Resolved: The United States federal government should substantially decrease its authority to detain without charge or to search without probable caus

Notes from an old policy reso....

Resolved: The United States federal government should substantially decrease its authority to detain without charge or to search without probable cause

I dislike this resolution on the basis of two not insignificant observations. First, that no government whether the US, Brunei or North Fucking Korea, actively seeks to diminish its authority, especially domestically. While this resolution isn’t limited to domestic affairs and also applies to many aspects of the bullshit “war on terror”, a resolution which burdens the affirmative with trying to decrease authority fails in any practical situation for the sole reason that no government seeks to diminish their authority. Secondly, there are too many open doors for either side to cover. We are not explicitly limited to domestic issues or international affairs, thus inflicting on both sides the burdens of shit like non-citizens held in detention outside of the mainland US, US citizens captured abroad, or anyone the US detains then sends to Egypt to be tortured and “interrogated” with ball gags, dog collars and electrodes to the testicles. There is too much room in my opinion to make this a resolution that can be reasonably prepared for without an intensive 18 months of studies in areas like Constitutional Law, International law, Geneva Accords and Wartime Law, Politics and a firm understanding of US Civics and Elections (which, like the Honda cars of the same title, tend to be fucking stolen way too often).

That being said, here’s my advice: suck it up and deal with it. Everyone bitches about resolutions but you still have to deal with them. I won’t cover much case structure as I presume you already know how to write cases or can find out pretty easily from someone else how to do so. Nor will there be considerable evidence. I’ll throw a couple of links in and make references to works that you should look at, but the bulk of the research is your responsibility. What I do here is more analytical than anything else. Hopefully it will give you some good ideas and a decent place to start. We’ll begin with definitions and try to break the resolution down by phrases and key terms. You’ll find that I don’t tend to stick to either aff or neg through any particular section as I find it more important that you understand both sides before your formulate cases for either side. We’ll cover a couple of different areas and I’ll try to touch on the major issues and their counterpoints.

Starting with definitions first is Federal Government. This should be pretty obvious and easy to find. It should be something along the lines of the “organization established by the US constitution to make and enforce the laws for US”. Avoid telling me the federal government is the government of the US. You cannot use the term “government” to define government, doing so is annoying and tells me within the first two minutes of a round that you are a nimrod but, do make a distinction here from both state and local governments and more importantly, the US armed forces command structure. The distinction from the military is important, especially on the neg because the military may be an enforcement arm of the government but under posse comitatus active military personnel cannot be used to “execute the laws” except where explicitly authorized by Constitution or Congress (for examples cases of martial law). Making this distinction narrows the scope of the resolution a bit since posse comitatus has been law since Civil War reconstruction. For example it makes it a little easier to argue topicality for cases of US citizens held in Gitmo . If someone argues they should be treated in accordance with US criminal law, the military cannot be used to enforce such laws. As a sides note the considerable erosions in posse comitatus over the decades (well century-plus now) would make for an interesting and difficult case.

The second term to consider should be “authority”. Specifically, consider where federal authority comes from, what limits exist on that authority and who sets as well as enforces those limits. Now from my point of view, the FBI and ATF have large automatic weapons and flash bang grenades and they can call in the military that has flame throwers and tanks. If we ever had to go up against the military we’d be fucked. So from my perspective, authority is vested in the legitimized use of force. When you come down to it, a policeman’s authority is vested in the potential for legitimate use of force as well. The phrase “stop or I’ll shoot” is a great example. If you don’t stop, I’m authorized to fucking shoot you, hence the authority. Now consider what I said in the opening paragraph, what authority figure wants less authority? Have your parents ever said, “you know what, I don’t want authority, let’s just do whatever you think we should do, I’ll follow your directions for a while” When does the FBI ever ask for suggestions from the public on when to enforce laws? Has the INS ever come to you and asked for suggestions on rounding up illegal immigrants? Aside from a few people in know that are into S&M and a dominatrix friend whose couch I used to pass out drunk on, not too many people are into decreasing their own authority to others. Consider that when you look at definitions. For example the definition “the power or right to give orders or make decisions” is something very difficult to remove. If you have the power to remove that authority don’t you also have the power to grant that authority back? What then is the effect of that removal in the first place? At that point it comes down to an issue of enforcement, not of authority. Alternatively, you can take a definition like “official permission or approval” and that sort of decrease is relatively easy to accomplish. The federal government simply authorized less of the resolution’s activities. The difference in meaning between those two definitions is huge. In the former, we’re talking about the US giving up the power to hold, question and search people which they may ultimately just restore. In the latter, we acknowledge they have this power; they just use it less and allow fewer detentions or searches. Finally consider a different definition altogether.

