Gdi 15 - Cls Kritik

CLS Kritik
Notes
The thesis of the Kritik is to expose the states law as a
fraud.
Even if the plan is good and has good advantages it can
solve for it doesnt matter because the plan was built
upon fraudulent law. Which is only going to replicate the
oppressive law of the government.
The Kritik is critiquing the biopower in the state/law that
the affirmative is rooted in and how its biopower is
destructive and spreads its biopolitical control through
things like the affirmative. Not the biopower of the
affirmative case itself.
Neg
1NC Criticism
The reforms of the 1ac function as a mask to hide the
constant surveillance the government engages in,
propping up a system that is designed to invade privacy
and oppress citizens. This both turns the case and makes
oppression inevitable.
Greenwald, Constitutional Lawyer, 14 (Glenn, 11/19/14, The Intercept,
"Congress is irrelevant on mass surveillance. here's what matters instead.",

https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congressstopping-nsas-mass-surveillance/,7/1/15,AW)
There is a real question about whether the defeat of this bill is good, bad,
or irrelevant. To begin with, it sought to change only one small sliver of
NSA mass surveillance (domestic bulk collection of phone records under
section 215 of the Patriot Act) while leaving completely unchanged the
primary means of NSA mass surveillance, which takes place under
section 702 of the FISA Amendments Act, based on the lovely and
quintessentially American theory that all that matters are the privacy rights
of Americans (and not the 95 percent of the planet called non-Americans).
There were some mildly positive provisions in the USA Freedom Act: the
placement of public advocates at the FISA court to contest the claims of the
government; the prohibition on the NSA holding Americans phone records,
requiring instead that they obtain FISA court approval before seeking specific
records from the telecoms (which already hold those records for at least 18
months); and reducing the agencys contact chaining analysis from three
hops to two. One could reasonably argue (as the ACLU and EFF did) that,
though woefully inadequate, the bill was a net-positive as a first step toward
real reform, but one could also reasonably argue, as Marcy Wheeler has with
characteristic insight, that the bill is so larded with ambiguities and
fundamental inadequacies that it would forestall better options and
advocates for real reform should thus root for its defeat. When proprivacy members of Congress first unveiled the bill many months ago, it was
actually a good bill: real reform. But the White House worked very hard
in partnership with the House GOPto water that bill down so
severely that what the House ended up passing over the summer did
more to strengthen the NSA than rein it in, which caused even the ACLU
and EFF to withdraw their support. The Senate bill rejected last night was
basically a middle ground between that original, good bill and the anti-reform
bill passed by the House. * * * * * All of that illustrates what is, to me, the
most important point from all of this: the last place one should look
to impose limits on the powers of the U.S. government is . . . the
U.S. government. Governments dont walk around trying to figure
out how to limit their own power, and thats particularly true of empires.
The entire system in D.C. is designed at its core to prevent real reform. This
Congress is not going to enact anything resembling fundamental
limits on the NSAs powers of mass surveillance. Even if it somehow
did, this White House would never sign it. Even if all that miraculously
happened, the fact that the U.S. intelligence community and National
Security State operates with no limits and no oversight means
theyd easily co-opt the entire reform process. Thats what happened
after the eavesdropping scandals of the mid-1970s led to the establishment
of congressional intelligence committees and a special FISA oversight court
the committees were instantly captured by putting in charge supreme
servants of the intelligence community like Senators Dianne Feinstein and
Chambliss, and Congressmen Mike Rogers and Dutch Ruppersberger, while
the court quickly became a rubber stamp with subservient judges
who operate in total secrecy. Ever since the Snowden reporting
began and public opinion (in both the U.S. and globally) began
radically changing, the White Houses strategy has been obvious. Its
vintage Obama: Enact something that is called reformso that he
can give a pretty speech telling the world that he heard and
responded to their concernsbut that in actuality changes almost
nothing, thus strengthening the very system he can pretend he
changed. Thats the same tactic as Silicon Valley, which also supported
this bill: Be able to point to something called reform so they can trick
hundreds of millions of current and future users around the world into
believing that their communications are now safe if they use Facebook,
Google, Skype and the rest.
This surrender to the inevitability of state power makes

war and genocide inevitable.
Beres, professor of international law at Purdue University, 1994
(Louis Rene, Self-Determination, International Law and Survival on Planet
Earth, Arizona Journal of International and Comparative Law, Spring,
LexisNexis, //PK@GDI)
The State requires its members to be serviceable instruments, suppressing
every glimmer of creativity and imagination in the interest of a plastic
mediocrity. Even political liberty within particular States does nothing to encourage
opposition to war or to genocide in other States. Since "patriotic self-sacrifice" is demanded
even of "free" peoples, the expectations of inter-State competition may include war and the mass killing of
war and genocide are made possible by the

surrender of Self to the State. Given that the claims of international law 35 are rendered
other peoples. In the final analysis,
impotent by Realpolitik, this commitment to so-called power politics is itself an expression of control by the
Without such control, individuals could discover authentic bases of

personal value inside themselves, depriving the State of its capacity to make
corpses of others.
herd.
Constant criticism and trashing of the legal system is

necessary to expose traditional legal thought the
liberation and fate of humanity is at stake
Hutchinson and Monahan in 84
(Allan C. Hutchinson and Patrick J. Monahan, CRITICAL LEGAL

STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36
Stan. L. Rev. 199, Stanford Law Review, January, 1984, DOA 7/01/15, AMB@GDI)
No matter how cogent the CLSers' expose of traditional legal thought may be, they must still suggest some alternative. To
retain credibility, sustain allegiance, and mobilize support, they must offer their own tangible vision of the "good society."
If their work is not to be consigned to the dustbin of history, they must seek to translate their theories into some
attainable dimensions of human experience: "To nurture the seeds of social progress [there must be] . . . some concrete
any theory that the

Critical scholars provide must be capable of accommodating both
their doctrine of social contingency and the contradiction between
community and individual. The CLSers must actively work to fulfill their self-appointed roles as
creative mediators between the ideal of freedom and the actuality of a free world. The challenge is a
supreme one, and the long term prospects of the CLS movement are
not all that hangs in the balance: If the CLSers are right about the
conception of the soil in which they are intended to grow." n123 Moreover,
contingency of history and the insuperability of the fundamental

contradiction, the very "fate of humanity"
n124
is at stake.
We do not mean to
suggest that the extensive CLS critiques of existing law and legal theory are purely negative and without constructive
criticism can liberate and enlighten. By

"unfreezing" the world as it now [*228] appears, the Critical scholars hope to enable individuals
to imagine and attain new possibilities for self-development and meaningful social interaction. For the CLSers ,
criticism is an antidote to the social paralysis [stagnation]induced
and sustained by the existing hierarchical nature of society. n125 By
reassuring people that things need not always be as they now are, the CLS movement can inspire
the confidence necessary to reject prevailing arrangements. And because
the CLSers believe that "the strength to live with the sober truth will become
general [only when] the causes of untruth are removed," n126
"trashing" is viewed as a valid form of legal scholarship. Indeed, to some of
the Critical scholars, it is the "most valid form": n127 That trashing may reveal
truth seems significant if one's mission as a scholar is to tell the
truth. If telling the truth requires one to engage in delegitimation,
potential. Criticism can be a very creative therapy;
then that is what one ought to be doing
The point of delegitimation is to expose
possibilities more truly expressing reality, possibilities of fashioning a future that might at least partially realize a
substantive notion of justice instead of the abstract, rightsy, traditional, bourgeois notions of justice that generate so
much of the contradictory scholarship. One must start by knowing what is going on, by freeing oneself from the mystified
delusions embedded in our consciousness by the liberal legal world view. I am not defending a form of scholarship that
simply offers another affirmative presentation; rather, I am advocating negative, Critical activity as the only path that
might lead to a liberated future.The
task of a scholar is thus to liberate people

from their abstractions, to reduce abstractions to concrete historical
settings, and, by so doing, to expose as ideology what appears to be
positive fact or ethical norm.
1NC Shell Reject
Be careful with this shell when choosing a link. You need to have
a link that is rooted in biopower. Not just a CLS link.
Reforms only push the surveillance further into the
shroud secrecy- Get watered down to point of
Ineffectiveness
There is a real question about whether the defeat of this bill is good, bad, or irrelevant. To
begin with, it sought to change only one small sliver of NSA mass
surveillance (domestic bulk collection of phone records under section 215 of the Patriot Act) while
leaving completely unchanged the primary means of NSA mass
surveillance, which takes place under section 702 of the FISA Amendments Act, based on the lovely and
quintessentially American theory that all that matters are the privacy rights of Americans (and not the 95 percent of the
planet called non-Americans). There were some mildly positive provisions in the USA Freedom Act: the placement of
public advocates at the FISA court to contest the claims of the government; the prohibition on the NSA holding
Americans phone records, requiring instead that they obtain FISA court approval before seeking specific records from the
telecoms (which already hold those records for at least 18 months); and reducing the agencys contact chaining analysis
from three hops to two. One could reasonably argue (as the ACLU and EFF did) that, though woefully inadequate, the bill
was a net-positive as a first step toward real reform, but one could also reasonably argue, as Marcy Wheeler has with
the bill is so larded with ambiguities and fundamental

inadequacies that it would forestall better options and advocates for
real reform should thus root for its defeat. When pro-privacy members of Congress first unveiled the bill many
months ago, it was actually a good bill: real reform. But the White House worked very hard
more to strengthen the NSA than rein it in, which caused even the ACLU and EFF to
characteristic insight, that
withdraw their support. The Senate bill rejected last night was basically a middle ground between that original, good bill
and the anti-reform bill passed by the House. * * * * * All
of that illustrates what is, to me, the

out how to limit their own power, and thats particularly true of empires. The entire system in
D.C. is designed at its core to prevent real reform . This Congress is not going to enact
anything resembling fundamental limits on the NSAs powers of
mass surveillance. Even if it somehow did, this White House would never sign it. Even if all that
miraculously happened, the fact that the U.S. intelligence community and
National Security State operates with no limits and no oversight
means theyd easily co-opt the entire reform process. Thats what happened
after the eavesdropping scandals of the mid-1970s led to the establishment of congressional intelligence committees and
a special FISA oversight courtthe committees were instantly captured by putting in charge supreme servants of the
intelligence community like Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and Dutch
the court quickly became a rubber stamp with

subservient judges who operate in total secrecy. Ever since the
Snowden reporting began and public opinion (in both the U.S. and
globally) began radically changing, the White Houses strategy has
been obvious. Its vintage Obama: Enact something that is called
Ruppersberger, while
reformso that he can give a pretty speech telling the world that
he heard and responded to their concernsbut that in actuality
changes almost nothing, thus strengthening the very system he can
pretend he changed.
Thats the same tactic as Silicon Valley, which also supported this bill: Be able
to point to something called reform so they can trick hundreds of millions of current and future users around the world
into believing that their communications are now safe if they use Facebook, Google, Skype and the rest.
The biopower rooted in the affirmative make genocide and

WMD inevitable
Dean, 04 (Mitchell professor of sociology at the University of Newcastle (Mitchell, Four Theses on the Powers of
Life and Death, Contretemps 5, http://sydney.edu.au/contretemps/5december2004/dean.pdf, December 2004, DOA
7/2/15, AMB@GDI)
The possibilities for the manipulation of the very biological

processes life are not
limited to what has been called the genetic age made possible by molecular biology and human genetics. There
are advances in organ transplantation and in our medical capacities to sustain life. All of these processes of the
manipulation of life contain what we like to think of as ethical questions. Notions of brain death and the ensuing futility
of further attempts to restore normal life functioning redefine problems of euthanasia. Various forms of prenatal testing
and screening of pregnant women redefine the conditions of acceptability of abortions. Other such ethical questions
concern the harvesting of organs for transplantation, or of the maintenance of the integrity and diversity of biological
species in the face of genetically modified crops and seeds, etc. The capacity to manipulate our mere biological life, rather
than simply to govern aspects of forms of life, implies a biopolitics that contests how and when we use these technologies
and for what purposes. It also implies a redrawing of the relations between life and death, and a new thanatopolitics, a
new politics of death. 17 Contretemps 5, December 2004 At some distance from these advances in biomedicine
the issues of life and death that are played in various

arenas of international politics and human rights. These concern the
effects of the break-ups of nation-states from Yugoslavia and the Soviet Union to
Indonesia, the subsequent movement, detention, expulsion, processing, and mass death of
refugees and illegal immigrants, and the conditions and forms under which
military action, peacekeeping and humanitarian intervention are acceptable. They
concern the international coalition against the polycentric network of terrorism. Detention camps
are again becoming a feature of modern liberal-democratic states . On
the one hand, the twentieth century gave us a name for the death of a whole people
or race, genocide. On the other, it sought to promote the universal rights of individuals by virtue of
their mere existence as human beings. Bio-politics and thanato-politics are played
out in war, in torture, and in biological, chemical and atomic
weapons of mass destruction as much as in declarations of human rights and United
and biotechnology are
Nations peacekeeping operations. The potentialities for the care and the manipulation of the biological processes of
life and of the powers of death have never appeared greater than they do today. But how do we consider this problem as a
issues of life and death related to our conceptions of

politics and political community to the way in which we think about
states and societies, and their futures? Are the ideas of powers of life and death peculiarly modern, or do
political problem? How are
they lie at a deeper strata?My concern in this paper is to consider issues of life and death as political issues, to locate a
bio-politics, a politics of life, and a thanato-politics, a politics of death, within our ways of thinking about and imagining
politics. I follow two recent theorists, Michel Foucault and Giorgio Agamben, who are convinced that not only must we
consider how we exercise powers of life and death in modern politics but how the very notion of politics and political
community are intimately related to such issues. At issue is the power we call sovereign power, and its relation to this
politics of life and death. I shall in turn consider four possible theses that can be derived from the work of these thinkers
and from other twentieth century critical and legal theorists.
The alt is to vote negative in favor of critique before

actionwe accept power is inevitable, yet understand it
can be productive or destructive but only powerful
analysis of domination can challenge discourse we are
faced with and work as a pre-requisite to action
Flyvbjerg and Richardson 2
(Aalborg University, Department of Development and Planning AND

Department of Town and Regional Planning (Bent Flyvbjerg and Tim Richardson, Planning and Foucault In Search of the
Dark Side of Planning Theory http://flyvbjerg.plan.aau.dk/DarkSide2.pdf, nkj, DOA 7/2/15, AMB@GDI)
Instead of side-stepping or seeking to remove the traces of power

from planning, an alternative approach accepts power as
unavoidable, recognising its all pervasive nature, and emphasising
its productive as well as destructive potential . Here, theory engages
squarely with policy made on a field of power struggles between
different interests, where knowledge and truth are contested, and
the rationality of planning is exposed as a focus of conflict. This is what
Flyvbjerg has called realrationalitt, or real-life rationality (Flyvbjerg 1996), where the focus shifts from what should be
done to what is actually done. This analysis embraces the idea that rationality is penetrated by power, and the dynamic
between the two is critical in understanding what policy is about. It therefore becomes meaningless, or misleading - for
politicians, administrators and researchers alike - to operate with a concept of rationality in which power is absent
(Flyvbjerg 1998, 164-65). Both Foucault and Habermas are political thinkers. Habermass thinking is well developed as
concerns political ideals, but weak in its understanding of actual political processes. Foucaults thinking, conversely, is
weak with reference to generalised ideals--Foucault is a declared opponent of ideals, understood as definitive answers to
Kants question, What ought I to do? or Lenins What is to be done?--but his work reflects a sophisticated understanding
politics one must side with reason.

Referring to Habermas and similar thinkers, however, Foucault (1980b) warns that to respect
rationalism as an ideal should never constitute a blackmail to
prevent the analysis of the rationalities really at work (Rajchman 1988, 170).
of Realpolitik. Both Foucault and Habermas agree that in
Habermass main complaint about Foucault is what Habermas sees as Foucaults relativism. Thus Habermas (1987, 276)
harshly dismisses Foucaults genealogical historiographies as relativistic, cryptonormative illusory science. Such critique
for relativism is correct, if by relativistic we mean unfounded in norms that can be rationally and universally grounded .
Foucaults norms are not foundationalist like Habermass: they are expressed in a desire
to challenge every abuse of power, whoever the author, whoever the
victims (Miller 1993, 316) and in this way to give new impetus, as far and
wide as possible, to the undefined work of freedom (Foucault 1984a, 46).
Foucault here is the Nietzschean democrat, for whom any form of government - liberal or
totalitarian - must be subjected to analysis and critique based on a
will not to be dominated, voicing concerns in public and withholding
consent about anything that appears to be unacceptable. Such norms
cannot be given a universal grounding independent of those people
and that context, according to Foucault. Nor would such grounding be
desirable, since it would entail an ethical uniformity with the kind of
utopian-totalitarian implications that Foucault would warn against in
any context, be it that of Marx, Rousseau or Habermas: The search for a
form of morality acceptable by everyone in the sense that everyone
would have to submit to it, seems catastrophic to me
Rabinow 1986, 119). In a Foucauldian interpretation
empower it .
(Foucault 1984c, 37 quoted in Dreyfus and
, such a morality would endanger freedom, not
Instead, Foucault focuses on the analysis of evils and shows restraint in matters of commitment to
ideas and systems of thought about what is good for man, given the historical experience that few things have produced
more suffering among humans than strong commitments to implementing utopian visions of the good.
the socially and historically conditioned context, and not

fictive universals, constitutes the most effective bulwark against
For Foucault
relativism and nihilism, and the best basis for action. Our sociality
and history, according to Foucault, is the only foundation we have,
the only solid ground under our feet. And this socio-historical
foundation is fully adequate.
Foucault, perhaps more than any recent philosopher, reminded us of the crucial importance
of power in the shaping and control of discourses, the production of
knowledge, and the social construction of spaces. His analysis of modern power has often
been read by planning theorists as negative institutionalised oppression, expressed most chillingly in his analysis of the disciplinary regime of
the prison in Discipline and Punish (Foucault 1979). However, it is
Foucaults explanation of power as
productive and local, rather than oppressive and hierarchical, that

suggests real opportunities for agency and change (McNay 1994). Whilst
Foucault saw discourse as a medium which transmits and produces
power, he points out that it is also a hindrance, a stumbling-block, a
point of resistance and a starting point for an opposing strategy . So,
at the same time as discourse reinforces power, it also undermines
and exposes it, renders it fragile and makes it possible to thwart it
(Foucault 1990, 101). Foucault rarely separated knowledge from power , and the idea of
power/knowledge was of crucial importance: we should abandon a whole tradition that
allows us to imagine that knowledge can exist only where the power
relations are suspended and that knowledge can develop only
outside its injunctions, its demands and its interests ... we should abandon
the belief that power makes mad and that, by the same token, the
renunciation of power is one of the conditions of knowledge. We
should admit rather that power produced knowledge .. that power
and knowledge directly imply one another; that there is no power
relation without the correlative constitution of a field of
knowledge ... (Foucault 1979, 27). For Foucault, then, rationality was contingent, shaped
by power relations, rather than context-free and objective.
According to Foucault, Habermass (undated, 8) authorisation of power by law is inadequate (emphasis deleted). [The juridical system] is
utterly incongruous with the new methods of power, says Foucault (1980a, 89), methods that are employed on all levels and in forms that go
beyond the state and its apparatus... Our historical gradient carries us further and further away from a reign of law.
The law,
institutions - or policies and plans - provide no guarantee of

freedom, equality or democracy. Not even entire institutional
systems , according to Foucault, can ensure freedom , even though they are
established with that purpose. Nor is freedom likely to be achieved
by imposing abstract theoretical systems or correct thinking. On the
contrary, history has demonstrated--says Foucault--horrifying examples that it is precisely those social systems which have
turned freedom into theoretical formulas and treated practice as social engineering, i.e., as an epistemically derived
techne, that become most repressive. [People] reproach me for not presenting an overall theory, says Foucault (1984b, 375-6), I am
attempting, to the contrary apart from any totalisation - which would be at once abstract and limiting - to open up problems that are as
concrete and general as possible. What Foucault calls his political task is to criticise the working of institutions which appear
to be both neutral and independent; to criticise them in such a manner that the political violence which has always
exercised itself obscurely through them will be unmasked, so that one can fight them (Chomsky and Foucault 1974, 171).
This is
what, in a Foucauldian interpretation, would be seen as
an effective approach to
institutional change, including change in the institutions of civil

