be accused of the same provocation. This seems to be victim-blaming, similar to faulting a mugging victim for
additional injuries sustained or created elsewhere as a result of fighting back. A mugging victim who fights back may be causally responsible for
additional injuries arising from that action: if the victim had not fought back, then those injuries would not have occurred. But this is different
from being morally responsible or blameworthy, if the victim bears no fault in initiating the series of events or does not use unreasonable force.
Likewise, hacking back could very well be the reason why further retaliation and mayhem occurred, but those who hacked back are not
necessarily to blame for that escalation.
2NC
 States
1) Education---it’s a germane controversy, and there’s sufficient literature on both
sides
Barkow 11 – professor of law @ NYU (Rachel, “Federalism and Criminal Law: What the Feds Can Learn
from the States,” Michigan Law Review, 4)//BB

And there has been no shortage of commentators interested in the specific question of when the federal
government should play a role in criminal law enforcement and when it should leave matters to local
control. One school of analysis approaches these questions as the Supreme Court has and is largely interested in what the Constitution has to
say about the relationship among the different institutions. These scholars take what is essentially a doctrinal approach to the federalism
question, analyzing it much the same way a court would. This line of scholarship therefore looks at constitutional text,
history,
and theory to address the question of which criminal powers are within federal authority and which fall
outside it. Another group of scholars focuses not on the constitutional question of where power can or must
reside, but on the normative question of where power should reside. A subset of this group tends to focus on arguments
grounded in "the political economy of the different governmental institutions" that make up the criminal justice system. These scholars, for
example, analyze the incentives of officials at the different levels of government given voter and interest-group demands." They also consider
whether a "race to the top" or a "race to the bottom" might suggest the wisdom of greater or lesser federal involvement in criminal
enforcement.60 Efforts in this vein also include scholarship that addresses the political and institutional failings of federal law enforcement that
may put it at a disadvantage 61 compared to local actors. Still another
major approach to the normative question of
federalism in criminal law focuses on procedural differences between federal and state systems to decide
where best to allocate power.62 Some advocates of federal law enforcement point to what they see as procedural advantages in federal court.
These include fewer restrictions on the government's use of informants,56 easier access to wiretaps and warrants,4 less generous discovery
rights for defendants, 6 and broader grand jury powers." The federal jury pool may also differ from the relevant state jury pool,67 so it is
possible that prosecutors might see an advantage in drawing from the federal pool over a more localized state jury pool. The federal
government's superior witness protection program has also been cited as a plus." Opponents of increased federal involvement in matters
traditionally left to local prosecutors often look to judicial resources, typically observing that the size and structure of the federal judiciary is not
suited for taking on a larger share of criminal matters.

Follow-on is uniquely likely in CJR

Patrick Gleason 19, Vice President of State Affairs at Americans for Tax Reform, 6-19-2019, “As 2020
Presidential Hopefuls Debate Criminal Justice Reform, The Most Important Action Is In States,”
https://www.forbes.com/sites/patrickgleason/2019/06/19/as-2020-presidential-hopefuls-debate-
criminal-justice-reform-the-most-important-action-is-in-states/

Tennessee is not the only state where criminal justice reform legislation has been introduced this year.
Nevada lawmakers recently passed Assembly Bill 236, a sentencing reform measure that, like those enacted in Tennessee, will yield significant taxpayer
savings. “This legislation establishes crisis intervention training and alternatives to jail for those with behavioral health needs,” writes Americans for Tax Reform’s Laurel Duggan about
Nevada's AB 236. “This will ensure that this population receives the help they need to no longer threaten public safety. The bill creates graduated sanctions for parolees, replacing the system

.” Pennsylvania
in which technical violations result in reflexive imprisonment...The resulting decrease in incarceration is projected to save taxpayers $543 million over ten years

lawmakers, unlike those in Tennessee, are still in session. Criminal justice reform advocates in the
Keystone State are encouraging lawmakers in Harrisburg to pass Senate Bill 637, legislation that would have professional licensing
and permitting boards consider applicants’ criminal records individually and in the context of the profession they

seek to enter, as opposed to the current practice in many instances of barring them automatically. If SB 637 is passed by the Republican-controlled Pennsylvania General Assembly
and signed by Governor Tom Wolf (D), Pennsylvania licensing boards will discern the relevance of criminal convictions for the profession at hand. Boards will retain the right to reject an

offenders
applicant based on criminal convictions relevant to the license. Proponents of this reform see this as a significant improvement to the current approach, in which former

are blacklisted from the job market and evidence of rehabilitation is not taken into account. Policy
Innovation Through Federalism Dozens of states passed criminal justice reforms that served as a model
for the First Step Act signed into law by President Trump last year. The experience in those states
demonstrated how increasing alternatives to incarceration for non-violent offenders can save state
taxpayer dollars, reduce recidivism, and keep families together, all without jeopardizing public safety.
“Overall, in the 10 states that have reduced incarceration the most over the last decade, crime has fallen
more than the national average and more than in the 10 states that increased incarceration the most ,” says
Marc Levin—Vice President of Criminal Justice Policy at the Texas Public Policy Foundation. “ Federal policymakers could act on the F irst Step Act

knowing that it is not an experiment, but rather legislation that is grounded in successful reforms on the
state level.” Even those who are strictly focused on the federal government should pay attention to what is happening in the states. Criminal justice reform is
one area in particular where state level reforms have successfully percolated up to the national level.
It’s a template for successful policy innovation that more politicians and candidates would do well to
follow. Before taking something national; the success of criminal justice reform shows that it’s wise to use a few of the
50 laboratories of democracy to first show the nation that a given policy works and how best to
implement.
 Courts
The decision will be carried out fully---everyone complies
Dr. Lawrence A. Baum 18, Professor of Political Science at Ohio State University, PhD in Political
Science from the University of Wisconsin-Madison, The Supreme Court, Thirteenth Edition, p. 206-208

Summing Up: The Effectiveness of Implementation

We know far too little to make confident judgments about how well judges and administrators carry out Supreme Court decisions, even if that
question is simplified to the question of compliance and noncompliance. Still, a few generalizations are possible.

When judges and administrators address issues on which the Supreme Court has ruled, most of the time
they readily apply the Court’s ruling. They often do so even when that requires them to depart from
positions on legal policy they had adopted before the Court’s decision. These actions typically get little
attention because they accord with most people’s assumption that judges and administrators will
follow the Court’s lead and carry out its decisions fully.
Contrary to this assumption, however, implementation of the Court’s policies is often quite imperfect. For Supreme Court decisions, like congressional statutes, the record of implementation is mixed. Some Court rulings are carried
out more effectively than others, and specific decisions often are implemented better in some places or situations than in others.

Implementation of the Court’s decisions is most successful in lower courts, especially appellate courts. When the Court announces a new rule of law, judges generally do their best to follow its lead. And when a series of decisions
indicates that the Court has changed its position in a field of policy, lower courts tend to follow the new trend. For this reason, Court decisions that require only action by lower courts tend to be carried out more effectively than
decisions that involve other policymakers.36

But even appellate judges sometimes diverge from the Court’s rulings. Seldom do they explicitly refuse to follow the Court’s decisions. More common is what might be called implicit noncompliance, in which a court purports to
follow the Supreme Court’s lead but actually evades the implications of the Court’s ruling.

The higher frequency of implementation problems for Supreme Court decisions in the executive branch reflects several conditions. One condition is that administrators are likely to feel less obligation to follow the Court’s lead than
do judges. Another is that carrying out the Court’s decisions is more likely to create practical problems for administrators. Even so, the Court enjoys considerable success in getting compliance from administrative bodies.

Responses by Legislatures and Chief Executives

Congress, the president, and their state counterparts also respond regularly to Supreme Court decisions. Their responses shape the impact of the Court’s decisions, and some responses by Congress and the president affect the
Court itself.

Congress

Congressional responses to the Court’s rulings take several forms. Within some limits, Congress can modify or override the Court’s decisions. Congress also affects the implementation of decisions, and it can act against individual
justices or the Court as a whole.

Statutory Interpretation

In the world of statutory law, Congress is legally supreme. When the Supreme Court interprets a federal statute, as it does in most of its decisions, Congress can override that interpretation simply by enacting a new statute—so
long as the president signs the statute or Congress overrides a veto. Such action is not rare. One study identified 275 decisions that Congress overrode in the forty-five years from 1967 through 2011, an average of more than ten in
each two-year Congress.37 These overrides affect a small but meaningful proportion of the Court’s statutory decisions; a study of tax decisions from 1954 to 2004 found that Congress overrode at least 8 percent of them.38

Some overrides represent direct efforts to invalidate recent Supreme Court decisions that have aroused widespread disagreement in
Congress. But statutes that are aimed at specific decisions are a distinct minority. More often, Congress updates the law in
an area of policy with a new statute, and in the process, it overrides one or more decisions. Occasionally, members of Congress are
not even aware that they have overridden the Court with a new statute.

Members of Congress themselves initiate some efforts to override decisions. But more often, they respond to
interest groups. Just as groups that are unsuccessful in Congress frequently turn to the courts for relief, groups whose interests have been weakened by the Supreme Court
frequently turn to Congress. Sometimes the initiative comes from the Court itself. A dissenting justice may urge Congress to negate the decision in question, as Justice Sotomayor did in a 2017
decision interpreting the Fair Debt Collection Practices Act.39 And occasionally, the Court’s majority opinion invites members of Congress to override the Court’s decision if they think that the
Court misinterpreted their intent or that the Court’s decision created an undesirable result.

Significant legislation is usually difficult to enact, and that is true of bills to override Supreme Court
decisions. It can help if an override is attached to a broad bill that has majority support. Whether Congress overrides a particular decision depends in part on its partisan composition. In
King v. Burwell (2015) the Supreme Court considered an argument that the Affordable Care Act did not authorize tax credits to subsidize insurance premiums in states in which the federal
government rather than the state had set up health care “exchanges.” In oral argument, Solicitor General Donald Verrilli argued that a decision ruling out such tax credits would have
disastrous consequences. Justice Antonin Scalia pointed out that in such instances, Congress often enacts a new statute to take care of the problem. He asked, “Why is that not going to
happen here?” Verrilli responded, “Well, this Congress. . . . ” That comment brought laughter from people in the audience who knew that the Republican majorities in the House and Senate
were very unlikely to enact a statute that would rescue “Obamacare.”40
More generally, overrides
on issues that have an ideological element are difficult to enact when control of
government is divided between the two parties, as it was from 2011 through 2016. And the partisan polarization
that often makes it more difficult to enact controversial legislation of any type in the current era helps
to account for a reduction in the number of overrides since the 1990s.

Statutes that override the Court’s decisions, like other statutes, are subject to the Court’s interpretation in later
cases. Sometimes the Court reads an override in a way that limits the impact of that override on the
law. This has been the case with some of the congressional overrides of decisions that gave narrow interpretations to statutes prohibiting
employment discrimination.41 When that happens, Congress could enact another statute to clarify the law. But
often there is not sufficient interest or political support for such action.

