Executive Flex DA

1NC - Surveillance

1NC – Flex DA – SurveillanceSurveillance is strong and safe now – multiple checks prevent abuses, but still guarantee effectiveness against terrorismGoldsmith and Hennessey 18

(Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution, and Susan Hennessey is the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She is a Brookings Fellow in National Security Law, “The Merits of Supporting 702 Reauthorization (Despite Worries About Trump and the Rule of Law)”, Lawfare Blog, https://www.lawfareblog.com/merits-supporting-702-reauthorization-despite-worries-about-trump-and-rule-law, Accessed 7/30/18, SP)

As Lawfare readers know, Section 702 authorizes the intelligence community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes. It does not permit the intelligence community to target a U.S. person anywhere in the world. But it does permit incidental collection on U.S. persons, subject to strict rules about minimization and use. (A bit more on this below.)

Intelligence officials from the Obama administration and the Trump administration have asserted, as FBI

Director Christopher Wray recently reiterated, that Section 702 is “one of the most valuable tools that we have in our

toolbox to keep America safe.” As the reauthorization of Section 702 has been considered, a meme has circulated suggesting that there is a tension, or contradiction, or worse, between supporting 702 reauthorization and worrying about or criticizing President Trump’s commitment to the rule of law. Glenn Greenwald has been pounding this point on Twitter, and the Intercept has published at least two articles in recent days criticizing Democrats who (as the headline of one Greenwald piece says) “denounce Trump as a lawless, treasonous

authoritarian” but voted to give Trump “vast warrantless spying powers.” Many others have voiced similar points. We do not believe there is any paradox when Democrats Nancy Pelosi and Adam Schiff, two House members Greenwald calls out by name, or Democrats in the Senate, or other individuals (including us) both support 702 reauthorization and oppose Trump’s lawless or norm-breaking tendencies. What others see as a paradox, we see as a ringing endorsement of the value of 702 and the rigor of the constraints on the program. No member of Congress has been more critical of President Trump’s rule-of-law difficulties than Schiff. He is the ranking Democrat on the House intelligence committee and one of the most knowledgeable and informed members of Congress on intelligence matters. Schiff has not hesitated to be critical of intelligence community practices when he sees fit. He has watched the 702 program up close over many years in classified settings in his oversight role. He knows well its virtues and its warts. We suppose it is possible that Schiff would vote to give the president, whose integrity he so obviously worries about, vast powers to spy on

Americans in an abusive way. Given everything Schiff has publicly said and done over the last year, however, a much more plausible inference

is that he knows not only how valuable the 702 program is but also how law-constrained and carefully controlled and monitored it is. He and the other Democrats who support reauthorization, and the many Republicans who worry a lot about President Trump yet support reauthorization, have a high degree of confidence that the National Security Agency and the U.S. intelligence community more broadly cannot and will not abuse the 702 tool even if they harbor concerns that Trump might desire to do so. They know that 702 is deeply embedded in a reticulate legal system run mostly by career public servants and supervised by all three branches of government, including numerous agencies in the executive branch, the congressional intelligence committees and the life-tenured members of the FISA court. In short, the answer to Greenwald’s puzzle about Trump critics voting for 702 reauthorization is that the NSA and FBI are remarkably immune from inappropriate presidential meddling. More broadly, one of the underappreciated developments in the post-Snowden-revelations era is the absence of

credible allegations of political or venal use of 702 authorities. In essence, the public evidence confirms that the problems that used to bedevil secret electronic surveillance through the Hoover/Nixon era—namely, senior political figures

deploying intelligence agencies and tools for inappropriate, abusive political purposes—have been resolved by a robust legal regime of oversight and reporting. When Sen. Elizabeth Warren points to the surveillance abuses directed at Martin Luther King Jr. to argue against 702, she actually highlights the opposite point: the massive transparency, both voluntary and involuntary, over the past few years about how Section 702 operates shows that it has not been abused for domestic political spying and implies that the 40 years of post-Hoover legal reforms are largely a success (though not without hiccups). The fact that President Trump has not focused his abusive energies on intelligence

collection is a testament to the efficacy of the legal and cultural constraints on electronic surveillance. Instead, Trump has, as our colleague Benjamin Wittes predicted long ago, focused those energies on trying to manipulate Justice Department law enforcement practices, where the fabric of regulation guaranteeing independence from political manipulation is much less dense.

