Congressional oversight is necessary for a pragmatic, flexible approach to threats executive discretion results in knee-jerk policy failure



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1AC vs. BoSu --- GSU

1AC – Deterrence

CONTENTION 1: DETERRENCE

Congressional oversight is necessary for a pragmatic, flexible approach to threats---executive discretion results in knee-jerk policy failure


Stephen Holmes 9, Walter E. Meyer Professor of Law, New York University School of Law, “The Brennan Center Jorde Symposium on Constitutional Law: In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror”, April, California Law Review, 97 Calif. L. Rev. 301, Lexis

Conclusion¶ ¶ Far from being a carefully calibrated response to the terrorist threat, the executive-discretion agenda exaggerates the upsides and discounts the downsides of unregulated executive discretion. The "game" of counterterrorism cannot be successfully conducted by ad hoc decisions made in defiance of all rules and outside of all institutionalized decision-making procedures, practices, and institutions. Rule-governed counterterrorism is both feasible and desirable for several reasons. First, public officials perform best, even during emergencies, when forced to give reasons for their actions. Second, the temptation to react viscerally and mimetically rather than strategically to the mass murder of innocent civilians is almost impossible to resist without strong guidelines laid down in advance. Third, like-minded individuals, if allowed to make vital national-security decisions in virtual isolation, tend to fixate on one salient feature of a complex threat environment, neglecting equally lethal dangers and failing to consider the unintended consequences of their own remedial actions. And fourth, it is essential in a democracy to minimize, if not altogether eliminate, incentives for public officials to feign urgency and necessity in the face of a threat that cannot easily be observed by anyone outside the security apparatus of the state.¶ Because the spectrum of threats which national-security agencies must monitor and manage remains extremely complex, and because national-security assets are invariably scarce, counterterrorism decisions can increase security in one dimension only by opening up security vulnerabilities along other dimensions. Risk-risk tradeoffs are often close calls and should therefore be undertaken with deliberate speed, not hastily after dissenters are intimidated with fictional accounts of the need to make consequential decisions instantaneously and without considering known facts, consulting knowledgeable experts, and hearing different points of view. The difficulty and gravity of security-security tradeoffs, obscured by the misleading focus on liberty-security tradeoffs, is perhaps the most important argument against [*355] leaving decision making in the area of counterterrorism to the unchecked discretion of a few individuals, operating inside a bunker insulated from outside criticism and dissentFor this and other reasons, the indispensability of rules and protocols in ordinary emergencies can provide an important clue and point of reference for counterterrorism theorists and strategists. Rules such as the individualization of culpability and procedures such as obligatory reason-giving, far from "tying hands," can help liberate counterterrorism policy from the rigidities that inevitably plague partisan-political reactions to national-security emergencies. They do not guarantee success, of course. But adversarial procedures and the presumption of innocence are more likely than unfettered executive discretion to promote a pragmatic approach to the management of risk, including flexible and fact-minded adaptation to an obscure, amorphous, evolving, and still deadly serious threat.

Urgency of crisis situations proves oversight is necessary---it reduces decision costs and results in more pragmatic reasoning


Stephen Holmes 9, Walter E. Meyer Professor of Law, New York University School of Law, “The Brennan Center Jorde Symposium on Constitutional Law: In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror”, April, California Law Review, 97 Calif. L. Rev. 301, Lexis