3. Topic education---agent questions are at the center of discussions about political

reform. It’s a key gap in CJR literature.
Judge Tracie A. Todd 19, State of Alabama Circuit Court Judge, has presided over felony and
misdemeanor offenses since 2012, JD from Alabama and LLM in Judicial Studies from Duke, “Mass
Incarceration: The Obstruction of Judges, Law and Contemporary Problems,” Vol. 82, No. 2:191 2019,
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4913&context=lcp

As a general premise, it can be concluded from this study that legislative mandates and institutional features
may affect judicial discretion in sentencing. The conclusion relates directly to the widely divergent
incarceration rates in Alabama and Massachusetts. The study revealed variations in attitudes, practices and policies that judges as actors
in the criminal justice system believe to be obstructive to efforts aimed at reducing incarcerations rates. Judges perceive themselves
as intermediaries between the criminal justice system and the communities to which most offenders will be
returned. Therefore, any genuine effort to effectively reform the criminal justice system and reduce prison
populations must include substantive involvement of state judges. Overcrowded prisons have necessitated reform of the
criminal justice system. While this study centered on surface level political mandates and institutional features, the study
of state judges as participants in the criminal justice system is vastly unchartered territory. Further study
of these key actors in the criminal justice system is ripe for original contribution to the literature , and
perhaps a missing consideration in the criminal justice and mass incarceration debate.

First, AGENT---‘enact’ means legislative action

Antonin Scalia, 2 – Supreme Court Justice, writing for the majority; currently he is dead (Branch v.
Smith, 538 U.S. 254, 12/10/2, Nexis Uni //DH
[6A] Section 5 provides that HN4 "whenever a [covered jurisdiction] shall enact or seek to [**1437] administer" a voting change, such a change
may be enforced if it is submitted to the [****21] Attorney General and there is no objection by the Attorney General within 60 days. 42 U.S.C.
§ 1973(c) (emphasis added). Clearly the
State Chancery Court's redistricting plan was not "enacted" by the State of
Mississippi. An "enactment" is the product of legislation, not adjudication. See Webster's New International
Dictionary 841 (2d ed. 1949) (defining "enact" as "to make into an act or law; esp., to perform the legislative act with reference to (a bill) which
gives it the validity of law"); Black's Law Dictionary 910 (7th ed. 1999) (defining "legislate" as "to make or enact laws"). The web of state and
federal litigation before us is the consequence of the Mississippi Legislature's failure to enact a plan. The
Chancery Court's redistricting plan, then, could be eligible for preclearance only if the State was "seeking to administer" it.

‘United States’ is a singular noun referring to the whole

Dr. James R. Hurford 94, General Linguistics Professor at the University of Edinburgh, Grammar: A
Student’s Guide, p. 224
Singular
Explanation

A singular noun or pronoun in a language typically refers to just one thing or person, or to a mass of stuff, rather than to
a collection of things or people. Other nouns which occur in the same grammatical patterns as typical singular nouns may be classified
as grammatically singular.

Examples

Some singular nouns in English are waiter, inability, objection, cat, frostbite, garlic, refusal, gatepost, liair and region.

The English personal pronouns I, he. she and it are singular.

Contrasts

Singular contrasts with plural. A word cannot simultaneously be both singular and plural.

Relationships Singular and plural in a language belong to its system of number. It is common in languages for singular to be the unmarked
member of the system, and for plural nouns to have some special marker, such as a suffix; this is true of English, where, for instance, the noun
dog is singular, and its plural is formed by adding an ~s. The singular is rarely formed by adding something in this way.

The basic parts of speech to which singular applies are nouns and pronouns; other parts of speech or word-classes may be marked as singular
by agreement with a singular noun or pronoun. In English, only verbs and demonstratives show this agreement; this and that are singular
demonstratives, and is and was are forms of the verb be which show singular agreement.

Among the nouns, mass nouns are always singular. So we may say This stuff is sticky and That wine tastes of bananas. Count nouns show the
distinction between singular and plural. Thus we have singular/plural pairs such as tree/trees, diagram/diagrams and burial/burials. Proper
names are almost always singular. Even
proper names formed from plural common nouns, such as the United
States, tend to be singular, as in The United States is ready to defend its vital interests.

The CP alone has the Court override and second-guess a conflicting statement of
interest from the State Department, reaching the opposite conclusion of the Executive
branch---that overstepping breaks PQD---but the perm aligns the branches and avoids
a conflict
Kimberly Breedon 8, J.D. from the University of Cincinnati, Law Clerk to the Honorable Frederick P.
Stamp, Jr., of the United States District Court for the Northern District of West Virginia, “Remedial
Problems at the Intersection of the Political Question Doctrine, the Standing Doctrine, and the Doctrine
of Equitable Discretion”, Ohio Northern University Law Review, 34 Ohio N.U.L. Rev. 523, Lexis
The third Baker factor is arguably the one most susceptible to an overly broad application. This likely tendency toward broader application of
the third Baker factor is because courts
recognize that "mak[ing] law or . . . extend[ing] existing law beyond the limits
of proper interpretation . . . is a political responsibility and whether to do so [is] a 'political question.'"
Nevertheless, courts have not generally relied on this factor to find cases nonjusticiable. In cases where courts are asked to make new law or to
improperly extend existing law, they typically (1) deny relief on the merits; (2) dismiss for lack of standing; or (3) dismiss for want of equity. As a
general matter, they do not dismiss the issue as a nonjusticiable, political question.

4. Baker Factors Four, Five, and Six

The final three Baker

factors include: "impossibility of a court's undertaking [an] independent resolution
without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various
departments on one question." These three factors are often treated as a unit.

Baker factors four through six are implicated only when

a co-equal branch has reached a definitive decision on the issue
in question, especially if the political decision reaches the particular parties in the controversy under review. For
example, if by ratifying a treaty, the political branches have already determined that the representative
of a foreign government was authorized by that government to enter into a treaty agreement with the
United States, courts cannot review whether the representative who ratified the treaty on behalf of the foreign government had
authority to do so. Were they to undertake such second-guessing, they would express a lack of respect for the
political branches; they would fail to adhere to a political determination already made, thereby
undermining the executive's treaty- making authority; [*540] and they would embarrass the political
branches by reaching an opposite conclusion on the same question
the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction." Thus, without a definitive political decision by the electoral departments, Baker factors four through six should not be invoked.
. Similarly, once the executive has decided and notified the courts that a specific vessel owned by and in the service of a friendly foreign government is immune from seizure, the judicial branch "follows

IV. Recent Lower Court Applications and Identifiable Trends

Given the paucity of post-Baker Supreme Court cases finding the presence of a political question, the development of the doctrine's contours has been left largely to the lower courts. Courts and commentators describe the current state of the political question doctrine as "murky" or, more charitably, "unsettled." But certain trends are discernable. This section reviews some recent cases which discuss the political question and identifies the elements from them that suggest when courts are likely to find the presence of a political question.

A. Cases Finding the Presence of a Political Question

A number of recent circuit court cases have addressed the political question doctrine. Most, though not all, of them have involved tort claims implicating foreign affairs in some way. This section reviews a sampling of political question doctrine cases decided within the past two years in a number of circuits.

1. Bancoult v. McNamara

In Bancoult v. McNamara, a 2006 case decided by the United States Court of Appeals for the District of Columbia, former residents of Chagos Archipelago and their descendants sued the United States government and certain individual government employees alleging that the government forcibly depopulated the islands in the Indian Ocean for the purpose of constructing a military base. The claimants did not challenge the decision to locate the military base in the archipelago; rather, they challenged the manner in which the decision was implemented, arguing that the
manner of implementation is distinct from the policy decision itself. The court rejected [*541] the argument, finding that the plaintiffs' claims were "inextricably intertwined with the underlying strategy of establishing a regional military presence" in the Indian Ocean and thus represented a challenge to the military policy decision to locate the base there. In its rationale, the court observed that foreign policy judgments implicit in a challenged action would not automatically render a case nonjusticiable, nor would claims that "did 'not seek to litigate the political and social
wisdom' of the policy" underlying the challenged action.

2. Gonzalez-Vera v. Kissinger

In 2006, the D.C. Circuit also decided Gonzalez-Vera v. Kissinger, which involved claims by victims of torture and other human rights abuses against the U.S. government and former Secretary of State and National Security Advisor for U.S. government-sponsored activities supporting the military regime of Chilean dictator Augusto Pinochet. The plaintiffs sought to distinguish their case from the decision by the court of appeals the previous year, which held claims challenging the foreign policy decisions of the U.S. to be nonjusticiable political questions. The plaintiffs argued
that they were not challenging the foreign policy actions to put Pinochet in power-the argument that had been deemed nonjusticiable in Schneider v. Kissinger-but rather, they were seeking to challenge the actions taken to keep the dictator in power. The Court rejected this argument because the challenged actions, "if they occurred, were inextricably intertwined with the underlying foreign policy decisions constitutionally committed to the political branches." In other words, a claim that challenged either directly or indirectly the foreign policy decisions or actions by the
U.S. government presented political questions and were therefore nonjusticiable.

3. Whiteman v. Dorotheum GmbH & Co. K

In Whiteman v. Dorotheum GmbH & Co. KG, the United States Court of Appeals for the Second Circuit dismissed as a nonjusticiable political question claims brought against Austria by individuals seeking compensation for property taken during Nazi control of that country. The United States filed [*542] a Statement of Interest ("SOI") urging dismissal of the claims. The U.S. indicated in its SOI that the plaintiffs' suit was the only pending claim interfering with the implementation of the General Settlement Fund for Nazi-Era and World War II Claims, which was established by
executive agreement between the U.S. and Austrian governments. The U.S. government further stated in a supplemental letter to the court that the continued pendency of the particular litigation was "'imped[ing] the success of [an] important foreign policy initiative, and threaten[ing] the foreign policy interests of the United States.'"

Relying on the U.S. Supreme Court's analysis in Republic of Austria v. Altmann and dictum in Sosa v. Alvarez-Machain, the Second Circuit determined that the case presented a political question under Baker's fourth factor. Throughout its discussion, the court carefully and repeatedly emphasized that it was deferring to executive branch foreign policy expressions in this particular case. Case-by-case analysis was warranted when deciding the extent to which deference should be accorded to the executive's stated foreign policy interests, and the specific circumstances of this
particular case justified dismissal under Baker factor four.

The dissent in Whiteman took exception to the majority's holding that the case, even given its particulars, must be dismissed under the political question doctrine. Judge Straub asserted that an executive statement of interest provided insufficient justification for employing mandatory dismissal at the [*543] outset of the case under the political question doctrine. This approach, Judge Straub claimed, "effectively cedes jurisdiction to the [e]xecutive to determine, on an ad hoc basis, when cases can and cannot be brought against a foreign sovereign." Judge Straub did not
advocate ignoring the executive's foreign policy statements, however. Rather, in his view, the court should "bear these [foreign policy] interests in mind" in the application of discretionary doctrines, such as executive deference and international comity. By applying the political question doctrine merely on the basis of the executive's stated foreign policy interests, the court had, according to Judge Straub, engaged in "an unwarranted and troubling expansion of the nonjusticiability doctrine."

B. Cases Finding Political Question Not Present

A number of the same circuits finding the presence of a political question in cases before them during the past two years have also heard cases during that period in which they have found no political question presented. This section reviews three such cases. These cases are instructive because in two of them, the U.S. government filed an SOI, which the courts found insufficient to warrant dismissal on political question grounds, and because in the third case, the absence of an SOI played a key role in the court's decision.

1. Doe v. Exxon-Mobil Corp.

In Doe v. Exxon-Mobil, a group of eleven plaintiffs from the Indonesian village of Aceh brought common law tort claims against Exxon-Mobil Corporation for actions committed by the company's hired security forces, [*544] which were comprised of members of Indonesia's military. The plaintiffs also brought claims under the Alien Tort Statute and the Torture Victims Protection Act. Plaintiffs sought both damages and injunctive relief.