Surveillance authority is key to preventing terrorism – strong executive intelligence gathering lets us prevent terrorist attacks and gather even more intelligence assetsAriail 17

(J. E. Shreve Ariail is a senior federal prosecutor currently on leave from the Department of Justice (DOJ) and lecturing at the University of Virginia’s (UVA) School of Law and UVA’s Frank Batten School of Leadership and Public Policy. Professor Ariail also serves as a Faculty Associate with the Batten School’s National Security Policy Center, “The High Stakes of Misunderstanding Section 702 Reforms”, Lawfare Blog, December 6, https://www.lawfareblog.com/high-stakes-misunderstanding-section-702-reforms Accessed 7/30/18 SP)

Section 702 is a Critical National Security Tool The importance of Section 702 as an essential counter-terrorism tool is well-documented. Significantly, information gathered under Section 702 allows the government to uncover and disrupt impending terrorist attacks on U.S. soil. For example, in September 2009, the National Security Agency (NSA), through Section 702 surveillance of an email address belonging to an Al-Qaeda courier based in Pakistan, discovered that he was corresponding about making explosives with an unknown individual located in the United States. The NSA passed along the intelligence to the FBI, which used a national security letter to identify the unknown individual as Najibullah Zazi, who was living near Denver, Colorado. Through subsequent intense monitoring, the FBI discovered that Zazi and a group of al-Qaeda-trained terrorists were planning to bomb the New York City subway system. The FBI arrested Zazi and his co-conspirators before they were able to carry out their attack. Zazi and his co-conspirators were all convicted in federal district court. Zazi himself pleaded guilty and cooperated with the government, providing incredibly important intelligence information about al-Qaeda and its current operations. In addition, Section 702 provides extraordinary value to the U.S. government on a daily basis by allowing agencies to monitor terrorist organizations. This monitoring allows the government to identify individuals previously unknown to be involved in terrorism, and allows the government to more fully understand the structure and hierarchy of international terrorist networks. Indeed, according to the independent report prepared by the Privacy and Civil Liberties Oversight Board (PCLOB) in 2014, over one-quarter of all NSA reports on international terrorism include information derived from Section 702 collection.

The plan spills over to the loss of fourth-gen warfighting capabilities that escalate to nuclear use by revisionist powers and terroristsLi 9 (Zheyao, J.D. candidate, Georgetown University Law Center, 2009; B.A., political science and history, Yale University, 2006. This paper is the culmination of work begun in the "Constitutional Interpretation in the Legislative and Executive Branches" seminar, led by Judge Brett Kavanaugh, “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7 Geo. J.L. & Pub. Pol'y 373 2009 WAR POWERS IN THE FOURTH GENERATION OF WARFARE)

A. The Emergence of Non-State Actors

Even as the quantity of nation-states in the world has increased dramatically since the end of World War II, the institution of the nation-state has been in decline over the past few decades. Much of this decline is the direct

result of the waning of major interstate war, which primarily resulted from the introduction of nuclear weapons.122 The proliferation of nuclear weapons, and their immense capacity for absolute destruction, has ensured that conventional wars remain limited in scope and duration. Hence, "both the size of the armed forces and the quantity of weapons at their disposal has

declined quite sharply" since 1945.123 At the same time, concurrent with the decline of the nation-state in the second half of the twentieth century, non-state actors have increasingly been willing and able to use force to advance their causes. In contrast to nation-states, who adhere to the Clausewitzian distinction between the ends of policy and the

means of war to achieve those ends, non-state actors do not necessarily fight as a mere means of advancing any coherent policy. Rather,

they see their fight as a life-and-death struggle , wherein the ordinary terminology of war as an instrument of policy breaks down because of this blending of means and ends .124 It is the existential nature of this struggle and the disappearance of the Clausewitzian distinction between war and policy that has given rise to a new generation of warfare. The concept of fourth-generational warfare was first articulated in an influential article in the Marine Corps Gazette in 1989, which has proven highly prescient. In describing what they saw as the modem trend toward a new phase of warfighting, the authors argued that: In broad terms, fourth generation warfare seems likely to be widely dispersed and largely undefined; the distinction between war and peace will be blurred to the vanishing point. It will be nonlinear, possibly to the point of having no definable battlefields or fronts. The distinction between "civilian" and "military" may disappear. Actions will occur concurrently throughout all participants' depth, including their society as a cultural, not just a physical, entity. Major military facilities, such as airfields, fixed communications sites, and large headquarters will become rarities because of their vulnerability; the same may be true of civilian equivalents, such as seats of government, power plants, and industrial sites (including

knowledge as well as manufacturing industries). 125 It is precisely this blurring of peace and war and the demise of traditionally definable battlefields that provides the impetus for the formulation of a new. theory of war powers. As evidenced by Part M, supra, the constitutional allocation of war powers, and the Framers' commitment of the

war power to two co-equal branches, was not designed to cope with the current international system, one that is

characterized by the persistent machinations of international terrorist organizations , the rise of multilateral alliances, the emergence of rogue states , and the potentially wide proliferation of easily deployable w eapons of m ass d estruction , nuclear and otherwise. B. The Framers' World vs. Today's World The Framers crafted the Constitution, and the people ratified it, in a time when everyone understood that the state controlled both the raising of armies and their use.

