I’d warn you that there are Spoilers Ahead for Hunger Games II: Catching Fire, but the title of this brief essay — taken from a David Sedaris book which was taken from a Japanese hotel evacuation card — already is a spoiler.
I liked the previous film not for what it overtly was, but for the instructional subtleties that it offered its target audience. Catching Fire goes in a different, more face-value direction and while it has more misses (rinse-off caustic damage, the obviousness of the midnight tree) and more hits (the baby bomb, PTSD birds), it also manages to run face-first into the unforgiving I-beam of the irony of the series.
this true lady-centric blockbuster franchise isn’t named after Katniss, it’s named after what happens to Katniss… She has free will, of course, like any five year old with terrible parents, but at every turn is prevented from acting on the world. She is protected by men– enemies and allies alike; directed by others, blessed with lucky accidents and when things get impossible there are packages from the sky. In philosophical terms, she is continuously robbed of agency.
All of this is even more true for the second film, where the only person who regards Katniss as entirely human is Katniss and maybe her little sister. Everybody else regards and values her, in part or in whole, as a dehumanized symbol onto which they project their aspirations (or fears, in the case of The Man). This is still a valuable lesson about human frailty for young people who are prone to celebrity- and idol-worship, but explicitly at odds with how the film is commercialized with the powerful bow-hunting heroine.
Let me put this very bluntly: What Katniss wants, needs, dreams, and desires is utterly irrelevant to this film. All that is necessary is for her to keep breathing while her friends and allies maneuver her body to where it needs to be to further their plans. In other words, Katniss is most dehumanized, most robbed of personal agency and freedom by her so-called friends. Consider:
Effie writes speeches, but Peeta — with a much stronger and better-acted role in this film — is the one who leads the excursion off-script. Katniss only bumbles along behind both of them.
Cinna writes and signs his own death warrant, a point that seems to be lost on Katniss when she’s wearing it on stage and being awed by how pretty it is.
Haymitch does the footwork to round up allies for Katniss, which Katniss doesn’t want and explicitly rejects — but then she has them anyway… by their choice rather than hers.
When Katniss is about to unthinkingly get herself killed by a misplaced Warhammer 40K soldier-dude, it’s Haymitch that steps in and talks the situation down while Katniss stands around dumbfounded.
When Peeta gets detonated, it’s that pretty boy — Finnick? I’m bad enough with names, never mind fake ones — that does the CPR to bring him back while Katniss just kind of melts down.
While the real use of the bloody obvious tree is bloody obvious, Katniss doesn’t figure it out until Beetee detonates himself because she’s still playing the game she was told to play by The Man.
And the closing scene shows that even dumb-hunk Gale was in on the actual plot of the film which merely required a really-breathing Katniss-body, not the actually strong and powerful heroine that got captured by The Man.
I’m sure there are more (it was a 2.5 hour movie) examples, but we have to counter-point the clear disempowerment against the marketing campaign of faux-powerment. Hasbro (haz-BRO) is the case in point here. See, they’ve released Nerf weapons for Girls — you can tell because they’re petite and pink and riff on “rebel” by spelling it “reb-Elle”. I wish I were joking, but I’m not. And if you go to the theater early, you may be subjected to a rather long ad — at least it feels like it goes on forever — which blithely ignores that the word “Nerf” is synonymous with disempowerment. Really, Nerf, verb, “To make worse or weaken, usually in the context of weakening something in order to balance out a game.” See also “Nerfed” or “Nerfing.” As a counter-example, here’s what the un-nerfed version looks like:
See the difference?
This is just another example of errantly offering to sell empowerment with a skin-deep counter-exclusion* ad campaign instead of encouraging people to take power. This is the merchandising version of the ”Put a Bow on It” trend, only made more egregious by the fact that it’s the Nerf brand in front of an explicitly disempowering film which I promise I’ll get back to in a moment. I don’t understand the phenomenon: my niece will do gleefully savage violence to my person with whatever happens to be available regardless of color; attempts at inclusivity are unnecessary for her active (and hyper-violent) imagination. A dearth of flamingo-hunting opportunities has resulted in blowback on inclusively-pink camouflage. Even peacefully inclusive engineering toys are being regarded as woefully condescending by their canny and incredulous target audience, a condition which hasn’t changed in a couple of decades:
Mid-90′s I worked as a game dev when “girls need a narrative” came up, implemented badly. Some of us pushed back w/ “no, they need a POINT”
Okay, so, back on topic. What Katniss wants is to run away and hide. I can totally feel with her on that. What she gets, though, is to be Plutarch’s puppet in his admixture of lime-lighting and invasive oppression designed specifically to keep pushing on her while people are looking up to and then dying for her — and she can’t figure out why because what she wants is to run away and hide. She is unaware of how she links to TLP’s critique that “This manipulation of her is all deliberate design– what society actually wants is that it gets her to be pretty, demarcates her as an object to be gazed upon– but not bear any of the guilt/responsibility for forcing her into this.” She can only see herself, not what everybody else is projecting onto her: she’s staring at the audience, not at the screen she’s providing for them. This is a realistically valid situation for a person to be in — consider what the media did to Jessica Lynch back in 2003 – but it’s the opposite of empowerment.
