Advantage 1: Separation of Powers



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NSL AFF

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Plan:  The United States federal government should change National Security Letter policy to allow judicial review of non-disclosure requirements, mandate that agencies discard non-relevant information gathered from subpoenas, and require subpoena requests to use the articulable and reasonable facts standard. 



Advantage 1: Separation of Powers



NSLs have massively expanded in the status quo- PATRIOT Act reforms have made them easier for the FBI to use- this has caused widespread abuse of power


Wells in 2012 (Desirae L. Wells, “NATIONAL SECURITY LETTERS: WHY REFORM IS NECESSARY”, LexisNexis.com, Yeshiva University 2012, 18 pgs., Database, 6/28/15, http://www.lexisnexis.com.proxy.library.umkc.edu/hottopics/lnacademic/)

As part of the Reauthorization Act of 2006, Congress directed the Department of Justice (DOJ), Office of the Inspector General (OIG) to review the effectiveness and use, including any improper or illegal use of NSLs issued by the DOJ. The OIG issued two Reports. n74 The first in 2007 addressed the FBI's use of NSLs for calendar years 2003 through 2005. The second in 2008 addressed the FBI's use of NSL for calendar year 2006. The OIG Reports confirmed that the Patriot Act transformed NSLs into a much more frequently employed investigatory tool. Specifically it stated that "the FBI issued approximately 8,500 requests in 2000 the year prior to the passage of the Patriot Act and after the passage of the Patriot Act, the number of NSL requests increased to approximately 39,000 in 2003, 56,000 in 2004 and 47,000 in 2005. n75 The Reports made a distinction between NSLs and NSL Requests - a single NSL may contain multiple requests for information. The OIG Reports specified that the 39,000 requests in 2003 were contained in approximately 12,000 letters and the 47,000 requests in 2005 were contained in 19,000 letters. n76 According to the OIG Reports, there were 3 main reasons for the dramatic increase in the number of NSL re-quests issued starting in 2003. n77 First, the Patriot Act eliminated the requirement that an NSL be issued only if "there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought [*230] pertains is a foreign power or an agent of a foreign power." n78 Instead, the information need only be "relevant to an authorized investigation to protect against international terrorism or clandestine activities," n79 a much lower standard. Second, previously a NSL had to be approved by a senior FBI official at FBI headquarters but NSLs could now be authorized by Special Agents in Charge at FBI field offices. As a result, approval is no longer a lengthy process and generally takes only two to five days. n80 Third, in 2003, the Attorney General issued revised guidelines governing the use of NSLs in FBI national security investigations (the "NSI Guidelines"). The revised NSI guidelines permit NSLs to be issued during preliminary investigations; under the old guidelines NSLs could only be issued during full investigations. n81 The OIG Reports found that in addition to significantly underreporting the number of NSL requests issued, the FBI failed in a number of other significant ways as well. According to the reports, the agency under-reported violations arising from the use of NSLs; sought information not permitted by the statute; issued NSLs without proper authorization; issued over 700 "exigent letters" requesting the type of information covered by § 2709 without following the process for obtaining an NSL; and repeatedly failed to properly adhere to the FBI's own internal documentation requirements for approval of an NSL. n82

Recent reforms fail- they are non-binding and contain multiple loopholes


Sledge, Matt 02/05/15 (Huffington Post ‘The Gaping Hole In Obama's FBI Surveillance Reform’- http://www.huffingtonpost.com/2015/02/04/national-security-letter-reform_n_6617572.html)