Today, however, the threat of terrorism is bringing an end to the era of the nation-state's legal monopoly on violence, and the kind of war that existed before-based on a clear division between government, armed forces, and the people-is on the decline. 126 As states are caught between their decreasing ability to fight each other due to the existence of nuclear weapons and the increasing threat from non-state actors, it is clear that the Westphalian system of nation-states that informed the Framers' allocation of war

powers is no longer the order of the day. 127 As seen in Part III, supra, the rise of the modem nation-state occurred as a result of its military effectiveness and ability to defend its citizens. If nation-states such as the United States are

unable to adapt to the changing circumstances of fourth-generational warfare-that is, if they are unable to

adequately defend against low-intensity conflict conducted by non-state actors-"then clearly [the modem state] does not have a future in front of it.' 128 The challenge in formulating a new theory of war powers for fourthgenerational warfare that remains legally justifiable lies in the difficulty of adapting to changed circumstances while remaining faithful to the constitutional text and the

original meaning. 29 To that end, it is crucial to remember that the Framers crafted the Constitution in the context of the Westphalian system of nation-states. The three centuries following the Peace of Westphalia of 1648 witnessed an international system characterized by wars, which, "through the efforts of governments, assumed a more regular, interconnected character."' 130 That period saw the rise of an independent military class and the stabilization of military institutions. Consequently, "warfare became more

regular, better organized, and more attuned to the purpose of war-that is, to its political objective."' 1 3' That era is now over. Today,

the stability of the long-existing Westphalian international order has been greatly eroded in recent years

with the advent of international terrorist organizations, which care nothing for the traditional norms of the laws of war. This new global environment exposes the limitations inherent in the interpretational methods of originalism and textualism and necessitates the adoption of a new method of constitutional interpretation. While one must always be aware of the text of the Constitution and the original understanding of that text, that very awareness identifies the extent to which fourth-generational warfare epitomizes a phenomenon unforeseen by the Framers, a problem the constitutional resolution of which must rely on the good judgment of the present generation. 13 Now, to adapt the constitutional warmarking scheme to the new international order characterized by

fourth-generational warfare, one must understand the threat it is being adapted to confront. C. The Jihadist Threat The erosion of the Westphalian and Clausewitzian model of warfare and the blurring of the distinction between the means of warfare and the ends of policy, which is one characteristic of fourth-generational warfare, apply to al-Qaeda and other adherents of jihadist ideology who view the United States as an enemy. An excellent analysis of jihadist ideology and its implications for the rest of the world are presented by Professor Mary Habeck. 133 Professor Habeck identifies the centrality of the Qur'an, specifically a particular reading of the Qur'an and hadith (traditions about the life of Muhammad), to the jihadist terrorists. 134 The jihadis believe that the scope of the Qur'an is universal, and "that their interpretation of Islam is also intended for the entire world, which must be brought to recognize this fact peacefully if possible and through violence if not."' 135 Along these lines, the jihadis view the United States and her allies as among the greatest enemies of Islam: they believe "that every element of modern Western liberalism is flawed, wrong, and evil" because the basis of liberalism is secularism. 136 The jihadis emphasize the superiority of Islam to all other religions, and they believe that

"God does not want differing belief systems to coexist."' 37 For this reason, jihadist groups such as al-Qaeda "recognize that the West

will not submit without a fight and believe in fact that the Christians, Jews, and liberals have united against Islam in a war that will end in the complete destruction of the unbelievers.' 138 Thus, the adherents of this jihadist ideology, be it al-Qaeda or other groups, will continue to target the United States until she is destroyed. Their ideology demands it. 139 To effectively combat terrorist groups such as al-Qaeda, it is necessary to understand not only how they think, but also

how they operate. Al-Qaeda is a transnational organization capable of simultaneously managing multiple operations all over the world."14 It is both centralized and decentralized: al-Qaeda is centralized in the sense that Osama bin Laden is the unquestioned leader, but it is decentralized in that its operations are carried out locally, by distinct cells."4 AI-Qaeda benefits immensely from this arrangement because it can exercise direct control over high-probability operations, while maintaining a distance from low-probability attacks, only taking the credit for those that succeed. The local terrorist cells benefit by gaining access to al-Qaeda's "worldwide

network of assets, people, and expertise."' 42 Post-September 11 events have highlighted al-Qaeda's resilience. Even as the United States and her allies fought back, inflicting heavy casualties on al-Qaeda in Afghanistan and destroying dozens of

cells worldwide, "al-Qaeda's networked nature allowed it to absorb the damage and remain a threat." 14 3 This is a far cry from earlier generations of warfare, where the decimation of the enemy's military forces would generally bring an end to the conflict. D. The Need for Rapid Reaction and Expanded Presidential War Power By now it should be clear just how different this conflict against the extremist terrorists is from the type of warfare that occupied the minds of the Framers at the time of the Founding. Rather than

maintaining the geographical and political isolation desired by the Framers for the new country, today's United States is an international power targeted by individuals and groups that will not rest until seeing her demise. The Global War on Terrorism is not truly a war within the Framers' eighteenth-century conception of the term,

and the normal constitutional provisions regulating the division of war powers between Congress and the President do not apply. Instead, this "war" is a struggle for survival and dominance against forces that threaten to destroy the United States and her allies, and the fourth-generational nature of the conflict, highlighted by an indiscernible distinction between wartime and peacetime, necessitates an evolution of America's traditional constitutional warmaking scheme. As first illustrated by the military strategist Colonel John Boyd, constitutional decision-making in the realm of war powers in the fourth generation should consider the implications of the OODA Loop:

Observe, Orient, Decide, and Act. 44 In the era of fourth-generational warfare, quick reactions, proceeding through the

OODA Loop rapidly, and disrupting the enemy's OODA loop are the keys to victory. "In order to win," Colonel Boyd

suggested, "we should operate at a faster tempo or rhythm than our adversaries ." 145 In the words of Professor Creveld, "[b]oth organizationally and in terms of the equipment at their disposal, the armed forces of the world will have to adjust themselves to this situation by changing their doctrine, doing away with much of their heavy equipment and becoming more like police."1 46 Unfortunately, the existing constitutional understanding, which diffuses war power between two branches of government, necessarily (by the Framers' design) slows down decision- making. In circumstances where war is undesirable (which is, admittedly, most of the time, especially against other nation-states), the deliberativeness of the existing decision-making process is a positive attribute. In America's current situation,

however, in the midst of the conflict with al-Qaeda and other international terrorist organizations, the existing

process of constitutional decision-making in warfare may prove a fatal hindrance to achieving the initiative necessary for victory . As a slow-acting , deliberative body, Congress does not have the ability to adequately deal with fast-emerging situations in fourth-generational warfare. Thus, in order to combat transnational threats such as al-Qaeda, the executive branch must have the ability to operate by taking offensive military action even without congressional authorization, because only the executive branch is capable of the swift decision-making and action necessary to prevail in fourth-generational conflicts against fourthgenerational opponents.

Restrictions on executive authority guarantee the next terrorist attack escalates to WMDYoo 12 (John, law professor at University of California, Berkeley. He was Deputy Assistant Attorney General in the Office of Legal Counsel at the US Department of Justice from 2001 to 2003, “Exercising Wartime Powers,” Harvard International Review28. 1 (Spring 2006): 22-25.)

Critics of these conflicts want to upend long practice by appealing to an "original understanding" of the Constitution. But the text and structure of the Constitution, as well as its application over the¶ last two

centuries, confirm that the president can begin military hostilities without the approval of Congress. The Constitution ¶ does not establish a strict warmaking process because the Framers understood that war ¶ would require the speed, decisiveness, and secrecy that only the presidency could bring. "Energy¶ in the executive," Alexander Hamilton argued in the Federalist Papers, "...is essential to the protection of the community against¶ foreign attacks." He continued,

"the direction of war most peculiarly demands those qualities which distinguish the exercise of¶ power by a single hand." Rather than imposing a fixed, step-by-step method for going to war, the ¶ Constitution allows the executive and legislative branches substantial flexibility in shaping the ¶ decisionmaking process for engaging in military hostilities. Given the increasing ability of rogue states to procure weapons of mass destruction (WMDs) and the rise of international terrorism, maintaining this flexibility is critical to preserving US national security .

Nuke Terror Outweighs All Other Impacts – Most Likely Scenario For ExtinctionJaspal 12 (Zafar Nawaz, Associate Professor at the School of Politics and International Relations, Quaid-i-Azam University, Islamabad, Pakistan “Nuclear/Radiological Terrorism: Myth or Reality?”, Journal of Political Studies, Vol. 19, Issue - 1, 2012, 91:111)

The misperception, miscalculation and above all ignorance of the ruling elite about security puzzles are perilous for the national security of a state. Indeed, in an age of transnational terrorism and unprecedented dissemination of dualuse nuclear technology, ignoring nuclear terrorism threat is an imprudent policy choice . The incapability of terrorist organizations to engineer fissile material does not eliminate completely the possibility of nuclear terrorism. At the same time, the absence of an example or precedent of a nuclear/ radiological terrorism does not qualify the assertion that the nuclear/radiological

terrorism ought to be remained a myth. Farsighted rationality obligates that one should not miscalculate transnational terrorist groups — whose behavior suggests that they have a death wish — of acquiring nuclear, radiological, chemical and biological material producing capabilities. In addition, one could be

sensible about the published information that huge amount of nuclear material is spread around the globe.

According to estimate it is enough to build more than 120,000 Hiroshima-sized nuclear bombs (Fissile

Material Working Group, 2010, April 1). The alarming fact is that a few storage sites of nuclear/radiological materials are inadequately secured and continue to be accumulated in unstable regions (Sambaiew, 2010, February).