The United States District Court for the District of Columbia denied Exxon- Mobil's motion to dismiss on political question grounds. Exxon-Mobil appealed, arguing that the district court's denial of the motion was an immediately appealable collateral order. In the alternative, Exxon-Mobil requested that its appeal be treated as a petition for a writ of mandamus compelling the district court to dismiss the claims. The court of appeals rejected Exxon-Mobil's arguments, finding both that the denial of dismissal on political question grounds was not an immediately appealable
collateral order, and that the district court had not erroneously exceeded its jurisdiction by denying defendant's motion to dismiss.

At issue in Doe v. Exxon-Mobil was the weight the trial court accorded to an SOI issued by the Department of State (DOS) regarding "whether adjudication of the plaintiffs' claims would interfere with U.S. foreign policy interests." Even though the SOI stated that proceeding with the litigation "'would in fact risk a potentially serious adverse impact on significant interests of the United States[,]'" the circuit court noted the SOI's guarded tone, and pointed to portions of the SOI that suggested the DOS intended it to be "a word of caution" about how the case should proceed.
Quoting the SOI, the court of appeals observed that the DOS had expressed its conclusion that the potential effects on U.S. relations with Indonesia could not "be determined with certainty" and were "'necessarily . . . contingent'" on such issues as how intrusive the discovery undertaken would be, and "'the degree to which the case might directly implicate matters of great sensitivity to the Government of Indonesia . . . and call for judicial pronouncements on the official actions of [that Government] with respect to the conduct of its military activities[.]'"

The court of appeals found that the SOI did not constitute "an unqualified opinion that [the] suit must be dismissed," concluding that the DOS did not [*545] request or expect the suit to be dismissed on political question grounds. The court deliberately left open the question of "what level of deference would be owed to a letter from the State Department that unambiguously requests the district court dismiss a case as a non-justiciable political question."

In its discussion, the court observed that the case was based in part on common law tort claims, and that several other circuits had not found the presence of a political question under similar circumstances because tort suits are "constitutionally committed to the judiciary" and no reason exists "to suspect that the suit would 'infring[e] on the prerogatives' of the executive branch." Important to the court's conclusion that no political question was present were the following elements of the case: the DOS had not stated unequivocally that proceeding with the litigation
would negatively and substantially affect U.S. foreign relations with Indonesia; the plaintiffs had brought common law tort claims; and the defendant was a private party, not a government entity.

2. City of New York v. Permanent Mission of India to the United Nations

The United States Court of Appeals for the Second Circuit in its 2006 decision City of New York v. Permanent Mission of India to the United Nations, refused to dismiss a claim on political question grounds despite the filing of an SOI by the U.S. government . In this case, New York City sought declaratory judgments that it had authority to levy taxes on real property in New York owned by foreign government missions to the United Nations. The property owners moved to dismiss for lack of subject matter jurisdiction, which the district court granted.

On appeal, the Second Circuit construed the Foreign Sovereign Immunities Act ("FSIA") to determine whether the statute conferred jurisdiction on federal courts to adjudicate the plaintiff's claim under FSIA's [*546] immovable property exception. In reaching its decision, the court considered the foreign relations implications-even though the court ultimately reached its decision using normal conventions of statutory interpretation-because the case presented "politically sensitive" issues. In this case, at the request of the district court, the executive had filed an SOI, which
the court of appeals said was "entitled to consideration" but not to any "special deference" because interpreting FSIA's provisions is nothing more than statutory interpretation and thus "'well within the province of the Judiciary.'" Having reviewed the SOI, the court was unpersuaded that policy considerations warranted dismissal.

Among the court's reasons for finding no political question based on foreign policy interference was that the executive's position on FSIA's immovable property exception in the SOI was inconsistent with the executive's previous interpretation of the same matter. The court also found the SOI unpersuasive because it presented the issues "in a largely vague and speculative manner" and none of the issues were "potentially severe enough or raised with the level specificity required to justify . . . dismissal on foreign policy grounds."

In sum, even though the defendants in City of New York were specific foreign governments, and even though the DOS submitted an SOI stating the potential foreign policy concerns that would be implicated if the court asserted jurisdiction over the controversy, the court relied on several reasons in finding no political question. Of primary importance to the court was that resolution of the controversy required the court merely to engage in its traditional role of interpreting statutory texts. That role, the court suggested, could not be supplanted by the executive's foreign
relations role if the executive failed to assert a sufficiently strong and specific interest statement that clearly explained how the particular controversy substantially affected specific foreign relations. Because the DOS had submitted an SOI that only vaguely implicated speculative and insufficiently severe impacts on foreign affairs, the court held that no political question was presented.

[*547]

3. Gross v. German Foundational Industrial Initiative

In 2006, the United States Court of Appeals for the Third Circuit overruled the district court's dismissal of a case on political question grounds in Gross v. German Foundational Industrial Initiative. The case involved claims by World War II victims of slave labor in Germany who sought reparations from the German businesses that had benefited from the claimants' labor. After the parties reached a settlement agreement, a dispute arose about the amount of interest the defendant was obligated to pay pursuant to the terms of the settlement agreement. The defendants
claimed the case presented a nonjusticiable political question because of the extensive involvement by the U.S. government in negotiating with the German government and German businesses to establish a reparations fund for Nazi-era victims of slave and forced labor. In a rare example of a complete analysis of Baker's six factors, the Third Circuit examined each in turn.

As to the first factor (a textually demonstrable commitment of the issue to one of the political branches), the court acknowledged that the executive has broad independent authority to act in the area of foreign affairs, but that it was "precisely the breadth" of the power "that counsels against . . . finding the political question doctrine precludes . . . review" of the case at bar. The court explained that because the executive had not acted to extinguish the amount-of-interest issue, even though it had the power to do so, the claim did not fall under the preclusive effect of
Baker factor one. The court stated:

If we were to find that any claim raising an issue that the Executive could potentially resolve within its constitutional 'independent authority to act' in foreign affairs to be nonjusticiable, we would risk erroneously sweeping 'every case or controversy which touches foreign relations . . . beyond judicial cognizance.' The mere existence of the Executive's power to extinguish claims made to the Judiciary for redress from foreign entities and to resolve certain issues raised in those claims, without an exercise of that power, does not render those claims nonjusticiable by virtue of
being committed to a co-equal branch.

In other words, merely because the executive has the power to negotiate agreements with foreign entities that would entirely extinguish certain types [*548] of claims, or certain issues within claims, the executive's unexercised power is an insufficient basis for a court to find the presence of a political question under the first Baker factor. Further, in the actual-not potential-exercise of its foreign relations power in reaching agreements with foreign sovereigns or other foreign entities, the executive's diplomatic actions must address the precise matter at issue. In Gross, the
executive had not "act[ed] to resolve the issue of whether 'interest' [was] owed on this 'contract' or to settle this claim through diplomacy." Thus, the issue did not present a political question under the first Baker factor.

Similarly, the court found that the second Baker factor-the need for judicially discoverable and manageable standards for resolving the issue-was not implicated in Gross. Characterizing the question of what interest was due under the settlement agreement as primarily a contractual dispute, the court noted that the legal and factual issues that needed to be addressed fell within the constitutional competence and practical abilities of the court. That the dispute implicated foreign policy considerations was insufficient-without more-to render the issue a political question
under Baker factor two. "[E]ven where significant foreign policy concerns are implicated," the court noted, "a case does not present a political question" under the second Baker factor where the case requires nothing more than normal principles of interpretation of the legal documents at issue-be they constitutional, statutory, treaty, or executive agreement provisions. Here, the executive agreement that the U.S. government had negotiated with Germany embodied the "interest" obligations in dispute and required only the application of normal principles of construction.
The standards for reviewing the claim were thus both discoverable and manageable. Hence, the court found that Baker factor two did not preclude judicial review of the controversy.

For the third Baker factor-the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion-the court observed that "a political question is implicated if in deciding the case, a court would have to make a policy determination of the kind appropriately reserved for diplomatic-and thus Executive-discretion." An impact on foreign policy by the court's adjudication of a controversy is insufficient to render a claim nonjusticiable on political question grounds. According to the court, the proper inquiry under Baker's third factor is not
whether [*549] adjudicating the case will affect foreign relations or foreign policy; rather, the question is whether a court can decide the controversy "without displacing the Executive in its foreign policy making role." To decide the "interest" dispute in the case before it would in no way displace the executive's foreign policy making role, the court said, because "[i]nterpreting agreements and deciding the nature and scope of the parties' obligations based on text and evidence are among the activities that courts often perform without considering public policy- foreign or
domestic." The third factor was therefore not implicated in Gross.

According to the court, the fourth through sixth Baker factors are relevant only where a political branch has made a prior determination, and where judicial contradiction would seriously undermine significant government interests. For the fourth factor ("impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government"), the court observed that the executive branch had "taken no position on the merits" of the case; had not promised the foreign government that the U.S. government would intervene
or that the case would be dismissed; and had not engaged in ongoing diplomacy to resolve the particular issue in dispute. Thus, the court concluded, Baker factor four did not provide a basis for finding a political question.

The court found the fifth Baker factor was not implicated because an "unusual need for unquestioning adherence" to a political decision already made "contemplates cases of an 'emergency[] nature' that require 'finality in the political determination' such as the cessation of an armed conflict." Nothing in the case before it involved such considerations. For this reason, the court found that the case did not present a political question under the fifth Baker factor.

As for the sixth Baker factor, which requires courts to avoid "the potentiality of embarrassment from multifarious pronouncements by various [*550] departments on one question[,]" the court observed that the factor's underlying purpose was to engender trust by foreign governments in the authoritative nature of the executive's diplomatic pronouncements. In this case, the executive had made no diplomatic pronouncement on the issue. The U.S. government could have, if it had so desired, filed a statutory SOI urging dismissal on grounds that U.S. "foreign-policy
positions . . . would be contradicted" if the court were to proceed with adjudication of this case. Because the executive had filed no such document with a court "pointing to its interests," the court held the sixth Baker factor inapplicable to the controversy.

For the Gross court, the absence of an executive SOI specifically urging dismissal of the particular case on political grounds played a major role in the court's decision to find the amount-of-interest dispute justiciable. Also important was the court's characterization of the plaintiffs' claim as primarily a contractual dispute (with the documents comprising the contract being the Executive Agreement and the settlement agreement), which rendered the case one in which ordinary standards of interpretation apply.

C. Observations

The political question doctrine is most frequently invoked in the foreign affairs context or in cases in which the plaintiff is
challenging the constitutionality of a political branch's discretionary decision delegated to that branch by the Constitution. As the case sampling
above suggests, courts
are more likely to find the presence of a political question in the following
circumstances: (1) where the interests or policies of a particular foreign government (or governments) are
implicated and the Department of State, as the arm of the executive responsible for foreign affairs, files a Statement of
Interest with the adjudicating court, specifying that proceeding with the particular controversy will negatively and
substantially affect particular foreign policy interests; (2) where the United States government is a party to the controversy and the claimant is
challenging the wisdom of the United States' military or political policy or the constitutionality of military or [*551] national security decisions or strategies; or (3) where the defendant is the
U.S. government and the claimant's suit either directly challenges, or is inextricably linked with, United States foreign policy. Importantly, these cases also suggest that common law tort claims
against private defendants are highly likely to survive political question challenges, even when the litigation directly affects foreign affairs, unless the DOS files an SOI that specifically indicates
how proceeding with the case will negatively and significantly affect U.S. foreign relations with a particular country.