The federal government this week announced a reform to an investigative tool that gives the FBI sweeping surveillance power. But a target of that surveillance said the change appears to leave investigators with vast power to snoop -- in secret. The FBI uses national security letters to force business owners to hand over records on their customers, as long as the records are related to a national security investigation. No court approval is needed, and the FBI can impose a gag order on recipients, forbidding them from revealing even the existence of a letter. The gag orders can last a lifetime. But on Tuesday, as part of surveillance reforms made in the wake of National Security Agency leaker Edward Snowden's revelations, the Office of the Director of National Intelligence announced that national security letter gag orders will now expire after three years, or when an investigation ends. The new rules contain a gaping exception, however: FBI agents can essentially write themselves a permission slip to keep a national security letter secret past the deadline, as long as they receive approval from supervisors. "This exception is essentially full discretion to FBI officials," said Andrew Crocker, a legal fellow at the Electronic Frontier Foundation. "It is an exception that doesn't have a lot of standards associated with it. This is kind of the problem with the (national security letter) statute to begin with." For years, Crocker and other lawyers at the privacy watchdog have been fighting to force the federal government to reveal in court the name of a phone company challenging one gag order. A federal district judge handed the foundation a major victory in 2013, ruling that the gag order violates the First Amendment's right to free speech. The case -- which stems from a 2011 government order -- has remained on appeal since then. The FBI has wielded national security letters for decades, but the authority to do so was vastly expanded by the post-9/11 Patriot Act. Department of Justice inspector general reports released since then have documented widespread abuse of the letters. But the bureau keeps using them, to the tune of 21,000 letters in the 2012 fiscal year. Because the recipients of all those letters are often barred by the gag orders from speaking out, their voices in the debate has been silenced. That changed a little in 2010, when Nicholas Merrill was finally able to reveal as the result of a long court battle that his small Internet service provider had received a letter -- in 2004. Merrill was back in court in December, trying to force the government to allow him to reveal what it had sought (he never supplied them with any of data after the government backed down on its original request, but that portion of the gag order still stands). If the reforms announced this week have affected his case, Merrill wrote to HuffPost in an email, "nobody has told me." He said the government has shown no sign of surrender in trying to block him from speaking out. The White House last year rejected a review panel's proposal to make national security letters subject to court order. Administration counterterrorism adviser Lisa Monaco heralded the minor changes to some national security letters' gag orders in a statement on Tuesday. Merrill was unimpressed. "The issue at hand is that the government doesn't want me to discuss what was in the third page of the (national security letter) I received, namely, the types of data they demanded (and I did not hand over)," Merrill wrote. "The problem with not being able to discuss that openly, is that is the heart of the public policy issue -- what kinds of information can the government get on an innocent citizen without a warrant, or even any suspicion of wrongdoing."

Unchecked executive power over surveillance undermines the fourth amendment and separation of powers- lack of judicial review ensures overreach


Kenneth R. Logsdon in 2008, J.D., University of Illinois College of Law, UNIVERSITY OF ILLINOIS JOURNAL OF LAW, TECHNOLOGY & POLICY 2008 U. Ill. J.L. Tech. & Pol'y 409, lexis