Attempts at stealing fissile material had already been discovered (Din & Zhiwei, 2003: 18). Numerous evidences confirm that terrorist groups had aspired to acquire fissile material for their terrorist acts. Late Osama bin Laden, the founder of al Qaeda stated that acquiring nuclear weapons was a“religious duty” (Yusufzai, 1999, January 11). The IAEA also reported that “al-Qaeda was actively seeking an atomic bomb.” Jamal Ahmad al-Fadl, a dissenter of Al Qaeda, in his trial testimony had “revealed his extensive but unsuccessful efforts to acquire enriched uranium for al-Qaeda” (Allison, 2010, January: 11). On

November 9, 2001, Osama bin Laden claimed that “we have chemical and nuclear weapons as a deterrent and if America used them against us we reserve the right to use them (Mir, 2001, November 10).” On May 28, 2010, Sultan Bashiruddin Mahmood, a Pakistani nuclear scientist confessed that he met Osama bin Laden. He claimed that “I met Osama bin Laden before 9/11 not to give him nuclear know-how, but to seek funds for establishing a technical college in Kabul (Syed, 2010, May 29).” He was arrested in 2003 and after extensive interrogation by American

and Pakistani intelligence agencies he was released (Syed, 2010, May 29). Agreed, Mr. Mahmood did not share nuclear know-how with Al Qaeda, but his meeting with Osama establishes the fact that the terrorist organization was in contact with nuclear scientists. Second, the terrorist group has sympathizers in the nuclear scientific bureaucracies. It also authenticates bin Laden’s Deputy Ayman Zawahiri’s claim which he made in December 2001: “If you have $30 million, go to the black market in the central Asia, contact any disgruntled Soviet scientist and a lot of dozens of smart briefcase bombs are available (Allison, 2010,

January: 2).” The covert meetings between nuclear scientists and al Qaeda members could not be interpreted as idle threats and thereby the threat of nuclear/radiological terrorism is real. The 33Defense Secretary Robert Gates admitted in 2008 that “what keeps every senior government leader awake at night is the thought of a terrorist ending up with a weapon of

mass destruction, especially nuclear (Mueller, 2011, August 2).” Indeed, the nuclear deterrence strategy cannot deter the transnational terrorist syndicate from nuclear/radiological terrorist attacks. Daniel Whiteneck pointed out:

“Evidence suggests, for example, that al Qaeda might not only use WMD simply to demonstrate the magnitude of its capability

but that it might actually welcome the escalation of a strong U.S. response, especially if it included catalytic effects on governments and societies in the Muslim world. An adversary that prefers escalation regardless of the consequences cannot be deterred ” (Whiteneck, 2005, Summer: 187) Since taking office, President Obama has been reiterating that “nuclear weapons represent the ‘gravest threat’ to United States and international security.” While realizing that the US could not prevent nuclear/radiological terrorist attacks singlehandedly, he launched 47an international campaign to convince the

international community about the increasing threat of nuclear/ radiological terrorism. He stated on April 5, 2009: “Black market trade in nuclear secrets and nuclear materials abound. The technology to build a bomb has spread. Terrorists are

determined to buy, build or steal one. Our efforts to contain these dangers are centered on a global non-proliferation regime, but as more people and nations break the rules, we could reach the point where the center cannot hold (Remarks by President Barack Obama, 2009, April 5).” He added: “One terrorist with one nuclear weapon could unleash massive destruction. Al Qaeda has said it seeks a bomb and that it would have no problem with using it. And we know that there is unsecured nuclear material across the globe” (Remarks by President Barack Obama, 2009, April 5). In July 2009, at the G-8 Summit, President Obama announced the convening of a Nuclear Security Summit in 2010 to deliberate on the mechanism to “secure nuclear materials, combat nuclear smuggling, and prevent nuclear terrorism” (Luongo, 2009, November 10). President Obama’s nuclear/radiological threat perceptions were also accentuated by the United Nations Security Council (UNSC) Resolution 1887 (2009). The UNSC expressed its grave concern regarding ‘the threat of nuclear terrorism.” It also recognized the need for all States “to take effective measures to prevent nuclear material or technical assistance becoming available to terrorists.” The UNSC Resolution called “for universal adherence to the Convention on Physical Protection of Nuclear Materials and its 2005 Amendment, and the Convention for the Suppression of Acts of Nuclear Terrorism.” (UNSC Resolution, 2009) The United States Nuclear Posture Review (NPR) document revealed on April 6, 2010

declared that “terrorism and proliferation are far greater threats to the United States and international stability.” (Security of Defence, 2010, April 6: i). The United States declared that it reserved the right to“hold fully accountable” any state or group “that supports or enables terrorist efforts to obtain or use weapons of mass destruction, whether by facilitating, financing, or providing expertise or safe

haven for such efforts (Nuclear Posture Review Report, 2010, April: 12)”. This declaration underscores the possibility that terrorist groups could acquire fissile material from the rogue states.