society. With direct reference to Habermas, Foucault (1988, 18) adds: The problem is not of trying
to dissolve [relations of power] in the utopia of a perfectly
transparent communication, but to give...the rules of law, the
techniques of management, and also the ethics...which would allow
these games of power to be played with a minimum of domination.
Here Foucault overestimates his differences with Habermas, for Habermas also believes that the ideal speech situation cannot be established
as a conventional reality in actual communication. Both thinkers see the regulation of actual relations of dominance as crucial, but whereas
Habermas approaches regulation from a universalistic theory of discourse, Foucault seeks out a genealogical understanding of actual power
For
Foucault praxis and freedom are derived not from universals or
theories. Freedom is a practice , and its ideal is not a utopian
absence of power. Resistance and struggle, in contrast to consensus,
is for Foucault the most solid basis for the practice of freedom. Whereas
Habermas emphasises procedural macro politics, Foucault stresses substantive micro politics ,
though with the important shared feature that neither Foucault nor Habermas venture to define the actual content of
political action. This is defined by the participants. Thus, both Habermas and Foucault are
relations in specific contexts. Foucault is thus oriented towards phronesis, whereas Habermass orientation is towards episteme.
bottom-up thinkers as concerns the content of politics, but where Habermas thinks in a top-down moralist fashion as regards procedural
rationality having sketched out the procedures to be followed - Foucault is a bottom-up thinker as regards both process and
content. In this interpretation, Habermas would want to tell individuals and groups how to go about their affairs as regards procedure for
Foucault would
prescribe neither process nor outcome; he would only recommend a
focus on conflict and power relations as the most effective point of
departure for the fight against domination. It is because of his double bottom-up thinking that
discourse. He would not want, however, to say anything about the outcome of this procedure.
Foucault has been described as non-action oriented. Foucault (1981) says about such criticism, in a manner that would be pertinent to those
who work in the institutional setting of planning:
Its true that certain people, such as those who work in the institutional setting of the prison...are not likely to find advice
or instructions in my books to tell them what is to be done. But my project is precisely to bring it about that they no
longer know what to do, so that the acts, gestures, discourses that up until then had seemed to go without saying
become problematic, difficult, dangerous (Miller 1993, 235). The depiction of Foucault as non-action oriented is correct to the extent
that Foucault hesitates to give directives for action, and he directly distances himself from the kinds of universal What is to be done?
Foucault believes that

solutions of this type are themselves part of the problem. Seeing
Foucault as non-action oriented would be misleading , however, insofar as
Foucaults genealogical studies are carried out only in order to show
how things can be done differently to separate out, from the
contingency that has made us what we are, the possibility of no
longer being, doing, or thinking what we are, do, or think (Foucault 1984a,
formulas which characterise procedure in Habermass communicative rationality.
45-7). Thus Foucault was openly pleased when during a revolt in some of the French prisons the prisoners in their cells
read his Discipline and Punish. They shouted the text to other prisoners, Foucault told an interviewer. I know its pretentious to
say, Foucault said, but thats a proof of a trutha political and actual truth--which started after the book was written (Dillon
This is the type of situated action Foucault would endorse , and as

a genealogist, Foucault saw himself as highly action oriented, as a dealer in instruments,
a recipe maker, an indicator of objectives, a cartographer, a sketcher
of plans, a gunsmith (Ezine 1985, 14).
1980, 5).
The establishment of a concrete genealogy opens possibilities for action by describing the genesis of a given situation and
showing that this particular genesis is not connected to absolute historical necessity . Foucaults genealogical studies of prisons,
hospitals and sexuality demonstrate that social practices may always take an alternative form, even where there is no basis for voluntarism or
idealism. Combined with Foucaults focus on domination, it is easy to understand why this insight has been embraced by feminists and
minority groups. Elaborating genealogies of, for instance, gender and race leads to an understanding of how relations of domination between
women and men, and between different peoples, can be changed (McNay 1992, Bordo and Jaggar 1990, Fraser 1989, Benhabib and Cornell
. Understanding how power

works is the first prerequisite for action, because action is the
exercise of power. And such an understanding can best be achieved
by focusing on the concrete. Foucault can help us with a materialist understanding of Realpolitik and
1987). The value of Foucaults approach is his emphasis on the dynamics of power
Realrationalitt, and how these might be changed in a specific context. The problem with Foucault is that because understanding and action
have their points of departure in the particular and the local, we may come to overlook more generalised conditions concerning, for example,
institutions, constitutions and structural issues.
In sum, Foucault and Habermas agree that rationalisation and the misuse of power are among the most important problems of our time. They
disagree as to how one can best understand and act in relation to these problems. From the perspective of the history of philosophy and
political theory, the difference between Foucault and Habermas lies in the fact that Foucault works within a particularistic and contextualist
tradition, with roots in Thucydides via Machiavelli to Nietzsche. Foucault is one of the more important twentieth century exponents of this
tradition. Habermas is the most prominent living exponent of a universalistic and theorising tradition derived from Socrates and Plato,
proceeding over Kant. In power terms, we are speaking of strategic versus constitution thinking, about struggle versus control, conflict
versus consensus.
Links
Link: Reform Legislation

Reforms only push the surveillance further into the
shroud secrecy- Get watered down to point of
Ineffectiveness
There is a real question about whether the defeat of this bill is good, bad,
or irrelevant. To begin with, it sought to change only one small sliver of
NSA mass surveillance (domestic bulk collection of phone records under
section 215 of the Patriot Act) while leaving completely unchanged the
primary means of NSA mass surveillance, which takes place under
section 702 of the FISA Amendments Act, based on the lovely and
quintessentially American theory that all that matters are the privacy rights
of Americans (and not the 95 percent of the planet called non-Americans).
There were some mildly positive provisions in the USA Freedom Act: the
placement of public advocates at the FISA court to contest the claims of the
government; the prohibition on the NSA holding Americans phone records,
requiring instead that they obtain FISA court approval before seeking specific
records from the telecoms (which already hold those records for at least 18
months); and reducing the agencys contact chaining analysis from three
hops to two. One could reasonably argue (as the ACLU and EFF did) that,
though woefully inadequate, the bill was a net-positive as a first step toward
real reform, but one could also reasonably argue, as Marcy Wheeler has with
characteristic insight, that the bill is so larded with ambiguities and
fundamental inadequacies that it would forestall better options and
advocates for real reform should thus root for its defeat. When proprivacy members of Congress first unveiled the bill many months ago, it was
actually a good bill: real reform. But the White House worked very hard
more to strengthen the NSA than rein it in, which caused even the ACLU
and EFF to withdraw their support. The Senate bill rejected last night was
basically a middle ground between that original, good bill and the anti-reform
bill passed by the House. * * * * * All of that illustrates what is, to me, the
out how to limit their own power, and thats particularly true of empires.
The entire system in D.C. is designed at its core to prevent real reform. This
Congress is not going to enact anything resembling fundamental
limits on the NSAs powers of mass surveillance. Even if it somehow
did, this White House would never sign it. Even if all that miraculously
happened, the fact that the U.S. intelligence community and National
Security State operates with no limits and no oversight means
theyd easily co-opt the entire reform process. Thats what happened
after the eavesdropping scandals of the mid-1970s led to the establishment

of congressional intelligence committees and a special FISA oversight court
the committees were instantly captured by putting in charge supreme
servants of the intelligence community like Senators Dianne Feinstein and
Chambliss, and Congressmen Mike Rogers and Dutch Ruppersberger, while
the court quickly became a rubber stamp with subservient judges
who operate in total secrecy. Ever since the Snowden reporting
began and public opinion (in both the U.S. and globally) began
radically changing, the White Houses strategy has been obvious. Its
vintage Obama: Enact something that is called reformso that he
can give a pretty speech telling the world that he heard and
responded to their concernsbut that in actuality changes almost
nothing, thus strengthening the very system he can pretend he
changed. Thats the same tactic as Silicon Valley, which also supported
this bill: Be able to point to something called reform so they can trick
hundreds of millions of current and future users around the world into
believing that their communications are now safe if they use Facebook,
Google, Skype and the rest.
Link: Generic Courts

Courts are ineffective in curtailing Surveillance- Cooption
For a variety of reasons, when it comes to placing real limits on the
NSA, I place almost as little faith in the judiciary as I do in the
Congress and executive branch. To begin with, the Supreme Court is
dominated by five right-wing justices on whom the Obama Justice
Department has repeatedly relied to endorse their most extreme
civil-liberties-destroying theories. For another, of all the U.S. institutions
that have completely abdicated their role in the post-9/11 era, the federal
judiciary has probably been the worst, the most consistently
subservient to the National Security State.
Link: FISC
FISC coopted by agency pressure- doomed to fail
Setty, Faculty at Western New England University School of
Law,15 (Sudah, 2015, Western New England University School of Law,
Surveillance, Secrecy, and the Search for Meaningful Accountability,

http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?
article=1305&context=facschol, 7/2/15, AW)
The FISC differs from Article III courts in numerous ways : Its
statutory scope is limited to matters of foreign intelligence gathering; its
judges are appointed in the sole discretion of the Chief Justice of the
United States Supreme Court; its proceedings are secret; its opinions are often
secret or are published in heavily redacted form; and its process is not adversarial as
only government lawyers make arguments defending the legality of
the surveillance being contemplated. 70 Many of these differences bring into
doubt the legitimacy of the court, its ability to afford adequate due
process regarding civil liberties concerns, and its ability to uphold the rule
of law in terms of government accountability. Compounding this legitimacy deficit
is the FISC's own loosening of the relevance standard under Section
215 of the PATRIOT Act such that the FISC has found that bulk data
collection without any particularized threat or connection to
terrorism is legally permissible. 71 Historically, the FISC has rejected NSA
surveillance applications too infrequently to be considered a substantial
check on government overreach as an ex ante matter. 72 As an ex post matter, it is
unclear to what extent the FISC's work guarantees any meaningful accountability over NSA surveillance
because the FISC lacks an adversarial process and

has no independent investigatory authority, the FISC only addresses ex post
activities. On the one hand,
compliance problems when the government itself brings the problem to the courts attention. 73 As such,
FISC judges rely on the statements of the government as to the

government's own behavior and lack the authority to investigate
the veracity of the government's representations. 74 For example, in 2011,
the FISC found one aspect of the surveillance program brought to its attention months after the program
went into effece5 ~to be unconstitutional. 76 Additionally, in one declassified opinion, the FISC critiques
the NSA's sloppy over-collection of metadata of U.S. communications, and questions the efficacy of bulk
data collection as a national security measure. 7 7 At one point, the FISC sanctioned the NSA for
overreaching in saving all metadata and running daily metadata against an "alert list" of approximately
17,800 phone numbers, only 10% of which had met FISC's legal standard for reasonable suspicion. 78 On
such occasions, the administration has modified problematic aspects of the surveillance and continued
forward without further impediment by the FISC
FISA Court is just rubberstamp for the NSA- Presidential

and legislative Coercion
Greenwald, Constitutional Lawyer, 13(Glenn, 6/18/13, The Guardian,
"FISA court oversight: a look inside a secret and empty process",
www.theguardian.com/commentisfree/2013/jun/19/fisa-court-oversightprocess-secrecy, 7/2/15, AW)
The GOP chairman of the House Intelligence Committee, Mike
Rogers, told CNN that the NSA "is not listening to Americans' phone
calls. If it did, it is illegal. It is breaking the law." Talking points issued by the House GOP in
defense of the NSA claimed that surveillance law only "allows the
Government to acquire foreign intelligence information concerning non-U.S.persons (foreign, non-Americans) located outside the United States." The NSA's media
defenders have similarly stressed that the NSA's eavesdropping and internet
snooping requires warrants when it involves Americans. The Washington Post's Charles
Lane told his readers: "the government needs a court-issued warrant, based
on probable cause, to listen in on phone calls." The Post's David Ignatius told Post readers that
NSA internet surveillance "is overseen by judges who sit on the Foreign Intelligence Surveillance
Court" and is "lawful and controlled". Tom Friedman told New York Times readers that before NSA analysts
can invade the content of calls and emails, they "have to go to a judge to get a warrant to actually look at
the content under guidelines set by Congress." This has become the most common theme for those
But these claim are highly misleading, and in some

cases outright false . Top secret documents obtained by the Guardian illustrate
what the Fisa court actually does and does not do when purporting to
engage in "oversight" over the NSA's domestic spying. That process lacks many
of the safeguards that Obama, the House GOP, and various media defenders of the NSA
are trying to lead the public to believe exist. No individualized
warrants required under 2008 Fisa law Many of the reasons these claims are
so misleading is demonstrated by the law itself. When the original Fisa law was enacted in 1978, its
defending NSA surveillance.
primary purpose was to ensure that the US government would be barred from ever monitoring the
electronic communications of Americans without first obtaining an individualized warrant from the Fisa
court, which required evidence showing "probable cause" that the person to be surveilled was an agent of
Bush, in late 2001,

secretly authorized eavesdropping on the international
calls of Americans without any warrants from that court. Rather than act
to punish Bush for those actions, the Congress, on a bipartisan basis in 2008,
enacted a new, highly diluted Fisa law the Fisa Amendments Act of 2008 (FAA) that
legalized much of the Bush warrantless NSA program. Under the FAA, which
was just renewed last December for another five years, no warrants are needed for the
NSA to eavesdrop on a wide array of calls, emails and online chats
involving US citizens. Individualized warrants are required only when the target of the
a foreign power or terrorist organization. That was the law which George
violated, when he
surveillance is a US person or the call is entirely domestic. But even under the law, no individualized
warrant is needed to listen in on the calls or read the emails of Americans when they communicate with a
foreign national whom the NSA has targeted for surveillance. As a result, under the FAA, the NSA
frequently eavesdrops on Americans' calls and reads their emails without any individualized warrants
exactly that which NSA defenders, including Obama, are trying to make Americans believe does not take
place. As Yale Law professor Jack Balkin explained back in 2009: "The FISA Amendments
Act of
2008, effectively gives the President - now President Obama - the
authority to run surveillance programs similar in effect to the
warrantless surveillance program [secretly implemented by George Bush in late 2001].
That is because New Fisa no longer requires individualized targets in all surveillance programs. Some
programs may be 'vacuum cleaner' programs that listen to a great many different calls (and read a great
many e-mails) without any requirement of a warrant directed at a particular person as long as no US
person is directly targeted as the object of the program. . . . "New Fisa authorizes the creation of
surveillance programs directed against foreign persons (or rather, against persons believed to be outside
the United States) which require no individualized suspicion of anyone being a terrorist, or engaging in
any criminal activity. These programs may inevitably include many phone calls involving Americans, who
may have absolutely no connection to terrorism or to Al Qaeda." As the FAA was being enacted in mid2008, Professor Balkin explained that "Congress is now giving the President the authority to do much of
what he was probably doing (illegally) before".
Link: Congress
Congress is ineffective has no real power to stop the
surveillance state- clapper investigation proves
Setty, Faculty at Western New England University School of
Law,15 (Sudah, 2015, Western New England University School of Law,
Surveillance, Secrecy, and the Search for Meaningful Accountability,
http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?
article=1305&context=facschol, 7/2/15, AW)
The extent of congressional knowledge regarding the NSA Metadata
Program is not fully known to the public and has been the subject of
significant debate. Nonetheless, even assuming that Congress was
sufficiently informed as to the potential reach of the PATRIOT Act
with regard to surveillance 5 9 and, therefore, that the statutory
authority for the bulk data collection and storage was sound, the
ability of Congress to effect significant and meaningful ex post
oversight appears to be severely limited. Historically, congressional
hearings and investigations have been a powerful tool to rein in
executive branch overreaching. 60 However, it seems that the extreme
secrecy surrounding the NSA surveillance programs undermined the
efficacy of these oversight powers, to the point that they may have been
reduced to an ersatz form of accountability. One prominent example
stems from a Senate oversight hearing on March 12, 2013, in which
Senator Ron Wyden specifically asked Director of National Intelligence
James Clapper if the NSA was systematically gathering information
on the communications of millions of Americans. 61 Clapper denied
this, yet subsequent revelations confirmed that the broad scope of the
data collection included metadata for telephonic communications, as well
as content data for emails, texts, and other such writings. 62 After public
discussion of the discrepancy in his testimony, Clapper commented that
he gave the "least most untruthful" answer possible under the
circumstances. 63 Senator Wyden expressed disappointment and
frustration that even while under oath at an oversight hearing, Clapper
misled the Senate. lack of ability to discuss publicly whatever knowledge is
shared with Congress. 66 In fact, it remains unclear whether senators,
including Dianne Feinstein, Chair of the Senate Intelligence Committee, knew
of the lapses in NSA procedure until after such information was leaked to
news sources. 67 Further revelations indicate that administration statements
made to Congress even after the Snowden disclosures were not entirely
accurate. 68 These examples are not determinative, but taken together,
they raise significant doubt to the extent of accurate information
regarding surveillance programs being made available to congressional
oversight committees, and whether the oversight committees can function as
effective accountability measures 69 without the benefit of illegally
leaked information such as the Snowden disclosures.
Link: Private Companies

Private companies put on a guise of Privacy Protection
but then give customer information to the government
without reservations.
In pretty much every interview Ive done over the last year, Ive been asked
why there havent been significant changes from all the disclosures.
I vehemently disagree with the premise of the question, which equates U.S.
legislative changes with meaningful changes. But it has been clear from
the start that U.S. legislation is not going to impose meaningful
limitations on the NSAs powers of mass surveillance, at least not
fundamentally. Those limitations are going to come fromare now
coming from very different places: 1) Individuals refusing to use
internet services that compromise their privacy. The FBI and other
U.S. government agencies, as well as the U.K. Government, are
apoplectic over new products from Google and Apple that are
embedded with strong encryption, precisely because they know that
such protections, while far from perfect, are serious impediments to their
power of mass surveillance. To make this observation does not mean, as
some deeply confused people try to suggest, that one believes that
Silicon Valley companies care in the slightest about peoples privacy
rights and civil liberties. As much of the Snowden reporting has proven,
these companies dont care about any of that. Just as the telecoms have
been for years, U.S. tech companies were more than happy to eagerly
cooperate with the NSA in violating their users privacy en masse
when they could do so in the dark. But its precisely because they cant
do it in the dark any more that things are changing, and significantly. Thats
not because these tech companies suddenly discovered their belief
in the value of privacy. They havent, and it doesnt take any special
insight or brave radicalism to recognize that. Thats obvious. Instead,
these changes are taking place because these companies are petrified
that the perception of their collaboration with the NSA will harm
their future profits , by making them vulnerable to appeals from
competing German, Korean, and Brazilian social media companies that
people shouldnt use Facebook or Google because they will hand over that
data to the NSA. Thatfear of damage to future business prospectsis what
is motivating these companies to at least try to convince users of
their commitment to privacy. And the more users refuse to use the
services of Silicon Valley companies that compromise their privacyand,
conversely, resolve to use only truly pro-privacy companies insteadthe
stronger that pressure will become. Those who like to claim that nothing has
changed from the NSA revelations simply ignore the key facts, including the
serious harm to the U.S. tech sector from these disclosures, driven by the
newfound knowledge that U.S. companies are complicit in mass surveillance.