The electronic surveillance that the United States Government has participated in post-9/11 implicates several constitutional principles: namely, the First Amendment, Fourth Amendment, and the constitutional doctrine of separation of powers. n173 As stated by the First Amendment and Supreme Court decree, if a statute allows for any governmental discretion in limiting speech, like that found in the PA and PA II, such discretion must be subject to objective standards. n174 Regarding the Fourth Amendment, the Executive has relied upon AUMF and Article II to argue it has the constitutional authority to operate the TSP. n175 However, current statutes already provide contingencies for a state of war; nevertheless, there has been no official declaration of war. n176 Furthermore, the Supreme Court has explicitly stated that the Executive Branch cannot circumvent the Fourth Amendment even in a time of war. n177 According to the constitutional doctrine of separation of powers, the Executive Branch's authority is greatest when Congress explicitly allows an [*426] action, and it is at its lowest ebb when the Executive Branch takes any action incompatible with the expressed or implied will of Congress. n178 In addition, the Executive Branch must respect the Judicial Branch's constitutional authority, and any attempt by the Executive Branch to limit judicial review and discretion is an infringement upon such authority. n179 A. First Amendment The First Amendment of the United States Constitution states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech ... ." n180 This fundamental right cannot easily be dispensed with, and when Congress implements a statute allowing governmental discretion to limit speech, that discretion must be limited by objective criteria. n181 Both the PA and PA II allow governmental discretion in the administration of a nondisclosure request; thus, they must be limited by objective criteria. n182 The Supreme Court of the United States has devised a test when such discretion is present, in order to prevent the dangers associated with censorship. n183 This test, known as the Freedman test, states: the government must exercise its discretion within a system that allows for "procedural safeguards designed to obviate the dangers of a censorship system."... (1) any restraint in advance of judicial review may be imposed only for "a specified brief period," (2) any further restraint prior to "a final judicial determination on the merits" must be limited to "the shortest fixed period compatible with sound judicial resolution," and (3) the burden of going to court to suppress the speech and the burden of proof once in court must rest on the censoring government. n184 Prior to PA II, both the first and second factors under the Freedman test would have likely failed; however, changes made in PA II implemented additional judicial safeguards not present in PA. n185 Even so, the third factor of the Freedman test still is not satisfied under the newly enacted PA II. n186 Particularly, factor three of the Freedman test requires that the burden of proof in the suppression of speech rest upon government. n187 Problematically, title 18, section 2709(c) of the United States Code "grants broad discretion to the FBI to completely restrict constitutionally protected speech on the basis of its [*427] content, and it places the burden of challenging this restriction in court solely on the NSL recipient ... ." n188 The government's response to First Amendment criticism focuses largely on ostensibly analogous statutes that have avoided abrogation by the courts. n189 In particular, the government focuses on statutes that allow it to apply wiretaps, pen registers, and FISA subpoenas. n190 To bolster this argument, these statutes also do not have the same broad ability of judicial review as that prescribed by the PA II. n191 However, those statutes differ from those prescribing use of NSLs because the court authorizes the search ex ante and provides judicial safeguards after the search has concluded. n192 Additionally, both the wiretap and pen register statutes "imply that communications providers might be free to discuss wiretaps and pen registers, as well as their knowledge of underlying criminal investigations, after those investigations are completed." n193 The ability of the government to restrict speech in grand jury cases well after the time period in which it was necessary has also been found to be unconstitutional. n194 A law prohibiting grand jury witnesses from disclosing their testimony after the jury term has ended violates the First Amendment to the United States Constitution. n195 On the other hand, a law preventing grand jury witnesses from revealing their testimony post-jury term is acceptable, so long as the criminal investigation of the crime continues. n196 Conversely, the revisions provided by PA II regarding NSLs "continues to authorize nondisclosure orders that permanently restrict an NSL recipient from engaging in any discussion related to its receipt of the NSL," thus, violating the First Amendment. n197 1. Executive Action Post-9/11 and the First Amendment n198 England's history of the freedom of speech and press is intertwined with the scope of a search and seizure. n199 "This history was, of course, part of the [*428] intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression." n200 The TSP created by the Executive Branch may