Link- Congress

Link---Congressional Restrictions Restrictions destroy flexibility---empirically causes partisan bickering that guarantees rampant terrorismTurner 5

Robert F. Turner, Professor, University of Virginia School of Law, The War Powers¶ Resolution: An Unnecessary, Unconstitutional Source of "Friendly Fire" in the War Against¶ International Terrorism?, Feb 15, 2005, http://www.fed-soc.org/publications/detail/the-warpowers-¶ resolution-an-unnecessary-unconstitutional-source-of-friendly-fire-in-the-war-againstinternational-¶ terrorism

Sadly, the idea that the War Powers Resolution might endanger American lives in the struggle ¶ against terrorism is more than just a hypothetical. Indeed, more Americans were murdered by ¶ terrorists as a direct result of the War Powers Resolution than were killed in all of our military ¶ operations since the end of the Vietnam War. The W ar P owers R esolution was a primary ¶ factor in the decision by Middle Eastern terrorists to blow up the Battalion Landing Team ¶ Headquarters at the Beirut International Airport on October 23, 1984, killing 241 sleeping marines, sailors,¶ and soldiers. When President Reagan sent the Marines to Lebanon as part of an international peacekeeping force¶ alongside British, French, and Italian forces, the decision was not even arguably an infringement upon the power of Congress "to declare War." We¶ were not going to "War," we were sending a contingent of U.S. forces at the request of all of the warring factions in Lebanon to stand between them so¶ they could meet in confidence and try to negotiate a peaceful end to their conflict. Every country in the region originally endorsed the deployment, and¶ no one in Congress spoke against it on the merits. But several

noted there were risks involved-risks the President openly acknowledged-and soon the¶ demands started coming in for a report under Section 4(a)(1) of the War Powers Resolution , the¶ provision governing the sending of U.S. Armed Forces "into

hostilities or into situations where imminent involvement in hostilities is clearly indicated by¶ the circumstances." To begin with, to send such a report to Congress might well have undermined the¶ mission in Beirut. There were numerous, highly paranoid factions engaged in the Lebanese quarrels who had consented to the American¶ presence on the theory that it was going to be a

peacekeeping mission. Had the President notified Congress that he was ¶ taking the nation to "War," militia leaders who had been assured the Americans were coming ¶ in peace might well have concluded that they were going to be the object of the American ¶ hostilities. Why else would President Reagan or his representatives have lied to

them about the nature of the mission? As it turned out, the¶ congressional critics were wrong about "imminent involvement in hostilities," as nearly a year ¶ passed before any of the marines came under hostile fire. During that year, the situation in ¶ Beirut became more dangerous because the debate in Congress took a highly partisan turn. ¶ Democrats like Senator Alan Cranston of California and former Majority Leader Robert

Byrd announced that ¶ they would not authorize the President to continue the deployment unless he first told Congress, as Cranston put it, "exactly how and when we propose to extricate them." [59] One of the points on which there was no apparent¶ discord at the Federal Convention in Philadelphia was that Congress had no role in the actual conduct of military operations. They were given only a¶ "veto" over certain kinds of commitments, leaving to the President such decisions as where to deploy troops, when to attack or redeploy troops, and¶ when to bring them home. As Locke explained, such decisions are heavily dependent upon the behavior of external actors, and it would have been¶ foolish for the President to declare in advance that U.S. forces would be withdrawn on a given date irrespective of those realities. Imagine the reaction¶ of Franklin D. Roosevelt had Congress demanded a withdrawal deadline before it would consider authorizing the President to defend the United States¶ following Pearl Harbor? Once they knew the artificial date on which the United States would withdraw, opponents of a peace settlement in Beirut¶ would be able to orchestrate their strategy for maximum advantage. For much of the press and many Americans, the issue no longer became whether¶ the United States should assist the parties in an important Middle Eastern country to resolve differences and achieve peace, but whether the President¶ was "above the law." Legislation to authorize the President to continue the deployment led to more partisan debate, and the Washington Post noted¶ that the active involvement of Senate Democratic Campaign Chairman Lloyd Bentsen in the debate suggested that "the Democrats are doing push-ups"¶ for the 1984 elections [60]. Marine Corps Commandant P.X. Kelley became so concerned about the partisan debate that he testified before the Senate¶ Foreign Relations Committee that the partisan debate could "encourage hostile forces or forces inimical to the best interest, the life and limb of the¶ Marines." General Kelley warned that "hostile forces would use this as an opportunity to up the ante against our Marines." [61] A few days later, when¶ an unidentified White House staff member repeated General Kelley's concern, the Washington Post reported that Senate Democrats were outraged:¶ "To suggest . . . that congressional insistence that the law be lived up to is somehow giving aid and comfort to the enemy is totally unacceptable," said¶ Sen. Thomas F. Eagleton (D-Mo.). . . . "The Administration has thrown out a red herring," Eagleton said, with "an attempt to intimidate the Congress¶ and frighten the American people with this kind of ludicrous argument." This partisan nature of the debate became even more apparent when the¶ Foreign Relations Committee split completely upon party lines on the deployment, and the minority report was entitled "Minority Views of All¶ Democratic Members of the Committee." In the end, with several references to avoiding future "Vietnams," the Senate voted 54-46 to allow the¶ Marines to remain, with but two Senate Democrats supporting the President. But even then, the issue was not over, as Republicans and Democrats¶ alike emphasized that Congress could reconsider the issue at any time if there were further casualties among the Marines.