Obviously, tech companies dont care at all about privacy, but they care a lot
about that. Just yesterday, the messaging service WhatsApp announced that
it will start bringing end-to-end encryption to its 600 million users, which
would be the largest implementation of end-to-end encryption ever. None
of this is a silver bullet: the NSA will work hard to circumvent this
technology and tech companies are hardly trustworthy, being
notoriously close to the U.S. government and often co-opted
themselves. But as more individuals demand more privacy protection, the
incentives are strong. As The Verge notes about WhatsApps new encryption
scheme, end-to-end means that, unlike messages encrypted by Gmail or
Facebook Chat, WhatsApp wont be able to decrypt the messages itself, even
if the company is compelled by law enforcement.
Link: War on nouns/Rhetoric of War

*This specifically talks about the transition of the war on drugs to terror and
how secret it was*
The Government uses the rhetoric of war to legitimize

mass surveillance
Lafrance, 15 (Adrienne, 4/8/15, The Atlantic, "Same Surveillance State,
Different War", www.theatlantic.com/technology/archive/2015/04/samesurveillance-state-different-war/389988/, 7/3/15,AW)

It's been a long 22 months since the first of thousands of classified
government documents became public in what has turned into a
drumbeat of astonishing revelations about the scope of mass
surveillance carried out by the United States government. On Tuesday
evening, USA Today detailed a massive surveillance operation, run by the
intelligence arm of the Drug Enforcement Agency, that began in 1992. The
DEA revealed the existence of the now-discontinued program back in
January, and USA Today's account offers remarkable details about
how it worked. The program, which enabled the United States to
secretly track billions of phone calls made by millions of U.S. citizens
over a period of decades, was a blueprint for the NSA surveillance
that would come after it, with similarities too close to be
coincidental, according to USA Today. Officials didn't collect the content of
Americans' calls, the newspaper reports, but it gathered extensive data
that enabled agents to stitch together detailed communications
records and "link them to troves of other police and intelligence
data" from the FBI, Customs, and other agencies. The latest details are
striking, not only because they reveal new depths of secret
government surveillance, but also for how they reveal a continuum
from the pre-9/11 War on Drugs to the post-9/11 War on Terror. That
connection emerged almost immediately after the terrorist attacksand it
wasn't just rhetorical, it was literal: "Since the start of their bombing
campaign [in Afghanistan]," The New York Times wrote in November 2001,
"allied officials have tried to link the new war on terror to the old
war on drugs." Taxes on poppy farmers who supplied Afghanistan's
opium trade helped finance terrorist groups, the newspaper
reported at the time. Since then, both wars have become political
shorthand. Both are brutally expensive and arguably un-winnable.
And in both cases, use of the word "war" is a deliberate and
calculated language choice. Americans are taught that a war is
something an entire nation must fight, and something that requires
sacrifice for the greater good. Considered in the context of
government surveillance, both "wars" are euphemisms for a specific
kind of government rationalization. The government has repeatedly
tried to justify its spying activities on national security grounds, but it turns
out it was doing much the same thing for years in aid of ordinary criminal
investigations," said the ACLU attorney Patrick Toomey in an email via a
spokesperson Tuesday night. "These new revelations are a reminder of how
little we still know about the government's surveillance activitiesincluding
dragnet programs that operated for decades in secret." We might actually be
able to pinpoint the momentsometime in 2002when the rhetoric switched

from "drugs" to "terror" as a reason officials gave to citizens who might
question their actions. Take a look at Google's count of published incidences
of the phrase "war on drugs" versus published incidences of the phrase "war
on terror" over a 50-year period.
Link: War on Terror/Terrorism

The threat construction of terrorism justifies the
strengthening of the surveillance
Balkin, Faculty at Yale Law School, 08 (Jack, 1/1/08, Yale Law School,
"The Constitution in the national surveillance state",

digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, 7/3/15, AW)
In the National Surveillance State, the government uses surveillance,
data collection, collation, and analysis to identify problems, to head off potential
threats, to govern populations, and to deliver valuable social
services. The National Surveillance State is a special case of the Information
State-a state that tries to identify and solve problems of governance through the collection, collation,
The war on terror may be the most familiar

justification for the rise of the National Surveillance State ,14 but it is
hardly the sole or even the most important cause. Government's
increasing use of surveillance and data mining is a predictable result
of accelerating developments in information technology . 15 As technologies
analysis, and production of information.
that let us discover and analyze what is happening in the world become ever more powerful, both
The question is not whether

we will have a surveillance state in the years to come, but what sort
of surveillance state we will have. Will we have a government without sufficient controls
governments and private parties will seek to use them. 16
over public and private surveillance, or will we have a government that protects individual dignity and
conforms both public and private surveillance to the rule of law?
Link: The State

The State will always surveil the populace, it is a fixture of
governance
The National Surveillance State is a way of governing. It is neither
the product of emergency nor the product of war. War and emergency
are temporary conditions. The National Surveillance State is a
permanent feature of governance, and will become as ubiquitous in

time as the familiar devices of the regulatory and welfare states. 17
Governments will use surveillance, data collection, and data mining
technologies not only to keep Americans safe from terrorist attacks
but also to prevent ordinary crime and deliver social services.' 8 In
fact, even today, providing basic social services-like welfare benefits-and
protecting key rights-like rights against employment discrimination-are
difficult, if not impossible, without extensive data collection and analysis. 19
Moreover, much of the surveillance in the National Surveillance State will be
conducted and analyzed by private parties. 20 The increased demand forand the in-creased use of-public and private surveillance cannot be
explained or justified solely in terms of war or emergency. 21
Link: Oversight
Oversight fails, just appease the people with no real
change
Greenwald, Constitutional Lawyer, 14 (Glenn, 1/17/14, The Guardian,
"Obama's NSA 'reforms' are little more than a PR attempt to mollify the
public", www.theguardian.com/commentisfree/2014/jan/17/obama-nsareforms-bulk-surveillance-remains, 7/3/15, AW)
In response to political scandal and public outrage , official Washington
repeatedly uses the same well-worn tactic. It is the one that has been hauled out
over decades in response to many of America's most significant political scandals . Predictably, it
is the same one that shaped President Obama's much-heralded
Friday speech to announce his proposals for "reforming" the National
Security Agency in the wake of seven months of intense worldwide
controversy. The crux of this tactic is that US political leaders
pretend to validate and even channel public anger by acknowledging that
there are "serious questions that have been raised". They vow
changes to fix the system and ensure these problems never happen
again. And they then set out, with their actions, to do exactly the opposite: to make
the system prettier and more politically palatable with empty,
cosmetic "reforms" so as to placate public anger while leaving the
system fundamentally unchanged, even more immune than before to
serious challenge. This scam has been so frequently used that it is now easily recognizable. In
the mid-1970s, the Senate uncovered surveillance abuses that had been ongoing for decades, generating
the US Congress enacted a new law (Fisa)

which featured two primary "safeguards": a requirement of judicial
review for any domestic surveillance, and newly created committees
to ensure legal compliance by the intelligence community. But the
new court was designed to ensure that all of the government's
requests were approved: it met in secret, only the government's
lawyers could attend, it was staffed with the most pro-government
judges, and it was even housed in the executive branch. As planned,
the court over the next 30 years virtually never said no to the
widespread public fury. In response,
government . Identically, the most devoted and slavish loyalists of the National Security State were
repeatedly installed as the committee's heads, currently in the form of NSA cheerleaders Democrat Dianne
Feinstein in the Senate and Republican Mike Rogers in the House. As the New Yorker's Ryan Lizza put it in a
December 2013 article on the joke of Congressional oversight, the committees "more often treat senior
intelligence officials like matinee idols". As a result, the committees, ostensibly intended to serve an
overseer function, have far more often acted as the NSA's in-house PR firm. The heralded mid-1970s
reforms did more to make Americans believe there was reform than actually providing any,
shielding it from real reforms.
thus
Link: The Media

*This article references an interview with Glenn Greenwald a constitutional
lawyer for warrant debate purposes as an FYI*
The media will always support the surveillance by the

state, in order to appease their partisan viewership
Logiurato, 13 (Brett, Business Insider,"Glenn Greenwald: 'Slavishly Partisan'
Democrats in the media are cheerleading polices they used to hate",
www.businessinsider.com/glenn-greenwald-nsa-scandal-media-spyingsurveillance-leak-2013-6, 7/3/15,AW)
New revelations about the National Security Agency's surveillance
programs have divided members of Congress and of the media apart
from the normal partisan split. One person who isn't surprised about
the lack of Democrats and liberals in the media challenging the
Obama administration, however, is the man who has broken multiple
stories based off leaks from former NSA contractor Edward Snowden
Guardian journalist Glenn Greenwald. Greenwald told Business Insider late
Tuesday night that he thinks some left-leaning members of the media such
as Time magazine's Joe Klein and The New Yorker's Jeffrey Toobin have
shifted stances on surveillance and civil liberties for "principle-free,
hackish, and opportunistic" reasons. "I'm not surprised," Greenwald
said in an email. "I've been amazed and disappointed for a long time
at how the most slavishly partisan media Democrats who pretended
to care so much about these issues when doing so helped undermine
George Bush are now the loudest apologists and cheerleaders for
these very same policies. "If they started a club called Liberal
Pundits to Defend the National Security State, no auditorium in the
country would be large enough to accommodate them. "To call them
principle-free, hackish, and opportunistic is to be overly generous."
Greenwald has a long history of reporting on issues relating to privacy and
surveillance, and he has been especially critical of both the Bush and Obama
administrations. Last week, he said the U.S. wants to "destroy privacy and
anonymity" around the world. The depth of the unusual media divide on
the NSA story has been illuminated most clearly with Greenwald, who
was a constant critic of the Bush administration. This time, liberal critics have
heaped more scrutiny on him. MSNBC host Lawrence O'Donnell challenged
Greenwald on Monday night. And before that, "Morning Joe" co-host Mika
Brzezinski and Greenwald got into a testy exchange over the legality of the
Obama administration's actions. At one point, Greenwald accused her of
reading "White House talking points.
Link: The 4th Amendment

*if you dont know the 4th amendment it is the part of the constitution that
protects Americans from unlawful search and seizure as well as due process if
I am not mistaken*
The 4th Amendment does nothing to protect americansgutted by courts

You might think the Fourth Amendment 70 would be the most

important constitutional provision for controlling and preventing
abuses of power in the National Surveillance State. But courts have
largely debilitated the Fourth Amendment to meet the demands of
the Regulatory and Welfare States, the National Security State, and
the War on Drugs. 71 Much government collection and use of personal
data now falls outside the Fourth Amendment's protection-at least
as the courts currently construe it. The Supreme Court has held that
there is no expectation of privacy in business records and information
that people give to third parties like banks and other businesses; 72 in the
digital age this accounts for a vast amount of personal information.
Most e-mail messages are copied onto privately held servers, making their
protection limited if not nonexistent. 73 Courts have also held that
the Fourth Amendment poses few limits on foreign intelligence
surveillance, which is largely regulated by FISA; 74 as a result, the
executive branch has increasingly justified domestic surveillance by
asserting that it is a permissible byproduct of foreign intelligence
gathering.7 5 Currently, governments are free to place cameras in public
places like streets and parks because there is no expectation of privacy there.
76 Governments can also collect information that people leave out in
the open, like their presence on a public street; or abandon, like
fingerprints, hair, or skin cells. 77 Moreover, because the Fourth
Amendment focuses on searches and seizures, it places few limits on
collation and analysis, including data mining. 78 The Fourth
Amendment does not require governments to discard any information
they have already lawfully collected. Digital files, once assembled,
can be copied and augmented with new information indefinitely for later
analysis and pattern matching. Finally, whatever constitutional limits might
restrain government do not apply to private parties, who can freely collect,
collate, and sell personal information back to the government free of Fourth
Amendment restrictions, effectively allowing an end-run around the
Constitution.
Impacts
Impact: Turns Case

Legalism and the current judicial system kills political
reform and civil liberties interests
Schlanger, professor of law at University of Michigan, 7 November
2014 (Margo, The Problem With Legalism in the Surveillance State,
Just Security, http://justsecurity.org/17163/problem-legalismsurveillance-state/, Accessed on 1 July 2015, //PK@GDI)
In addition, judicial review legitimates the American surveillance system .
That is why surveillance proponents immediately point to court supervision when they want to suggest
Court involvement is offered as evidence of both

legality and appropriateness; indeed, the two are conceptually merged. My point
that everything is fine.
is not that FISA Court legitimation is phony. In fact, judicial review has real if limited effects on the system.
the existence of judicial review makes

political change more difficult. The point is not that law accomplishes nothing for its
purported beneficiaries. If that were true, it could not legitimate. But gains from rights mayand in the
surveillance situation clearly domake gains from politics less available.
Yet the oversight gain carries with it a cost;
To sum up, neither the Constitution nor FISA aims to optimally balance security and libertyand wellunderstood difficulties in congressional intelligence oversight mean that new statutes are unlikely to fill
that gap. Likewise the existing foundational Executive Order, 12333, is at the very least out-of-date.
intelligence legalism and its compliance mindset, cannot

achieve optimal policy. Its concomitant empowerment of lawyers is real and important, but
does not deputize a pro-civil-liberties force. Indeed, legalism actually both
crowds out the consideration of policy and interests (as opposed to law and
rights), and legitimates the surveillance state, making it less susceptible
to policy reform.
Accordingly,
Legalism cannot achieve optimal policy and legitimates

the surveillance state
Schlanger, professor of law at University of Michigan, 2015
(Margo, Intelligence Legalism and the National Security Agencys Civil
Liberties Gap, Harvard National Security Journal 112, SSRN, Accessed
on 3 July 2015, //PK@GDI)
The point is not, for Freeman (and the plentiful literature he adduced), that law accomplishes nothing for
[I]f law is to serve its

legitimation function, [the] ultimate constraints [that come from politics]
must yield up just enough autonomy to the legal system to make its
operations credible for those whose allegiance it seeks as well as those
whose self - interest it rationalizes. 331 But gains from rights may and in
the surveillance situation clearly do make gains from politics less available.
its purported beneficiaries. If that were true, it could not legitimate:
To sum up this Part, neither the Constitution nor FISA aims to optimally balance security and liberty and
frequently analyzed difficulties in congressional intelligence oversight mean that new statutes are unlikely
to fill that gap. Likewise the existing foundational Executive Order, 12,333, is at the very least out - of -
intelligence legalism, and its compliance mindset, cannot

achieve optimal policy. Its concomitant empowerment of lawyers is real and
important, but does not deputize a pro - civil liberties force. Indeed, legalism
date. Accordingly
actually both crowds out the consideration of policy and interests (as opposed
to law and rights), and legitimates the surveillance state, making it less
susceptible to policy reform. Are there, then, non - legalistic reforms that could play a productive
part? I turn next to this issue
Impact: State Power

Intelligence legalism in surveillance reforms reifies more
state power and closes the public debate on surveillance
Granick, director of civil liberties at Stanford Center of Internet
and Society, 13 November 2014 (Jennifer, The Surveillance States
Legalism Isnt About Morals, Its About Manipulating the Rules, Stanford
Center of Internet and Society,
http://cyberlaw.stanford.edu/publications/surveillance-state%E2%80%99slegalism-isn%E2%80%99t-about-morals-it%E2%80%99s-about-manipulatingrules, Accessed on 2 July 2015, //PK@GDI)
Margo Schlanger has written a great article forthcoming in the Harvard National Security Journal about
intelligence legalism, an ethical framework she sees underlying NSA

surveillance. Margo makes the case that NSA and the executive branch havent been
asking what the right surveillance practices should be, but rather what
surveillance practices are allowed to be. She takes the concept of legalism from political
theorist Judith Shklar: the ethical attitude that holds moral conduct to be a matter of rule following, and
In the model of legalism

that Margo sees the NSA following, any spying that is not legally prohibited is also
right and good because ethics is synonymous with following the rules . Her
critique of intelligence legalism is that the rules are the bare minimum, and merely following the
rules doesnt take civil liberties concerns seriously enough . My question is whether
moral relationships to consist of duties and rights determined by rules.
legalism serves as a moral code for US Intelligence Community (IC) leadership, or only as a smokescreen. I
the evidence shows that since 9/11,the IC, and specifically the NSA has not
followed the rules. Rather, the agency has resorted to legalistic justifications
in pursuit of other goalsnamely whatever might be useful in countering
terrorism. Before 9/11, the agency may have been focused on complying with FISA. But afterthat day,
believe
the NSAs approach was that it could circumvent federal statutes and the Constitution so long as there
was some visceral connection to looking for terrorists. In other words, since 9/11 ,
the moral
center of gravity in the surveillance world has focused on doing
whatever is necessary for hunting terrorists, not following the rules .
Margo also argues that the NSAs legalism equates to, for better or worse, the
empowerment of lawyers. Sign-off by lawyers is, as Margo says, an important part of the process.
Lawyer opinions gave telecommunications firms legal immunity for their cooperation with the government
Lawyers were used to compel compliance from

underlings within the intelligence community . Theyve been used cynically for
public relations purposes, trading on the public trust in the actions of government lawyers to cloud the
public debate over legality. Theyve been used to marginalize the role of Congress in approving
surveillance. The decisions of lawyers inside the surveillance community have
allowed Americas spies to secretly expand their power as they develop classified
in conducting mass surveillance.
capabilities and practices that the public and Congress havent yet become aware of, and have not even
begun to regulate. But calling this empowerment is misleading. We see lawyers who object to policies
that may harm civil liberties bypassed in favor of handpicked counsel who give their bosses the answers
they want. Lawyers are ratifying surveillance decisions policy makers have already made.
Thats not
empowerment, its subservience.
State surveillance limits individual political and social

thought and creates discrimination
Richards, professor of law at Washington University in St. Louis,
20 May 2013 (Neil M., The Dangers of Surveillance, Harvard Law Review,
http://harvardlawreview.org/2013/05/the-dangers-of-surveillance/, Accessed
on 2 July 2015, //PK@GDI)
At the level of theory, I will explain why and when surveillance is particularly dangerous and when it is not.
surveillance is harmful because it can chill the exercise of our civil

liberties. With respect to civil liberties, consider surveillance of people when they are
thinking, reading, and communicating with others in order to make up their
minds about political and social issues . Such intellectual surveillance is especially
dangerous because it can cause people not to experiment with new,
controversial, or deviant ideas. To protect our intellectual freedom to think
without state over-sight or interference, we need what I have elsewhere called
intellectual privacy. A second special harm that surveillance poses is its effect on
First,
the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of
discrimination, coercion, and the threat of selective enforcement,

where critics of the government can be prosecuted or blackmailed for
wrongdoing unrelated to the purpose of the surveillance .
harms, such as
Surveillance in governance will consolidate private and

public regulatory power, transforming the state in to
transnational entity that uses surveillance as lawmaking
Backer, professor of law at Pennsylvania State University and
director of the Coalition for Peace & Ethics, 2008 (Larry Cata, Global
Panopticism: States, Corporations, and the Governance Effects of Monitoring
Regimes, Indiana Journal of Global Legal Studies Vol. 15 #1, Winter 2008,
JSTOR, //PK@GDI)
This article interrogates one critical aspect of complexity and fracture in regulatory power.1 Specifically, it
focuses on surveillance2 as a regulatory mechanism.3 I will explore some of the complexities of this
regulatory mechanism in emerging governance systems in which private entities are engaged in sovereign
functions and public entities participate in the market. The thesis of this article is fairly straightforward:
surveillance represents a complex of assumptions and objectives beyond

mere information gathering or observation. Surveillance serves both
instrumental and substantive purposes that affect the power relationships
among states, economic entities, and individuals.4 It is both technique and
the reification of norms that shape the specific character of the gaze .5
Surveillance is both ministerial the gathering of informationand
administrativethe elaboration of judgments of the importance of the actions
or individuals observed. Surveillance is also a function of its techniques.6 The technologies of
surveillance suggest the limits of the gaze and the scope of control through visibility. While virtually
everything can be monitored, power (and the limits of power) is a function of control over the way power is
the power to decide what parts of monitored