The most persuasive argument for executive discretion during emergencies is usually thought to be urgency. This is fascinating because, in the emergency room, urgency is the principal reason for avoiding discretion and relying on rules; nurses, for example, follow protocols elaborated in advance because, when a disaster strikes, they have little time to think. Besides reducing the risk of avoidable error, the rules governing emergency response considerably reduce decision and coordination costs. They also serve an emotionally reassuring function, something of immense practical value when the stakes are high and time is scarceAs I mentioned earlier, managing diverse situations according to general rules is feasible only if the situations in question display observable uniformities. General rules for administering transfusions make sense because, for all practical purposes, the patients being transfused are the same. But that is only part of the story. Another reason why general rules are applicable in such cases is that emergency responders tend to react in predictable ways, freezing, fixating, or panicking under stress. All of us make costly and sometimes irreparable mistakes under immense time pressures. All of us, when spellbound by an onrushing threat, may fail to notice another lethal danger careening toward us from our blind side. To universal human fallibility and tunnel vision (exacerbated by urgency), we can add the equally universal human reluctance to admit mistakes and to make appropriate midstream adjustments in a timely fashion.¶ These considerations provide an initial reason for thinking that emergency-room practices may contain important lessons for managing national-security emergencies. Advocates of executive discretion in the war on terror frequently ask how precedents can guide our response to a wholly unprecedented threat. An initial answer is that America's situation after 9/11, however novel, is not totally unprecedented. At least one factor that has repeatedly undermined government effectiveness in the past, also during emergencies, remains essentially unchanged: our all-too-human cognitive and emotional imperfections.¶ [*308] When facing an unprecedented threat, responders should of course jettison rules that prevent them from responding in the most effective and appropriate way. On the other hand, they do not necessarily want to circumvent those "auxiliary precautions" (rules, protocols, practices, and institutions) that have survived through trial and error to remind them of the complexity of their threat environment, to prevent their over-concentration on a single salient danger, to alert them to unintended complications triggered by our own ad hoc remedial interventions, and to bring their potentially fatal mistakes to light before it becomes too late to correct them.¶ Rules to be followed "in case of emergency" reflect a realistic understanding that a crew of human responders, with no script to follow, often fail to adapt themselves with desirable rapidity and coordination to the demands of a dangerous and confusing situation. In a moment of crisis, in fact, the absence of clear instructions written in advance is more likely to produce dazed paralysis than effective action. Emergency protocols reveal, more profoundly still, that rules are not the only or even the principal source of immobilizing rigidity in human behavior. The grip of unthinking habit, clouding awareness of feasible options, is well known. The psychological roots of fixation, obsession, one-track thinking, self-certainty, dogmatism, and tunnel vision are equally deep. Over time, arguably, a variety of rules have evolved to increase the capacity of human beings, acting in concert, to adapt flexibly to complex threat environments with which individuals, prisoners of their own pride, limited capacity for processing information, intransigence, slow reflexes, or incomplete situational awareness would be unable to cope. Double-blind tests in science, to choose a different but related analogy, may be subjectively experienced as limiting the freedom of individual scientists, but they obviously help the system of science to adapt realistically to natural phenomena that are always only partly understood.¶ Like emergency-room crises, moreover, national-security crises have to be managed by a trained staff. To hone their capacity to respond effectively as a team to unexpected crises, such a staff must practice in advance how to apply detailed rules and perform scripted protocols. In emergency situations, that is to say, rules may be superior to discretion because rules, unlike discretion, can be practiced in advance by multi-person operational units. In addition, current staff can transmit their accumulated professional tradecraft to new recruits by inducting the latter into routine procedures, thereby eliminating the need for ad hoc instruction from above and freeing higher-ups to concentrate on strategic challenges. Thus, it would be unwise for a field commander to tell his troops that no rules apply to the treatment of enemy prisoners of war. If he conveyed this anything-goes message, he would soon lose control of his army. The importance of training, disciplining, and coordinating the behavior of front-line emergency responders reinforces the suspicion that rules may be just as crucial for managing national-security crises as for handling life-and-death situations [*309] in the hospital.