All of this ¶ partisan bickering was not lost on radical states in the Middle East, and the Syrian Foreign ¶ Minister announced that the U nited S tates was "short of breath." [62] The message had also not ¶ escaped radical Muslim militia members in Beirut, and in October U.S. intelligence intercepted ¶ a message between two terrorist units saying: "If we kill 15 Marines, the rest will leave." ¶ Inadvertently, by its

partisan debate and repeated pronouncements that further Marine ¶ casualties could provoke another debate and a withdrawal of funds for the deployment (such¶ legislation had already been reported out of a key House

subcommittee), in their partisan effort to invoke the War ¶ Powers Resolution, Congress had essentially placed a bounty on the lives of American forces . ¶ The rest is history. Early on the morning of Sunday, October 23, 1983, a Mercedes truck loaded with highly-sophisticated explosives drove into the¶ Marine Corps compound at the Beirut International Airport and

exploded. America's terrorist enemies had capitalized on ¶ the congressional signals of weakness by murdering 241 sleeping marines, sailors, and ¶ soldiers-more Marines than had been lost on any single day since the height of the Vietnam ¶ War in 1968 and more American military personnel than had been killed in the Gulf War, Grenada, Haiti, Somalia, the Former Yugoslavia, and all other military operations since ¶ Vietnam until the September 11, 2001 attack on the Pentagon.

Link—Congressional Restrictions---Chilling Effect***Plan freezes all military optionsHowell et al., Chicago political science professor, 2007

(William, While Dangers Gather : Congressional Checks on Presidential War Powers, pg 23, CMR)

Immersed in all of the uncertainty that precedes war, presidents struggle mightily to assess the possibility that the military's plans will fail, and to evaluate whether Congress in due course either will publicly condemn him and actively work to dismantle the engagement or will affirm its allegiance to him and give him the money and delegated authority he needs to proceed. If Congress will come to the president's aid and ptovide him with political

cover, then he may have the assurances he needs to incur the risks involved. On the other hand, if the president looks up at Capitol Hill and sees a swarm of representatives poised to pounce at the first misstep taken, he may instead choose to abandon military options altogether . In chapter 2 of this book, we discuss in some detail how presidents make this calculation.

Wouldn’t pursue necessary interventions even if the president would win-doesn’t want the fight or strategy changesHeder, BYU JD, 2010

(Adam, “The Power To End War: The Extent And Limits Of Congressional Power,” St. Mary’s Law Journal Vol. 41 No. 3, http://www.stmaryslawjournal.org/pdfs/Hederreadytogo.pdf, CMR)

Congressional attempts to repeal an authorization for war, in fact, would conflict with the President’s plenary powers contained in the Commander in Chief Clause.

The Commander in Chief Clause, if it means anything, means the power to prosecute a war. 87 As noted, the structure of the Constitution splits the war powers between the two elected branches. Giving Congress the unilateral power to legally end, limit, or redefine a conflict would , no doubt, deter the President from executing a war in the way he sees fit. If the President’s goals or strategies diverge from those of Congress , then Congress would have an incredibly robust veto power over the President — one that would not suffer the extreme political or practical consequences that a use of the appropriation power would . Consequently, knowing that Congress is always

looking over his shoulder, the President likely would not conduct the war as he deems fit ; he would conduct the war more

consistently with Congress’s strategies. 88 Such a scheme would tilt the scales heavily in favor of Congress and run afoul of the basic power-sharing scheme of the Constitution, wherein neither branch has some unilateral right to effectively control all major aspects of a war. 89

Link---Congressional Restrictions x Resolve War power limits signal lack of U.S. resolve Stolberg 5/27/13

Sheryl, “Republicans slam Obama's new approach to fighting terrorism”, NYT, http://www.denverpost.com/ci_23328991/republicans-slam-obamas-new-approach-fighting-terrorism, CMR

Republican lawmakers on Sunday assailed President Barack Obama's vision for winding down the war on terrorism, using talk show appearances to accuse him of misunderstanding the terror threat in a way that will embolden unfriendly nations.¶ "We show this lack of resolve, talking about the war being over," Sen. Lindsey Graham, R-S.C., said on "Fox News Sunday." "What do you think the Iranians are thinking? At the end of the day, this is the most tone-deaf president I ever could imagine."¶ In his first major foreign policy address of his second term, Obama said last week that the nation must narrow the scope of its long battle against terrorists and begin a transition away from a war footing.¶ In addition to renewing his call to close the detention facility at

Guantanamo Bay, Cuba, he said he would seek to limit his own war power. He also issued policy guidance that would shift responsibility for strikes by unmanned drone aircraft to the military from the CIA, and said there would be stricter standards for such strikes.¶ Graham, a strong supporter of the drone program, said he objected to changing the standards.¶ Democrats appearing on the television Sunday, including Rep. Debbie Wasserman Schultz of Florida and Sen. Richard J. Durbin of Illinois, praised Obama for what they view as a necessary rebalancing of civil liberties and national security interests.¶ "We have to balance our values," Wasserman Schultz said on the ABC program "This Week."¶ Republicans, including Graham, criticized the speech. At least two lawmakers — the current and former chairmen of the House

Homeland Security Committee, Reps. Michael McCaul of Texas and Peter King of New York — said that Obama had struck the wrong balance.