What we know is that all this has happened before and it will all happen again, specifically with Hillary Clinton’s supporters trying to push her to another presidential campaign in 2016. I don’t know what they think they want from the old plutocratic sell-out, other than a chance for them to prove that most of the voters in the US aren’t misogynistic. I’ve not heard a single thing said about how a Clinton administration would be different from the current administration, which Lawrence Lessig pointedly criticized as being too much like what a Clinton administration would’ve been like despite the campaign promises of difference and change. Here’s an alternate idea: how about we elect some other woman? Senator Warren is my preference, but Senator Gillibrand can also talk a lot of sense. Set one of them up with (Sec Def) Chuck Hagel as VP against, say, Chris Christie and maybe Condi Rice — really, I like her on domestic policy issues; it’s just her foreign policy positions that are woefully misguided — then we could have an interesting presidential campaign that might have both actual differences and a lack of obviously wrong choices. But the point here is that (as far as I can tell) Hillary Clinton is in a similar position to Katniss in that her followers care more about what she means to them more than they actually care about her, and that’s not particularly good for anybody.
The funny thing about Catching Fire is that for all the attention Katniss gets, it’s the viciously nihilistic Johanna (who ends up apparently captured by The Man) that has personal power. Yes, she uses to go along with the plot — probably because it seems like the best way to meaningfully rebel against The Man and the horrible society The Man claims to have created, which she goes off-script to angrily denounce. And Johanna’s role is another valuable lesson for kids, since most of them aren’t going to become president someday: it’s more important to play your part well than to play an important part. Had Johanna screwed up any of her key actions, the consequences to her associates could have compromised the whole mission that she agreed to join in on: the team may have not figured out the environmental hazards, or not clued in to the point behind the tree, or the evacuation could’ve been compromised by a tracking beacon, or a not-killed-yet competitor. This isn’t to say that girls should feel compelled to strip in elevators just to express interest in a guy (even though we can be dense), but rather to observe that Johanna’s priorities, choices, and capacity to focus on objectives demonstrates a purity of will that makes her a better icon of the empowered female than Katniss.
I kind of expect that I’ll be disappointed with her character arc, though; just a hunch about needing to leave ample room for the do-nothing heroine at the big upcoming finale on the other side of that really cheesy CG Mockingjay.
* “Counter-exclusion” is how groups can self-righteously entrench segregatory failure while refusing to be victimized by it. The Parks & Recreation episode “Pawnee Rangers” shows a counter-exclusion which collapses once the kids figure out that they’re in a group based on counter-exclusivity, with inclusive grouping for shared purpose being the heart-warming conclusion of the episode. (Did I really just say “heart-warming”?)
I’m don’t want to say that by reducing complex stories to the most reductive mood-ring essence you think we’re children, but… –Jon Stewart
The topic “Immigration reform should include a path to citizenship for undocumented immigrants currently living in the United States” reveals both the glory and the horror of Public Forum debate. I won’t be spending much time discussing it due to its low-usage on my circuit, but let’s bring out a few points.
This topic wants to be about the actual immigration reform policy that is being considered in the house and senate currently. It wants students to go and learn about what’s going on so they can have an educational and enlightened debate that may leave the adults in awe of what the upcoming generation can do. That it doesn’t do this is no surprise.
The wording of the resolution, which is completely unbound from policies being discussed, is open to a few obvious abuses:
If you don’t want to make a system that favors people just for being here but do have to affirm the resolution, then “a path to citizenship” can start with people going back to their native countries and applying for US citizenship, just like all their peers.
If you do want a special process for the people who are already here but have to negate, you can point out that “a” path is singular and doesn’t take into account the circumstances of the individual, which is particularly important for minors, students, and victims of human trafficking who might otherwise be dropped into the same legal status as migrant workers.
But you’ll probably want to lean negative here anyway: the word “currently” was ill-advised in this resolution since the set of people who are undocumented immigrants currently living in the United States is going to change between now and whenever immigration reform actually happens, demonstrating how out of touch the resolution will necessarily be with reality.