¶ Medical crises can also help us overcome the preconception that "absolute" rules, because they reduce tactical flexibility, are necessarily harmful during emergencies. To understand what is obscured by this half-truth, we need only consider the bright-line rule that our two nurses followed before they came rushing into the room: "always wash your hands." This imperative is blinking red. It admits of no exceptions. When it comes to hand-washing, discretion is strictly forbidden: no excuses or rationalizations are allowed; ignoring the rule, not following it, would be "suicidal." Based on observable uniformities in nature, obligatory hand-washing reduces error costs as well as decision costs. The rule is rigid but nevertheless pragmatic, neither dogmatic nor moralistic. It incorporates the empirical observation that even members of a professional staff, if left to their own devices, will not consistently behave as their situation demands. Thus, it also illustrates the truism, profoundly relevant to the war on terror, that limiting options available during emergencies can be good or bad, depending on what emergency responders, who may be tempted by sheer exhaustion to take hazardous shortcuts, will do with the latitudes they seize or receive.¶ Campaigners for executive discretion routinely invoke the imperative need for "flexibility" to explain why counterterrorism cannot be successfully conducted within the Constitution and the rule of law. But general rules and situation-specific improvisation, far from being mutually exclusive, are perfectly compatible. n18 There is no reason why mechanically following protocols designed to prevent harried nurses from negligently administering the wrong blood type should preclude the same nurses from improvising unique solutions to the unique problems of a particular trauma patient. Drilled-in emergency protocols provide a psychologically stabilizing floor, shared by co-workers, on the basis of which untried solutions can then be improvised. n19 In other words, there is no reason to assert, at lneceast not as a matter of general validity, that the importance of flexibility excludes reliance on rules during emergencies, including national-security emergencies.¶ The emergency-room example can also deepen our understanding of national-security crises by bringing into focus an important but sometimes neglected distinction between threats that are novel and threats that are urgent. Dangers may be unprecedented without demanding a split-second response. Contrariwise, urgent threats that have appeared repeatedly in the past can be managed according to protocols that have become automatic and routine.¶ [*310] Emergency-room emergencies are urgent even when they are perfectly familiar. Terrorists with access to weapons of mass destruction ("WMD"), by contrast, present a novel threat that is destined to endure for decades, if not longer. Such a threat is not an "emergency" in the sense of a sudden event, such as a house on fire, requiring genuinely split-second decision making, with no opportunity for serious consultation or debate. n20 Managing the risks of nuclear terrorism requires sustained policies, not short-term measures. This is feasible precisely because, in such an enduring crisis, national-security personnel have ample time to think and rethink, to plan ahead and revise their plans. In depicting today's terrorist threat as "an emergency," executive-discretion advocates almost always blur together urgency and novelty. This is a consequential intellectual fallacy. But it also provides an opportunity for critics of executive discretion in times of crisis. If classical emergencies, in the house-on-fire or emergency-room sense, turn out to invite and require rule-governed responses, then the justification for dispensing with rules in the war on terror seems that much more tenuous and open to question.¶ In crises where "time is of the essence" n21 and serious consultation is difficult or impossible, it is imperative for emergency responders to follow previously crafted first-order rules (or behavioral commands) to enable prompt remedial action and coordination. In crises that are not sudden and transient but, instead, endure over time and that therefore allow for extensive consultation with knowledgeable parties, it is essential to rely on previously crafted second-order rules (or decision-making procedures) designed to encourage decision makers to consider the costs and benefits of, and feasible alternatives to, proposed action plans. In medicine, a typical first-order rule is "always wash your hands before inserting a stent," and a typical second-order rule is "always get a second opinion before undertaking major surgery." Such a second-order rule, arguably, makes a good deal of sense in the context of counterterrorism as well. For example, even if we cannot specify in advance when the government is allowed to hold a person without pressing charges, we can specify in advance the procedures that the government must follow to increase the chances that such a decision will be reasonable and revisable.