Perm is moot
Cynthia L. Fountaine 99, Professor of Law at Texas Wesleyan University, “Article: Article III and the
Adequate and Independent State Grounds Doctrine,” American University Law Review, 48 Am. U.L. Rev.
1053, June 1999, http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?
article=1336&context=aulr
Whether Article III permits the Supreme Court to review judgments of state courts depends on whether there is a substantial likelihood that a
favorable decision by the federal court will have an impact on the outcome.284 Whether the
case is moot-–because the Court’s
determination is not substantially likely to have any impact on the outcome-–breaks down into two separate
inquiries: (1) whether the state court’s state law determinations are subject to “merits” review by the Supreme Court;285 and, if not, (2)
whether Supreme Court review of the federal issues in the case would amount to an advisory opinion
because there is no actual dispute between adverse litigants or there is no substantial likelihood that a
judgment favorable to the party seeking review will have an impact .286 To make the second determination, the Court
must look to the “independence” and “adequacy” factors as indicators of whether “it is ‘likely,’ as opposed to merely ‘speculative,’ that the
injury will be redressed by a favorable decision.”287 If the Supreme Court’s decision on the federal issues likely will have an impact on the state
court’s judgment, then the parties have the requisite personal stake in the litigation to assure adversarial presentation of the issues, as required
by Article III.288

PQD is strong on foreign affairs issues---that’s what’s relevant for our link and impact
John Love 17, Corporate Associate at Debevoise & Plimpton, JD, James Kent Scholar, Harlan Fiske
Stone Scholar, and Senior Editor of the Columba Law Review-Colombia Law, “On The Record: Why The
Senate Should Have Access To Treaty Negotiating Documents”, Vanderbilt Law Review, 2017

The political question doctrine is not without its critics . One influential scholar has argued that the purported application of
the doctrine is in reality merely an adjudication of the constitutionality of the alleged act. n172 Others have argued that the
doctrine, although perhaps viable at one point, has fallen out of favor with the Supreme Court. n173 The Supreme Court
itself, affirming its duty "to say what the law is," n174 has repeatedly undertaken to interpret vague constitutional provisions and [*509] given
them substance. n175 However, thesearguments have not gone uncontested, especially with regard to the
doctrine's applicability to foreign affairs - an area in which some scholars argue that "the doctrine is
thriving and growing." n176 This particular application of the political question doctrine therefore
warrants examination insofar as the treaty power touches on foreign affairs .

2. The Political Question Doctrine, Foreign Affairs, and Advice and Consent. - Foreign
affairs hold a special place in the canon
of political question jurisprudence. With perhaps more consistency than in any other area of the law, the
Supreme Court has ruled that issues relating to foreign affairs are political questions falling outside its
purview. n177
Like the political question doctrine in general, the doctrine's unique application to foreign affairs finds its roots in Marbury v. Madison.
Expounding on which types of cases are unfit for judicial review, Justice Marshall wrote that an executive officer's foreign affairs actions "can
never be examinable by the courts." n178 Indeed, some scholars have argued that the
notion that courts should avoid
passing judgment on the foreign affairs actions of a President precedes the founding of the country
itself. n179
 Adv 1
Every empirical example proves nuke terror won’t happen.
Mueller and Stewart, 18—Woody Hayes Senior Research Scientist, Mershon Center for
International Security Studies, and adjunct professor of Political Science, at Ohio State University AND
Professor of Civil Engineering and Director of the Centre for Infrastructure Performance and Reliability at
The University of Newcastle (John and Mark, “Terrorism and Bathtubs: Comparing and Assessing the
Risks,” Terrorism and Political Violence, October 29, 2018, dml) [ableist language modifications denoted
by brackets]

Thus far, 9/11 stands out as an extreme outlier: scarcely any terrorist act, before or after, in war zones or
outside them, has inflicted even one-tenth as much total destruction . That is, contrary to common
expectations, the attack has thus far been an aberration, not a harbinger.8 And al-Qaeda central, the group
responsible for the attack, has, in some respects at least, proved to resemble President John Kennedy’s assassin, Lee Harvey
Oswald—an entity of almost trivial proportions that got horribly lucky once. The tiny group of perhaps 100 or so does
appear to have served as something of an inspiration to some Muslim extremists. They may have done some training, may
have contributed a bit to the Taliban’s far larger insurgency in Afghanistan, and may have participated in
a few terrorist acts in Pakistan. In his examination of the major terrorist plots against the West since 9/11, Mitchell Silber finds only
two—the shoe bomber attempt of 2001 and the effort to blow up transatlantic airliners with liquid bombs in 2006—that could be said to be
under the “command and control” of al-Qaeda central (as opposed to ones suggested, endorsed, or inspired by the organization), and there
are questions about how full its control was even in these two instances, both of which, as it happens, failed miserably.9 And,
although some al-Qaeda affiliates have committed substantial damage in the Middle East , usually in the
context of civil wars, their efforts to carry out terrorism in the West have been rare and completely
ineffective.10 Even under siege, it is difficult to see why al-Qaeda could not have carried out attacks at least as costly and shocking as the
shooting rampages (organized by other groups) that took place in Mumbai in 2008 or at a shopping center in Kenya in 2013. Neither took huge
resources, presented major logistical challenges, required the organization of a large number of perpetrators, or needed extensive planning.
However, there is of course no guarantee that things will remain that way, and the 9/11 attacks inspired
the remarkable extrapolation that, because the terrorists were successful with box cutters, they might
soon be able to turn out weapons of mass destruction— particularly nuclear ones—and then detonate
them in an American city. For example, in his influential 2004 book, Nuclear Terrorism, Harvard’s Graham Allison relayed his
“considered judgment” that “on the current path, a nuclear terrorist attack on America in the decade ahead is more likely
than not.” 11 Allison has had a great deal of company in his alarming pronouncements. In 2007, the distinguished physicist Richard Garwin
put the likelihood of a nuclear explosion on an American or European city by terrorist or other means at 20 percent per year, which would work
out to 91 percent over the elevenyear period to 2018.12 Allison’s time is up, and so is Garwin’s. These oft-repeated warnings
have proven to be empty. And it is important to point out that not only have terrorists failed to go nuclear, but as
William Langewiesche, who has assessed the process in detail, put it in 2007, “ The best information is that no one has gotten
anywhere near this. I mean, if you look carefully and practically at this process, you see that it is an enormous undertaking
full of risks for the would-be terrorists.” 13 That process requires trusting corrupted foreign
collaborators and other criminals, obtaining and transporting highly guarded material, setting up a
machine shop staffed with top scientists and technicians, and rolling the heavy, cumbersome, and
untested finished product into position to be detonated by a skilled crew, all the while attracting no
attention from outsiders. Nor have terrorist groups been able to steal existing nuclear weapons—
characteristically burdened with multiple safety devices and often stored in pieces at separate secure
locales—from existing arsenals as was once much feared. And they certainly have not been able to
cajole leaders in nuclear states to palm one off to them—though a war inflicting more death than
Hiroshima and Nagasaki combined was launched against Iraq in 2003 in major part under the spell of
fantasies about such a handover .14

China tech sucks

Zhang Jun 18, dean of the School of Economics at Fudan University and director of the China Center for
Economic Studies, a Shanghai-based think tank., 8-3-2018, "The West exaggerates China's technological
progress," Nikkei Asian Review, https://asia.nikkei.com/Opinion/The-West-exaggerates-China-s-
technological-progress
Over the past two decades, China has been achieving rapid technological progress, thanks in no small part to its massive investment in research and development,
which totaled some 2.2% of its gross domestic product last year. Yet
China is nowhere near the technological frontier. In fact,
the distance separating it from that frontier is far greater than most people recognize. In the West,
many economists and observers now portray China as a fierce competitor for global technological
supremacy. They believe that the Chinese state's capacity is enabling the country, through top-down industrial policies, to stand virtually shoulder-to-
shoulder with Europe and the U.S. Harvard economics professor and former U.S. Treasury Secretary Larry Summers, for example, declared last March at a Beijing
conference that it is a "historical wonder" that China, where per capita income amounts to just 22% that of the United States, could have the world's cutting-edge
technology and technological giants. The U.S. Trade Representative, in a March report, presented the "Made in China 2025" plan -- a 2015 blueprint for upgrading
China's manufacturing capacity -- as proof that the country is seeking to displace the U.S. in high-tech industries that it considers strategic, such as robotics.
Moreover, the USTR report asserts, China has happily played the game by its own rules, and has violated current global regulations to achieve its goals. Indeed,
many Westerners warn that China is planning to use its technology-based power to impose an entirely new set of rules that is inconsistent with those long enforced
by the West. This is a serious misrepresentation. While it is true that digital technologies are transforming
China's economy, this reflects the implementation of mobile-Internet-enabled business models more
than the development of cutting-edge technologies, and it affects consumption patterns more than, say,
manufacturing. This kind of transformation is hardly unique to China, though it is occurring particularly rapidly here, thanks to a huge consumer market and
weak financial regulation. Furthermore, it is not so obvious that these changes have anything to do with the

government's industrial policies. On the contrary, the growth of China's internet economy has been
driven largely by the entrepreneurship of privately owned companies like Alibaba and Tencent. In fact, Western observers --
not just the media, but also academics and government leaders, including U.S. President Donald Trump --
have fundamentally misunderstood the nature and exaggerated the role of China's policies for
developing strategic and high-tech industries . Contrary to popular belief, these policies do little more than help
lower the entry cost for firms and enhance competition. In fact, such policies encourage excessive entry,
and the resulting competition and lack of protection for existing firms have been constantly criticized in
China. Therefore, to the extent

that China relies on effective industrial policies, they do not create much unfairness in terms of global
rules. Having said that, what are China's actual technological prospects? The Chinese are certainly fast learners. Over the last 30 years, Chinese manufacturers have
proved adept at seizing opportunities to emulate, adapt and diffuse new technologies. But technological advances in the Chinese
business sector occur at the middle of the smile curve (where gains are generally lower than at the innovative start of a new product
or at the end, in marketing finished goods to consumers). Foreign core-technology owners extract most of the added value

from Chinese manufacturing . For example, in Danyang, a county of Jiangsu Province that is a production hub of optical lenses for global markets,
manufacturers can produce the most sophisticated models. Yet they lack the core software to produce, say, progressive lenses,

so they must pay a fixed royalty to a U.S. company for each progressive lens they make. Likewise,
China's automobile manufacturers still import their assembly lines from developed countries. Clearly,
there is a big difference between applying digital technologies to consumer-oriented business models
and becoming a world leader in developing and producing hard technology . The latter goal will demand sustained
investment of time, human capital, and financial resources in sectors with long basic R&D cycles (such as pharmaceuticals). Given this, China probably

remains 15-20 years away from matching the R&D input of, say, Japan or South Korea, and when it
comes to output -- the more important factor -- it is much further behind. While China can accelerate progress by
attracting creative talent and strengthening incentives for long-term research, there are no real shortcuts when it comes to achieving the gradual shift from learning
to innovating.