be one such instance where the government's ability to search electronic communications will have a direct impact on one's proclivity to freely express himself or herself. n201 Though this observation may seem hyperbolic, "history abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies... . Protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs." n202 B. Fourth Amendment n203 "The warrant requirement [within the Fourth Amendment] has been a valued part of our constitutional law for decades ... . It is not an inconvenience to be somehow "weighed' against the claims of police efficiency." n204 1. Executive Action Post-9/11 and the Fourth Amendment The warrant requirement is an important functional element of restrained governance to prevent even well-intentioned, yet over-enthusiastic, governmental officials, from exceeding their constitutional boundaries. n205 Yet, the aforementioned TSP was created because the Executive Branch believed such efficiencies were necessary, and current surveillance laws inadequate, to protect American citizens from future terrorist attacks. n206 The Executive Branch argued this efficiency is necessary in a state of war, which we are currently in. n207 Specifically, the Executive Branch stated the Congressional authority to fight against terrorism, as found in AUMF, is all [*429] that is needed to justify such an expansive surveillance program. n208 However, the AUMF is not a declaration of war, but Congressional "authorization" to use force. n209 If the Executive Branch is going to argue it has "war powers" to implement the TSP, should not such an assertion require an actual declaration of war? Furthermore, even if such a declaration were granted by Congress, would that justify the Executive Branch in ignoring a FISA provision (a mere Congressional act) that explicitly states what actions are allowed by the President in a time of war? If not, how would it be remotely possible for the Executive Branch to have the constitutional authority to disregard the Fourth Amendment? "The Bill of Rights of the United States Constitution must be applied despite authority granted by the AUMF." n210 Significantly, these constitutional restrictions are also applicable to the Executive Branch's constitutional powers embedded in Article II. n211 If this were not so, then Congress's attempt to restrain the Executive Branch's actions during war, as found within FISA, is an unconstitutional Congressional infringement upon Article II. n212 Hitherto, "there does not appear to be any precedent even vaguely on point - that is, where Congress legislated in an area within its legislative authority and it was nonetheless held by the Supreme Court that the President had inherent authority to act contrary to the statute." n213 The argument that Article II of the United States Constitution allows the Executive Branch to avoid adhering to restrictions within the Bill of Rights, in a time of war, was erroneous when proclaimed by the Nixon Administration and is equally erroneous today. n214 In fact, the only Supreme Court case addressing the use of wiretaps for national security purposes is United States v. U.S. District Court. n215 In this case, the Supreme Court concluded that domestic electronic surveillance to further the Executive Branch's obligation to protect national security is insufficient to circumvent the Fourth Amendment. n216 In summary, the Supreme Court of the United States recently and concisely declared: Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally [*430] vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. n217 C. Separation of Powers When the Founding Fathers gathered together to create a new nation they did so with the knowledge of history and with the intent to create a government that would restrain itself. n218 In so doing, they devised a Constitution that created three branches of government with each part assigned distinct functions and requisite powers. n219 Though each branch was separate, they were coequal and "while independent of the others, the workings of each were integrated as a whole ... to guarantee that lasting stability demands that each branch honors its own bounds of authority, and those of the others." n220 Succinctly stated, "our national experience teaches that the Constitution is preserved best when each part of the Government respects both the Constitution and the proper actions and determinations of the other branches." n221 Recent legislation sought to rectify constitutional deficiencies and explicitly allow the Executive Branch the ability to perform surveillance without a warrant. n222 This legislation, known as the Protect America Act of 2007, was enacted in August 2007 and allowed the Executive Branch to electronically surveil a suspected terrorist reasonably believed to be outside the United States for up to one year without a warrant and provided immunity to telecommunication providers that assisted the government in doing so. n223 However, Congress was cautious with such a grant of power and built in a sunset provision that automatically nullified the law at the end of 180 days if there was no subsequent congressional action. n224 Congress did not act and the law sunset February 17, 2008. n225 Nevertheless, notwithstanding Congressional prudence to build in a sunset provision, such explicit authorization does not ameliorate the aforementioned constitutional criticism. n226