I suppose we could negate by insisting that immigration reform is too important to delay with political wrangling over the legal status of undocumented immigrants and it would be better to start reform without a path to citizenship for them than to hold out for a complete immigration reform package — thus we negate, not because we’re opposed to a path to citizenship for undocumented immigrants but because we want to get the reforms that everybody can agree on done immediately so that the people who want to come to this country in conventional fashion may do so instead of being stuck in limbo, waiting on our politicians to change the status of people who are already here without a status.
Of course, the affirmative counter-argument to that last one is that we want our legislators to delay immigration reform indefinitely and for the stupidest reasons possible — like “because they’re arguing about the people that are already here” — so that the immigrants who do still persevere in coming to the United States through the current process are already well-versed in our great American pastime of jeering at the boorish ineptitude of congress. Sharing in a great national tradition like that is sure to improve our unity as a nation as we welcome wave upon wave of immigrants — one at a time — for generations to come.
It’s all fun and games until I have to listen to you say it without a trace of humor, sarcasm, or irony.
And this goes back to what’s wrong with Public Forum debate: it is fundamentally structured to flatten the complexities of real issues and replace the mutual respect for opposing viewpoints necessary for functional democracy with shrill polarized point-scoring. I even wrote a case essentially against Public Forum for Public Forum a few years ago on this very point.
The horrifying thing about Public Forum’s ability to circumvent issues and go right to inanities is that mass — or at least massive — media not only supports this behavior, but does so with increasing regularity as Jon Stewart lampooned on October 30, 2013. Education, both formalized and our informal intake of current events, should improve our capacity for responsible adult action, not simply reassure us that the comfortable prejudices we acquired in our youth are shared by at least somebody who’s celebrity enough to be on television. But when we do something like take an issue which is of vital importance to several million Americans — and if they’re jeering at the boorish ineptitude of congress, I do consider them to be Americans regardless of their citizenship status — and package it in a form so abstract that we can’t even talk about what kind of “path to citizenship” there might be, only whether there should be one or not, in the name of “education and engagement,” I get very worried for the future of democracy.
But at least the satirists like Stewart and Colbert will have ample material to work with long into the future.
One of the saddest ways for me to deliver an affirmative ballot in a CX round is when the negative tries to be clever without actually thinking through what they’re saying. This is why I have previously explained How To Negate, but sometimes you’ll be on the affirmative when the negative tried to be clever and fails. For example, consider this disadvantage/counterplan pairing:
“Plan costs political capital which derails legislation X; counter-plan: delay plan until after legislation X.”
Second, at the point where the negative guarantees that legislation X will happen — which is dodgy if they’re not actively fiating legislation X (which probably would’ve been a better counterplan) — then they’ve also guaranteed that plan will happen, thus effectively affirming the resolution which did not specify a timeline (only a decision), especially if they don’t have any other offense against plan. There are a variety of ways to run conditioned, delayed, and conditionally delayed counterplans, but guaranteeing that the plan happens at some point in time is not one of them.
Third, when we put the first two together, we realize that what the counterplan really does — by the bullshit logic of the negative — is simply sacrifice some unknown piece of future legislation by spending political capital on plan. For example, let’s say that our plan is to colonize the moon. But the negative says we need to spend political capital on immigration reform before we colonize the moon and we can’t possibly do both. So “Counterplan: delay moon colonization until after immigration reform.” But what if we hit the debt ceiling again right after we pass immigration reform? Well, we’d start to colonize the moon but, having spent all that (BS) political capital on colonizing the moon, we’d fail to raise the debt ceiling and then we’d be bankrupt and — because this is CX — Extinct! Because Nuke War!!1!One!!
Beyond all that, when the negative claims that political capital should be a consideration, they’ve granted the affirmative de facto inherency regardless of the state of the plan vis-a-vis reality (because “not wanting to spend political capital is an inherent barrier”) but — worse — they’ve also made Those Assholes Over There the inherent barrier which promotes divisive politics, a winner-take-all privatization of public policy, and reinforces the message to young people that despotism is preferable to democracy for solving the world’s problems. (Suck it, “fairness and education.”)
But overall: if the judge accepts political capital (they shouldn’t) and accepts that the negative can affirm the resolution (they shouldn’t), then the negative counterplan should still lose the round because it’s got a logically guaranteed disadvantage at the bottom of it, the scope of which the negative team hasn’t even begun to consider when they tried to steal affirmative ground.
Probably the only way it gets worse is if the negative also claims that the affirmative plan is too vague to be passed, and then they couch it on a delayed counterplan. That goes on the flow as “We haven’t a clue what it does, but we’re totally doing it too!” which is the wrong thing to say at a Frat Party and a worse thing to say when developing Public Policy. So don’t say it.
The time has come to affirm the resolution that “In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.” I actually feel pretty good about what I wrote in negation, but there’s a thin sliver of affirmative ground available, so I’m going to do my best, eh? (Please note for anybody wandering in: I’m not an actual lawyer and this particular debate case is almost entirely speculative. Really, I’m out on a limb here.)