In politics, authority generally refers to the ability to make laws, independent of the power to enforce them, or the ability to permit something. People obey authority out of respect, while they obey power out of fear. For example, "the congress has the authority to pass laws" vs. "the police have the power to arrest law-breakers". Authority need not be consistent or rational; it only needs to be accepted as a source of permission or truth.

Questions as to who has what authority often lie at the heart of political debates, and answers to those questions normally stem from practical and moral considerations, from prior practices and from theories of criminal justice or of the just war.

Considered in that light, authority is something people respect. Does that idea apply to enemy combatants? Probably not. More likely they fear getting shot in the head or gang raped by Specialists with way too much free time and kinky leather in the middle of a fucking desert. In what way would the US federal government decrease their acceptance as “a source of permission or truth”? I mean really, they already reelected Bush and appointed Alberto Gonzales to the highest position a lawyer can get to in the federal government so how much further down can it fucking go?

The final two terms outline the types of cases you can run. There are many ways the US federal government can limit its authority and many areas in which it can (and often should) limit itself. The resolution addresses detention without charge and search without probable cause. The former, in my opinion is easier to argue than the latter, but that’s just me. Each phrase itself needs to be broken down.

For the phrase “detain without charge” you need to define what it means to detain someone. What action constitutes detention? If a person is kept in a razor wire chicken coop under heavy guard is that being detained? Also remember here that the full phrase is “detained without charge” so all the government has to do to avoid the resolution is charge you with a crime and they can detain you. The length of that detainment is a possible case area, especially considering provisions of the PARTIOT Act. Also consider what crimes a person can be charged with in order for a detention to be valid. For example if the FBI detains a dozen Saudi’s on suspicion of conspiracy to commit an act of terror but later release them, where does that play into the resolution? Another potential case area here is what is what evidence is necessary to detain someone in the first place. Does there need to be evidence of a crime or intent to commit a crime? Additionally, consider who can be detained and under what conditions different people can be detained. US citizens, illegal immigrants, legal immigrants, foreign nationals, foreign combatants, US citizens captured as enemy combatants all have a different status and different rights according to the government. So, for many of the Gitmo detainees who are held as enemy combatants, what crimes can they effectively be charged with?

For the term “search without probable cause” you need to look at both what constitutes a search and what “probable cause” is. Does an x-ray at airport security constitute a search? If so then you can’t possibly tell me that everyone down to the toddlers who get their parents priority boarding constitute a probable threat for such a search . Does an officer who pulls you over for running a stop sign and notices your eyes are red (perhaps from lack of sleep, perhaps from weed, prove it asshole) have probable cause to search your car and personal belongings? Wherein does racial profiling fit? If we haven’t seen any 20 year old Hungarian bikini models blowing up buildings and shit, would it be reasonable to search them? If so, where can I get that job? Alternatively, if a shady looking Saudi is wearing a down jacket in the middle of a New York summer, should that justify more scrutiny and perhaps a search? One potential case area here is American drug policy. What constitutes probable cause for law enforcement to initiate a search on drug suspects? Are red eyes and a desire for nachos at 3 AM enough for cops to search you?

In general the “term probable cause” is uncertain. The interpretation of probable cause is based, in the words of the Supreme Court, on “accumulated wisdom of precedent and experience” which means that it differs for each person. A rookie beat cop has significantly less leeway in warrantless searches on the basis of “probable cause” than does a senior detective. The problem is that when such a term is left open to 1) judicial interpretation and 2)the “precedent and experience” of the official initiating the search, there are bound to be inconsistencies and a “bright line” definition for what is and, more importantly, is NOT probable cause is going to be hard to find. The important aspect of probable cause is that all facts of a crime are not required to initiate the search. So when someone is pulled over in a car a search warrant isn’t necessary but in almost every circumstance probable cause is necessary in order to initiate a search. There are some things like your presence at the scene of a crime or flight (a.k.a. running like fuck) that the courts have ruled constitute probable cause. There are however, a number of exceptions which the court has ignored or said vary on a case by case basis.