NSLs are uniquely key- they represent the most sweeping and permanent surveillance power of the PATRIOT act by allowing the FBI to have unfettered access to any individual’s personal records.


Bendix and Quirk, 13—William Bendix is Assistant Professor of Political Science @ Keene State. Paul Quirk, a former research associate at Brookings Institution, is Phil Lind Chair in U.S. Politics and Representation @ University of British Columbia. “Issues in Governance Studies Institutional Failure in Surveillance Policymaking: Deliberating the Patriot Act,” Governance Studies @ Brookings, no 60, July, http://www.brookings.edu/~/media/research/files/papers/2013/07/29%20surveillance%20policymaking%20patriot%20act%20bendix%20quirk/bendix%20quirk_patriot%20act_v14.pdf,

But despite the extensive proceedings, congressional debates and decisions have often been superficial and uninformed—resulting in policies that unnecessarily weakened investigations, compromised privacy rights, or both. Members of Congress, unfortunately, have few incentives to conduct thoughtful formulation of surveillance policy. They face little political risk from bolstering security at the expense of privacy, because the loss of privacy directly and immediately affects a relatively small number of people—those under investigation. In terms of electoral rewards, oversight of the executive does not compete well with legislating, let alone fundraising or speechmaking.7 And all too often, members of Congress have greater interest in scoring partisan points or defending their party’s president than in conducting careful performance evaluations. In addition to the deficient incentives, Congress has structural weaknesses that have undermined the ability to strike an intelligent, democratically sanctioned balance between security and individual rights. Looking at how Congress developed and evaluated the Patriot Act over the last decade, we see five varieties of defective policymaking, with major consequences for the results. 1. Casual treatment of crucial provisions To begin with, Congress has failed to give serious, careful attention to some of the most important provisions in the legislation. When the Patriot Act was first being drafted in the immediate aftermath of 9/11, Republicans on the House Judiciary Committee insisted that surveillance provisions include four-year sunsets, requiring reauthorization votes in 2005—an approach readily endorsed by the committee’s Democratic minority.8 Because deliberations were conducted in haste, the committee wanted the new investigative tools to be reexamined in a less turbulent atmosphere. They worried that relatively lax rules for seizing private records and conducting electronic surveillance could lead to fishing expeditions and violations of privacy rights. Instead of adopting the House approach, however, Congress acted on a Senate bill drafted in part by the Bush administration. Lawmakers placed sunsets on most, but not all, investigative provisions.9 In fact, they overlooked perhaps the most problematic tool in the bill—national security letters—and made it permanent from the start.10 National security letters are a type of administrative subpoenaissued by the Federal Bureau of Investigation (FBI) on its own authority, without judicial supervision.11 They allow investigators to seize a person’s communication records, banking receipts, and credit information, without having to show evidence that the target is a spy or terrorist.12 In effect, agents can use these letters to gather records on anyone they choose. Because the subpoenas come with no requirement to discard non-relevant information, the FBI has sometimes collected the records of innocent Americans and kept them indefinitely.13 In an extraordinary failure of legislative deliberation, not a single member of Congress mentioned national security letters during the floor debates in 2001. Nor did any member raise concerns about the government’s prolonged retention of non-relevant information during the reauthorization debates four years later. This failure to discuss national security letters was in our view the most severe deficiency in deliberations on the Patriot Act. If the Act created risks of privacy violations and fishing expeditions, it was mainly through these administrative subpoenas. Only in late 2005, when the Washington Post revealed that the FBI was issuing more than 30,000 national security letters per year—“a hundredfold increase over historic norms”—did some members of Congress raise concerns.14 Even then, many Republicans dismissed the report and showed greater interest in defending the Bush administration than in determining whether privacy violations had occurred. Eventually, an independent audit confirmed the Post story. Between 2003 and 2005, the FBI had issued about 140,000 national security letters and had seized private documents on almost 24,000 U.S. persons.15 These records were added to searchable databanks, accessible to 17,000 federal agents.16 However, by the time these findings were released in 2007, the Patriot Act had long since been reauthorized, without change in the national security letters provision. As we discuss later, although greater controls were eventually placed on the letters, Congress played almost no role in instituting the changes.

Unchecked executive discretion risks escalation in times of conflict-it encourages pre-emption and rash decision making


Holmes, 2009 Holmes, Stephen. "The Brennan Center Jorde Symposium on Constitutional Law: In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror." California Law Review, Inc (2009): n. pag. Web. 28 June 2015