activity may be revealed, extracted, analyzed, judged, and relied on has
important consequences, consequences that themselves are the subject of further surveillance.7
Surveillance is one of the critical mechanisms of this expansion of
private power into what had been an exclusively public sphere. Increasingly,
public bodies are requiring, or permitting, private entities to monitor and
report on the conduct and activities of a host of actors. It increasingly serves
public bodies as a substitute for lawmaking. Surveillance is a flexible engine. It can
be used to decide what sorts of facts constitute information, to determine
what sorts of information ought to be privileged and which do not matter, to
gather that information, to empower people or entities to gather information,
and to act on the information gathered. In its domestic form it can be used to assign
understood, gathered, and used. Moreover,
authority over certain types of information to private enterprises and then hold those enterprises to
account on the basis of the information gathered.8 In its transnational form it can be used to construct a
set of privileged information that can be gathered and distributed voluntarily by private entities on the
basis of systems created and maintained by international public or private organizations as an alternative
Surveillance in
its various forms provides a unifying technique with which governance can be
effectuated across the boundaries of power fractures without challenging
formal regulatory power or its limits. It avoids the barrier between the public
and private spheres; it substantially increases the regulatory palette of states
without the complications of the usual limitations of public formal lawmaking
especially those of accountability and transparency . The consequences of
surveillance, particularly those consequences on the shape of governance, are to a great extent
a function of the character of the surveillance power elaborated.10 The principal effects will tend to
promote a further convergence of public and private regulatory power .11 This
to formal regulation and to provide a means of harmonizing behavior without law.9
convergence arises from a fracturing of traditional divisions of power.12 A sovereign is said to lose
its character as such when it acts, not as regulator of a market, but in the manner of a private player
within it.13 The reciprocal principle has not been accepted de jure; a private actor is not said to lose its
character as a private actor when it acts in the manner of a sovereign. Still, private players now are
required to play the role of regulator and have sought that role for themselves de facto.14 And,
increasingly, public bodies are requiring, or permitting, private entities to monitor and report on the
conduct and activities of a host of actors.15 Surveillance, then, functions as more than a descriptor of
Surveillance is a new form of lawmaking through which the old

boundaries between the public and private, national and transnational, are
made irrelevant. The construction of complex systems of conscious and
permanent visibility, as both normative systems and bundles of specific
techniques, affects the power relationships among states, economic entities,
and individuals. It represents modalities of fractures and complications in
assertions of regulatory power, replicating its forms and effects throughout
society.16 Its privatization tends to complicate the distinction between private and public institutions
methodology.
and between assertions of private (market or personal welfare maximizing) and public (regulatory or
stakeholder welfare maximization). Surveillance cuts across bordersit embodies the techniques and
To understand
the complexities and vectors of surveillance is to grasp the shape of
converging public/private governance in this century
sensibilities of an essentially transnational response to problems of governance.17
Surrendering ourselves to the State results in extinction,

not security
This, then, is an altogether different kind of understanding. Rather than rescue humankind by freeing
individuals from fear of death, this perspective recommends educating people to the truth of an
By surrendering ourselves to
States and to traditional views of self-determination, we encourage not immortality but
premature and predictable extinction. It is a relationship that can, and must, be more widely
understood. There are great ironies involved. Although the corrosive calculus of
geopolitics has now made possible the deliberate killing of all life, populations
all over the planet turn increasingly to States for security. It is the dreadful
ingenuity of States that makes possible death in the billions, but it is in the
expressions of that ingenuity that people seek safety . Indeed, as the threat of nuclear
incontestable relationship between death and geopolitics.
annihilation looms even after the Cold War, 71 the citizens of conflicting States reaffirm their segmented
loyalties, moved by the persistent unreason that is, after all, the most indelible badge of modern
humankind. As a result, increasing human uncertainty brought about by an unprecedented vulnerability to
disappearance is likely to undermine rather than support the education required. Curiously, therefore,
before we can implement such education, we will need to reduce the perceived threat of nuclear war 72
and enlarge the belief that the short-term goal of nuclear stability is within our grasp. To make this possible
we must continue to make progress on the usual and mainstream arms control measures and on the
associated strategies of international cooperation and reconciliation. In this connection, arms control [*25]
obligations must fall not only on nuclear weapon States, but also upon non-nuclear States that threaten
others with war or even genocide. "Death," says Norbert Elias, "is the absolute end of the person. So the
greater resistance to its demythologization perhaps corresponds to the greater magnitude of danger
experienced." 73 Let us, then, reduce the magnitude of danger, both experienced and anticipated. But let
us also be wary of nurturing new mythologies, of planting false hopes that offer illusions of survival in a
post-apocalypse world. Always desperate to grasp at promises that allay the fears of personal transience,
individuals are only too anxious to accept wish-fantasies of security in the

midst of preparations for Armageddon.
Prioritizing State power over that of the individual makes

war and genocide inevitable- the only solution is
individual agency

Yet, this situation is enormously ironic. By its very nature, the self-determination of peoples and
nations undermines the self-determination of individuals. 6 Encouraging the
expanding fragmentation of the world into [*3] competing sovereignties, this right under
international law makes it nearly impossible for persons to see themselves as
members of a single human family. As a result, the presumed differences between peoples
are taken as critical and the essential similarities dismissed as unimportant. Not surprisingly, war 7
and genocide 8 are not only the legacy of the current century, but also the
most probable planetary future. Self-determination, of course, has its place. Under the United
Nations Charter, this principle is treated as an indispensable corrective to the crime of colonialism. Hence,
colonial peoples are granted an "inherent" right to struggle [*4] by all necessary means, 9 and United
Nations member States are instructed to render all necessary moral and material assistance to the
Yet, the cumulative effect of claims for selfdetermination is violence and death . Reaffirming individual commitments to life in the "herd,"
struggle for freedom and independence.
10
these claims contradict the idea of global oneness and cosmopolis. From identification as Moslem
individuals all over the world

surrender themselves as persons, being told again and again that meaning
derives from belonging. Not surprisingly, these individuals are too often
willing to do anything that the group commands -- even the mass killing of
other human beings, as long as the victims are "outsiders." [*5] What do we really seek in world
Azerbaijanis or Christian Armenians, as Croats or Serbs,
affairs? If it is authentic peace and an end to war crimes 11 and crimes against humanity, 12 then the
expectation of self-determination must be balanced against the needs of planetization, of a new world
order 13 in which the commonality and community of the entire human species takes precedence over the
lethal calls of separatism, ethnic rivalry, and militaristic nationalism. Poised to consider that national
individuals everywhere must

learn to affirm their significance outside the herd, as persons rather than as
members. The herd is always potentially dangerous, whether it be the herd of
a criminal band, a discontented nationality, or a State. 14 Before the residents of this
endangered planet can discover safety in world politics, they will have to
discover power and purpose within themselves . In the end, humankind will rise or fall on
liberation can itself be the source of armed conflict and murder,
the strength of a new kind of loyalty, one that recognizes the contrived character of national, religious, and
ethnic differences and the primacy of human solidarity. Although this kind of loyalty is certainly difficult to
imagine, especially when one considers that organization into and belonging within competitive herds still
offers most people a desperately needed sense of self-worth, there seems to be no alternative .
Whether we seek an accommodation of Palestinians 15 and Israelis 16 in the Middle East, of Catholics and
Protestants in Northern Ireland, or of different nationalities in Eastern Europe, in the former USSR, or in the
the only real hope lies in getting those involved to see

themselves as individuals.
former Yugoslavia,
Surrendering the Self to the State allows for continuous

war and genocide
The State requires its members to be serviceable instruments, suppressing
every glimmer of creativity and imagination in the interest of a plastic
mediocrity. Even political liberty within particular States does nothing to encourage
opposition to war or to genocide in other States. Since "patriotic self-sacrifice" is demanded
even of "free" peoples, the expectations of inter-State competition may include war and the mass killing of
war and genocide are made possible by the

surrender of Self to the State. Given that the claims of international law 35 are rendered
other peoples. In the final analysis,
impotent by Realpolitik, this commitment to so-called power politics is itself an expression of control by the
Without such control, individuals could discover authentic bases of

personal value inside themselves, depriving the State of its capacity to make
corpses of others.
herd.
Impact: Rights
Mass surveillance violates human rights and is constantly
justified under the current system of legalism
Guild, professor at Queen Mary University of London, 12 May
2014 (Elspeth, What does mass surveillance do to Human Rights, Open
Democracy, https://www.opendemocracy.net/can-europe-make-it/elspethguild/what-does-mass-surveillance-do-to-human-rights, Accessed on 2 July
2015, //PK@GDI)
Two interconnected but separate human rights issues arise as regards mass
surveillance. The first, which is the most fundamental but the most frequently
ignored, is the right of every person to respect for his or her private and
family life. The second, which is generally the subject of more substantial
political and media noise is the duty of states to protect personal data. Those
political actors who have an interest in promoting the legality of mass
surveillance usually put forward two arguments. The first is that national and
international security is always an exception to both the duty of every state
to respect peoples privacy and the duty to protect personal data. This is the
most trenchantly defended of arguments as when this one falls away, those
actors seeking to justify mass surveillance find themselves on very weak
legal ground indeed. The second is that states obligations to protect personal
data are subject to very different rules and requirements according to the
political preferences of different states. Thus as there is no harmonization of
the specific rules as to what is acceptable data protection internationally,
states which are exercising their national and international security
prerogatives only need to fulfil their own national data protection rules.
The surveillance state eliminates privacy

Balkin, professor of constitutional law at Yale Law School, 1
January 2008 (Jack M., The Constitution in the National Surveillance
State, Yale Law School,

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers, Accessed on 2 July 2015, //PK@GDI)
Equally important, the rise of the National Surveillance State portends the death of
amnesia. In practice, much privacy protection depends on forgetting. When people
display unusual or embarrassing behavior, or participate in political protests in public
places, their most effective protection may be that most people don't know
who they are and will soon forget who did what at a certain time and place.
But cameras, facial recognition systems, and location tracking systems let
governments and businesses compile continuous records of what happens at
particular locations, which can be collated with records of different times and places. The collation
and analysis of events allows public and private actors to create locational and temporal
profiles of people, making it easier to trace and predict their behaviors . 5 7
Older surveillance cameras featured imprecise, grainy images, and the recordings were quickly taped over.
New digital systems offer ever greater fidelity and precision, 5 8 and the declining cost of digital storage
means that records of events can be maintained indefinitely and copied and distributed widely to other
surveillance systems around the country or even around the globe. 5 9 Ordinary citizens can no longer
assume that what they do will be forgotten; rather, records will be stored and collated with other
information collected at other times and places. 6 0
The greatest single protector of
privacy- amnesia-will soon be a thing of the past. As technology improves and

storage costs decline, the National Surveillance State becomes the State that
Never Forgets. 6 1
The surveillance state denies guaranteed rights through

preventative law enforcement

The National Surveillance State poses three major dangers for our freedom. Because the National
Surveillance State emphasizes ex ante prevention rather than ex post
apprehension and prosecution, the first danger is that government will create a
parallel track of preventative law enforcement that routes around the
traditional guarantees of the Bill of Rights. The Bush administration's military
detention practices and its NSA surveillance program are two examples. The
administration justified detaining and interrogating people -including American
citizens-in ways that would have violated traditional legal restraints on the
grounds that it was not engaged in ordinary criminal law enforcement . 6 2 It
sought intelligence that would prevent future attacks and wanted to prevent terrorists from returning to
the administration defended warrantless surveillance of

people in the United States by arguing that the President was not engaged in
criminal prosecutions but in collection of military intelligence designed to
fight terrorism. 6 4
the battlefield. 6 3 Similarly,
Impact: Police State

The surveillance state spurs the police state that imposes
restrictions on people outside the justice system
The second danger posed by the National Surveillance State is that traditional
law enforcement and social services will increasingly resemble the parallel
track. Once governments have access to powerful surveillance and data
mining technologies, there will be enormous political pressure to use them in
everyday law enforcement and for delivery of government services. If data
mining can help us locate terrorists, why not use it to find deadbeat dads, or
even people who have not paid their parking tickets? 6 5 If surveillance
technologies signal that certain people are likely threats to public order, why
not create a system of preventive detention outside the ordinary criminal
justice system? 6 6 Why not impose sanctions outside the criminal law, like
denying people the right to board air- planes or use public facilities and
transportation systems? And if DNA analysis can identify people who will likely impose high costs
on public resources, why not identify them in advance and exclude them from public programs and other
opportunities? The more powerful and effective our technologies of surveillance and analysis become, the
the government will feel to route around warrant requirements and

other procedural hurdles so that it can catch potential troublemakers more
effectively and efficiently before they have a chance to cause any harm.
more pressure
The surveillance state eliminates democracy and

incorporates the individual as a tool in its militarysurveillance empire
Hickman, poet and philosophical speculator, 28 June 2015 (Steven
Craig, The Total Surveillance Society: The Endgame of Democracy, Dark
Ecologies, http://darkecologies.com/2015/06/28/the-total-surveillance-societythe-endgame-of-democracy/, Accessed on 2 July 2015, //PK@GDI)
This sense that we are all traceable, that we have become data to be marked and
inscribed in a system of traces: gleaned, stored, organized, dispersed, sorted,
analyzed and massaged; deconstructed and reconstructed into various modalities, pushed through
specialized filters and segmented off algorithmically for analytical appraisal, reanalyzed by specialized
knowledge-workers in the capitalist military-surveillance empire that then present their findings to higher
registered and formalized into various

linguistic traces and signifiers as adjuncts to the decisional apparatus of
global governance as a system of command and control itself. This is the new
world we live in, the merger of the military-industrial and securitysurveillance empire of global capital. And whether it is micromanaged on a local,
national, or global scale it is a part of a system of traces that are themselves traceable:
verified by those like Edward Snowden and others who have been able to free
those traces into the public eye for reappraisal and visibility on a global scale
using the only tool of freedom that can still capture the public mind or
echelons of this same global system to ultimately be
general intellect: the internet. Such acts of courage bring with them the truth
that our world is enmeshed in an invisible layer of technology and technics
that seek to trace every aspect of our affective (body) and intellectual (mind)
existence, to codify it in the ghost worlds of military-corporate shadowsystems that can be used as inscriptions to control not our actual lives but
our inscribed life as situated in the virtual. Our virtual life becomes a
potential tool that can then be activated by power as it sees fit: as a military,
commercial, or exclusionary tool of law.
The surveillance states uses every tool to extract

information from bodies- including torture

The National Surveillance State seeks any and all information that assists
governance; electronic surveillance is not its only tool. Governments can also
get information out of human bodies, for example, through collection and
analysis of DNA, through locational tracking, and through facial recognition
systems. 4 9 The Bush administration's detention and interrogation practices
seek to get information out of human bodies through old-fashioned detention
and interrogation techniques, including techniques that are tantamount to torture. 5 0 In
the National Surveillance State, bodies are not simply objects of governance;
they are rich sources of information that governments can mine through a
multitude of different technologies and techniques.
Impact: Panopticon
The surveillance state transcends panoptic governance to
create links between the traces of every person
Decades ago Michel Foucault argued that modern societies had become
increasingly focused on watching and measuring people in order to control
them, to normalize their behavior and to make them docile and obedient . 5 1
His famous example was Jeremy Bentham's idea of a Panopticon-a prison designed so that the prisoners
By making surveillance
ubiquitous, governments and private organizations could discourage behavior
they deemed unusual or abnormal. Today's National Surveillance State goes
beyond Foucault's Panoptic model. Government's most important technique
of control is no longer watching or threatening to watch. It is analyzing and
drawing connections between data. Much public and private surveillance occurs
without any knowledge that one is watched . More to the point, data mining
technologies allow the state and business enterprises to record perfectly
innocent behavior that no one is particularly ashamed of and draw
surprisingly powerful inferences about people's behavior, beliefs, and
attitudes. 5 3 Over time, these tools will only become more effective. We leave
traces of ourselves continually, including our location, our communications
contacts, our consumption choices-even our DNA.
could always be watched but would not know exactly when. 5 2
The normalizing effects of modern power the plan

espouses comes before any violence it solves- only this
prioritization creates the agency to oppose the state
Bevir, professor of political science at UC Berkeley, 1999 (Mark,
Foucault and Critique: Deploying Agency against Autonomy, University of

Newcastle, JSTOR, //PK@GDI)
A key question raised by my account of a composed Foucault's concept of governmentality is: what
constitutes a worthwhile form of agency? To appreciate just how vital this question now has
become for us, we need only to recall the strength of Foucault's critique of the
normalizing effect of modern power. Modern power is not violent since it
passes through the consciousness of the individual in a way that entails a
recognition of the other as an agent. Nonetheless, Foucault consistently argues that
individuals in modern society typically use their agency only to regulate
themselves in accord with social norms .34 Far from resisting the normalizing
effects of power, they act so as to promote them. Moreover, Foucault clearly regards this
as a bad thing, complaining, in particular, of the state having taken over the techniques of pastoral power.
the normalizing effects of modern power even leads him to

is worse - more damaging - than overt violence . After all, violence is at
least visible and honest, whereas modern power renders us insipid and
uniform while pretending to liberate our true, inner selves . Power might be preferable
Sometimes his distaste for
imply it
to violence in that it recognises the other as an agent, but if the strength of modern power is such that the
other uses his agency only to normalize himself, then perhaps we should prefer an honest violence to a
deceitful power. It is this possibility that gives urgency to the question of what constitutes a worthwhile
We need forms of agency that resist not only the overt violence so
often associated with the state, but, at least as importantly, the normalizing
effects of a pastoral-power taken over by the modern state . As Foucault insisted,
"the political, social, philosophical 16 problem of our days is not to try to
liberate the individual from the state, and from the state's institutions, but to
liberate us both from the state and from the type of individualization which is
linked to the state."35 His work on an ethic of care for the self provides us with suggestions as to
form of agency.
the types of resistance we need to develop in order to sustain such liberation.
Impact: Race
The surveillance state is inherently racist and cultivates
racism to legitimize itself to the public
Kudnani and Kumar 15 (Arun, professor at NYU, Deepa, associate
professor at Rutgers University, Race, Surveillance, and Empire,

International Socialist Review, Spring 2015, http://isreview.org/issue/96/racesurveillance-and-empire, Accessed on 3 July 2015, //PK@GDI)
In what follows, we argue that the debate on national security surveillance
that has emerged in the United States since the summer of 2013 is woefully
inadequate, due to its failure to place questions of race and empire at the
center of its analysis. It is racist ideas that form the basis for the ways
national security surveillance is organized and deployed, racist fears that are
whipped up to legitimize this surveillance to the American public, and the
disproportionately targeted racialized groups that have been most effective in
making sense of it and organizing opposition. This is as true today as it has
been historically: race and state surveillance are intertwined in the history of
US capitalism. Likewise, we argue that the history of national security
surveillance in the United States is inseparable from the history of US
colonialism and empire. The argument is divided into two parts. The first
identifies a number of moments in the history of national security
surveillance in North America, tracing its imbrication with race, empire, and
capital, from the settler-colonial period through to the neoliberal era. Our
focus here is on how race as a sociopolitical category is produced and
reproduced historically in the United States through systems of surveillance.
We show how throughout the history of the United States the systematic
collection of information has been interwoven with mechanisms of racial
oppression. From Anglo settler-colonialism, the establishment of the
plantation system, the postCivil War reconstruction era, the US conquest of
the Philippines, and the emergence of the national security state in the postWorld War II era, to neoliberalism in the post-Civil Rights era, racialized
surveillance has enabled the consolidation of capital and empire.
Impact: Bare Life For Reject Shell

The terminal impact of biopower is a state in which legal
order is the same bare life
Dean, 04 (Mitchell Dean, professor of sociology at the University of Newcastle (Mitchell, Four Theses on the
Powers of Life and Death, Contretemps 5, December 2004, http://sydney.edu.au/contretemps/5december2004/dean.pdf,