Now you might already be wondering how I can affirm this, looking ahead to my opponent’s totally reasonable observation that over 80% of federal cases get plead out — even when the defendant is innocent — so there’s not much truth to be sought and in cases where we’ve got grossly overworked public defenders — like the noble souls in New Orleans that average a mere 7 minutes per case — the defendant’s attorney has less access to it than the prosecution. And that’s all totally reasonable and points to a larger fact that I’d like you to bear in mind throughout this debate: by the time the police have arrested and interviewed a suspect, and certainly by the time they’ve passed the case to the district attorney for prosecution, the state believes that it has the truth. It has the truth and is trying to convict the defendant with it. So while my opponent is likely to claim that affirming the resolution is likely to trod all over the rights of the already downtrodden, the condition of truth-seeking makes that simply untrue. Or at least no truer than it is in the status quo.
But there is a circumstance in the criminal justice system where truth may need to be sought because the prosecution doesn’t follow an arrest: when a publicly traded corporation, like J.P. Morgan Chase, is charged with criminal conduct, the corporation is not arrested and their business practices are not stopped. What this means is that if they are engaging in business practices that exacerbate the criminal charges against them, or are otherwise likely to have a material impact on their stock price and come out at trial, then to actively conceal that information under a cloak of attorney-client privilege is tantamount to securities fraud as a matter of allowing everybody talking about the stock of the corporation to negligently misrepresent or commit omission of material facts — and that’s before any stock transaction performed by a corporate officer or attorney treads on insider trading laws.
So that’s the kind of truth we should be seeking: when a corporation can’t be arrested, we should be very interested in seeking the truth about what it’s doing that might prompt criminal complaint or further criminal activity.
In this round, I simply value Value itself: to know that you’re getting what you paid for, that you’re satisfied with the price you paid to get what you wanted. Of course, when stocks are overvalued because the corporation is concealing how hollow its business practices are, value crumbles and we see cascading economic damage like back in 2008. But this does give us an obvious criterion: how many people are having their finances mis-appropriated by a publicly traded corporation that’s lying-by-omission about its liabilities? Quite simply, lots of them — not just the direct shareholders, but also anybody who owns the stock through a mutual fund or fund index, but then also everybody who sees their investments fluctuate as a result of the economic gravity of that particular stock. As a point of reference, J.P. Morgan Chase has 3.76 billion shares of stock on the market, 75% of which are held by institutions like mutual funds and pension plans. A wide wave of minor transactional injustices can be done simply by concealing known-bad news within a large enough corporation.
Now we’re getting into unusual territory: do corporations even have attorney-client privilege? The corporation exists as an entity specifically to prevent the guilt of its actions from dropping criminal liability on its shareholders, directors, or executives as a matter of course. To this end, if we look at attorney-client privilege as an extension of the Fifth Amendment protection from self-incrimination, then we should be able to draw a clear line between the human actors (that can claim Fifth Amendment protections for their actions) and the corporate behavior which doesn’t have a “self” per se and thus cannot necessarily seek refuge from self-incrimination. So we have a reasonable baseline to question the validity of attorney-client privilege when dealing with a corporate, not human, defendant.
The Department understands that the attorney-client privilege and attorney work product protection are essential and long- recognized components of the American legal system. What the government seeks and needs to advance its legitimate (indeed, essential) law enforcement mission is not waiver of those protections, but rather the facts known to the corporation about the putative criminal misconduct under review. In addition, while a corporation remains free to convey non-factual or “core” attorney-client communications or work product—if and only if the corporation voluntarily chooses to do so—prosecutors should not ask for such waivers and are directed not to do so.
What I’m suggesting is prosecutors might actually want to ask for such waivers of attorney-client privilege, as would be more common and obvious if the Securities Exchange Commission were more-tightly coupled with the rest of the Department of Justice. As the Occupy SEC blog succinctly puts it,
The SEC cannot commence a criminal case against someone who commits fraud. Nothing the SEC does, alone, will result in prison time for financial criminals. The SEC brings civil enforcement actions, and can obtain injunctions, orders of disgorgement, and orders barring defendants from the securities industry. Essentially, what you really want to know is that the SEC cannot put anyone in prison.
So while a separation of concerns should promote focus for the SEC on one side of the Department of Justice and prosecutors of corporations in the criminal justice system on the other, what it really results in is injustice when publicly traded corporations actively hide their not-yet publicly revealed misdeeds behind attorney-client privilege. Attorney-client privilege allows corporations facing criminal charges to continually lie to their stockholding owners.