China not a threat to teach leadership

Andrew Kennedy 17, Senior Lecturer in Policy and Governance at the Crawford School of Public Policy,
The Australian National University., 5-17-2017, "Is the United States offshoring high-tech leadership to
China?," East Asia Forum, https://www.eastasiaforum.org/2017/05/17/is-the-united-states-offshoring-
high-tech-leadership-to-china/
Americans have long worried about the offshoring of US manufacturing jobs to China — fears that Donald Trump exploited to become
President. So
is the United States on the verge of becoming reliant on China for R&D as well? The answer is
no — for several reasons. First, while US corporate R&D is globalising, it is doing so very slowly. Between
2000 and 2010, for example, the share of US corporate R&D performed within the United States fell
from 88 per cent to 84 per cent. The very gradual nature of the shift reflects a number of constraints: the complexity of managing
global R&D networks, how embedded multinationals are in their home countries, and the local infrastructure and intellectual property
protection that core R&D can require, among others. Second,
US firms conduct R&D in many countries around the
world — and China is still low on the list. In 2013, US firms spent more on R&D in eight other countries
than they did in China, with Germany and the UK leading the way. To be sure, a given R&D dollar will go
farther in some countries than others, so if China were particularly cheap this kind of data would
understate its importance. But China is not cheap. A few years ago, a survey reported that junior R&D
staff were 25 to 30 per cent cheaper in China than in the U nited Stat

es or Europe, that middle managers were equally expensive, and that senior managers could cost 20 to 25 per cent more in China because
of short supply. Nor is the United States heavily reliant on China as a source of collaborative ventures
between firms and other organisations conducting research. From 2000 to 2014, US organisations concluded 2259 R&D
alliances, and 1296 of those involved foreign partners, according to the Thomson Reuters SDC Platinum database. Western European countries
accounted for half of those, while China accounted for seven per cent. Third,
China is hardly an ideal host country for
multinational technology firms’ R&D. A recent survey found that 80 per cent of US firms operating in
China were concerned about data and IT security policies . The concern was not simply about the protection of intellectual
property — although that was certainly an important source of anxiety. There were also serious concerns about the quality of the internet
service in China, the availability of global IT solutions, restrictions on cross-border data flows and restrictions on the use of virtual private
networks. And fourth, overseas R&D often complements the work done at home, rather than substituting
for it. Firms doing R&D abroad may be trying to tap into expertise not readily available in their home
country, or they may be adapting products for foreign markets in an effort to promote local sales — a
task more easily done in that market. Such adaptation may actually make a product less advanced . One
global wind power firm, for example, re-designed its gearbox in China to make it less expensive — but in doing so it cut the durability of the
product in half. In
short, even as China attracts more and more foreign R&D activity, the country has yet to
become a vital partner for the United States in this regard.
 Adv 2
No attacks---states like the coercive leverage and they can only use cyber attacks once.
Benjamin Jensen 18, holds a dual appointment as a scholar-in-residence at American University,
School of International Service and as an associate professor at the Marine Corps University. He is the
co-author of “Cyber Strategy: The Evolving Character of Power and Coercion.”, 4-26-2018, "Cyber
Warfare May Be Less Dangerous Than We Think," Washington Post,
https://www.washingtonpost.com/news/monkey-cage/wp/2018/04/26/what-can-cybergames-teach-
us-about-cyberattacks-quite-a-lot-in-fact/

Our findings suggest that cyber weapons may be far less

Where is the escalation? The Netherlands just revealed its cybercapacity. So what does that mean?

destabilizing than many assume. First, we found that actors in crisis situations were restrained in their
use of cyber weapons. Indeed, actors were more likely to use military, economic or diplomatic alternatives before escalating into the cyber domain. How might this work in the real world? We
might interpret the Russian shift to cyber operations to be one of desperation, rather than evidence of a
calculated strategy. Our findings suggest that actors are uncomfortable in the cyber domain and only
operate there when they lack relative influence in other areas — or seek to limit the risk of escalation,
likely due to attribution issues associated with cyber operations. Second, fears of large-scale cyber
operations are likely overblown due to cyber’s unique “use it and lose it” character . Individual
cyberattacks could potentially wreak considerable damage, but any such exploits could — once
deployed — be quickly reverse-engineered and the vulnerability in target networks patched. Here’s
the catch: Once you convert network access and cyber espionage into an attack payload, you signal your
capabilities and lose the ability to conduct similar attacks. There is a unique shadow of the future in
cyber statecraft. States have to assess whether they want to jeopardize an exploit in the short term —
and lose long-term coercive options against rivals.

No attribution and non-prolif risks outweigh

Martin Matishak 10, Reporter at Global Security Newswire, B.A. in Multimedia journalism from
Emerson College, “U.S. Unlikely to Respond to Biological Threat With Nuclear Strike, Experts Say”,
http://www.nti.org/gsn/article/us-unlikely-to-respond-to-biological-threat-with-nuclear-strike-experts-
say/, 4/29/10

Yet experts say there are a number of reasons why the United States is not likely to use a nuclear weapon to
eliminate a non-nuclear threat. It could prove difficult for U.S. leaders to come up with a list of
appropriate targets to strike with a nuclear warhead following a biological or chemical event, former Defense
Undersecretary for Policy Walter Slocombe said during a recent panel discussion at the Hudson Institute. "I don't think nuclear weapons

are necessary to deter these kinds of attacks given U.S. dominance in conventional military force ," according
to Gregory Koblentz, deputy director of the Biodefense Graduate Program at George Mason University in Northern Virginia. "There's a bigger downside to the
nuclear nonproliferation side of the ledger for threatening to use nuclear weapons in those circumstances than there is the benefit of actually deterring a chemical
or biological attack," Koblentz
said during a recent panel discussion at the James Martin Center. The nonproliferation benefits for
restricting the role of strategic weapons to deterring nuclear attacks outweigh the "marginal"
reduction in the country's ability to stem the use of biological weapons, he said. In addition, the United States has
efforts in place to defend against chemical and biological attacks such as vaccines and other medical
countermeasures, he argued. "We have ways to mitigate the consequences of these attacks," Koblentz told the
audience. "There's no way to mitigate the effects of a nuclear weapon ." Regardless of the declaratory policy, the U.S.

nuclear arsenal will always provide a "residual deterrent" against mass-casualty biological or chemical
attacks, according to Tucker. "If a biological or chemical attack against the United States was of such a magnitude as to potentially warrant a nuclear response,
no attacker could be confident that the U.S. -- in the heat of the moment -- would not retaliate with
nuclear weapons, even if its declaratory policy is not to do so ," he told GSN this week during a telephone interview.

Err against collapse – democracy may be imperfect but comes with “countervailing
forces.”
Stavridis 18 (Admiral Stavridis, was the 16th Supreme Allied Commander at NATO and is an Operating
Executive at The Carlyle Group, “Democracy Isn't Perfect, But It Will Still Prevail,” 7-12,
http://time.com/5336615/democracy-will-prevail/)

But countervailing forces are at work as well. The realities of Russia’s nuclear arms and China’s rising economic clout, and the fact
that neither country has ever had a sustained period of democratic rule, make it easy to forget that the world’s dominant military and economic
forces remain in the hands of committed democracies. And around the world, many often overlooked nations have been
demonstrating that even imperfect democracies can prevail over this century’s new challenges. Take
India, where over 550 million people voted in the last election — a monumental number. Its democracy is hardly unblemished. Critics say
Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP) is eroding liberal institutions, and India ranks 138 out of 180 countries in press
freedom, according to Reporters Without Borders. But in all of my contacts with senior Indian officials, including members of the military who
might be expected to favor top-down order, I have always found an unwavering commitment to democracy. It has assured
India decades of stability and growth in the face of terrorist attacks, economic strife and massive population shifts. Democracy might hardly
seem the most efficient response to a half-century’s disorder in Colombia. And yet despite a virulent insurgency since the mid-1960s,
power continues to transfer peacefully in that nation. President Alvaro Uribe gave up the presidency at the end of his
constitutionally limited second term in 2010, despite high popularity and calls for him to amend the constitution to stay on. His successor, Juan
Manuel Santos, negotiated a comprehensive but controversial peace agreement with the communist-inspired guerrillas known as FARC, for
their formal name’s acronym in Spanish. This year, as Santos’ second term came to an end, the nation began a heated debate over the peace
deal. Democracy provided the answer: an election on June 17 put a stark choice before the people. Iván Duque, a business-friendly pragmatist
who pledged to impose harsher terms on the former rebels, defeated Gustavo Petro, who supported the peace agreement. A nation whose
upheaval might easily have led to authoritarianism has again and again chosen free debate and open elections. So it is as well in Brazil, a
superpower-size nation of 200 million that, despite considerable political turmoil,
has not turned back toward autocracy .
Mexico has just elected Andrés Manuel López Obrador as its President — perhaps not the first choice of the U.S., given his left-
leaning agenda, but another example of democracy at work as the third-largest nation in the Americas swings from right to left
following free elections. Technological developments may yet prove a net positive for democracy . I have visited the
tiny former Soviet state of Armenia many times, and gotten to know the former President and Prime Minister Serzh Sargsyan. Until recently, he
appeared to be an unbeatable authoritarian figure. But weeks of protests, powered by the Internet, caused him to resign in April, and propelled
a new leader, Nikol Pashinyan, into power. In Tunisia, the Internet-fueled Arab Spring has persisted. The
democratically elected government that replaced the 23-year dictatorship of President Zine el-Abidine Ben Ali has remained
in power through recurring free and fair elections. Yes, there are worrying trends in the government’s responses to media
criticism and protests. But the fact that democratic institutions have held up for seven years is cause for optimism.
Tunisia’s experience reflects another often overlooked asset democracy brings around the world: its
flexibility. The U.S. too often failed to recognize this during and after the Cold War, sometimes siding with dictators rather than accepting
that not all democracies look alike. Part of Tunisia’s success has come from adapting its electoral system to its
own culture, through a constitution that gives Islam a role in the public sphere . Enduring democratic
structures in Chile, Indonesia, South Korea and elsewhere differ significantly from the secular Western model.
Another boon for democracy is the growing role of women in governance . Powerful female champions of
democracy and civil rights have emerged around the world, from Michelle Bachelet of Chile to Jacinda Ardern of New Zealand and Ellen
Johnson Sirleaf of Liberia, the first elected female head of state in Africa. Female representation has increased in national parliaments, from
15% in 2002 to 19.8% in 2012, the most recent year available. The rise to power of those representing 50% of the world’s population can only
be good for the legitimacy and durability of democracy. Moreover, countries with higher levels of gender equality are less likely to engage in
internal or external conflict, according to the World Bank. Women’s participation in conflict prevention and resolution often helps ensure
success; agreements that include women and civil-society groups are 64% less likely to fail than those that do not, according to a U.N.-
sponsored study. Perhaps most important, democracy remains strong in its traditional redoubts. Most of the world’s
most developed countries are still highly committed democracies, including Japan, Canada, France,
Australia and Germany. That’s no accident. China’s rise may seem like economic validation of authoritarianism, but it has come
by liberalizing a backward agrarianism to mimic established democracies, and by stealing their intellectual property.
And imitation has its limits. Few in Europe and Asia have forgotten that free-market economies were
democracy’s greatest weapon in the 20th century, and the entrepreneurs and investors that drive those
free markets won’t soon embrace authoritarian control. That goes double for the U.S. Political life here has
problems: money in politics, gerrymandering, rising partisanship and a President who calls the media an
“enemy of the people” while musing about how “great” it must be for Chinese President Xi Jinping to amass absolute power. Finding a voice
to counter that antidemocratic rhetoric is proving surprisingly hard, so far. But does anyone seriously think we are headed
toward authoritarian control of our politics or single-party rule? Speaking as someone who was interviewed for possible positions
by both Hillary Clinton and Donald Trump, I don’t think so. The media remain strong and determined to tell the truth,
and the courts remain rigorously independent. The Mueller investigation is clanking at the President like
a Panzer tank, and whatever it reveals, the nation will deal with it through laws and politics.
Accountability remains a core driver in the national debate. We paint democracy as a utopia, but it is not. It has been
called, as Churchill noted, the worst form of government except for all the others — subject to abuse and manipulation and often sclerotic. We
must forgive its failings, and work to improve them, as long as its core institutions further civil rights, guarantee rule of law and are subject to
the will of the people. There will be losses in all of these nations, as well as our own, corruption, misbehavior, pressure on the courts and
media. Challenges will only grow as change in this century continues at a blistering pace. But for every example of democracy
fading out or finding itself under attack, there are counterexamples of democracy and democratic activists moving forward and
finding solutions. Under this U.S. Administration, there is little leadership on global human rights or democratic norms. But other leaders, from
Angela Merkel and Emmanuel Macron of Europe to Shinzo Abe of Japan to Justin Trudeau of Canada, have been outspoken
in defense of democratic values. Change is happening in smaller nations as well. And democracy will prevail not
because of individual leaders but because it is better than authoritarianism at meeting the challenges of
governing. Human nature abhors a boss, and politically, democracy serves as a safety valve. Look to America,
even in its current rage. We cannot imagine our own nation without the ability to switch from George W. Bush, a
Republican fighting unpopular wars in Iraq and Afghanistan, to Barack Obama. Or, for that matter, to move from Obama to
President Trump. Those shifts may look like stark division on the surface. But they also represent democracy’s ability to
allow dissenting, frustrated views an outlet . Dictators may impose order, but mounting unrest as often as not turns them out,
frequently with disastrous results. Some of the worst massacres in modern history have followed the ouster of strongmen. Sometimes
democracy will not resolve complex events, or most effectively use technology, or respond speedily. But it peacefully holds accountable leaders
who don’t fulfill their promises or better our lives, and rewards those who do. That has proved more valuable in the long run than more
immediate urges. Two hundred years ago, there was a mere handful of pseudo democracies in the world. At
the turn of the 20th century, a couple of dozen democracies existed. Today, despite the continuation of Chinese and
Russian authoritarian regimes, there are well over a hundred. Hundreds of millions have transitioned
from fully authoritarian monarchies (throughout Europe, Central Asia and parts of East Asia) and pure dictatorships (Latin
America, the Balkans, the Levant and parts of Africa). History has run from male-dominated tribes in the Paleolithic era through dictatorial city-
states to early modern monarchies and today’s democracies. We can all hope that the battle to defend democracy will be less
costly in the 21st century than in the previous one . We can enhance our chances of winning by empowering women,
boosting programs that fight economic inequality and teaching our children the critical thinking skills they need to separate truth from lies.
Democracy’s defenders can work to be clear what our cause is, why it matters and what is at stake. Sometimes people say to me that America is
in a “war of ideas.” Not quite. We remain in a marketplace of ideas. That is what has made us most adaptable to new threats and resilient in the
face of challenges. It is also why we must articulate our vision of the values that, while we execute them imperfectly, are right and true.
1NR
 Cyber DA
They dropped that it wrecks development---extinction
Tom Cernev 20, MPhil in Engineering for Sustainable Development from the University of Cambridge,
BA in Mechanical Engineering from the University of Adelaide, Winter School Attendee at the Australian
National University, and Dr. Richard Fenner, Reader at the University of Cambridge and Director of the
MPhil in Engineering for Sustainable Development, “The Importance of Achieving Foundational
Sustainable Development Goals in Reducing Global Risk”, Futures, Volume 115, January 2020,
https://doi.org/10.1016/j.futures.2019.102492
4.3. Linking risks with progress in the SDGs