The upshot of all this is that the interpretation of what constitutes probable cause varies. For example take the case of State of Hawaii v Aguinaldo. By the way, it should go without saying that whenever I use an example that is Hawaii case law, you should be wary of using it yourself in a round. There’s way too many fucking legal professionals involved with speech and debate and some of them may have had a hand in one of the cases. You don’t want to be criticizing an opinion that was handed down by Justice Levinson or argue in favor of a court ruling that one of your judges was losing counsel for. Okay, caveat aside, in Aguinaldo a lady gets pulled over and a drunk driving checkpoint and she’s not intoxicated, the cop asks to see her license and no-fault insurance card and when she doesn’t produce them the cop issued her a citation. In court she argued that asking her to produce the license and no-fault card at an intoxication checkpoint is a violation of constitutional protections because the offense she was cited for was not related to the purpose of the roadblock. I shit you not; the trial court sided with her. They agreed that the DUI roadblock only allows police probable cause to conduct a DUI investigation. One catch to this was that the State Supreme Court decision noted that “The absence of probable cause, however, does not render all searches and seizures constitutionally infirm.” That seems somewhat risky to me. So even though the resolution specifically targets “search without probable cause” such searches may still be valid. In the end the higher court reversed the decision of the lower court mostly because the argument was bullshit.

For both of the two phrases you’ll probably need to try to establish some “bright line” standard for limits that law enforcement needs to follow. These should be based in some example or current law. My feeling, confirmed from the conversation mentioned in footnote 7 is that the PATRIOT Act will play into a number of cases, especially early into the year before many of the provisions expire or change on 31 Dec. 2005. In particular look at sections 215 and 216 of the PATRIOT Act and some of the authority it grants to law enforcement. For example 215 relates to third party records searches and provides the FBI with the authority to obtain records on anyone simply by notifying the Foreign Intelligence Surveillance Act (FISA) Court that the records in question pertain to an ongoing and authorized investigation. They need offer no proof of wrongdoing nor can the court refuse the FBI order. What’s more, the target of that search is prevented from being informed that he/she is being investigated by the state. In particular the secretive aspects of the section are what pissed off the ACLU. If you cannot even notify a person that their records have been requested by or turned over to law enforcement the ACLU gets all pissy and, to be fair to the ACLU, such secrecy lends well to abuse of power. I’ve argued this point with Aaron (as per conversation in footnote 7) and I still wonder about how you might word a revocation of section 215 in order to make it topical. I suppose there is something to be said for authorization to search based on probable cause but is it 1) substantial and 2) what would a revocation do? First off, because the records are secret we have no idea how many of these requests for records have been made by the FBI. If only a couple hundred have been made, is revocation substantial? Further, consider that under FISA FBI powers are essentially the same for warrantless searches. The significant differences in section 215 are twofold. First that courts do not have the authority to deny the request if the FBI notifies and secondly that the records requests, even third party requests, are kept secret from the target. Those aspects are themselves not unique, as a grand jury has the power to request such records without the consent of a judge and cannot easily divulge those requests very easily. So in the end, what does that provide you? Well you potentially have a case area here on in section 216 if you can prove that removing those sections would be substantial and would be a decrease in the authority to search. Keep in mind that the notification of a search is a tangent and isn’t even a consideration in the resolution. So, as much as it may piss off the ACLU, it’s basically irrelevant for the purposes of debate here. Thus we are only left with the FBI’s warrantless search powers which still exist under the FISA. Your problem then, is figuring out if a revocation of 215 is truly a decrease in authority and if it is, whether that decrease is substantial.

Section 216 deals with electronic surveillance. Here I have a couple of issues. First off in almost all cases of electronic surveillance the costs of abusing the power to search are prohibitively expensive. What I mean is that it’s expensive to setup electronic spying on someone and they rarely do it without strong probable cause or evidence of wrongdoing. Secondly, the section may be extra topical if it can be argued that searches and surveillance are two different things. A case which seeks to reword or revoke section 216 seems to me like it might by kind of squirrelly which could be good or bad. Something to consider though is that the court authorizes electronic surveillance but has never held that a search of a person (physical, not electronic) without warrant can be made on domestic targets on the basis of national security. I realize this seems kind of vague but I still need to do further research on this to determine viability so I leave it here for now.