First, the courts and the SEC have accepted the notion that lawyers are fiduciaries of their clients under Rule 10b-5 and cannot buy or sell client stock while in possession of material nonpublic information. Any lingering doubt about whether the prohibition against trading by lawyers only applies when the trading actually causes harm to the client seems to have disappeared.
So clearly in order to enforce Rule 10b-5, attorney-client privilege must be breached specifically to ensure the integrity of the stock market and the values of the securities on the market.
For hypothetical example, again with J.P. Morgan Chase as they’re in the uncommon situation of being a corporation in the criminal justice system: If some executive explains to one of their attorneys in privileged communication that in addition to the legal mess they’ve got currently, they’ve been doing Something Else that would sound bad enough to drop their stock a few dollars if it got out, and the attorney then sells his-or-her J.P. Morgan Chase stock at current price on the expectation that the Something Else will get out and cause the stock to go down, then the lawyer has engaged in illegal insider trading, but more specifically cheated the person who bought the stock by knowingly selling it at an inappropriately inflated price. Now the lawyer may be able to try to claim that between attorney-client privilege protecting their receipt of the information about Something Else and their Fifth Amendment protection from self-incrimination, there’s no clear case that can ever be made against them for insider trading.
And they’re right. But this is Wrong. And this is the exact situation in which attorney-client privilege in the criminal justice system should not be maintained in the face of truth-seeking: when the lawyer may have taken explicitly illegal action as a result of information they received under attorney-client privilege, attorney-client privilege cannot be used to protect the lawyer.
The fundamental problem is that most of the evidence the affirmative can present is tainted by establishment lies. The Guardian reports that
The Director of National Intelligence James R Clapper admitted he lied to Congress about the NSA metadata collection program. He said the NSA had no such program – and then added that that was the least “untruthful” remark he could make. General Keith Alexander, director of the National Security Agency, lied in 2012 that the NSA does not hold data on US citizens, and repeated similar misstatements, under oath, to Congress about the program: “We’re not authorized to do it [data collection on US citizens], nor do we do it.” … NSA lawyers lied to secret FISA court Judges John D Bates and Reggie B Walton. In recently released opinions, Bates said he had been lied to on three separate occasions and Walton said he had been lied to several times also.
A recent report from the Information Technology and Innovation Foundation, a nonprofit, public policy think tank, estimated that the U.S. cloud computing industry alone stands to lose up to $35 billion over the next three years as a result of the revelations — and its impact on the reputation and customer relations of U.S. firms. … “If a foreign enemy was doing this much damage to the economy, people would be in the streets with pitchforks,” Mr. Wyden said.
Money is just money, though: let’s move on to how the National Security Agency is undermining this nation’s security by rooting the cryptography that people can use to keep data safe. September’s issue of Wired includes this gem:
“It is extraordinarily bad cryptography,” says [Paul] Kocher [president and chief scientist of Cryptography Research]. “If you look at the NSA’s role in creating standards [over the years] and its general cryptographic sophistication, none of it makes sense if there isn’t a backdoor in this.” … [cryptographer Bruce] Schneier agrees and says the NSA has done too many other things for him to think, when he sees government-mandated crypto that’s weak, that it’s just by accident. … “If we were living in a kinder world, that would be a plausible explanation,” he says. “But we’re living in a very malicious world, it turns out.” … He adds that the uncertainty around the algorithm and standard is the worst part of the whole matter. … “This is the worst problem that the NSA has done,” Schneier says. “They have so undermined the fundamental trust in the internet, that we don’t know what to trust. We have to suspect everything. We’re never sure. That’s the greatest damage.”
So we’re losing money and leaking secrets, but let’s talk about government of, by, and for the people perishing from the earth. The NSA’s domestic surveillance program is based on a “secret interpretation” of the Patriot Act. Washington’s Blog compiles reports thusly:
Senators Wyden and Udall – both on the Senate Intelligence Committee, with full access to information on the spying program – have said that for at least 2 years that the government was using a “secret interpretation” of the Patriot Act which would shock Americans, because it provides a breathtakingly wide program of spying. … Wyden and Udall said that they couldn’t reveal to the public – or even other members of Congress who lack top security clearance – what the secret interpretation is … and that most Congress members were totally ignorant about it. … The author of the Patriot Act and chairman on the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations – Congressman Jim Sensenbrenner – says that the government has gone far beyond what the Patriot Act intended, and that the Act “was originally drafted to prevent data mining” on the scale that’s occurred.