¶ In sum, a visit to intensive care helps upend some flawed assumptions that, unfortunately, continue to distort current debates about counterterrorism. First, the emergency-room experience brings into focus the paradox of urgency. The extreme urgency of a threat requires rather than excludes adherence to preexisting rules, if only to permit emergency workers, with no time to think, to [*311] coordinate their responses swiftly and effectively. Second, when crafted over time by emergency responders who have learned from their mistakes, non-negotiable rules can sometimes prove more effective, pragmatic, and adaptive than unregulated and unmonitored discretion. And, third, rules to be applied in case of emergency can significantly increase the flexibility of operational personnel in a crisis situation by freeing them from their own psychological compulsions and behavioral rigidities.¶ Of course, not all emergencies are alike. Even if discretion is strictly an anathema in some sorts of emergency, other types of emergency are no doubt best managed by some combination of rules and discretion. So even if we accept the misleading but routine classification of the enduring threat of nuclear terrorism as an "emergency," we still have to decide what kind of emergency it is. Is it the kind of emergency that requires the government to rewrite radically, or flatly disregard, previously binding rules? This should be an important question precisely for those who insist that the current threat is unprecedented. Because it is unprecedented, its contours are obscure. We are not yet sure which responses will be most effective against it. We are uncertain how urgently we need to respond. Should we manage the new threat by rules (and which rules?) or by some kind of combination of rules and discretion? And how should we organize decision making to improve the chances of finding an intelligent answer to these questions? Because of its notable capacities for secrecy and dispatch, the executive is usually described as the branch best suited for acting in an emergency. But the capacity for acting with secrecy and dispatch may not be the most useful asset for appraising the seriousness of a novel threat or analyzing its still-murky characteristics in a self-critical spirit. The security threats inherited by the Obama administration remain immensely complex and constantly evolving. Acting successfully in such a complex threat environment presupposes thinking strategically about priorities and alternatives. Even if the benefits of secrecy and dispatch outweigh their costs when national-security policies are being put into operation, the costs of secrecy and dispatch probably exceed their benefits when national-security policies are being made.¶ Advocates of unbounded executive discretion, it should also be noted, routinely rely on analogies and metaphors of their own. My emergency-room analogy should therefore be construed as an antidote of sorts; perhaps one analogy can help loosen the grip of another. To support their claim that the executive branch will be more effective at countering the terrorist threat if liberated from habeas corpus and the Geneva Conventions, for instance, advocates of maximum executive discretion commonly make the metaphorical claim that rules "tie hands." Because rules tie hands, disablingly, in a crisis they must be loosened or cast off. Because they forbid practices that promise to defeat the terrorist enemy, previously binding statutes and treaties must be circumvented for the duration of the crisis. To prevent the president and his [*312] subordinates from being "strangled by law," n22 especially in moments of grave danger, advocates argue that restrictive regulations must be replaced by broad grants of discretion or enabling acts that effectively turn Congress and the courts into passive and ill-informed observers of unilateral executive action. This arrangement makes sense, needless to say, only if its proponents are correct to argue that unrestrained power, by definition, is effective powerThose who like to generalize in this flamboyant style may be conflating laws and procedures in general with those technicalities that, in their opinion, permit obvious lawbreakers to escape well-deserved punishment. Even more dramatically, advocates of unfettered executive discretion sometimes write as if laws restricting the executive were all part of some elaborate post-Watergate plot to cripple strong-on-defense American patriots. n23 When ratcheting up the debate philosophically, supporters of executive discretion tend to write about law the way Nietzsche wrote about Christianity, as if it were a trick that the weak have shrewdly played on the strong. n24 They sometime suggest, in this spirit, that following restrictive laws (such as rules prohibiting the government from relying on circumstantial or hearsay evidence) communicates submissiveness and weakness, and thereby emboldens the enemy. By contrast, an executive branch that conspicuously breaks the chains that previously restrained it will apparently instill a salutary fear into allies and enemies alike.¶ The emergency-room analogy provides a useful corrective to such apotheoses of extralegal executive discretion. Without denying the potential upsides of improvisation during emergencies, the analogy draws attention to the potential downsides of shedding rules in moments of crisis and reminds us that rules can magnify problem-solving capacity, even in such perilous circumstances, precisely when and because they are constraining.
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