Okay so going back to FISA for a second, therein is a potential gold mine for case areas. The FISC (replace Act with Court in the name) as an entity authorizes searches on and prosecutes national security crimes related to foreign spying. The only worry that I have is that in general, the FISA requires at least probable cause to initial the search/surveillance so this may be tricky for topicality. The issue at hand is one of lack of oversight. The court itself, as mentioned above is secret. It’s not uncommon for court records to be sealed as nearly all FISA records are, but it is uncommon for nearly zero oversight by an independent group. For example, there exists no congressional oversight for the FISC. It’s estimated that the FISA has authorized over 7500 requests for search/surveillance, which, given that it was enacted in 1978, is about 300 each year. Even a plan as minimal as providing congressional oversight could be considered a significant decrease in the ability to search. The issues then becomes whether it’s topical because probable cause likely exists in most FISA related searches. My issue here would be twofold, first on inherency since national security is in the interest of congress as without a nation their jobs are fucked, there is little inherent barrier to the plan. Secondly on solvency as I don’t know how much of a difference legislative oversight would make regarding authorized searches. Remember that these are the same people who passed the PATRIOT Act which allows the FBI to bypass some of the FISA requirements, like court approval for searches.

In general I wonder about actual harms for any search case. Yes, it’s a violation of privacy, but for detention cases, the harms are clear. We imprison someone. With a search, specifically and FISA search which is secret, say they look in one someone and turn up nothing, they leave the person alone after looking at some third party records about him. What harm has that caused? Then consider that if the FISA has authorized 7500 searches since its inception, what good has come of those searches. We’ve caught spies like CIA spy Aldrich Ames under the FISA. While it’s possible that such searches may lead to questioning or even detention, it’s that detention, not the search itself that provides a direct and physical harm. The search itself is a violation of privacy and that may be construed as a harm but 1) how significant of a harm is it if nothing comes from the search (if you have nothing to hide, you’re fine) and 2) the harm is abstract and deals with interpreted rights, liberties and freedoms rather than physical like forced detainment.

During a discussion mentioned in footnote 7 one of the potential case areas of interest was an abolishment of indefinite term detention. At current different agencies, can, under difference circumstances detain some individual such as legal immigrants, or enemy combatants for indefinite amounts of time. It was suggested that placing a limitation on the term of the detention might suffice. This rests upon the conclusion that the “authority to detain” is the same thing as “detention” which can be argued both ways. For example, as a legal immigrant suspected of activities related to terrorism you can be held under PATRIOT without charge. Say that we place a limit on terms of detention to 30 days. Does that constitute a substantial restriction on the authority to detain without charge? It can be argued that saying you can be detained for only 30 days means that at day 31 that authority to detain no longer exists so if you can show significant numbers of people being held for months on end without charge such a limitation may indeed be substantial. The harms for indefinite detention are reasonably clear and can easily be shown so it gives the aff a strong advantage in that area. There are however, a couple of potential pitfalls with this argument. First off you need to show that detention occurs to significant numbers of people. While the ACLU may argue that one such case or even the potential for such abuses are significant, you’ll probably have a hard time convincing your judges and opponents as much. Secondly, the resolution deals explicitly with the “authority to detain” so the aff is burdened with proving that the authority to detain without charge is the same thing as detention. I interpreted it differently in that to me, detention is the exercise of that authority whereas the “authority to detain” is simply that ability, not the exercise. Thus such a case may be extra topical if the neg can argue that a decrease in authority to detain is different from detention. Consider that if I can detain 12 million people for 30 days or 30 months, I still have the authority to detain 12 million people, so the extent to which I can exercise that authority to detain is still the same, but the actual harm of the detention is lessened. That means the two things are fundamentally different.