So not only is the NSA almost certainly violating the 4th Amendment rights of the entirety of our great nation, but they’re doing it based on a law that isn’t subject to being reviewed by the people who are subject to it, which is — as Congressman Sensenbrenner, author of the Patriot Act, said at the Cato Institute on Oct 9th — “anathema to democracy.” What we have instead of democracy is a separation of government from the citizenry and the disempowerment of the citizenry as Foucault described in Discipline and Punish:
For a long time ordinary individuality – the everyday individuality of everybody – remained below the threshold of description. To be looked at, observed, described in detail, followed from day to day by an uninterrupted writing was a privilege. … The disciplinary methods reversed this relation, lowered the threshold of describable individuality and made of this description a means of control and a method of domination. It is no longer a monument for future memory, but a document for possible use. And this new describability is all the more marked in that the disciplinary framework is a strict one: the child, the patient, the madman, the prisoner, …
Alexander wants as much data as he can get. And he wants to hang on to it for as long as he can. … That strategy has worked well for Alexander. He has served longer than any director in the NSA’s history, and today he stands atop a U.S. surveillance empire in which signals intelligence, the agency’s specialty, is the coin of the realm. … under [Alexander's] watch, the breadth, scale, and ambition of [the NSA's] mission have expanded beyond anything ever contemplated by his predecessors. … Yet … Never has this intelligence agency — whose primary mission is espionage, stealing secrets from other governments — proposed to become the electronic watchman of American businesses.
So General Alexander is building, in the best case, an empire of dirt. But even if we like the guy, even if he’s as great and patriotic and pure-hearted as he wants us to think he is, he’s still the one building out capabilities for creepers to stalk exes and cuties. It’s not just General Alexander we have to worry about… it’s his yet-unknown replacement. Because, as a former administration official put it, General Alexander “doesn’t get that this power can still be abused.” A former NSA official adds “He thinks, ‘What’s the problem? I wouldn’t abuse this power. Aren’t we all honorable people?’” And obviously the answer is no. But even that assumes that General Alexander’s machines are getting things right. Foreign Policy reports on an instance of them getting it wrong:
When he ran INSCOM and was horning in on the NSA’s turf, Alexander was fond of building charts that showed how a suspected terrorist was connected to a much broader network of people via his communications or the contacts in his phone or email account. … ”He had all these diagrams showing how this guy was connected to that guy and to that guy,” says a former NSA official who heard Alexander give briefings on the floor of the Information Dominance Center. “Some of my colleagues and I were skeptical. Later, we had a chance to review the information. It turns out that all [that] those guys were connected to were pizza shops.”
Clearly the large orders of sausage and Canadian bacon were just a clever cover for their nefarious activities, as will be explained to FISA when collecting the rubber stamp necessary to black-bag the delivery guy.
And now that we’ve got negative evidence on the board, let’s go back and shred the affirmative card by card, in order:
Doesn’t actually have any benefits in it at all, and it doesn’t touch on domestic surveillance at all.
Tries to scare you into supporting domestic surveillance but doesn’t actually tell you about any benefits, which even the Senators overseeing the NSA don’t know about.
A sci-fi author who is actually recommending reforms to mitigate the political opportunities for abuse which are being actively exploited.
Starts with the false choice of anything vs. total national security which isn’t actually a choice. It cites “the 54,” which we know is a lie, and asks if you want more Boston bombings without noting that the NSA totally missed that one.
… is about foreign surveillance, not domestic surveillance.
Says that people may object to the government’s interpretation of Section 215, which is a lie because we’re not allowed to know — and neither is their author — what the secret interpretation of the Patriot Act is. That’s what Senator Wyden and Senator Udall and even the congressman that wrote the Patriot Act are warning us about. And that Brin card that was recommending reforms directly contradicts the claim that “nobody can argue that it is a lawless or crazy interpretation,” which can’t be claimed because the author doesn’t have the interpretation. And claims of constitutional law haven’t actually been tested because the court throws out the challenges, but go back to Foucault and we can see that the government treating everybody as criminals is horrible and shouldn’t be condoned by the “business as usual brigade.”
Claims that the NSA is tightly-controlled, which we know isn’t true with 16,000 wrong numbers. Then the author, instead of talking about any benefits of domestic surveillance, gets all butthurt about people not reading his analysis — which has no basis in what the secret court is actually secretly doing — right before admitting that the FISA court did smack down part of the 702 collection on constitutional grounds which would be another harm that had to be stopped without any known benefit which is exactly why it got stopped.
This card is way too long and doesn’t impact the harms.
This card is better, but comes to the wrong conclusion: the government doesn’t know how revealing call records really are (recall “pizza shops” above) and should thus have their “considered” value discounted. The fundamental problem with “just the metadata” is that the NSA infers whatever content-data it wants to infer and then acts as if its paranoid and delusional belief is fact.