Generally it is the Outcome/Foundational and Human input SDGs that are most directly related. For example as the movement of
refugees increases pandemic risk, poverty levels in low and middle income countries increase reducing the health of
the population, and so restricting access to education which further enhances poverty and birth rates rise as family
sizes increases generating unsustainable population growth which furthers the migration of refugees (Fig. 5). Fig.
3 shows that leverage points to reduce refugees lies in SDG 16 (Peace Justice and Strong Institutions), reducing malnutrition through
alleviating SDG 2 (Zero Hunger) and taking SDG 13 (Climate Action) to avoid the mass movement of people to avoid the impacts of
global warming.

Global warming itself will drive disruptive changes in both terrestial and aquatic ecosystems affecting SDG 15 (Life on Land) and SDG 14 (Life
Below Water) adding to their vulnerability to increases in pollution driven by a growing economy. Loop B (in Fig. 4)shows the constraints
associated with SDG 13 (Climate Action) may slow the economic investment in industry and infrastructure reducing the pollution generated,
encouraging adoption of SDG 7 (Affordable and Clean Energy) whilst stimulating carbon reduction and measures such as afforestation, which
will also improve the foundational environmental goals.

Depletion of resources and biodiversity are strongly linked to SDG 12 (Responsible Consumption and Production)
through measures such as halving global waste, reducing waste generation through recycling reuse and reduction
schemes, and striving for more efficient industrial processes . The more resources that are used, the less responsible is
Consumption and Production which may thus reduce biodiversity (Fig. 3) and increase the amounts of wastes accumulating in the environment.

The final driver of Global Catastrophic Risk is an agricultural shortfall which will increase global Hunger
(SDG 2) and widen the Inequality (SDG 10) between rich and poor nations and individuals. Quality Education (SDG 4) is
important as a key leverage point to stimulate the generation and adoption of new technologies to
improve energy (SDG 7) and water supplies (6) which can enhance agricultural production. Such linkages are
convincingly examined and demonstrated in the recent film “The Boy Who Harnessed the Wind” (2019), based on a factual story of water
shortages in Malawi in the mid 2000s.
These examples may appear self evident, but it is the connections between the goals and how they adjust together that is important to
consider so the consequence of policy actions in one area can be fully understood. Because of the underlying system
structures global threats can quickly transmit through the system. Water Crises will limit the water available for
agriculture and basic needs which in turn will stimulate a decline in Gender Equality (SDG 5). Technology disruption from cyber attacks will
restrict the ability to operate Sustainable Cities and Communities (SDG 11) and potentially expose populations to extreme events by disrupting
transport, health services, and the ability to pay for adaptation and mitigation of climate related threats from a weakened economy. Conflict
(in all forms) will increase refugees and climate change provides the backdrop against which all these interactions will play out.

Whilst it is possible that general catastrophic risk or existential

risk scenarios may eventuate from the non-
achievement of the Sustainable Development Goals, there are certain aspects within the causal loop diagram which if prioritised will
reduce this risk. For example, to reduce the risk of pandemic, ensuring that the number of Refugees is minimised, and is a leverage point.
Similarly, prioritising SDG 3 (Good Health and Well-being) is essential and is enabled by many of the other goals. However, a feature missing
from the SDGs is a recognition of the precautionary principle, with an implicit assumption that technological innovation alone may create
improvements in many of the goals.

It destabilizes every region---nuclear war

Paula Dobriansky 1, Under Secretary for Global Affairs at the State Department, “The Explosive
Growth of Globalized Crime,” http://www.iwar.org.uk/ecoespionage/resources/transnational-
crime/gj01.htm

Certain types of international

crime -- terrorism, human trafficking, drug trafficking, and contraband
smuggling -- involve serious violence and physical harm. Other forms -- fraud, extortion, money laundering, bribery, economic espionage,
intellectual property theft, and counterfeiting -- don't require guns to cause major damage. Moreover, the spread of information technology has created new
categories of cybercrime. For the United States, international crime poses threats on three broad, interrelated fronts. First, the impact is felt directly on the streets
of American communities. Hundreds of thousands of individuals enter the U.S. illegally each year, and smuggling of drugs, firearms, stolen cars, child pornography,
and other contraband occurs on a wide scale across our borders. Second, the expansion of American business worldwide has opened new opportunities for foreign-
based criminals. When an American enterprise abroad is victimized, the consequences may include the loss of profits, productivity, and jobs for Americans at home.
Third, international criminals
engage in a variety of activities that pose a grave threat to the national security of
the United States and the stability and values of the entire world community. Examples include the
acquisition of weapons of mass destruction, trade in banned or dangerous substances, and trafficking in
women and children. Corruption and the enormous flow of unregulated, crime-generated profits are
serious threats to the stability of democratic institutions and free market economies around the world.

Independently, the link alone snaps civil-military relations

Wright Smith 17, Analyst for the Harvard Political Review, Writes on International Relations, National
Security, and Defense Policy, with an Emphasis on the Middle East and South Asia, the Intersection
Between Military and Diplomatic Affairs, Insurgencies, Extremism, and the Applications and Lessons of
History to Contemporary Events and Policy Options, "The President’s Generals," Harvard Political
Review, Spring 2017, p. 22
Flynn, Mattis, and Kelly themselves hold a series of competing views about the world that simultaneously complement and contradict Trump’s
stances. Of these, Flynn’s hostility towards Islam and friendliness towards Russia are the closest to Trump’s views, but place Flynn far outside
the mainstream of the senior American officer corps. Mattis and Kelly, as well as the Chairman of the Joint Chiefs, General Joseph Dunford,
differ with the president in multiple ways which may lead to clashes over American national security. In contrast to the president, Mattis has
been highly skeptical of Russia, and has supported both close coordination and working with American allies and reducing the numbers of
American nuclear warheads. Kelly, for his part, has spoken much more favorably about immigration, and has even suggested that transnational
drug trafficking outstrips radical Islam as a threat to the United States. And General Dunford strongly defended NATO during the Presidential
campaign against Trump’s charges that the alliance is obsolete while naming Russia as the top military threat to the United States at his
confirmation hearing in 2015. Moreover, both Mattis and Kelly have demonstrated a willingness to push back against presidential directives and
positions they disagree with under President Obama. Mattis has pushed the Obama administration to adopt a more thorough assessment of
American foreign policy towards Iran, while Kelly has questioned lifting restrictions on women in combat—suggesting both men would not
hesitate to work against White House policies they see as detrimental to American national security interests. Besides the opposing views of
Mattis and Kelly, among others, is the administration’s emerging dynamic of minimal consultation with cabinet officials regarding major policy
changes. Neither the Secretary of Defense or the Secretary of Homeland Security were informed of the “Muslim ban” executive order until the
day it was signed. Kelly was just being briefed on the order as his aides watched the signing on television. Furthermore, the administration
intentionally restricted the information on the policy shift provided to career officials within the Departments of State and Homeland Security.
Should this dynamic remain going forward, miscommunication and a divide between the White House
and the national security bureaucracy and the military is much more likely.
These serious differences between senior generals within Trump’s cabinet, combined with the president’s tendency to push back against
opposing viewpoints rather than refine his own, suggests that a dangerous chasm between Trump and American national security professionals
may steadily emerge throughout the next four years. The
most likely civil-military dilemma that the incoming
administration will face, then, is not that a former or serving general like Mattis, Kelly or Dunford will be
able to usurp greater power; it is that the president will decline contradicting advice from military and
national security professionals, and push them into open public opposition to national policy. Administration
priorities that clash with the bipartisan foreign policy consensus in Congress will place generals and admirals in an increasingly difficult spot,
forcing them to both deliver their own, potentially contradicting, analyses while simultaneously defending administration priorities. Such
a
dilemma could possibly lead to efforts to remove sitting generals for their political views, a practice which has
precedent from the run-up to the Iraq War. This could have the detrimental effect of politicizing military advice and
forcing commanders to consider political rather than security issues in their assessments. And should a
sitting, highly controversial president end up in a widely publicized clash with the military, one of the
few remaining American institutions that retains public confidence under the leadership of charismatic
and popular generals, then the potential political fallout is impossible to predict.