One issue that gets underrated by legal professionals and overblown by the public is electronic privacy. Specifically, privacy related to computer search and seizure. Sadly, as with most other areas of search law, no bright line rule for privacy expectations exists. Katz v US and related cases have provided some expectation that computer storage can be treated like a “closed container.” In a legal sense, this means that under most circumstances a warrant is required to view the contents. So generally your computer files are safe. Now consider that the government may allow for search related to terrorism suspects. Say Sanjay has some work files and the fucking project spec for my encoding software on it and the FBI picks him up on suspicion of terrorism. Now, the file and the email it was sent through are encrypted so good fucking luck since it took a supercomputer over 80,000 CPU hours to crack the weaker cousin of SHA-1 which is what I use. Now the file itself is fairly innocent but it does contain trade secrets. Should the government be given carte blanche to get the encryption pass key out of Sanjay so they can “check the file”? Courts have ruled that they can if you relinquish that computer to a third party. So if Sanjay is using a company laptop, the FBI has full permission to search it without warrant related to me or my company. If you lend your computer to a third party and that party is suspected of a crime where a search is authorized, the computer and data in their possession are within the limits of the search even if the contents are yours and you are not involved in the search. So if you lose control of the contents you lose any fourth amendment protections. The significant exception is the consent rule, wherein if you grant consent to search your computer you waive fourth amendment protections. The scope of the consent determines the limit to the scope of the search, thus the vaguer you are in your consent the more authority law enforcement has to search without warrant or cause. So where’s the issue? Two areas: first third party consent and second implicit consent. First off, a spouse or (in your probable case) a parent can consent to a computer search on your computer. This seems reasonable to me but is arguable if for example your soon to be ex-wife knows you engage in gambling through semi-legal offshore betting websites but contacts the FBI and says you might be into kiddie porn and she consents to a search on your behalf. Second and more importantly are the implicit consents given with some relationships you may engage in. For example if you walk into a government building you may be subject to a limited search (try walking into the federal building sometime you’ll notice TSA-like security but shorter lines). For a computer example, entering into a relationship with an arm of the US government may mean that your consent to a search is implied. If you provide an accounting service to the FBI you implicitly consent to a FBI search of your company to ensure everything is acceptable.

Okay so the electronic search thing seems like a bit of a rant rather than something productive. Here’s the crux of what the above gets to. Courts have ruled that under “exigent circumstances” (exigent = synonym for urgent) exceptions to warrant requirements are valid. So if the government feels it’s something urgent they can declare that they don’t need a warrant. This means they don’t need probable cause, they just need to think that something is kind of time sensitive. Well fuck, “I’m supposed to be at a bar at 5:45 so yeah, getting this done is pretty fucking urgent and I don’t have time for a warrant” suddenly became valid rationale for violating constitutional privacy rights. Because electronic data is perishable (ie: can be deleted very quickly) exigent circumstances often arise in computer a case, which gives the government greater authority to search without cause simply by saying that the search was exigent.

I also want to cover a bit of drug search policy because I mentioned it in the beginning. In Utah, the police have used an Ionscan machine which analyzes small particles to initiate drug searches. They would wipe and test people’s doorknobs then use results to get search warrants. As a general rule, something done in public view is not subject to fourth amendment protections (smoke a spliff in public and you can’t claim illegal search when you get arrested). Because you enter your home in public view and your doorknob is in public view the police reasoned they could wipe and test at will. While a ruling on 30 June 2005 threw out the tests as a violation of search and seizure protections, a ruling in 2004 by Federal Judge Tena Campbell upheld the search. Despite the fact that a door-to-door vacuum salesman / meth addict or Girl Scout / crack whore could just as easily been the one who left the offending particles on your otherwise clean doorknob. The real issue of the case is whether the public exterior of your home has the same legal privacy protections as the interior. Under similar circumstances, the Supreme Court in April 2005 denied cert (declined to hear the case) where police used trained drug sniffing dogs outside people’s homes without any specific suspicion or evidence of illegal activity, in order to gather cause for a search warrant. This lets the lower court ruling in favor of the ‘search’ stand. Thus in some federal courts, the cops can bring drug sniffing dogs and R2-Fucking-D2 to your house and sniff and wipe all they like so long as they don’t go inside. Earlier in the year the court held in a 6-2 decision in Smith v Texas police could use drug sniffing dogs on the outside of your car if you were stopped for an otherwise legal traffic stop. The question at hand is whether this border area between the public and private areas of your home, car or person are subject to the laws governing the public or the laws governing the private. Just remember to spray diluted weed all over the place and always remember polish your knob.

I’ll end the notes here for now so that you have some time to digest it and consider what direction you want to take. There will probably be additions and revisions in the coming months. For the moment this should serve and the final draft of revision 1 of the notes.

Cases not mentioned in notes above but that you should look up
Search:
Illinois v Caballes – drug dog sniffs car trunk, is legal.
US v Reyes, US v Blas – Related to Katz
US v Biswell 406 US, 311
State v Phillips 67 Hawaii, 535, 539, 696 P.2d 346, 350

Additional resources:
http://fly.hiwaay.net/~pspoole/fiscshort.html
http://writ.news.findlaw.com/dorf/20050201.html - this is especially useful