The first bold block on this card (“Free societies tend to take their freedom for granted…”) is good, dump the rest. This card is blithely unaware of how self-destructive our plutocrats have become over the past decade, and ignores that the KGB, Stasi, et al spooks took the dirt they collected and went into organized crime when their state sponsorship folded (as was pointed out at the Cato conference in one of the round-tables).
Bruce! Bruce is surprisingly forgiving of the NSA, but this card makes him sound more forgiving than — as far as I know — he actually is. The crucial point you want from this is at the end: the closing bold starting with “Our society can handle the occasional terrorist act” and running through the end. It is super-important that you read and understand this other essay of Bruce’s which explains why sifting bad guys is nigh-impossible (previously linked). Just because Bruce is saying here that there’s a trade-off doesn’t mean that there really is a trade-off — all we’re seeing so far is an empty sacrifice.
This card is crap and almost flows entirely to the affirmative, utterly ignoring Wyden & Udall’s evidence that the Patriot Act is being run under a secret interpretation and never mind the documented abuses of the NSA’s devices.
The only relevant bit is that the government has a history of spying on its citizens to harass its citizens. So what? Pull the Rasmussen Report that says that 57% of citizens think the government will harass its citizens and then we can talk about delegated exercise of power a la Foucault. (Also, this is totally non-unique as long as the FBI’s non-topical Domain Management program is in place.)
This Meyer card is actually pretty good and could sub in for the crypto card above. The only down-side is that the impact is speculative. You’ll want to bring in evidence of an actual cyberattack so that you don’t have to concede that the affirmative’s speculation on how many attacks were thwarted may be just as valid and relevant as your speculation on what could go wrong. (Bonus points if you can explain how backdooring crypto works. The easiest-to-describe way is to take a random number generator that seeds cryptography and then cut down the range of numbers it can produce so that you don’t have to try so many keys to decrypt the encrypted content. The downside is that anybody who knows to try this method and has computing power like the NSA has can just bloody well do it — hello, China.)
This card is junk; Wyden said $35B over 3 years, go with that.
This card is rambling speculation without clear impact.
This Healy card is solid. This is what you should be packing around. Only change I would make is bold-face “the program in question… was unnecessary, since the FBI already had ample justification for a warrant.” So any benefits on the aff? Non-unique, ergo not actually beneficial — neg ballot right there.
Special Trailing Bonus: 4th Amendment Discussion
Here’s what the 4th Amendment — “It’s twice the Amendment the 2nd Amendment will ever be!” — says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Emphasis added for the relevant parts. If we consider data created by our actions to be our effects and the government agents can’t say why they want to search, for example, our address book, nor even state who they think we are, then it sounds like they’re violating the 4th Amendment. And this is really quite important because, having just emerged from a long-running monarchy, our nation’s founders knew that power liked to accumulate in government in the form of laws which all individually be well-meaning, but collectively crush liberty. And roughly 240 years later, we’ve got tens of thousands of laws, several of which you’ve violated. If this worries you, then you may want to read the LD material on attorney-client privilege.
The short of it, though, is that if the NSA is going looking for terrorists but instead finds a private photo of you on Facebook that shows you in possession of a small lobster, then the government has a record of you committing a federal offense unless the 4th Amendment protects you from this intrusion because the government wasn’t looking for evidence of you violating the Lacey act. And this is why the 4th Amendment is a good thing: just because you unwittingly violated the Lacey Act or some other of our tens of thousands of laws doesn’t mean you should be subject to black-bagging when the NSA finds the photo (and they will… or rather, they already have).
“If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.” –Cardinal Richelieu
So you want to know how to respond to somebody that claims that “In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.” You want to do this because clearly lots of truth about criminals is hiding under a nefarious layer of attorney-client privilege. And I may be able to help you with this, but first we need to talk about your rights: You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to an attorney. If you cannot afford one, one may be provided for you. Are you with me so far? Because we need to step back and revisit those preconceived notions.
The resolution is predicated on the notion that the country is full of criminals, committing crimes, confessing them to their lawyers, and then not being convicted of their crimes. This is wrong. First, the FBI reports that less than half of violent crimes — and only 19% of property crimes — in 2012 have resulted in an arrest and subsequent prosecution. Second, at the federal level, when a subsequent prosecution happens, 86% of defendants plead guilty. In cases where a public defender is assigned to the case, this shouldn’t be surprising — in New Orleans, public defenders spend an average of 7 minutes per case: how else can they advise their client to plead? But the real kicker is that 25% of the people who have been released from prison (having been exonerated by DNA-based evidence) actually confessed to crimes that they didn’t commit because they were under pressure from the police and district attorney and were assured that they’d have an easier time if they confessed their guilt instead of seeming unrepentant… for something they didn’t do. If we value truth and justice, then we need to prove it by improving the core of our criminal justice system to better protect the people who are simply victims of circumstantial evidence from people who want to be right — not by shredding the one protection they’ve got when the police pick them up for an extended “interview.”