12/5/04, DOA 7/1/15, AMB@GDI)
Fourth thesis: Bio-politics captures life stripped naked (or the zo that was the exception of
sovereign power) and makes it a matter of political life (bios). Today, we seek the good life though the extension of the
powers over bare life to the point at which they become indistinguishable. In this formulation, the emergence of a
government over life in the eighteenth century does mark a rupture in forms of rule, which the search for an originary
structure of sovereignty cannot capture. For Foucault, the nature of this rupture is the displacement, articulation or reinscription of sovereignty within a peculiarly modern form of politics, bio-politics. However, this capture of the government
of the state by bio-powers is already present in the structure of sovereignty. It would be a mistake, in this sense, to view
Agambens quest for the structure of sovereignty, with its multiple thresholds, as ahistorical, that is, as insensitive to
the demonic character of

modern states lies in the possibility that the thresholds that
maintained bare life as a state of exception are breaking down . Zo is
entering into a sphere of indistinction with bios in modern politics. For Agamben the paradigm of
modern politicsthe new Nomosis not the liberal governing of
freedom, but the concentration camp. The camp is the material form
of the stabilization of the state of exception, the excluded inclusion, both inside and
outside modern political and legal ordering. Because the camp is established by law as a
space of exception, it is subject to no order itself, only direct police
command. It is thus a space of ordered disorder in which bare life
enters into a zone of indistinction with legal order. While such views may appear to
temporal thresholds. His thesis offers a kind of history of modernity. Here,
lead to a kind of radical condemnation of many instances of bio-politics, such as the attempt to develop humane
processing procedures for asylum seekers, the idea of mapping zones of indistinction would seem to locate arenas of
We have become used to

a style of criticism in which liberal notions of the individual citizen
have been revealed to be constituted through a series of exclusions
analysis and spheres of contestation rather than a site of dogmatic rejection.
(of women, the disabled, prisoners, the insane, the poor, the indigene, the refugee, etc). Note that Contretemps 5,
December 2004 28 bio-power today holds the promise of extraordinary solutions to disability, criminality and insanity. The
inclusion of women through their state of exclusion, also, would appear to raise interesting questions concerning
sovereign violence given womens historic biological relationship to the reproduction and care of human life. This
relationship, itself excepted under the universality of law, is thus produced as bare life; and women are required to take
desire for inclusion may

have the effect not simply of widening the sphere of the rule of law
but also of hastening the point at which the sovereign exception
enters into a zone of indistinction with the rule. Our societies would
then have become truly demonic, not because of the re-inscription of sovereignty within biopolitics, but because bare life which constituted the sovereign exception
begins to enter a zone of indistinction with our moral and political
life and with the fundamental presuppositions of political
community. In the achievement of inclusion in the name of universal human rights, all human life is stripped
naked and becomes sacred. Perhaps in a very real sense we are all homo sacer. Perhaps what we have
been in danger of missing is the way in which the sovereign violence
that constitutes the exception of bare lifethat which can be killed
without committing homicideis today entering into the very core of
modern politics, ethics, and systems of justice.
responsibility for sovereign decisions. If we are to take Agamben seriously, this
The state of exception views individuals as the other

outside of the apparatus
Kusina 6 (Professor of Philosophy @ Bowling Green State University (Jeanne, The Wolf at the Door: Agamben's
State of Exception, http://iph.fsu.edu/interculture/pdfs/kusina%20lost.pdf, October 22, 2006, DOA 7/3/15, AMB@GDI)
In Schmitts formulation of the state of exception,
the sovereign decisively moderates the

temporary suspension of the law only to return it to its normal state
of affairs once the emergence has past (SE, 10). It is a process analogous to the werewolf of
medieval folklore who, having completed the transformation back into human form, knocks three times upon the door and
a distinctly different view, emphasized

rejects the claim
that the state of exception is a temporary condition. On Benjamins account, once
is once again allowed back into the city (HS 107-8). However,
by Agamben and originally presented by Walter Benjamin is his Philosophy is History,
the state of exception is created no movement is made to return it to an allegedly normal order. Having arrived at the
position of the homo sacer, the inhabitants of such zones seemingly exist in something of a timeless state of suspended
animation. Attention shifts as one crisis is inevitably followed by a new crisis close on its heels. Gradually, the exception
has become the rule; moreover, Agamben alleges,
this is not a situation limited to an

unfortunate few but is instead one with the potential to capture any
and all within it. Take into consideration the catastrophic situation
created by Hurricane Katrina in 2005. Finding itself woefully unprepared to respond to such a natural disaster, the United States
governments response to the people of New Orleans was to declare
a state of emergency and urge evacuation. Most of those with
financial means and available transportation did evacuate, while
thousands of people with limited resources were unable to leave.
Despite being unable to provide adequate food, water, shelter, or medical support to the citizens that remained, the
As the severity
of the situation escalated so did the violence; and, amidst the
swelling floodwaters, New Orleans became a lawless zone of
exception within which anyone, it seemed, could be killed at any time.
governments declaration of martial law initially prioritized protecting businesses from looters.
Millions of people watched the human drama unfold on television for several long, painful days, utterly dismayed by what
appeared to be the governments total lack of response to the horrific events that were unfolding. Contrary to the myths
of sovereign protection that so often motivate an acceptance of biopolitic regulation ,
Hurricane Katrina
exposed the paradigmatic structure of the camp by unmasking the
law as being little more than a technicality, a force that is felt only in
its withdrawal and, ultimately, its total abandonment. This permits
us to once again speculate on the temporal rhetoric of urgency that
always seems so insistent on carving out an isolated space of
exception. The temporal element that was so fleeting prior to the exception appears to metaphorically change
speed again. For it seems as though often, once the state of exception is achieved, the call of future history that was so
desperately in need of action seems noticeably less pressing, perhaps even a distant possibility. For example, by having
gone through with the invasion of Iraq but in not being able to establish lasting order there, the nation of Iraq came to
mark a territory of exception. Curiously, the rhetoric of time employed by the Bush administration also appeared to slow
down considerably in concurrence with these events. Moving away from continuing to call upon the American people to
become the pre-emptive authors of their own history, within the next few years the President would frequently make
remarks that expressed longevity, perhaps even complacency, rather than urgency: Imagine a world in which they were
able to control governments, a world awash with oil and they would use oil resources to punish industrialized nations If
we allow them to do this, if we retreat from Iraq, if we don't uphold our duty to support those who are desirous to live in
liberty, 50 years from now history will look back on our time with unforgiving clarity, and demand to know why we did not
act.
Impact: Extinction For Reject Shell

The biopower rooted in the affirmative make genocide and
WMD inevitable
Dean, 04 (Mitchell professor of sociology at the University of Newcastle (Mitchell, Four Theses on the Powers of
Life and Death, Contretemps 5, http://sydney.edu.au/contretemps/5december2004/dean.pdf, December 2004, DOA
7/2/15, AMB@GDI)
The possibilities for the manipulation of the very biological

processes life are not
limited to what has been called the genetic age made possible by molecular biology and human genetics. There
are advances in organ transplantation and in our medical capacities to sustain life. All of these processes of the
manipulation of life contain what we like to think of as ethical questions. Notions of brain death and the ensuing futility
of further attempts to restore normal life functioning redefine problems of euthanasia. Various forms of prenatal testing
and screening of pregnant women redefine the conditions of acceptability of abortions. Other such ethical questions
concern the harvesting of organs for transplantation, or of the maintenance of the integrity and diversity of biological
species in the face of genetically modified crops and seeds, etc. The capacity to manipulate our mere biological life, rather
than simply to govern aspects of forms of life, implies a biopolitics that contests how and when we use these technologies
and for what purposes. It also implies a redrawing of the relations between life and death, and a new thanatopolitics, a
new politics of death. 17 Contretemps 5, December 2004 At some distance from these advances in biomedicine
the issues of life and death that are played in various

arenas of international politics and human rights. These concern the
effects of the break-ups of nation-states from Yugoslavia and the Soviet Union to
Indonesia, the subsequent movement, detention, expulsion, processing, and mass death of
refugees and illegal immigrants, and the conditions and forms under which
military action, peacekeeping and humanitarian intervention are acceptable. They
concern the international coalition against the polycentric network of terrorism. Detention camps
are again becoming a feature of modern liberal-democratic states . On
the one hand, the twentieth century gave us a name for the death of a whole people
or race, genocide. On the other, it sought to promote the universal rights of individuals by virtue of
their mere existence as human beings. Bio-politics and thanato-politics are played
out in war, in torture, and in biological, chemical and atomic
weapons of mass destruction as much as in declarations of human rights and United
and biotechnology are
Nations peacekeeping operations. The potentialities for the care and the manipulation of the biological processes of
life and of the powers of death have never appeared greater than they do today. But how do we consider this problem as a
issues of life and death related to our conceptions of

politics and political community to the way in which we think about
states and societies, and their futures? Are the ideas of powers of life and death peculiarly modern, or do
political problem? How are
they lie at a deeper strata?My concern in this paper is to consider issues of life and death as political issues, to locate a
bio-politics, a politics of life, and a thanato-politics, a politics of death, within our ways of thinking about and imagining
politics. I follow two recent theorists, Michel Foucault and Giorgio Agamben, who are convinced that not only must we
consider how we exercise powers of life and death in modern politics but how the very notion of politics and political
community are intimately related to such issues. At issue is the power we call sovereign power, and its relation to this
politics of life and death. I shall in turn consider four possible theses that can be derived from the work of these thinkers
and from other twentieth century critical and legal theorists.
Empirically biopolitical domination enables systematic

violence
Dean, 04 (Mitchell Dean, professor of sociology at the University of Newcastle (Mitchell, Four Theses on the
Powers of Life and Death, Contretemps 5, http://sydney.edu.au/contretemps/5december2004/dean.pdf, December 2004,
DOA 7/3/15, AMB@GDI)
modern powers are more

closely aligned to a bio-politics, a politics of life. This bio-politics emerges in the eighteenth
For Foucault, at least in the History of Sexuality and related texts,
century with the concerns for the health, housing, habitation, welfare and living conditions of the population. Such an
observation leads him to place his concerns with health, discipline, the body, and sexuality within a more general horizon.
Again the notion of bio-politics is quite complex. The idea of the population as a kind of species body subject to biopolitical knowledge and power operating in concert with the individual body subject to disciplinary powers would appear
central.11 No matter how bloody things were under the exercise of sovereign power with its atrocious crimes and
it is only with the advent of this modern form of the politics of life
that the same logic and technology applied to the care and
development of human life is applied to the destruction of entire
populations. The link between social welfare and mass slaughters
can at times appear to be a fairly direct one. Of one of its first manifestations in German
retributions,
police science, Foucault argues, it wields its power over living beings as living beings, and its politics,
therefore has to be a bio-politics .
Since the population is nothing more than

what the state takes care of for its own sake, of course, the state is
entitled to slaughter
it. So the reverse of bio-politics is thanato-politics.12 Despite such statements,
there is a hesitation, a point of indeterminacy, in this relation between bio-politics and thanato-politics. Foucault seems to
identify a puzzle or an aporia of contemporary politics, which he cannot resolve or which may itself be irresolvable. The
coexistence in political structures of large destructive mechanisms and institutions oriented to the care of individual life is
something puzzling, he states.13 But he immediately adds I dont mean that mass slaughters are the effect, the result,
the logical consequence of our rationality, nor do I mean that
the state has the obligation of taking care of
individuals since it has the right to kill millions of people. After proceeding through this set
of inconclusive negatives he avers, as if trying to defer the answer to the questions he poses: It is this rationality, and the
death and life game which takes place in it, that Id like to investigate from a historical point of view. One aspect of this
historical investigation occurred in Foucaults 1976 lectures. These lectures cover such concerns as the seventeenthcentury historical-political narrative of the war of the races, and the biological and social class re-inscriptions of racial
discourse in the nineteenth century.14 He concludes with the development of the biological state racisms and the
genocidal politics of the twentieth century, including a radical analysis of the Nazi state and of socialism. From this
perspective, there is a certain potentiality within the human sciences which, when alloyed to notions such as race, can
help make Contretemps 5, December 2004 20 intelligible the catastrophes of the twentieth century. Such lectures seem to
make the totalitarian rule of the twentieth century a capstone on the histories of confinement, internment and
punishment that had made up his genealogical work. This thesis is perhaps close to the work of the first generation of the
the one-sided development of

rationality and application of reason to man in the human sciences
has the consequence of converting instrumental rationality into
forms of domination. Bio-politics in this reading is the application of instrumental rationality to
life. The dreadful outcomes of the twentieth century then result from
this kind of scientization and technologization of earlier notions of
race. There is also a similarity in this reading of Foucault and the work of Zygmunt Bauman.15 The
Frankfurt School and a certain reading of Max Weber. Here
latter presents the Holocaust as something that must be understood as endogenous to Western civilization
and its processes of rationalization rather than as an aberrant psychological, social or political pathology.
Alternative
Criticism
Constant criticism and trashing of the legal system
exposes true legal thought the liberation and fate of
humanity is at stake

No matter how cogent the CLSers' expose of traditional legal thought may be, they must still suggest some alternative. To
retain credibility, sustain allegiance, and mobilize support, they must offer their own tangible vision of the "good society."
If their work is not to be consigned to the dustbin of history, they must seek to translate their theories into some
attainable dimensions of human experience: "To nurture the seeds of social progress [there must be] . . . some concrete
any theory that the

Critical scholars provide must be capable of accommodating both
their doctrine of social contingency and the contradiction between
community and individual. The CLSers must actively work to fulfill their self-appointed roles as
creative mediators between the ideal of freedom and the actuality of a free world. The challenge is a
supreme one, and the long term prospects of the CLS movement are
not all that hangs in the balance: If the CLSers are right about the
conception of the soil in which they are intended to grow." n123 Moreover,
contingency of history and the insuperability of the fundamental

contradiction, the very "fate of humanity"
n124
is at stake.
We do not mean to
suggest that the extensive CLS critiques of existing law and legal theory are purely negative and without constructive
criticism can liberate and enlighten. By

"unfreezing" the world as it now [*228] appears, the Critical scholars hope to enable individuals
to imagine and attain new possibilities for self-development and meaningful social interaction. For the CLSers ,
criticism is an antidote to the social paralysis induced and sustained
by the existing hierarchical nature of society. n125 By reassuring people that things
need not always be as they now are, the CLS movement can inspire the confidence
necessary to reject prevailing arrangements. And because the CLSers believe that
"the strength to live with the sober truth will become general [only
when] the causes of untruth are removed," n126 "trashing" is viewed
as a valid form of legal scholarship. Indeed, to some of the Critical scholars, it is the
"most valid form": n127 That trashing may reveal truth seems
significant if one's mission as a scholar is to tell the truth. If telling
potential. Criticism can be a very creative therapy;
the truth requires one to engage in delegitimation, then that is

what one ought to be doing
The point of delegitimation is to expose possibilities more truly
expressing reality, possibilities of fashioning a future that might at least partially realize a substantive notion of justice
instead of the abstract, rightsy, traditional, bourgeois notions of justice that generate so much of the contradictory
scholarship. One must start by knowing what is going on, by freeing oneself from the mystified delusions embedded in our
consciousness by the liberal legal world view. I am not defending a form of scholarship that simply offers another
affirmative presentation; rather, I am advocating negative, Critical activity as the only path that might lead to a liberated
future.The
task of a scholar is thus to liberate people from their

abstractions, to reduce abstractions to concrete historical settings,
and, by so doing, to expose as ideology what appears to be positive
fact or ethical norm.
Criticism Solvency
Alt solves Criticism is key to challenging the surveillance
system
Setty, 15 (Sudha, Professor of Law and Associate Dean for Faculty Development & Intellectual Life, Western New England University
School of Law, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful Accountability, Winter, Stanford Journal of International Law,
51 Stan. J Int'l L. 69, DOA 7/02/15, AMB@GDI)
The surveillance and data collection that are part of the NSA
Metadata Program have been largely validated by two forms of
relatively weak judicial review: Article III courts have, until recently, largely refused to hear the
merits of cases challenging the government surveillance, instead finding that plaintiffs are unable to satisfy the standing
requirement,
or dismissing suits at the pleadings stage due to

invocations of the state secrets privilege by the government.
n28
n29
The
Foreign Intelligence Surveillance Court (FISC), tasked with determining the legality of many of the government's
surveillance requests, has largely acquiesced to the government's requests over the years .
Cases litigated
after the Snowden revelations of June 2013 suggest, however, that
the judicial deference offered to the government in many previous
counterterrorism cases may be curtailed in light of public attention
and critique of the NSA Metadata Program, as well as
a [*76] reinvigorated judicial embrace of the privacy protections
embodied in the Fourth Amendment. n31
n30
Critique alone leads to political action in the future

Hutchinson and Monahan in 84 (llan C. Hutchinson and Patrick J. Monahan, CRITICAL LEGAL
STUDIES SYMPOSIUM: Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal
Thought, 36 Stan. L. Rev. 199, Stanford Law Review, January, 1984, DOA 7/2/15, AMB@GDI)
The Critical scholars' radical challenge to traditional legal thought is unsettling. Unlike the in-house squabbles between
the debate between the Critical scholars and

mainstream legal theorists is not over matters of degree or
emphasis. And because the conflict is over something much more
profound and elemental than legal doctrine, the likelihood of
cooptation is small. Further, the Critical scholars do not seek to displace traditional jurists from center
the Harts and the Fullers,
n192
stage merely to have the spotlight focused on themselves.Instead, they want to revolutionize the whole theory and
performance of the American legal drama. They do not simply wish to exchange the scripts and the sentiments of
Shakespeare for those of Brecht or Fugard. The message and the medium must change
The focus of attention must shift from the artifacts of the juristic stage to the reality of the citizen audience. The ultimate
goal must be to [*244] promote "street theater," the spontaneous involvement of people in everyday situations. n193
The ambition of the Critical scholars is revolution, not reform. For

them, intellectual critique is merely a prelude to, and platform for,
political action. n194 Whether they will be able to move in from the threshold or will be relegated to
jurisprudential limbo will depend, at least in part, on their response to some of the fundamental theoretical and practical
objections raised in this article.
Overcoming social heirarchies can only happen with a

shattering of the legal order bringing upon strength as a
right
Hutchinson and Monahan in 84 (Allan C. Hutchinson and Patrick J. Monahan, CRITICAL LEGAL
The distinctive feature of the CLS movement, therefore, is its desire

to shatter the limiting conceptions of the possibilities of human
association and of social transformation embodied in liberal legal
thought. The CLSers' enterprise is to complete the modern rebellion
against the view that social arrangements are natural or inevitable.
They want to expose society as the vulgar and contingent product of interrupted fighting. Their central strategy is to
suggest that social order exists only because, at some arbitrary point, the struggle between individuals was halted and
truce lines were drawn up. These truce lines define the structure of a society's politics and production. Although these
truce lines initially are simply the product of an uneasy [*217] deal between combatants, eventually they stabilize and
A sense of stability is generated by the insistence that the

truce lines represent more than the residue of interrupted fighting: Strength becomes right,
become fixed.
obedience becomes duty, and the ad hoc nature of hierarchical

division in society is obscured .
n77 Inspired by a vision of the contingent nature of all social
worlds, the CLS project is to identify the role played by law and legal reasoning in the process through which social
By identifying and overturning the

extant forms of legal consciousness, the CLSers hope to liberate the
individual in society. Their method for exposing the distortion between the apparent order of the legal
process and the disorder of social life is to examine the intellectual devices that conceal this discrepancy . Whereas the
structures acquire the appearance of inevitability.
Realists exposed indeterminacy in legal doctrine, the Critical scholars abstract from legal materials the underlying
By demonstrating that social

life is much less structured and much more complex, much less
impartial and much more irrational, than the legal process suggests,
the interests served by legal doctrine and theory will surface. n78 As a necessary precondition to
the restructuring of society, the CLS movement seeks to penetrate
the surface of "social reality," to expose the actual workings of
society, to reveal particular interests that are identified with
universal claims, and to discover the process by which
contradictions in the world are denied and the status quo presented
as a natural, rather than contingent, state of affairs. It is the structuring of reality
premises that combine to form a distinct way of looking at the world.
using elemental beliefs and assumptions that "ma[kes] a particular version of society stand in place of the indefinite
possibilities of human connection." n79 The potency of belief-structures or ideologies lies in their tendency to establish a
dynamic of their own and to confer on legal doctrine a false air of naturalness. For the Critical scholars, legal
consciousness is a cerebral tool for the suppression of time: It is a device to hide or deny the fundamental truth that
everything is in a process of changing or becoming. n80
Rejection
The alt is to vote negative in favor of critique before
actionwe accept power is inevitable, yet understand it
can be productive or destructive but only powerful
analysis of domination can challenge discourse we are
faced with and work as a pre-requisite to action
Flyvbjerg and Richardson 2
(Aalborg University, Department of Development and Planning AND

Dark Side of Planning Theory http://flyvbjerg.plan.aau.dk/DarkSide2.pdf, nkj, DOA 7/2/15, AMB@GDI)
Instead of side-stepping or seeking to remove the traces of power

from planning, an alternative approach accepts power as
unavoidable, recognising its all pervasive nature, and emphasising
its productive as well as destructive potential . Here, theory engages
squarely with policy made on a field of power struggles between
different interests, where knowledge and truth are contested, and
the rationality of planning is exposed as a focus of conflict. This is what
Flyvbjerg has called realrationalitt, or real-life rationality (Flyvbjerg 1996), where the focus shifts from what should be
done to what is actually done. This analysis embraces the idea that rationality is penetrated by power, and the dynamic
between the two is critical in understanding what policy is about. It therefore becomes meaningless, or misleading - for
politicians, administrators and researchers alike - to operate with a concept of rationality in which power is absent
(Flyvbjerg 1998, 164-65). Both Foucault and Habermas are political thinkers. Habermass thinking is well developed as
concerns political ideals, but weak in its understanding of actual political processes. Foucaults thinking, conversely, is
weak with reference to generalised ideals--Foucault is a declared opponent of ideals, understood as definitive answers to
Kants question, What ought I to do? or Lenins What is to be done?--but his work reflects a sophisticated understanding
politics one must side with reason.