When faced with a serious threat to national security, the most aggressive response will not always be the most effective response. In a bullfight, the bull loses the contest not because it is insufficiently aggressive, but rather because the matador, through provocative gestures, uses the wounded beast's aggressive impulses and impaired vision against it, repeatedly luring it into futilely and exhaustingly charging a phantom target. n108 Any system that defends unmonitored executive discretion exposes itself to the danger that the executive officials who happen to be in power at the time will feel that inaction is psychologically intolerable or, by sheer bad luck, will have a bias toward aggressive action that, while psychologically satisfying (not to mention electorally advantageous), in no way corresponds to the requirements of the situation. n109 [*346] Because those who attacked the United States violated an absolute international ban on terrorism, American authorities may have been tempted to avenge the injury - an eye for an eye - by violating an equally absolute international ban on torture. After suffering a severe blow inflicted by an avowed enemy, the surviving victims of an attack are often obsessed with reestablishing an image of themselves as active rather than passive. They have to "do something" without giving too much thought to the specific consequences of the actions they undertake. This suggests, once again, that cruelly coercive interrogation may have been embraced less for the tactical information it promised to disgorge than for its independent psychological appeal. All of its practical consequences were not necessarily coolly considered. Such speculations are admittedly impossible to prove or disprove. But they are plausible enough to justify skepticism about the claim that harsh interrogation was embraced solely for the pragmatic reason alleged, namely to extract intelligence to prevent a follow-up nuclear sneak attack against the United States. Electoral, as opposed to national-security, considerations may also have contributed to the embrace of interrogation techniques that departed sharply from preexisting rules. The lack of genuine metrics of success in the war on terror makes it inherently difficult to prove to voters that their government has undertaken the most effective course of action. Such politically unsustainable uncertainty may, as mentioned, pressure policymakers into seeking or fabricating pseudo-metrics. This is especially true when American policymakers could not demonstrate that their actions are eliminating more terrorists than they are producing. But the Bush administration and its supporters could always point out that Amnesty International, Human Rights First, the ACLU, and other liberal-humanitarian organizations were screaming about torture. These organizations' vehement expressions of outrage strongly [*347] suggested that the Bush administration was going to extreme lengths - pulling out all the stops - to protect the country. The pernicious idea of a liberty-security tradeoff, once again, lent a spurious plausibility to the mind-game being played.

Checks and balances are the only way to prevent groupthink and escalatory interventions- unilateral decision-making ensures conflict


Fleischman 10 – Matthew Fleischman, associate in the New York office of McKool Smith. Prior to joining the firm, he was an associate at Debevoise & Plimpton LLP. J.D. Candidate at NYU School of Law, Magna Cum Laude at SLU, “A Functional Distribution of War Powers”, New York University Journal of Legislation and Public Policy, 13 N.Y.U. J. Legis. & Pub. Pol'y 137, Lexis