That goes nuclear AND causes existential conflict with emerging tech---cyber relations
are key
Dr. Stephen J. Cimbala 12. Distinguished Professor of Political Science at Penn State Brandywine,
“Cyberwar and Nuclear Crisis Management: Implications for Civil-Military Relations.” Civil-Military
Relations in Perspective: Strategy, Structure and Policy, Routledge. ProQuest Ebook Central.

Other Implications The

outcome of a nuclear crisis management scenario influenced by information operations
may not be a favorable one. Despite the best efforts of crisis participants, the dispute may degenerate into
a nuclear first use or first strike by one side and retaliation by the other. In that situation, information operations by either, or both,
sides might make it more difficult to limit the war and bring it to a conclusion before catastrophic
destruction and loss of life had taken place. Although there are no such things as “small” nuclear wars, compared to conventional wars, there can be different
kinds of “nuclear” wars, in terms of their proximate causes and consequences.20 Possibilities include: a nuclear attack from an unknown source; an ambiguous case
of possible, but not proved, nuclear first use; a nuclear “test” detonation intended to intimidate but with no immediate destruction; or, a conventional strike
mistaken at least initially for a nuclear one.21 The dominant scenario of a general nuclear war between the United States and the Soviet Union preoccupied Cold
War policy makers and, under that assumption, concerns about escalation control and war termination were swamped by apocalyptic visions of the end of days. The
second nuclear age, roughly coinciding with the end of the Cold War and the demise of the Soviet Union, offers a more complicated menu of nuclear possibilities
and responses.22 Interest in the threat or use of nuclear weapons by rogue states, by aspiring regional hegemons or by terrorists, abetted by the possible spread of
nuclear weapons among currently nonnuclear weapons states, stretches the ingenuity of military planners and fiction writers. In addition to the world’s worst
characters engaged in nuclear threat or first use, there
is also the possibility of backsliding in political conditions as
between the United States and Russia, or Russia and China, or China and India (among current nuclear weapons states).
The nuclear “establishment” or P-5 thus includes cases of current debellicism or pacification that
depend upon the continuation of favorable political auguries in regional or global politics. Politically unthinkable
conflicts of one decade have a way of evolving into the politically unavoidable wars of another—World
War I is instructive in this regard. The war between Russia and Georgia in August, 2008 was a reminder that local conflicts on
regional fault lines between blocs or major powers have the potential to expand into worse. So, too, were the
Balkan wars of Yugoslav succession in the 1990s. In these cases, Russia’s one-sided military advantage relative to Georgia in 2008, and NATO’s military power
relative to that of Bosnians of all stripes in 1995 and Serbia in 1999, contributed to war termination without further international escalation. Escalation of a
conventional war into nuclear first use remains possible where operational or tactical nuclear weapons have been deployed with national or coalition armed forces.
In allied NATO territory, the U.S. deploys several hundred sub-strategic, air-delivered nuclear weapons among bases in Belgium, Germany, Italy, the Netherlands,
and Turkey.23 Russia probably retains several thousands of operational or tactical nuclear weapons, including significant numbers deployed in western Russia.24
The New START agreement, once ratified, establishes a notional parity between the U.S. and Russia in nuclear systems of intercontinental range.25 But U.S. and
allied NATO superiority in advanced technology, information-based conventional military power leaves Russia heavily reliant on tactical nukes as compensation for
comparative weakness in non-nuclear forces. NATO’s capitals breathed a sigh of relief when Russia’s officially approved Military Doctrine of 2010 did not seem to
lower the bar for nuclear first use, compared to previous editions.26 Russia’s military doctrine indicates a willingness to engage in nuclear first use in situations of
extreme urgency for Russia, as defined by its political leadership.27 And, despite evident superiority in conventional forces relative to those of Russia, neither the
United States nor NATO is necessarily eager to get rid of their remaining sub-strategic nukes deployed among American NATO allies. An expert panel convened by
NATO to set the stage for its 2010 review of the alliance’s military doctrine was carefully ambivalent on the issue of the alliance’s forward deployed nuclear
weapons. The issue of negotiating away these weapons in return for parallel concessions from Russia was left open for further discussion. On the other hand, the
NATO expert report underscored the present majority sentiment of governments that these weapons provided a necessary link in the chain of alliance deterrence
options.28 Imagine now the unfolding of a nuclear crisis or the taking of a decision for nuclear first use, under
the conditions of both NATO and Russian campaigns employing strategic disinformation and information
operations intended to disrupt opposed command-control, communications and warning systems.
Disruptive information operations against enemy systems on the threshold of nuclear first use, or
shortly thereafter, could increase the already substantial difficulty of bringing fighting to a halt before a
Europe-wide theater conflict or a strategic nuclear war. All of the previously cited difficulties in crisis
management under the shadow of nuclear deterrence pending a decision for first use would be
compounded by additional uncertainty and friction after the nuclear threshold had been crossed.
Conclusion Optimistic expectations about the use of information warfare to defeat or disrupt opponents on the conventional, high-technology

battlefield—in cases where nuclear complications do not figure— may be justified. On the other hand, where the shadow of

possible nuclear deterrence failure hangs over the decision-making process between or among states in conflict, the
infowarriors’ efforts to obtain dominant battlespace knowledge may provoke the opponent instead of
deterring it. As scholars and policy analysts Keir A. Lieber and Daryl G. Press, have noted, with respect to U.S. superior performance at the sharp end of the
conventional RMA: “A central strategic puzzle of modern war is that the tactics best suited to dominating the conventional battlefield are the same ones most likely
to trigger nuclear escalation.”29 The objective of infowar in conventional warfare is to deny enemy forces battlespace awareness and to obtain dominant awareness
for oneself, as the United States largely was able to do in the Gulf War of 1991.30 In a crisis with nuclear weapons available to the side against which infowar is
used, crippling the foe’s intelligence and command and control systems is an objective possibly at variance with controlling conflict and prevailing at an acceptable
cost. And under some conditions of nuclear crisis management, crippling the C4ISR of the foe may be self-defeating. Deterrence, whether it is based on the credible
threat of denial or retaliation, must be successfully communicated to—and believed by—the other side.31 Whether nuclear or other deterrence can work in a
particular context is more dependent upon political, as opposed to military, variables.32 As Mackubin Thomas Owens has emphasized, the essential

problematique of U.S. civil-military relations is to combine the requirement for military subordination
to civil authority with the need for military preparedness for conflict and effectiveness in combat.33 The literature
of civil-military relations, as in the case of other academic and policy studies, is mostly based in a pre-cyber world in which decision time and military operations
moved more slowly than currently, and prospectively. In addition, cyber
technology and information related concepts are
becoming the critical enablers for everything else related to deterrence, war and preparations for war. Future warriors
and political decision-makers will have to ensure that their military cyber experts are, as is sometimes
asked of high powered lawyers, on tap, but never on top. Keep this point in mind as we move into a future of
automated decision systems, artificial intelligence, UAVs, long range precision strike weapons,
nanotechnologies, and improving capabilities for military exploitation of space.

1) The link alone turns the case---military backlash eliminates compliance AND causes a
broader rollback of international law
Michael A. Newton 10, Professor of the Practice of Law and Professor of the Practice of Political
Science at Vanderbilt University Law School, LLM and JD from the University of Virginia, LLM from The
Judge Advocate General’s School, BS from the United States Military Academy at West Point, Served in
the U.S. Army More Than 21 Years, “Illustrating Illegitimate Lawfare”, Case Western Reserve Journal of
International Law, 43 Case W. Res. J. Int'l L. 255, Lexis

As a necessary corollary to the recurring role of military lawyers in negotiating international instruments, U.S. civilian
leaders must
remain vigilant to avoid treaty based restrictions that would eviscerate American combat power. Reflexive
acceptance of the proposition that U.S. resistance to full acceptance of multilateral instruments flows primarily from a hypocritical desire to
enjoy differing standards from the rest of the world is misplaced and superficial. By way of illustration, U.S. delegates to the negotiations
leading up to the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Landmines and
on Their Destruction sought agreement on a regime that would preserve America's obligations to deter armed conflict along the Korean
demilitarized zone, while also advancing the stated purpose to prevent the loss of innocent life caused by unrecovered landmines across the
globe.

The United States refrained from joining the Ottawa Convention not because of a kneejerk exceptionalist mantra or a visceral distrust of
multilateral instruments, but because delegates adopted a treaty that disregarded the legitimate strategic equities of the United States. The
Chairman of the Joint Chiefs testified to Congress at the time that "in Korea . . . where we stand face-to-face with one of the largest hostile
armies in the world, we rely upon anti-personnel landmines to protect our troops." It is no coincidence that many of the treaties that the
United States has rejected outright have been accompanied by a clause prohibiting reservations. The Ottawa Convention does not allow
reservations and took a purist posture that wished away the special military interests of a major military power with a substantial troop
presence deployed to prevent a numerically superior enemy from crossing an international border clearly recognizable by the high fences,
guard towers, and emplaced mine fields.

Commenting on the unfortunate choice required by a treaty that does not permit reservations yet undermines American interests, President
Clinton remarked that

One of the biggest disappointments I've had as President, a bitter disappointment for me, is that I could not sign in good conscience
the treaty banning land mines, because we have done more since I've been President to get rid of land mines than any country in the
world by far. We spend half of the money the world spends on de-mining. We have destroyed over a million of our own mines. I
couldn't do it because the way the treaty was worded was unfair to the United States and to our Korean allies in meeting our
responsibilities along the DMZ in South Korea, and because it outlawed our anti-tank mines while leaving every other country sic
intact. And I thought it was unfair. But it just killed me. But all of us who are in charge of the nation's security engage our heads, as
well as our hearts.

Secondly, nations should be alert to oppose any efforts to create or reinforce legal rules that would become tactically irrelevant on modern
battlefields. Commenting on the impractical aspects of Additional Protocol I, the eminent Dutch jurist Bert Roling--who served on the bench of
the Tokyo International Military Tribunal--observed that treaty provisions ought not "prohibit what will foreseeably occur" because the "laws of
war are not intended to alter power relations, and if they do they will not be observed." The
disconnects between aspirational
legal rules and human experience are borne out in operational experience by states that act decisively
to protect the lives and property of their citizens, which feeds an undercurrent of suspicion and
politicization that could erode the very foundations of humanitarian law. This gap in turn leads to a
cycle of cynicism and second-guessing that could weaken the commitment of some policy makers or
military forces to actually follow the law. For example, no responsible commander intentionally targets civilian populations, and
the law on this matter is clear and fundamental. In the era of mass communications, the media often creates a perception that the normative
content of the law is meaningless by conveying an automatic presumption that any instance of collateral damage is based on illegal conduct by
military commanders. This perception is, of course, completely without foundation in humanitarian law or in [*268] modern military practice.
Left unchecked by the light of the law and the facts, however, it can erode the acceptance of the law in the minds of
military professionals who may begin to feel that their good faith efforts to comply with the complex provisions of the law are
meaningless and counterproductive in terms of gaining legitimacy and public trust. Indeed, nothing would erode compliance with humanitarian
law faster than false reports of what the other side has done, or distorted allegations that permissible conduct in fact represents willful
defiance of international norms.