Foucault (1980b) warns that to respect
rationalism as an ideal should never constitute a blackmail to
prevent the analysis of the rationalities really at work (Rajchman 1988, 170).
of Realpolitik. Both Foucault and Habermas agree that in
Referring to Habermas and similar thinkers, however,
Habermass main complaint about Foucault is what Habermas sees as Foucaults relativism. Thus Habermas (1987, 276)
harshly dismisses Foucaults genealogical historiographies as relativistic, cryptonormative illusory science. Such critique
for relativism is correct, if by relativistic we mean unfounded in norms that can be rationally and universally grounded .
Foucaults norms are not foundationalist like Habermass: they are expressed in a desire
to challenge every abuse of power, whoever the author, whoever the
victims (Miller 1993, 316) and in this way to give new impetus, as far and
wide as possible, to the undefined work of freedom (Foucault 1984a, 46).
Foucault here is the Nietzschean democrat, for whom any form of government - liberal or
totalitarian - must be subjected to analysis and critique based on a
will not to be dominated, voicing concerns in public and withholding
consent about anything that appears to be unacceptable. Such norms
cannot be given a universal grounding independent of those people
and that context, according to Foucault. Nor would such grounding be
desirable, since it would entail an ethical uniformity with the kind of
utopian-totalitarian implications that Foucault would warn against in
any context, be it that of Marx, Rousseau or Habermas: The search for a
form of morality acceptable by everyone in the sense that everyone
would have to submit to it, seems catastrophic to me
Rabinow 1986, 119). In a Foucauldian interpretation
empower it .
(Foucault 1984c, 37 quoted in Dreyfus and
, such a morality would endanger freedom, not
Instead, Foucault focuses on the analysis of evils and shows restraint in matters of commitment to
ideas and systems of thought about what is good for man, given the historical experience that few things have produced
more suffering among humans than strong commitments to implementing utopian visions of the good.
the socially and historically conditioned context, and not

fictive universals, constitutes the most effective bulwark against
relativism and nihilism, and the best basis for action. Our sociality
and history, according to Foucault, is the only foundation we have,
the only solid ground under our feet. And this socio-historical
foundation is fully adequate.
Foucault, perhaps more than any recent philosopher, reminded us of the crucial importance
of power in the shaping and control of discourses, the production of
knowledge, and the social construction of spaces. His analysis of modern power has often
For Foucault
been read by planning theorists as negative institutionalised oppression, expressed most chillingly in his analysis of the disciplinary regime of
the prison in Discipline and Punish (Foucault 1979). However, it is
Foucaults explanation of power as
productive and local, rather than oppressive and hierarchical, that

suggests real opportunities for agency and change (McNay 1994). Whilst
Foucault saw discourse as a medium which transmits and produces
power, he points out that it is also a hindrance, a stumbling-block, a
point of resistance and a starting point for an opposing strategy . So,
at the same time as discourse reinforces power, it also undermines
and exposes it, renders it fragile and makes it possible to thwart it
(Foucault 1990, 101). Foucault rarely separated knowledge from power , and the idea of
power/knowledge was of crucial importance: we should abandon a whole tradition that
allows us to imagine that knowledge can exist only where the power
relations are suspended and that knowledge can develop only
outside its injunctions, its demands and its interests ... we should abandon
the belief that power makes mad and that, by the same token, the
renunciation of power is one of the conditions of knowledge. We
should admit rather that power produced knowledge .. that power
and knowledge directly imply one another; that there is no power
relation without the correlative constitution of a field of
knowledge ... (Foucault 1979, 27). For Foucault, then, rationality was contingent, shaped
by power relations, rather than context-free and objective.
According to Foucault, Habermass (undated, 8) authorisation of power by law is inadequate (emphasis deleted). [The juridical system] is
utterly incongruous with the new methods of power, says Foucault (1980a, 89), methods that are employed on all levels and in forms that go
beyond the state and its apparatus... Our historical gradient carries us further and further away from a reign of law.
The law,
institutions - or policies and plans - provide no guarantee of

freedom, equality or democracy. Not even entire institutional
systems , according to Foucault, can ensure freedom , even though they are
established with that purpose. Nor is freedom likely to be achieved
by imposing abstract theoretical systems or correct thinking. On the
contrary, history has demonstrated--says Foucault--horrifying examples that it is precisely those social systems which have
turned freedom into theoretical formulas and treated practice as social engineering, i.e., as an epistemically derived
techne, that become most repressive. [People] reproach me for not presenting an overall theory, says Foucault (1984b, 375-6), I am
attempting, to the contrary apart from any totalisation - which would be at once abstract and limiting - to open up problems that are as
concrete and general as possible. What Foucault calls his political task is to criticise the working of institutions which appear
to be both neutral and independent; to criticise them in such a manner that the political violence which has always
exercised itself obscurely through them will be unmasked, so that one can fight them (Chomsky and Foucault 1974, 171).
This is
what, in a Foucauldian interpretation, would be seen as
an effective approach to
institutional change, including change in the institutions of civil

society. With direct reference to Habermas, Foucault (1988, 18) adds: The problem is not of trying
to dissolve [relations of power] in the utopia of a perfectly
transparent communication, but to give...the rules of law, the

techniques of management, and also the ethics...which would allow
these games of power to be played with a minimum of domination.
Here Foucault overestimates his differences with Habermas, for Habermas also believes that the ideal speech situation cannot be established
as a conventional reality in actual communication. Both thinkers see the regulation of actual relations of dominance as crucial, but whereas
Habermas approaches regulation from a universalistic theory of discourse, Foucault seeks out a genealogical understanding of actual power
For
Foucault praxis and freedom are derived not from universals or
theories. Freedom is a practice , and its ideal is not a utopian
absence of power. Resistance and struggle, in contrast to consensus,
is for Foucault the most solid basis for the practice of freedom. Whereas
Habermas emphasises procedural macro politics, Foucault stresses substantive micro politics ,
though with the important shared feature that neither Foucault nor Habermas venture to define the actual content of
political action. This is defined by the participants. Thus, both Habermas and Foucault are
relations in specific contexts. Foucault is thus oriented towards phronesis, whereas Habermass orientation is towards episteme.
bottom-up thinkers as concerns the content of politics, but where Habermas thinks in a top-down moralist fashion as regards procedural
rationality having sketched out the procedures to be followed - Foucault is a bottom-up thinker as regards both process and
content. In this interpretation, Habermas would want to tell individuals and groups how to go about their affairs as regards procedure for
Foucault would
prescribe neither process nor outcome; he would only recommend a
focus on conflict and power relations as the most effective point of
departure for the fight against domination. It is because of his double bottom-up thinking that
discourse. He would not want, however, to say anything about the outcome of this procedure.
Foucault has been described as non-action oriented. Foucault (1981) says about such criticism, in a manner that would be pertinent to those
who work in the institutional setting of planning:
Its true that certain people, such as those who work in the institutional setting of the prison...are not likely to find advice
or instructions in my books to tell them what is to be done. But my project is precisely to bring it about that they no
longer know what to do, so that the acts, gestures, discourses that up until then had seemed to go without saying
become problematic, difficult, dangerous (Miller 1993, 235). The depiction of Foucault as non-action oriented is correct to the extent
that Foucault hesitates to give directives for action, and he directly distances himself from the kinds of universal What is to be done?
Foucault believes that

solutions of this type are themselves part of the problem. Seeing
Foucault as non-action oriented would be misleading , however, insofar as
Foucaults genealogical studies are carried out only in order to show
how things can be done differently to separate out, from the
contingency that has made us what we are, the possibility of no
longer being, doing, or thinking what we are, do, or think (Foucault 1984a,
formulas which characterise procedure in Habermass communicative rationality.
45-7). Thus Foucault was openly pleased when during a revolt in some of the French prisons the prisoners in their cells
read his Discipline and Punish. They shouted the text to other prisoners, Foucault told an interviewer. I know its pretentious to
say, Foucault said, but thats a proof of a trutha political and actual truth--which started after the book was written (Dillon
This is the type of situated action Foucault would endorse , and as

a genealogist, Foucault saw himself as highly action oriented, as a dealer in instruments,
a recipe maker, an indicator of objectives, a cartographer, a sketcher
of plans, a gunsmith (Ezine 1985, 14).
1980, 5).
The establishment of a concrete genealogy opens possibilities for action by describing the genesis of a given situation and
showing that this particular genesis is not connected to absolute historical necessity . Foucaults genealogical studies of prisons,
hospitals and sexuality demonstrate that social practices may always take an alternative form, even where there is no basis for voluntarism or
idealism. Combined with Foucaults focus on domination, it is easy to understand why this insight has been embraced by feminists and
minority groups. Elaborating genealogies of, for instance, gender and race leads to an understanding of how relations of domination between
women and men, and between different peoples, can be changed (McNay 1992, Bordo and Jaggar 1990, Fraser 1989, Benhabib and Cornell
. Understanding how power

works is the first prerequisite for action, because action is the
exercise of power. And such an understanding can best be achieved
by focusing on the concrete. Foucault can help us with a materialist understanding of Realpolitik and
1987). The value of Foucaults approach is his emphasis on the dynamics of power
Realrationalitt, and how these might be changed in a specific context. The problem with Foucault is that because understanding and action
have their points of departure in the particular and the local, we may come to overlook more generalised conditions concerning, for example,
institutions, constitutions and structural issues.
In sum, Foucault and Habermas agree that rationalisation and the misuse of power are among the most important problems of our time. They
disagree as to how one can best understand and act in relation to these problems. From the perspective of the history of philosophy and
political theory, the difference between Foucault and Habermas lies in the fact that Foucault works within a particularistic and contextualist
tradition, with roots in Thucydides via Machiavelli to Nietzsche. Foucault is one of the more important twentieth century exponents of this
tradition. Habermas is the most prominent living exponent of a universalistic and theorising tradition derived from Socrates and Plato,
proceeding over Kant. In power terms, we are speaking of strategic versus constitution thinking, about struggle versus control, conflict
versus consensus.
Generic
The alternative is keystatus quo is oppressed by
oppressive modernities
Flyvbjerg and Richardson 2Aalborg University, Department of Development and Planning AND
Dark Side of Planning Theory http://flyvbjerg.plan.aau.dk/DarkSide2.pdf, DOA 7/3/15, AMB@GDI)
take a walk on the dark side.

Planning theorists (and other modernist thinkers) have tended to disregard Foucaults work
as being oppressive. His talk of the all-pervasiveness of power has been seen as crushing the life out of any possibility of
empowerment, of change, of hope. Yet this analysis seems to be based on a superficial
reading of parts of Foucaults major works, such as Discipline and Punish, rather than an
attempt to understand his overall project. Foucaults theory of power
is exactly not about oppressiveness, of accepting the regimes of
domination which condition us, it is about using tools of analysis to
7. Conclusions:
understand power, its relations with rationality and knowledge, and

use the resulting insights precisely to bring about change. When it
comes to portraying planners and planning, the quest of planning
theorists could be called the escape from power. But if there is one
thing we should have learned today from students of power, it is that there is no escape
from it. We wish to stress that the modern normative attitude - an attitude that has been dominant in planning theory
throughout the history of this discipline - does not serve modernity, or planning theory, well. The ideals of modernity,
democracy and planning - ideals that typically are worth fighting for - are better served by understanding Realrationalitt
than normative rationality. Normative rationality may provide an ideal to strive for, but it is a poor guide to the strategies23 and tactics
the majority of
planning theorists: they know where they would like to go but not how
to get there. The focus of modernity and of planning theory is on
what should be done. We suggest a reorientation toward what is
actually done - towards verita effettuale. In this way we may gain a better grasp - less idealistic, more grounded - of what
planning is and what the strategies and tactics that may help change it for the better. Foucauldian analysis, unlike Habermasian
needed for moving toward to the ideal. This, in our analysis, is the quandary of normative idealists, including
normativism, offers a type of planning theory which is more useful in understanding how planning is actually done, and
offers better prospects for those interested in bringing about democratic social change through planning. Habermas, among
others, views conflict in society as dangerous, corrosive and potentially destructive of social order, and therefore in need of being contained
and resolved. In a Foucauldian interpretation, conversely
, suppressing conflict is suppressing
freedom , because the privilege to engage in conflict is part of

freedom. The Foucauldian challenge applies to theory too: perhaps social
and political theories that ignore or marginalise conflict are
potentially oppressive. And if conflict sustains society, there is good
reason to caution against an idealism that ignores conflict and
power. In real social and political life self-interest and conflict will not give way to some all-embracing communal ideal like Habermass.
Indeed, the more democratic a society, the more it allows groups to define their own specific ways of life and legitimates the inevitable
conflicts of interest that arise between them. Political consensus can never be brought to bear in a manner that neutralises particular group
obligations, commitments and interests. A more differentiated conception of political culture than Habermass is needed, one that will be more
tolerant of conflict and difference, and more compatible with the pluralisation of interests.24 A strong democracy guarantees the
existence of conflict. A strong understanding of democracy, and of the role of planning within it, must therefore be based
on thought that places conflict and power at its centre, as Foucault does and Habermas does not. We
suggest that
an understanding of planning that is practical, committed and ready
for conflict provides a superior paradigm to planning theory than an
understanding that is discursive, detached and consensusdependent. Exploring the dark side of planning theory offers more
than a negative, oppressive confirmation of our inability to make a
difference. It suggests that we can do planning in a constructive
empowering way, but that we cannot do this by avoiding power

relations. Planning is inescapably about conflict: exploring conflicts
in planning, and learning to work effectively with conflict can be the
basis for a strong planning paradigm.
ATs
AT Perm
Perm failsthe aff would just be inserting power into their
already biopolitical methadologypure alt framing is
critical
Flyvbjerg and Richardson 02 (Aalborg University, Department of Development and Planning AND
Dark Side of Planning Theory http://flyvbjerg.plan.aau.dk/DarkSide2.pdf, 2002, DOA 7/3/15, AMB@GDI)
Abstract
In this paper we argue that the use of the communicative theory of Jrgen Habermas in planning theory is problematic because it hampers an
power shapes planning. We posit an alternative approach

based on the power analytics of Michel Foucault which focuses on what is actually done, as
opposed to Habermass focus on what should be done. We discuss how the Foucauldian stance problematises
planning, asking difficult questions about the treatment of legitimacy,
rationality, knowledge and spatiality. We conclude that Foucault offers a type
of analytic planning theory which offers better prospects than does Habermas for
understanding of how
those interested in understanding and bringing about democratic social change through planning
Power has become an inevitable question for planning

theorists. John Friedmann, reflecting on the progress of theory to date, identifies theorists ambivalence about
power as one of the biggest outstanding problems in theorising planning (Friedmann 1997). He urges theorists to
build relations of power into their conceptual frameworks . But to bring
power more closely into planning theory, we need to consider
carefully what is meant by power, a concept which has long been
the subject of philosophical discourse. For power cannot be simply
bolted on to existing planning theory. What lies ahead is what John Friedmann
has called the long trek of integrating discourses on power with the
still sanitised multiple discourses of planning theory (Friedmann 1997). We believe
that along the way, emerging theoretical work will be subjected to difficult challenges about power. Power may become
1. Introduction
the acid test of planning theory.
In this paper we take a few short steps of this long trek, and find our
progress blocked by an unresolved difficulty with one such emerging body of theory. We encounter an emerging paradigm which asserts a
new, Habermasian communicative rationality for planning (e.g. Innes 1995), which is just beginning to be subjected to sustained critique on its
treatment of power (e.g. Huxley 1998, Huxley and Yiftachel 1998).
Some planning theorists may feel they have already explored this route, and that the obstacles to a Habermasian paradigm have been
we argue that treatment of power in

communicative theory is compromised by the nature of the theory
itself. We suggest that further progress towards the integration of
power can benefit from the work of Michel Foucault, an oeuvre which has
been cited already by many planning theorists. We will argue that Foucaults
work holds more promise, and is more relevant to planning theory
than seems to have been generally recognised.
The paper pursues its arguments by exploring some of the vexed differences between Habermas and Foucault. We attempt to show that
Foucauldian theory is not what has been described as a single
minded preoccupation with the politics of coercion (Friedmann 1997), but a
sustained analytics of power and rationality which we can use in
productive ways to support the empowerment of civil society. This
removed. We disagree. In this paper,
productive interpretation of Foucaults work appears to have been missed, or dismissed, which has facilitated the rejection
of his theories in relation to planning.
communicative planning theory fails to

capture the role of power in planning. As a result, it is a theory which is
weak in its capacity to help us understand what happens in the real
world; and weak in serving as a basis for effective action and
The position we are attempting to establish is that
change. Because of these weaknesses, we believe that this approach to theory building is
highly problematic for planning.
Some theorists might contend that using Foucault, they have
repaired the weaknesses in communicative theory which are
exposed by juxtaposition with Foucaults work. We believe, however, that this cannot be done
convincingly. More importantly we are concerned that, in spite of regular reference to Foucault in planning theory literature, there has not
so far been a cogent exploration of the full import of his work for planning. In turning to Foucaults work, we argue that
Foucauldian planning theory addresses exactly the weaknesses in

the communicative paradigm, and makes effective understanding (verita
effettuale, in Machiavelli's words; Wirkliche Historie in Nietzsche's and Foucault's) and effective action possible,
something planners and planning theorists have typically said they want. It requires a turn towards the dark side of planning theory the domain of power - which has been occasionally explored by planning theorists (e.g. Yiftachel 1994, Flyvbjerg 1996, Roweis 1983,
Marcuse 1976) but has been avoided by many others who see only oppression and coercion where power operates.
AT No Link
The justifications of the affirmative plan are normalizing
the current state of bad biopower, where the surveillance
state makes reforms to be better able to hide their
abuses of power. This turns the case meaning that their
apparent solvency is just another ploy to subdue the
populace into complacency meaning that they arent able
to solve for the harms presented in the 1ac.
AT Floating PIKs Bad