While Nzelibe and Yoo's model is clearly plausible, it misses certain critical institutional constructs. Their analysis attempts to determine which branch is the more effective agent in this principal-agent problem; however, they fail to realize that the institutional design is not an either-or choice. n96 The whole notion of separation of powers or checks and balances is rooted in the idea of having one agent checking the other agent. n97 The system's design "promotes deliberation among multiple agents, which encourages them to reveal private information that might otherwise remain hidden." n98 While there is little empirical evidence on the value of deliberation, Professor James Fishkin has found evidence that "significant shifts in opinion" take place after participating in public policy deliberations. n99 Studies [*152] such as this one show that there is value to deliberating. Thus, there must be something unique and different about war powers that justifies abandoning the traditional and effective means of coming to a decision. The first argument offered by Nzelibe and Yoo reasons that presidents tend to be held more democratically accountable for foreign policy than Congress and should therefore be given significant power in this area, and asserts that ex post congressional action is sufficient to mitigate the effects of poor decisions. n100 First of all, while the President may be seen as the key decision maker in the war powers arena, that does not mean that congressional actors are immune from being held democratically accountable for the decision to engage in significant armed conflict. n101 Beyond overestimating the negative accountability effects of going to war, Nzelibe and Yoo fail to account for the numerous benefits from going to war. Professors Cecil Crabb and Pat Holt observed that "once a president has made a foreign affairs decision that becomes known to the public, he automatically receives the support of at least 50 percent of the American people, irrespective of the nature of the decision." n102 This is commonly known as the "rally around the flag" effect. n103 This surge of patriotic sentiment is temporary, n104 but very real. When this sentiment evaporates, the President can react in a multitude of ways. While accountability can breed prudence, it can also lead to "gambling for resurrection." n105 This is an [*153] agency problem in which leaders prolong unsuccessful wars in the hope that the tides of war will eventually turn, saving the leader's legacy. n106 Ultimately, unilateral Executive action does garner increased accountability, but can lead to short-term political gain and an unwillingness to concede defeat. Furthermore, ex post congressional constraints on presidential actions are insufficient. The fact is, "ex post congressional involvement can only terminate some presidential mistakes and can never recover the sunk costs of bad presidential decisions." n107 Not only are there sunk costs, but "even some opponents of the initial decision to go to war recognize that overly hasty withdrawal could be a poor policy at later stages." n108 Ex post decisions are made in response to a new status quo, one in which use of the power of the purse can be viewed as endangering troops n109 or giving America a weaker image abroad. n110 The second way in which Nzelibe and Yoo justify expansive executive powers is by arguing that the President has superior information to Congress. n111 Yet, allowing for a second opinion on the same information will reduce the likelihood of poor decision making, while not positively or negatively impacting the quality of the information in and of itself. n112 Therefore, Type I errors n113 are less likely when Congress is consulted. Nzelibe and Yoo cite the Iraq War as proof that intelligence failures can occur with or without congressional involvement. n114 However, it could instead be argued that the failure was caused by "executive manipulation of information to exaggerate a threat." n115 The problem was not the informational asymmetry, but rather the use of that information. One logical solution to this problem would be to increase the information gathering and interpreting capabilities of Congress. Nzelibe and Yoo mistakenly take the Executive's informational advantage as a given when it is entirely alterable. [*154] Therefore, the information advantage can be lessened, which would greatly diminish the odds of Type I errors. Any shift in an independent variable should lead to a corresponding shift in the causal variable. In this case, to the extent that the frequency of Type I errors is correlated with informational disparities, correcting the disparities should negate the odds of Type I errors occurring. The third functional argument presented by Nzelibe and Yoo concerns the relative value of signaling to different regime types. n116 Given that they advocate for a President-First approach, but concede that congressional authorization has value in disputes between democratic states, n117 there is no real disagreement about the value of congressional authorization in these disputes. That leaves conflicts between democratic nations and rogue states or terrorist organizations as the lone area where the two sides disagree on this issue. Even before one can question this distinction, the definition of a rogue nation must be determined. Nzelibe and Yoo leave this task to the President. Nzelibe and Yoo believe that the leaders of rogue states are insulated from domestic political pressure, n118 but this is simply not true, as "all leaders are answerable to some coalition of domestic political forces on which their power and political survival rests. Failure in conflict and war helps shorten the tenure of such leaders." n119 All leaders pursue a rational strategy to maintain power. n120 Wars occur when political leaders attempt to rally the masses behind a national cause via aggressive rhetoric and policies. Thus, all leaders, whether of rogue nations or of first world countries, are subject to popular pressure and suffer consequences at home for losing wars. Nonetheless, elected presidents are more concerned with national support and are therefore more likely to engage in such rhetoric and promote war, since it has been shown to increase the approval rating of presidents. n121 [*155] On the other hand, the Legislature has more localized interests and would be resistant to using such rhetoric. Localized interests are not rallied by promoting a national identity or a national battle but by catering to a smaller community's needs and interests. Because of the political advantages gained by a president going to war and the Legislature's inclination to shirk the issue, n122 unilateral presidential action is likely to lead to an overly aggressive position on military engagements. Therefore, congressional involvement should decrease the likelihood of Type I errors with respect to all regimes. The totality of the analysis suggests that deliberation decreases the likelihood of Type I errors. This type of deliberation cannot occur within the Executive branch alone. While the president consults with staffers and cabinet secretaries, they are likely to "succumb to groupthink, as it has been called - the overt and subtle pressures driving group cohesiveness that can distort the decision-making process." n123 When a group decides upon a view, dissent becomes difficult and there is pressure to reject alternatives. n124 Furthermore, even before coalescing around a particular opinion, executive staffers are likely to possess policy preferences. Type II errors (not entering "good" wars) would only be more likely under the Congress-First approach if Congress were more likely than the Executive to be opposed to good wars. However, since research shows that Congress is likely to approve most wars independent of circumstances n125 that is highly unlikely to be the case. But there is no reason to believe that Congress has any aversion to good wars. n126 Ultimately, a Congress-First system would decrease Type I errors and have little impact on Type II errors when dealing with traditional warfare, and it is the institutional design that would better accommodate functionalists' concerns and desires.


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