2) It turns cyber---failing private sector defense causes offensive hack-backs---those

escalate
Gen. Martin Dempsey 13.Graduate of the U.S. Military Academy; he also holds Masters’ degrees from
West Point and Duke; his career in the nation's service has taken him around the world during both war
and peacetime, from places that ranged from Germany to Iraq, from platoon leader to Chief of Staff of
the Army, became the 18th Chairman of the Joint Chiefs of Staff, where he currently serves as the
nation's highest ranking military officer, and principal military adviser to the President and Secretary of
Defense and the National Security Council. 07-23-13. “Gen. Dempsey's Remarks and Q&A on Cyber
Security at the Brookings Institute.” JCS.
http://www.jcs.mil/Media/Speeches/tabid/3890/Article/571864/gen-dempseys-remarks-and-qa-on-
cyber-security-at-the-brookings-institute.aspx
MR. SINGER: Great. This is from V. Eric McCann. What
can private sector do to help the government with learning
more about and defending against cyber attacks?

GEN DEMPSEY: Information sharing. Right now, information sharing is actually disincentivized, and we need to
incentivize it.
MR. SINGER: Let me ask a follow up to this, a link to a prior topic you mentioned. Private security, we've got it maybe growing equivalent in the
cyber realm and the hack back companies that are, right now, I was talking with someone, if you want a couple million dollars in
venture capital, say you're exploring offensive cyber, what is your view of this growing potential industry of
companies that do hack back?

GEN DEMPSEY: I'm very concerned about that. In fact, I have raised it [is]
as all the more reason for us to come together as
a whole of government, because we don't want private cyber organizations conducting operations that could be
perceived as hostile acts. And if they're perceived as hostile acts, it could lead us into conflict.

They’re lying---law enforcement complements cyber operations---link proves they

undermine that.
CISA 9. (carbon dated 2009-04-18, “COMBATING CYBER CRIME,” CyberSecurity & Infastructure Security Agency,
https://www.cisa.gov/combating-cyber-crime)//pacc
COMBATING CYBER CRIME

Today’s world is more interconnected than ever before. Yet, for all its advantages, increased connectivity brings increased risk of theft, fraud, and abuse. As
Americans become more reliant on modern technology, we also become more vulnerable to cyberattacks such as corporate security breaches, spear phishing, and
social media fraud. Complementary
cybersecurity and law enforcement capabilities are critical to
safeguarding and securing cyberspace.

Law enforcement performs an essential role in achieving our nation’s cybersecurity objectives by
investigating a wide range of cyber crimes, from theft and fraud to child exploitation, and apprehending
and prosecuting those responsible. The Department of Homeland Security (DHS) works with other federal agencies to
conduct high-impact criminal investigations to disrupt and defeat cyber criminals, prioritize the
recruitment and training of technical experts, develop standardized methods, and broadly share cyber
response best practices and tools. Criminal investigators and network security experts with deep
understanding of the technologies malicious actors are using and the specific vulnerabilities they are
targeting work to effectively respond to and investigate cyber incidents.

DHS components such as the U.S. Secret Service and U.S. Immigration and Customs Enforcement (ICE) have special divisions dedicated to
combating cyber crime.

Their four restrictions are very overburdening

Bert-Jaap Koops 17, Professor of Regulation & Technology at the Tilburg Institute for Law, Technology,
and Society, main research fields are cybercrime, cyber-investigation, privacy, and data protection,
March 2017, “Legal Frameworks for Hacking by Law Enforcement: Identification, Evaluation and
Comparison of Practices,”
https://www.europarl.europa.eu/RegData/etudes/STUD/2017/583137/IPOL_STU
%282017%29583137_EN.pdf //SIR

There is no detailed piece of US legislation specifically regulating the use of hacking by law
enforcement. 565 Whilst federal statutes such as Part I of the Electronic Communications Act (ECPA) (1986)566 – an
expansion of the ‘Wiretap Act’ (1968)567 – and
the Stored Communications Act (SCA)568 govern law enforcement
surveillance of real-time and stored communications respectively, both statutes pre-date the use of
government hacking.569 Instead, although never expressing it as absolute policy , 570 law enforcement
agencies have generally sought authorisation for the use of hacking in investigations in search and
seizure warrants applied under Rule 41 of the Federal Rules of Criminal Procedure (Rule 41).571 The recent
amendments to Rule 41 in December 2016572 appear to confirm it as the most relevant piece of US legislation by offering a procedure for law
enforcement agencies to gain ‘remote access’ of data.573 Previously, the grounds for issuing warrants in this respect were disputed by US
Courts, 574 as demonstrated below. The first publicly reported court case of Rule 41 being used as a legal framework for hacking occurred
when a Myspace user made bomb threats to a high school in 2007. 575 Although the exact location of the culprit was unknown, 576 the venue
of the threatened act of domestic terrorism was released, thus relating to an exception of this requirement.577 A search warrant was issued
which permitted the government to use lawful hacking to identify the individual and their location through a phishing email, although not to
access the content of any electronic messages. Conversely, venue conditions of Rule 41 have also been used to deny warrants involving hacking.
In a Texan district in 2013, a
judge rejected the government’s request for a search warrant to gather
information in a fraud case through lawful hacking . 578 The judge determined that the warrant would not meet the
territorial exceptions of Rule 41, as both the target device enabling the scheme and its location were unknown, 579 and the government could
not adequately explain how they would find it. 580 The judge also stated that
the implications of such an intrusive means of
investigation presented a risk in targeting innocent computers. 581 The increasing use of anonymising
technologies allowing criminals to mask their IP using proxy addresses, and the use of large-scale
attacks, such as botnets, where a network of computers are attacked in potentially multiple districts, 582
implied that rulings such as the above could be more common . 583 Therefore, the Department of Justice
requested amendments to Rule 41 in order to expand their lawful hacking powers. 584 The proposed
amendments were published for public comment in August 2014585 and on 28 April 2016, the Supreme Court presented a proposal to
Congress. The Rules Enabling Act586 meant that, as Congress did not respond with enacted legislation, the proposed rule came into effect in
December 2016. Rule
41 now specifically presents law enforcement with the ability to be granted search
warrants to “use remote access to search electronic storage media and to seize or copy electronically
stored information located within or outside that district if: (A) the district where the media or
information is located has been concealed through technological means; or (B) […] the media are
protected computers that have been damaged without authorization and are located in five or more districts.”587 It
is too early to tell exactly how these amendments will impact the use of hacking by law enforcement agencies or whether they will be coupled
with revisions of statutes such as the ECPA. 588 US
legislation does not vary procedurally according to different
contexts surrounding the use of lawful hacking, such as the scale of the crime committed or the target
of the hack. 589 Instead, the key requirement permitting the use of hacking as a lawful search in accordance with the Fourth
Amendment and Rule 41 is ‘probable cause’. 590 If a federal judge or magistrate deems there to be probable
cause of a crime being committed, they are able to grant a search warrant for the use of hacking independent of
the circumstances and the process follows the procedural laws outlined in Rule 41, including using any material
uncovered by the hacking as evidence. 591 The other requirement for issuing a warrant in line with the Fourth
Amendment is ‘particularity’ 592 – i.e the officers must describe the target of the warrant. However, in cases of lawful
hacking the aim is often to identify the device’s location and/or owner, which makes describing the
target with particularity difficult.593 Therefore, ‘anticipatory’ warrants are often used to combat this
issue.594 Anticipatory warrants operate on the basis that particularity and probable cause requirements
will be triggered if a predicted set of circumstances are confirmed.595 In the case of lawful hacking, the government
can “articulate a conditional set of facts to ensure a fair chance that their malware will be delivered, and when it is delivered, to a computer
system that satisfies probable cause and particularity”.596 For example, if the law enforcement uses a watering hole attack on an illegal
website by adding malware that will reveal a computer’s identity, probable cause of an offence being committed and particularity of the target
can be confirmed once a user visits the website. However, this
can present safety issues, as highlighted in the section on human
rights, below. Details
surrounding the method of hacking to be used are generally not required in the
application for a search warrant. 597 For example, the details of normal search warrants (e.g. whether the government is planning
to knock on the door or enter via the window) are not usually specified, and the same standards are applied to cases of lawful hacking.598
Arguments have been made which highlight the potential implications in affecting innocent users, and these are discussed below. As
established earlier, the governmental approach seems to necessitate obtaining a search warrant in accordance with Rule 41 for the use of
lawful hacking. This therefore requires prior authorisation from a magistrate or district judge, and the timeframe for executing a warrant is a
maximum of 14 days from issuance. 599 As giving notice to the target is likely to defeat the purpose of the hacking, 600 the Government are
likely to be entitled to seek ‘delayed notice’, 601 as has been the case in many wire-tap investigations. 602 However, the Government must
eventually give notice, meaning lawful hacking is usually subject to ex-notice requirements. 603 The amendment to Rule 41 states that in cases
of accessing electronically stored media, the Government must “make reasonable efforts to serve a copy of the warrant and receipt” and
ensure service is “reasonably calculated to reach that person.”604 However, when the Government uses hacking to reveal the identity of a
hidden computer, and they use an anticipatory warrant, they have generally been required to give conditional ex-post notice. 605 This means
that they give notice only to the individuals for whom they have issued a court order and have therefore revealed the identity of.606 In
practice, they might have affected more individuals with the malware, but have not deemed them guilty and hence not revealed their identity,
meaning they haven’t given them ex-post notice of the malware on their computer. Rule 41 states that the Government must return a “copy of
the inventory to the magistrate judge designated on the warrant”, 607 and that, for cases of lawful hacking, “the inventory may be limited to
describing the physical storage media that were seized or copied”. 608 This further shows that the law enforcement agency does not have to
specify the method of hacking used, only what was taken. “The judge must, on request, give a copy of the inventory” to the target of the
investigation.609 As
the nature of the hacking conducted in investigations is often withheld from judges, and
court orders are often kept sealed in any case, the subject of lawful hacking by the US Government is
considered a relatively secretive topic. 610 Much of the information on the topic is a result of government leaks or deductive
research by journalists. 611 It is understood that national law enforcement does not reveal their techniques for fear of tipping off criminals and
making the methods redundant. 612 However, this further raises the issue of accountability and transparency, and
the lack of legislation instructing the actions of the Government if they find a zero-day exploit has been labelled as a security threat.
613 When lawful hacking requires a search warrant, it is automatically bound by the safeguards of ‘probable cause’ and ‘particularity’ routed in
the Fourth Amendment to the US Constitution. However, because its use has been largely shrouded in secrecy, 614 courts are just beginning to
grapple with how the constitution’s protections apply to lawful hacking specifically, with no appeals courts ruling on it to date.615
Moreover, there is no legislation specific to hacking by law enforcement outlining fundamental rights
safeguards that must be implemented.616 The recent changes to Rule 41 allowing judges to issue warrants
when the target location is unknown have also been criticised for breaching the particularity element of the
Fourth Amendment.617 It has been argued that using techniques such as watering hole attacks and phishing attacks
can lead to innocent parties being infected by malware. For example, a phishing email could be
forwarded to other addresses, and there have been examples of individuals visiting websites subject to a
watering hole attack for a valid, legal reason, e.g. research or journalism.618 The Wiretap Act (1968)
implemented four core safeguards when intercepting real-time communications interceptions,
effectively requiring a ‘super-warrant’ to be issued.619 The safeguards require that620: 1. Ordinary
investigate techniques have been exhausted 2. The surveillance is limited (time-bound) to what is
necessary for the investigation 3. Particularity in the desired communications to be intercepted 4.
Minimisation of non-relevant communications.