PIKs Good
Negative Ground Strat:
1) PIKS allow the round to reveal the best methodology that the negative
can advocate for. Aff had infinite prep.
Education:
1) Depth is more prevalent with floating PIKs vs. debating only what is
presented in the 1NC
Real World:
1) In real world policies and plans always change to lead to better
development
Defensive Answers-
Predictability and Time:
1) The pik is in the 1NC meaning it is just as predictable anyother off case
argument.
Fairness:
1) Piks do not change the advocacy of the neg. It supports its claims on
the K with the correct methodology revealed through the round.
2) Piks can be answered with many of the same answers as any other CP
or kritik. To be what the affirmative calls fair that means we dont get
CPs or Ks which kills core negative ground
PIK Interpretation:
There are nothing wrong with floating piks if they solve the methodology we
are critiquing.
No voters reject the Argument not the team
Aff
Perm
Perm: do the plan while endorsing criticism exigencies
demand action in the face of criticism
Campbell 98 (David Campbell, Intl Relations Prof @ UM, National Deconstruction: Violence, Identity, and
Justice in Bosnia, Minneapolis: University of Minnesota Press, 1998, DOA 7/3/15, AMB@GDI)
The undecidable within the decision does not, however, prevent

the decision nor avoid its urgency. As Derrida observes, a just decision is always
required immediately, right away. This necessary haste has unavoidable consequences because the
pursuit of infinite information and the unlimited knowledge
of conditions, rules or hypothetical imperatives that could justify it are unavailable
in the crush of time. Nor can the crush of time be avoided, even by unlimited time, because
the moment of decision as such always remains a finite
moment of urgency and precipitation. The decision is always structurally finite, it
aalways marks the interruption of the juridico- or ethico- or politico-cognitive deliberation that precedes it,
that must precede it. That is why, invoking Kierkegaard, Derrida, declares that the instant of decision is a
madness. The finite nature of the decision may be a madness in the way it renders possible the
impossible, the infinite character of justice, but Derrida argues for the necessity of this madness. Most
importantly, Derrida argues for the necessity of this madness. Most importantly, although Derridas
argument concerning the decision has, to this pint, been concerned with an account of the procedure by
which a decision is possible, it is with respect to the ncessity of the decision that Derrida begins to
formulate an account of the decision that bears upon the content of the decision. In so doing, Derridas
argument addresses more directly more directly, I would argue than is acknowledged by Critchley the
concern that for politics (at least for a progressive politics) one must provide an account of the decision to
combat domination. That undecidability resides within the decision,

Derrida argues, that justice exceeds law and calculation, that the unpresentable exceeds the determinalbe
cannot and should not serve as alibi for staying out of

juridico-political battles, within an institution or a state, or
between institutions or states and others. Indeed, incalculable justice requires us
to calculate. From where do these insistences come? What is behind, what is animating, these
imperatives? It is both the character of infinite justice as a heteronomic relationship to the other, a
relationship that because of its undecidability multiplies responsibility, and the fact that left
to
itself, the incalculable and given (donatrice) idea of justice is always
very close to the bad, even to the worst, for it can always be reappropriated by the most
perverse calculation. The necessity of calculating the incalculable
thus responds to a duty that inhabits the instant of madness
and compels the decision to avoid the bad, the perverse
calculation, even the worst. This is the duty that also
dwells with deconstructive thought and makes it the starting
point, the at least necessary condition, for the
organization of resistance to totalitarianism in all its forms.
And it is a duty that responds to practical political concerns
when we recognize that Derrida names the bad, the
perverse, and the worst as those violences we recognize all
too well without yet having thought them through, the
crimes of xenophobia, racism, anti-Semitism, religious or
nationalist fanaticism.
Reforms Work/Perm
Distinguishing between authoritarian and democratic
information states solves privacy, freedom, and
democratic participation
Balkin, professor of constitutional law at Yale Law School,
1 January 2008 (Jack M., The Constitution in the National Surveillance
If some form of the National Surveillance State is inevitable, how do
we continue to protect individual rights and constitutional
government? Today's challenge is similar to that faced during the first half of the twentieth century,
when government transitioned into the Welfare State and the National Security State. Americans had to
figure out how to tame these new forms of governance within constitutional boundaries. It is no accident
that this period spawned both the New Deal-with its vast increase in government power-and the Civil
The more power the state amasses, the more Americans

need constitutional guarantees to keep governments honest and
devoted to the public good. We might begin by distinguishing
between an authoritarian information state and a democratic
information state.6 8 Authoritarian information states are information gluttons and information
Rights Revolution.
misers. Like gluttons they grab as much information as possible because this helps maximize their power.
Authoritarian states are information misers because they try to keep

the information they collect-and their own operations secret from
the public. They try to treat everything that might embarrass them or undermine their authority as
state secrets, and they multiply secret rules and regulations, which lets them claim to obey the law without
having to account for what they do. In this way they avoid accountability for violating people's rights and
for their own policy failures. Thus, information gluttony and information miserliness are two sides of the
same coin: both secure governments' power by using information to control their populations, to prevent
inquiry into their own operations, to limit avenues of political accountability, and to facilitate self-serving
By contrast, democratic information states are

information gourmets and information philanthropists. Like
gourmets they collect and collate only the information they need to
ensure efficient government and national security. They do not keep
tabs on citizens without justifiable reasons; they create a regular
system of checks and procedures to avoid abuse. They stop
collecting information when it is no longer needed and they discard
information at regular intervals to protect privacy. When it is impossible or
propaganda. 69
impractical to destroy information-for example, because it is stored redundantly in many different

locations-democratic information states strictly regulate its subsequent use. If the information state is
unable to forget, it is imperative that it be able to forgive. Democratic information states are also
information philanthropists because they willingly distribute much valuable information they create to the
public, in the form of education, scientific research, and agricultural and medical information. They allow
the public access to information about their laws and their decision-making processes so that the public
can hold government officials accountable if they act illegally or arbitrarily or are corrupt or inefficient.
They avoid secret laws and secret proceedings except where absolutely necessary .
Democratic
states recognize that access and disclosure help prevent
governments from manipulating their citizens. They protect
individual privacy because surveillance encourages abuses of power
and inhibits freedom and democratic participation. Thus being an
information gourmet and an information philanthropist are also
connected: both help keep governments open and responsible to

citizens; both further individual autonomy and democracy by
respecting privacy and promoting access to knowledge.
Theory
PIKs Bad
A. Interpretation: Floating PIKS arent legitimate
B. Standards
Ground
1) Floating PIKS steal Aff ground. They cant advocate against the K if it
encompasses their entire case. This destroys the aff ground for
offense. This means that the neg can just moot the 1AC
Predictability
1) Piks let the neg be a moving target
2) Time skew
Fairness
1) Neg can change advocacy during the block which ruins 2AC answers
and skews 1AR
2) Impossible for the affirmative to effectively answer a floating PIK
Predictability
1) Piks let the neg be a moving target
2) Time skew
Education
1) No in round education when the negative team can just change the
debate mid round
C. Reject team to prevent further in round abuse
Criticism Alt Answers
Alt Fails 2ac

The alternative method fails, the extralegal criticism
fails it just gives people false hope- legally coopted
Lobel 7 (Orly Lobel, Assistant Professor of Law, University of San Diego, THE PARADOX OF EXTRALEGAL ACTIVISM:
CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS, Harvard Law Review, 2007, Vol. 120, February 2007,
Both the practical failures and the fallacy of rigid boundaries

generated by extralegal activism rhetoric permit us to broaden our
inquiry to the underlying assumptions of current proposals
regarding transformative politics that is, attempts to produce meaningful changes
in the political and socioeconomic landscapes. The suggested alternatives produce a new image of social
rejects a shared theory of social reform, rejects

formal programmatic agendas, and embraces a multiplicity of forms
and practices. Thus, it is described in such terms as a plan of no plan,211 a project of proand political action. This vision
jects,212 anti-theory theory,213 politics rather than goals,214 presence rather than power,215
practice over theory,216 and chaos and openness over order and formality. As a result, the
contemporary message rarely includes a comprehensive vision of common social claims, but rather
the
commonality of struggle and social vision that existed during the
civil rights movement has disappeared.217 There is no unifying discourse or set of
engages in the description of fragmented efforts. As Professor Joel Handler argues,
values, but rather an aversion to any metanarrative and a resignation from theory. Professor Handler warns
this move away from grand narratives is self-defeating precisely

because only certain parts of the political spectrum have accepted
this new stance: [T]he opposition is not playing that game . . . .
that
[E]veryone else is operating as if there were Grand Narratives . . . .218 Intertwined with the resignation
from law and policy, the new bromide of neither left nor right has become axiomatic only for some.219
The contemporary critical legal consciousness informs the scholarship of those who are interested in progressive social
activism, but less so that of those who are interested, for example, in a more competitive securities market . Indeed, an
interesting recent development has been the rise of conservative public interest lawyer[ing].220
Although public interest law was originally associated exclusively with liberal projects, in the past three
decades conservative advocacy groups have rapidly grown both in number and in their vigorous use of
traditional legal strategies to promote their causes.221 This growth in conservative advocacy is
particularly salient in juxtaposition to the decline of traditional progressive advocacy. Most recently, some
thinkers have even suggested that there may be something inherent in the lefts conception of social
change focused as it is on participation and empowerment that produces a unique distrust of legal
expertise.222 Once again, this conclusion reveals flaws parallel to the original disenchantment with legal
Although the new extralegal frames present themselves as apt

alternatives to legal reform models and as capable of producing
significant changes to the social map, in practice they generate very
limited improvement in existing social arrangements . Most strikingly, the
reform.
cooptation effect here can be explained in terms of the most profound risk of the typology that of
legitimation. The common pattern of extralegal scholarship is to describe an inherent instability in
dominant structures by pointing, for example, to grassroots strategies,223 and then to assume that
specific instances of counterhegemonic activities translate into a more complete transformation. This
celebration of multiple micro-resistances seems to rely on an aggregate

approach an idea that the multiplication of practices will evolve into
something substantial. In fact, the myth of engagement obscures the
actual lack of change being produced, while the broader pattern of
equating extralegal activism with social reform produces a false
belief in the potential of change . There are few instances of meaningful reordering of
social and economic arrangements and macro-redistribution. Scholars write about decoding what is really
happening, as though the scholarly narrative has the power to unpack more than the actual conventional
experience will admit.224 Unrelated efforts become related and part of a whole through mere reframing.
At the same time, the elephant in the room the rising level of economic inequality is left unaddressed
and comes to be understood as natural and inevitable.225 This is precisely the problematic process that
critical theorists decry as losers self-mystification, through which marginalized groups come to see
systemic losses as the product of their own actions and thereby begin to focus on minor achievements as
representing the boundaries of their willed reality. The explorations of micro-instances of activism are often
fundamentally performative, obscuring the distance between the descriptive and the prescriptive.
The
manifestations of extralegal activism the law and organizing model; the

proliferation of informal, soft norms and norm-generating actors; and the celebrated, separate
all produce a fantasy that change can be

brought about through small-scale, decentralized transformation. The
nongovernmental sphere of action
emphasis is local, but the locality is described as a microcosm of the whole and the audience is national
and global. In the context of the humanities, Professor Carol Greenhouse poses a comparable challenge to
ethnographic studies from the 1990s, which utilized the genres of narrative and community studies, the
latter including works on American cities and neighborhoods in trouble.226 The aspiration of these genres
was that each individual story could translate into a time of the nation body of knowledge and
motivation.227 In contemporary legal thought, a corresponding gap opens between the local scale and the
larger, translocal one. In reality, although there has been a recent proliferation of associations and
grassroots groups, few new local-statenational federations have emerged in the United States since the
1960s and 1970s, and many of the existing voluntary federations that flourished in the mid-twentieth
century are in decline.228 There is, therefore, an absence of links between the local and the national, an
absent intermediate public sphere, which has been termed the missing middle by Professor Theda
New social movements have for the most part failed in

sustaining coalitions or producing significant institutional change
through grassroots activism. The limits of the law as a means of effecting social change have
Skocpol.229
been a key focus of legal thinkers over the past several decades. The aggregate impact of emerging schools of thought
challenging the value of legal reform in producing social change has been the development of a contemporary critical
Critical claims go
further than simply expressing disappointment in the capacity of the
legal system to achieve the desired goals of a social movement. An
argument that has become increasingly prevalent in legal scholarship states
that the law often brings more harm than good to social movements
that rely on legal strategies to advance their goals. The law entices
groups to choose legal strategies to advance their social goals but
ultimately proves to be a detrimental path. The negative effect is
generally understood as "legal cooptation" - a process by which the focus on legal
legal consciousness - a conventional wisdom [*939] about the relative inefficacy of law. n1
reform narrows the causes, deradicalizes the agenda, legitimizes ongoing injustices, and diverts energies away from more
effective and transformative alternatives. Consequently, the argument proceeds, the turn to the law actually reinforces
existing institutions and ideologies. As they engage with the law, social reform groups become absorbed by the system
even as they struggle against it.
Alt Fails 1ar

External Criticism fails, the postmodern theory behind it
doesnt challenge the foundations of the legal system
Litowitz 00 (Douglas, Visiting Assistant Professor, Florida Coastal School of Law, "Postmodernism
without the 'Pomobabble'," 2 Fl. Coastal L.J. 41, Fall 2000, DOA 7/02/15, AMB@GDI)
postmodern theory has two major drawbacks: (1) it

takes an overly external perspective on law, and (2) it is too
dismissive of foundations to offer a program for reform. Postmodern theory
offers an external critique of the legal system because it refuses to speak in the
Despite these benefits,
language games and terminology which are used (often unreflectively) by the officials inside the legal system. The
differs greatly from the internal viewpoint adopted in

mainstream Anglo-American jurisprudence, especially in the influential work of Ronald
Dworkin, who has referred to the external perspective as 'perverse.' n132
Most legal scholars uncritically adopt the internal perspective and
then set about solving problems from within a closed universe of
positive law, thereby [*75] narrowing the professor's vision within the limits of the existing system.
Postmodernism eschews this in favor of an external perspective, which suffers from a
different problem, namely that the external perspective is very far
removed from the actual language games in which law is practiced . In
other words, the practice of law is approached from such a critical
external perspective
distance that it is left unchanged . For example, a postmodern

deconstruction of property law does little to help tenants who are
abused by landlords, unless the deconstruction is wedded to a larger vision for reform of the
law. Even if the postmodernists are capable of reducing the law to rhetoric
or power relations, we still need to decide legal cases, to push the
law in a particular direction . And here is where postmodernism comes up short, because
its negative thrust renders it incapable of getting started on a program of reform, despite its power as a
critical tool. The failure of postmodernism to recommend a program for legal change is related to a
second problem--the rejection of all foundations, both metaphysical and contingent. As we saw earlier,
postmodern legal theory begins with a critique of Enlightenment concepts such as the autonomous legal subject, natural
law, and God, but when the postmodern critique of these foundations turns into a full-blown rejection,
postmodernism seems to nihilistically discount any basis on which

to ground a vision of a just political order.
Perhaps postmodernism is not the type of intellectual movement that
sets itself the task of finding new foundations for the legal system.
Perhaps the best understanding of postmodernism is to see it as offering something along the lines of what Critical
Theorist Theodor Adorno called 'negative dialectics,' n133 a ceaseless refusal to accept the limits of the materials that are
given--in this case, a refusal to accept the limits of the legal system as presently configured, and a desire to question its
foundations, to imagine a better system with new ideas about property, freedom, employment, liability, and criminal
responsibility. Critical theorist Herbert Marcuse once referred to this attitude as 'the Great Refusal,' n134 and it serves a
valuable purpose, if only to make us less comfortable with our existing beliefs and practices. Postmodernism does not,
then, provide a blueprint for a better society or a method for deciding cases, but rather serves as a critical tool for
assessing the questionable assumptions and methodologies that underlie much legal doctrine and scholarship. [*76] To
be sure, postmodernism has its fringe elements, and much postmodern theory is poorly written. But the task of the
scholar is to look past the fringes and find the core of a movement, to depict a movement in its best possible light, and
This element of charity, so crucial for scholarly

exchange, is missing in much of the recent criticism of
postmodernism. Postmodernism is many things, both positive and negative, but it is surely something more
only then to criticize it.
than mere 'pomobabble.'
Examples of extralegal activism are exaggerated and

prove activist criticism fails cant produce substantive
change and risks cooption
Lobel 7 (Orly Lobel, Assistant Professor of Law, University of San Diego, THE PARADOX OF EXTRALEGAL ACTIVISM:
CRITICAL LEGAL CONSCIOUSNESS AND TRANSFORMATIVE POLITICS, Harvard Law Review, 2007, Vol. 120, February 2007,
The explorations of micro-instances of activism are often

fundamentally performative, obscuring the distance between the
descriptive and the prescriptive. The manifestations of extralegal
activism - the law and organizing model; the proliferation of informal, soft norms and norm-generating actors; and
the celebrated, separate nongovernmental sphere of action - all produce a fantasy that change
can be brought about through small-scale, decentralized
transformation. The emphasis is local, but the locality is described as a microcosm of the whole and the
audience is national and global. In the context of the humanities, Professor Carol Greenhouse poses a comparable
challenge to ethnographic studies from the 1990s, which utilized the genres of narrative and community studies, the latter
including works on American cities and neighborhoods in trouble. n226 The aspiration of these genres was that each
individual story could translate into a "time of the nation" body of knowledge and motivation. n227 In contemporary legal
thought, a corresponding gap opens between the local scale and the larger, translocal one. In reality, although there has
been a recent proliferation of associations and grassroots groups, few new local-state-national federations have emerged
in the United States since the 1960s and 1970s, and many of the existing voluntary federations that flourished in the midtwentieth century are in decline. n228 There is, therefore, an absence of links between the local and the national, an
absent intermediate public sphere, which has been termed "the missing middle" by Professor Theda Skocpol. n229 New
social movements have for the most part failed in sustaining coalitions or producing significant institutional change
through grassroots activism. Professor Handler concludes that this failure is due in part to the ideas of contingency,
pluralism, and localism that are so embedded in current activism.230 Is the focus on small-scale dynamics simply an
evasion of the need to engage in broader substantive debate? It is important for next-generation progressive legal
scholars, while maintaining a critical legal consciousness, to recognize that not all extralegal associational life is
transformative. We must differentiate, for example, between inward-looking groups, which tend to be self- regarding and
depoliticized, and social movements that participate in political activities, engage the public debate, and aim to challenge
and reform existing realities.231 We must differentiate between professional associations and more inclusive forms of
institutions that act as trustees for larger segments of the community.232 As described above ,
extralegal
activism tends to operate on a more divided and hence a smaller
scale than earlier social movements, which had national reform agendas. Consequently,
within critical discourse there is a need to recognize the limited capacity of small-scale action. We should
question the narrative that imagines consciousness-raising as
directly translating into action and action as directly translating into
change. Certainly not every cultural description is political. Indeed, it is questionable whether forms of activism that
are opposed to programmatic reconstruction of a social agenda should even be understood as social movements. In fact,
when groups are situated in opposition to any form of

institutionalized power, they may be simply mirroring what they are
fighting against and merely producing moot activism that settles for what
seems possible within the narrow space that is left in a rising convergence of ideologies. The original vision
is consequently coopted, and contemporary discontent is
legitimated through a process of self-mystification.
V. Restoring Critical Optimism in the Legal Field
The alternative fails the criticism isnt able to holistically

challenge the legal system- allowing the internal workings
to survive
Litowitz 98 (Douglass, Visiting Assistant Professor, Chicago-Kent College of Law, "INTERNAL VERSUS EXTERNAL
PERSPECTIVES ON LAW: TOWARD MEDIATION," http://www.law.fsu.edu/journals/lawreview/frames/261/litofram.html, Fall
1998, DOA 7/2/15, AMB@GDI)
The advantage of an externally oriented approach lies in its critical distance, in its ability to present before our eyes things
that happen behind our backs. Ideally, these external insights can be folded back into the internal practice to improve it.
For example, if a legal theorist can convince a judge that she has an unconscious class, race, or gender bias, this insight
might affect her future decisions. The external perspective also brings to light legal notions that are silently assumed in
the ordinary practice of law but which seem artificial and problematic when considered from a distance. For instance, law
students are essentially thrown into a system that they are forced to accept in order to function, such as the feudal
classifications that haunt contemporary property law, with its fee simple determinables, springing remainders, and the
the external perspective allows a comparison of

the existing system with alternative traditions from which we might
borrow to improve our legal system. Despite these advantages,
external theory has two major drawbacks: (1) its critique of the legal
system is often so global that in striving to undermine the entire
system it actually accomplishes very little to reform the system; and
(2) it degenerates into behaviorism by reducing the richly textured
internal perspective to robot-like reflexes. As for totalizing critiques of
the law offered by external thinkers like Marx, Nietzsche, and Foucault, the intended goal is to
destabilize or criticize the entire legal systemor to at least
question an entire area of law, such as property law or criminal law. This approach can be
Rule Against Perpetuities. Lastly,
seen in Marx's claim that jurisprudence is a reflection of class interests,[46] in Nietzsche's claim that
democracy and equal rights constitute a type of "slave morality,"[47] and in Foucault's claim that the
liberal guarantees of freedom and autonomy are bogus.[48] These

thinkers seem to be saying that the entire legal tradition is rotten, that it is built on a faulty
or deceptive edifice; so any tinkering within the system that is short of a revolution will
be as fruitless as rearranging deck chairs on the Titanic. Paradoxically, this strategy
often fails completely
because the critique is so far removed from the practice of law that
it
leaves the internal workings of the legal apparatus untouched . As