Let’s get specific: on April 19, 1989, the NYPD arrested several kids for sexual assault and attempted murder of a jogger in central park. Over the next 14 to 30 hours, the police convinced most of the kids to write and then videotape confessions that were conflicting, inaccurate in the details, wildly wrong in the facts, and also complete fabrications because the perpetrator was actually just one serial offender that the police hadn’t caught. But with the confessions, and in spite of mismatched DNA evidence, the prosecutor convinced the jury to convict the kids. The convictions against the “Central Park Five” were vacated 13 years later when the actual perpetrator — who was serving time for other offenses — confessed to the crime with details that nobody else had, and also with DNA that nobody else had. “But [district attorney] Morgenthau’s decision was angrily denounced by the police officers who had been involved in the original investigation, who refused to believe that the boys were innocent. After all, they had confessed.” (Tavris & Aronson, 2008, Mistakes Were Made (But Not By Me))
Ken Burns put together a documentary on the Central Part Five. As Craig Wilder, historian, says of the Central Park Five “Once we were on the path to identifying these young men as the culprits — it’s hard to get off that path. And race, power, and politics make it extremely difficult.” Saul Kassin explains that “The problem is once you form a strong belief that somebody is guilty of a crime, the contradictory details are just that: they’re details, but they don’t fundamentally change our belief in their guilt.” Lynell Hancock, journalist, adds “Linda Fairstein made a huge name for herself in part because of this case. It was extremely important to her profession and her reputation. So she’s got a lot to lose by saying ‘I got everything wrong and I railroaded these kids into jail.’”
So how did the truth-seeking prosecutor go astray?
“By the time prosecutors go to trial, they often find themselves in the real-world equivalent of a justification-of-effort experiment. They have selected this case out of many because they they are convinced the suspect is guilty and that they have the evidence to convict. They have invested many months on a case. They have worked intensely with police, witnesses, and the victim’s shattered, often vengeful family. In the case of crimes that have roused public emotions, they are under enormous pressure to get a conviction quickly. Any doubts they might have are drowned in the satisfaction of feeling that they are representing the forces of good against a vile criminal.” (MWM)
So we can see that the focus on truth-seeking goes by the wayside as the prosecutor advocates the state’s case against the defendant. And this is why the defendant needs an advocate and not just some law-person, and in order to have an effective advocate the defendant needs to be able to confide in their advocate. As Cole explained
“The attorney-client privilege may well be the pivotal element of the modern American lawyer’s professional functions. It is considered indispensable to the lawyer’s function as an advocate on the theory that the advocate can adequately prepare a case only if the client is free to disclose everything, bad as well as good. The privilege is also considered necessary to the lawyer’s function as confidential counselor in law on the similar theory that the legal counselor can properly advise the client what to do only if the client is free to make full disclosure.” (2003, “Revoking Our Privileges”)
But if the defendant isn’t guilty of the crime, then they’ve got nothing to hide behind attorney-client privilege, right? Wrong. Justice Briar, on the U.S. Supreme Court explained in 1998:
“The complexity of modern federal criminal law, codified in several thousand sections of the United States Code, and virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know in advance just when a particular set of statements might later appear to a prosecutor to be relevant to some investigation.”
This is because:
“Estimates of the current size of the body of federal criminal law vary. It has been reported that the Congressional Research Service cannot even count the current number of federal crimes. And these laws are scattered in over 50 titles of the United States Code, encompassing roughly 27,000 pages. Worse yet, the statutory code sections often incorporate, by reference, the provisions and sanctions of administrative regulations promulgated by various regulatory agencies. Estimates of how many such regulations exist are even less well settled, but the ABA thinks there are nearly 10,000.” (Paul Rosenweig, 2003, “The Over-Criminalization of Social and Economic Conduct“)
And even in a best case scenario when a defendant has told the police things that will exonerate them, the police won’t repeat it in court because — under the rules of evidence 801(d)(2)(a) — it’s hearsay and objectionable. That’s what “may be used against you in a court of law” means: it means not used for you. And this adversarial conflict is exactly why a defendant needs an advocate that they are safe confiding in.
So in our criminal justice system, attorney-client privilege must not be abridged on the truth-seeking whim of the state. The state is deeply invested in prosecuting the defendants, just like we want them to be: they really need to not have any doubt about what they’re doing when they’re trying to have people incarcerated for decades. But our police and prosecutors need to dispel their doubts by following leads, finding evidence, and verifying it with multiple sources if possible, and not just taking a fishing expedition into what the defendant might happen to say they could be guilty of in a moment of duress once the poor soul is already being subjected to the ordeal of our law enforcement system.