Wittgenstein said in a similar point about philosophy, "It leaves everything as it is."[49] This point was
captured in Michael Walzer's quip about Michel Foucault: "[W]hen critical distance stretches into infinity,
the critical enterprise collapses."[50] To see this in more detail, consider Nietzsche's claim that the
movement toward equal rights is a symptom of "slave morality," a leveling down of great individuals into
the herd.[51] This claim is certainly not going to be of much immediate help to the players inside the legal
system who must decide cases and enact laws. Nietzsche's argument may be of some use to legislators in
deciding whether to enact welfare laws or affirmative action schemes,[52] for example, but Nietzsche's
claim about "slave morality" is not couched in the language games typically used by judges and legislators
who speak about constitutional rights, compelling state interests, and balancing tests. If Nietzsche's work
is to affect the legal system, it must do so in a very roundabout way, perhaps by functioning as a reminder
that our push toward equality might have a downside, or by causing legislators to stand back and take a
globally critical perspective on the legal system. In other words, Nietzsche's external critique must
somehow be translated or mediated so that it can affect the internal practice of the law, perhaps by forcing
a rethinking of foundational notions in the legal systemjustice, property, mercy, punishment, and the
adversarial system. Although a
large-scale critique of the legal system may

have some romantic appeal, it is difficult to see how any political or
legal theoryapart from, say, anarchismcould be derived from
such an attitude of distrust toward our practices and traditions . Hilary
Putnam summarized this point nicely: Many thinkers have fallen into Nietzsche's error of telling us they
had a "better" morality than the entire tradition; in each case they only produced a monstrosity, for all
they could do was arbitrarily wrench certain values out of their context while ignoring others. We can only
hope to produce a more rational conception of rationality or a better conception of morality if we operate
from within our tradition . . . .[53] While we must interrogate our traditions, there is no sense in escaping
them altogether because that would leave us homeless. As Richard Rorty is fond of saying, "
We have
to start from where we are ."[54] To paraphrase Putnam, we can only hope to
form a more rational legal system by working within the present
system without fetishizing it.[55] This point can be illustrated by looking at the failures and
successes of external feminist theory. When Catharine MacKinnon pronounces that "the state is male,"[56]
the critique is so total that it seems to leave no room for changing the system without displacing it entirely.
However, this position is belied by MacKinnon's undisputed efforts at reforming this "male" system from
within.[57] Feminist theory succeeds when it steps into legal doctrine and points out, for example, that the
legal definition of rape contains a male bias (in requiring physical resistance by rape victims) or that the
public-private split which runs through the law has traditionally left women in an unprotected private
realm.[58] Here, as elsewhere, external critics need to translate or mediate their message so that the
The second problem with external

theory is that it tends to be overly reductionistic and dismissive of
the mental states of the actors within the legal system. n59 In extreme cases,
message can register on the internal side of the law.
the internal perspective [*143] is reduced to folly, confusion, and ignorance-judges are tools of the bourgeoisie, n60
modern day inquisitors, n61 or mere conduits for reinforcing social hierarchies, such as corporate and administrative
bureaucracies. n62 The problem here is that the internal side of law is reduced to blind ideological reflexes, much as
behaviorism reduced the inner experience of human emotions to stimulus and response. The external characterization
fails to capture the reality of legal practice in which judges weigh policies and principles, struggle to achieve justice, and
occasionally question the law and its fundamental assumptions.
Alt cant solve

The CLS vision is another illegitimate form of domination
their author and same source

One must step outside the liberal paradigm, into a realm where truth may be experiential, where knowledge resides in
world views that are themselves situated in history, where power and ideas do not exist separately. n128
While
such Critical activity may be indispensable, it can only be

preparatory. Moreover, trashing may itself prove to be an obstacle
[*229] to the mapping out of any future vision of society. n129 The
object of trashing is to expose and sweep away the prevailing
structures of thought that persuade people that present social
arrangements are necessary and natural, rather than arbitrary and
contingent. n130 Yet, in line with this goal, CLSers must be careful to avoid foisting their own structure of thought
on others; to do so would open themselves to the same charges they so vigorously level at others. n131 Any
attempt to offer its own vision of a reconstituted society would
merely result in the replacement of one form of consciousness with
another; "liberal consciousness" would simply be exchanged for
"Critical consciousness." The CLS vision would be equally illegitimate
and would amount to just another form of domination. The implication of this
insight for the Critical scholars seems to be that each individual must be left to act alone, free from the constraints of any
inhibiting consciousness.
Impact Turn: Surveillance Good

(Be careful bc youre curtailing
surveillance)
Turn- Surveillance eradicates all crimes and reduces
police brutality
Armstrong, research fellow at the Future of Humanity Institute at
Oxford University, 30 September 2013 (Stuart, Life in a Fishbowl,
Aeon, http://aeon.co/magazine/society/the-strange-benefits-of-a-totalsurveillance-state/, Accessed on 2 July 2015, //PK@GDI)

If calibrated properly, total surveillance might eradicate certain types of
crime almost entirely. People respond well to inevitable consequences, especially those that follow
swiftly on the heels of their conduct. Few would commit easily monitored crimes such
as assault or breaking and entering, if it meant being handcuffed within minutes. This kind
of ultra-efficient police capability would require not only sensors capable of
recording crimes, but also advanced computer vision and recognition
algorithms capable of detecting crimes quickly . There has been some recent progress on
such algorithms, with further improvements expected. In theory, they would be able to alert
the police in real time, while the crime was still ongoing. Prompt police
responses would create near-perfect deterrence , and violent crime would be
reduced to a few remaining incidents of overwhelming passion or extreme
irrationality. If surveillance recordings were stored for later analysis, other types of crimes
could be eradicated as well, because perpetrators would fear later discovery
and punishment. We could expect crimes such as low-level corruption to
vanish, because bribes would become perilous (to demand or receive) for those who are constantly
under watch. We would likely see a similar reduction in police brutality . There might
be an initial spike in detected cases of police brutality under a total surveillance regime, as incidents that
would previously have gone unnoticed came to light, but then, after a short while, the numbers would
tumble. Ubiquitous video recording, mobile and otherwise, has already begun to expose such incidents.
Turn- Surveillance reduces militaries and solves arms

races
The military is another arm of state power that is ripe for a surveillance-inspired shrinking. If crossborder surveillance becomes ubiquitous and effective, we could see a
reduction in the $1.7 trillion that the world spends on the military each year .
Previous attempts to reduce armaments have ultimately been stymied by a
lack of reliable verification. Countries can never trust that their enemies arent cheating, and
that encourages them to cheat themselves. Arms races are also made worse by a psychological
phenomenon, whereby each side interprets the actions of the other as a dangerous provocation, while
With cross-border mass

surveillance, countries could check that others are abiding by the
interpreting its own as purely defensive or reactive.
rules, and that they werent covertly preparing for an attack. If

intelligence agencies were to use all the new data to become more
sophisticated observers, countries might develop a better
understanding of each other. Not in the hand-holding, peace-and-love sense, but in
knowing what is a genuine threat and what is bluster or posturing . Freed from
fear of surprising new weapons, and surprise attacks, countries could safely
shrink their militaries. And with reduced armies, we should be able to expect
reduced warfare, continuing the historical trend in conflict reduction since the end of the Second
World War.
Turn- Mass surveillance solves pandemics which are the

biggest threat to humanity
Of course, these considerations pale when compared with the potential for mass
surveillance to help prevent global catastrophic risks, and other huge
disasters. Pandemics, to name just one example, are among the deadliest dangers
facing the human race. The Black Death killed a third of Europes population in
the 14th century and, in the early 20th century, the Spanish Flu killed off between 50 and 100 million
smallpox buried more people than the two world wars

combined. There is no reason to think that great pandemics are a thing of the
past, and in fact there are reasons to think that another plague could be due
soon. There is also the possibility that a pandemic could arise from synthetic biology, the human
people. In addition,
manipulation of microbes to perform specific tasks. Experts are divided as to the risks involved in this new
technology, but they could be tremendous, especially if someone were to release, accidentally or
Mass
surveillance could help greatly here, by catching lethal pandemics in their
earliest stages, or beforehand, if we were to see one being created artificially.
It could also expose lax safety standards or dangerous practices in legitimate
organisations. Surveillance could allow for quicker quarantines, and more effective
treatment of pandemics. Medicines and doctors could be rushed to exactly the right places, and
malevolently, infectious agents deliberately engineered for high transmissibility and deadliness.
micro-quarantines could be instituted. More dramatic measures, such as airport closures, are hard to
implement on a large scale, but these quick-response tactics could be implemented narrowly and
selectively. Most importantly, those infected could be rapidly informed of their condition, allowing them to
With proper procedures and perfect surveillance, we could

avoid pandemics altogether. Infections would be quickly isolated and
eliminated, and eradication campaigns would be shockingly efficient . Tracking
seek prompt treatment.
the movements and actions of those who fell ill would make it much easier to research the causes and
pathology of diseases. You can imagine how many lives would have been saved had AIDS been sniffed out
by epidemiologists more swiftly.
Turn- Mass surveillance rapidly advances research in

economics and science
Indeed, there are whole new bodies of research that could emerge from the
data provided by mass surveillance. Instead of formulating theories and
laboriously recruiting a biased and sometimes unwilling group for testing,
social scientists, economists and epidemiologists could use surveillance data
to test their ideas. And they could do it from home, immediately, and have
access to the worlds entire population. Many theories could be rapidly
confirmed or discarded, with great benefit to society. The panopticon would
be a research nirvana.
Turn- surveillance state key to welfare state that solves

social services and rights

The National Surveillance State is a way of governing. It is neither the product
of emergency nor the product of war. War and emergency are temporary
conditions. The National Surveillance State is a permanent feature of
governance, and will become as ubiquitous in time as the familiar devices of
the regulatory and welfare states. 17 Governments will use surveillance, data
collection, and data mining technologies not only to keep Americans safe
from terrorist attacks but also to prevent ordinary crime and deliver social
services.' 8 In fact, even today, providing basic social services-like welfare
benefits-and protecting key rights-like rights against employment
discrimination-are difficult, if not impossible, without extensive data collection
and analysis. 19 Moreover, much of the surveillance in the National
Surveillance State will be conducted and analyzed by private parties. 20 The
increased demand for-and the increased use of-public and private
surveillance cannot be explained or justified solely in terms of war or
emergency. 2
Increased Accountability Solves

Increased accountability mechanisms in the NSA solves
civil liberties
Setty, professor of law at Western New England University, 2015
(Sudha, SYMPOSIUM: Surveillance, Secrecy, and the Search for Meaningful
Accountability, Stanford Journal of International Law 69, Winter, //PK@GDI)
Reliance on sporadic leaks to trigger genuine accountability is structurally
problematic. n107 Our reliance on leaks thus far should force us to reconsider
the extreme secrecy under which intelligence-gathering programs, like the
NSA Metadata Program, are administered, and to consider means by which
institutional actors can exert meaningful and regular oversight and control
over these programs. Such change would force politicians to take ownership over secret
counterterrorism programs, weighing their expediency against possible constitutional defects or the
An atmosphere in which accountability mechanisms are

not merely ersatz pending an illegal leak could provide space for genuine
public discourse and at least the possibility of greater protection of civil
liberties.
judgment of public opinion.
GAO oversight of the NSA solves

Brinkerhoff, writer for AllGov, 12 January 2014 (Noel, Government
Accountability Office Can Provide Oversight of NSAif Congress would just

Ask, AllGov, http://www.allgov.com/news/controversies/governmentaccountability-office-can-provide-oversight-of-nsaif-congress-would-just-ask140112?news=852142, Accessed on 3 July 2015, //PK@GDI)
Today, the justification for restoring the type of on-site, investigative oversight
of NSA that GAO could provide may be newly apparent though no one seems to have
noticed that GAO could actually provide it, Aftergood wrote. Not taking advantage of the
GAOs expertise and its historical knowledge of the NSA would seem to be a
lost opportunity on the part of Congress. If it were directed to conduct audits and
investigations on behalf of Congress, there is reason to believe the GAO could
add a valuable dimension to NSA oversight, Aftergood wrote.
Congressional Action Solves

Congressional Action is key to solving the intelligence
state
Balkin, 08
Jack, Prof of Law @ Yale, National Surveillance State, 93 Minn. L. Rev. 2 20082009, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1224&context=fss_papers
Congress must pass new superstatutes to regulate the collecttion,
collation, purchase, and analysis of data. These new superstatutes
would have three basic features. First, they would restrict the kinds
of data governments may collect, collate, and use against people.
They would strengthen the very limited protections of e-mail and digital
business records, and rein in how the government purchases and uses data
collected by private parties. They would institutionalize government
"amnesia" by requiring that some kinds of data be regularly destroyed after a
certain amount of time unless there were good reasons for retaining the data.
Second, the new superstatutes would create a code of proper
conduct for private companies that collect, analyze, and sell
personal information. Third, the new superstatutes would create a
series of oversight mechanisms for executive bureaucracies that
collect, purchase, process, and use information
Oversight Solves
Oversight of the executive branch is the most important
thing we can do to solve the intelligence state
Balkin, 08
Oversight of executive branch officials may be the single most important goal
in securing freedom in the National Surveillance State. Without appropriate
checks and oversight mechanisms, executive officials will too easily slide into
the bad tendencies that characterize authoritarian information states. They
will increase secrecy, avoid accountability, cover up mistakes, and confuse
their interest with the public interest.
Judicial Independence Solves

Surveillance State
Judicial independence is key to solving the surveillance
state
Balkin, 08
Judicial oversight need not require a traditional system of warrants. It could
be a system of prior disclosure and explanation and subsequent regular
reporting and minimization. This is especially important as surveillance
practices shift from operations targeted at individual suspected persons to
surveil lance programs that do not begin with identified individuals and focus
on matching and discovering patterns based on the analysis of large amounts
of data and contact information.81 We need a set of procedures that
translate the values of the Fourth Amendment (with its warrant requirement)
and the Fifth Amendment's Due Process Clause8 2 into a new technological
context. Currently, however, we exclude more and more executive
action from judicial review on the twin grounds of secrecy and
efficiency. The Bush administration's secret NSA program is one example;
the explosion in the use of administrative warrants that require no judicial
oversight is another.8 3 Yet an independent judiciary plays an
important role in making sure that zealous officials do not
overreach. If the executive seeks greater efficiency, this requires a
corresponding duty of greater disclosure before the fact and
reporting after the fact to determine whether its surveillance
programs are targeting the right people or are being abused. Judges
must also counter the executive's increasing use of secrecy and the
state secrets privilege to avoid accountability for its actions.
Executive officials have institutional incentives to label their operations as
secret and beyond the reach of judicial scrutiny. Unless legislatures and
courts can devise effective procedures for inspecting and evaluating secret
programs, the Presidency will become a law unto itself.
Executive oversight Solves

Surveillance State
Oversight of the executive branch is key to solving the
surveillance state
Balkin, 08
Given the limits of legislative and judicial oversight, oversight within
the executive branch will prove especially crucial. Congress can
design institutional structures that require the executive to police
itself and make regular reports about its conduct. For example, if
Congress wants to bolster legal protections against warrantless surveillance,
it might create a cadre of informational ombudsmen within the executive
branchwith the highest security clearances-whose job is to ensure that the
government deploys information collection techniques legally and
nonarbitrarily.8 4 Unfortunately, the Bush administration has made extreme
claims of inherent presidential power that it says allow it to disregard
oversight and reporting mechanisms.85 Rejecting those claims about
presidential power will be crucial to securing the rule of law in the
National Surveillance State

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CLS Kritik

"Congress is irrelevant on mass surveillance. here's what matters instead.",

This surrender to the inevitability of state power makes

war and genocide are made possible by the

Without such control, individuals could discover authentic bases of

Constant criticism and trashing of the legal system is

(Allan C. Hutchinson and Patrick J. Monahan, CRITICAL LEGAL

any theory that the

contingency of history and the insuperability of the fundamental

criticism can liberate and enlighten. By

then that is what one ought to be doing

The point of delegitimation is to expose

task of a scholar is thus to liberate people

1NC Shell Reject

the bill is so larded with ambiguities and fundamental

of that illustrates what is, to me, the

the court quickly became a rubber stamp with

The biopower rooted in the affirmative make genocide and

The possibilities for the manipulation of the very biological

the issues of life and death that are played in various

issues of life and death related to our conceptions of

The alt is to vote negative in favor of critique before

(Aalborg University, Department of Development and Planning AND

Instead of side-stepping or seeking to remove the traces of power

politics one must side with reason.

(Foucault 1984c, 37 quoted in Dreyfus and

, such a morality would endanger freedom, not

the socially and historically conditioned context, and not

Foucaults explanation of power as

productive and local, rather than oppressive and hierarchical, that

institutions - or policies and plans - provide no guarantee of

what, in a Foucauldian interpretation, would be seen as

institutional change, including change in the institutions of civil

Foucault believes that

This is the type of situated action Foucault would endorse , and as

. Understanding how power

Link: Reform Legislation

after the eavesdropping scandals of the mid-1970s led to the establishment

Link: Generic Courts

Surveillance, Secrecy, and the Search for Meaningful Accountability,

because the FISC lacks an adversarial process and

FISC judges rely on the statements of the government as to the

FISA Court is just rubberstamp for the NSA- Presidential

But these claim are highly misleading, and in some

Bush, in late 2001,

Link: Private Companies

newfound knowledge that U.S. companies are complicit in mass surveillance.

Link: War on nouns/Rhetoric of War

The Government uses the rhetoric of war to legitimize

Different War", www.theatlantic.com/technology/archive/2015/04/samesurveillance-state-different-war/389988/, 7/3/15,AW)

able to pinpoint the momentsometime in 2002when the rhetoric switched

Link: War on Terror/Terrorism

"The Constitution in the national surveillance state",

The war on terror may be the most familiar

The question is not whether

Link: The State

permanent feature of governance, and will become as ubiquitous in

the US Congress enacted a new law (Fisa)

shielding it from real reforms.

Link: The Media

The media will always support the surveillance by the

Link: The 4th Amendment

The 4th Amendment does nothing to protect americansgutted by courts

You might think the Fourth Amendment 70 would be the most