Studies prove---Congressional restrictions signal capitulation and prolong conflict Kriner 10---assistant professor of political science at Boston University

[Douglas L. Kriner, “After the Rubicon: Congress, Presidents, and the Politics of Waging War” page number below, CMR]

When deciding whether to capitulate to American demands or to¶ continue to resist militarily (the first of the

iterative decisions at the con¶ flict conduct phase shown in figure 2.1), the leader of the target state may¶ factor congressional actions into his or her calculations. Legislative authorizations and public congressional support for the president’s policies¶ signal American resolve to stay the course militarily. Such signals, prior¶ studies suggest, may encourage the target state to capitulate to Ameri¶ can

demands. By contrast, public opposition to the president’s policies¶ in Congress alerts the target state to domestic political pressures on the¶ president to change course. Signaling literatures within international¶ relations

suggest that such information could holster the target state’s¶ hopes that it can outlast the political will in Washington to continue a¶ military action. In this way, congressional opposition to the president’s ¶

policies could conceivably prolong the duration of an American military¶ venture, while congressional support, which may encourage the target¶ state leader to capitulate, could shorten a conflict’s duration. [page 79]

War power fights undermine US deterrence Newton 12—Professor of Law @ Vanderbilt University [Michael A. Newton, “Inadvertent Implications of the War Powers Resolution,” Case Western Reserve Journal of International Law, Vol. 45, No. 1, 2012]

The corollary to this modern reality, and the second of three inadvertent implications of the Resolution, is that our enemies now focus on American political will as the Achilles heel of our vast capabilities . Prior to the War Powers Resolution, President Eisenhower understood that it was necessary to "seek the cooperation of the Congress . Only with that can we give the reassurance needed to deter aggression ." 62 President Clinton understood the importance of clear communication with the Congress and the American people in order to sustain the political legitimacy that is a vital element of modern military operations . Justifying his bombing of targets in Sudan, he argued that the "risks from inaction, to America and the world, would be far greater than action, for that would embolden our enemies, leaving their ability and their willingness to strike us intact."13 In his letter to Congress "consistent with the War Powers Resolution," the president reported that the strikes "were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities" and "were intended to prevent and deter additional attacks by a clearly identified terrorist threat."6 ' The following day, in a radio address to the nation, the

president explained his decision to take military action, stating, "Our goals were to disrupt bin Laden's terrorist network and destroy elements of its infrastructure in Afghanistan and Sudan. And our goal was to destroy, in Sudan, the factory with which bin Laden's network gas."*6 Citing "compelling evidence that the bin Laden network was poised to strike at us again" and was seeking to acquire chemical weapons, the president

declared that we simply could not ignore the threat posed, and hence ordered the strikes. 66 Similarly, President Clinton understood that intervention in Bosnia could not be successful absent some national consensus, which had been slow to form during the long Bosnian civil war.6 1

Secretary of State George Schultz provided perhaps the most poignant and pointed example of this truism in his testimony to Congress regarding the deployment of US Marines into Lebanon to separate the warring factions in 1982. On September 21, 1983, he testified before the Senate Foreign Relations Committee and provided a chilling premonition of the bombing that would

come only one month later and kill 241 Americans, which was the bloodiest day in the Marine Corps since the battle of Iwo Jima.6" Seeking to bolster legislative support and to better explain the strategic objectives, he explained that:

It is not the mission of our marines or of the [Multinational Force in Lebanon] as a whole to maintain the military balance in Lebanon by themselves. Nevertheless, their presence remains one crucial pillar of the structure of stability behind the legitimate Government of Lebanon, and an important weight in the scales.

To remove the marines would put both the Government and what we are trying to achieve in jeopardy. This is why our domestic controversy over the war powers has been so disturbing. Uncertainty about the American commitment can only weaken our effectiveness. Doubts about our staying power can only cause political aggressors to discount our presence or to intensify their attacks in hopes of hastening our departure .

An accommodation between the President and Congress to resolve this dispute will help dispel those doubts about our staying power and strengthen our political hand ." Pg. 189-190

Congressional restrictions interfere with war powers signal weak foreign policy Howell 5

WILLIAM G. HOWELL AND JON C. PEVEHOUSE are Associate Professors at the Harris School of Public Policy at the University of Chicago, “Presidents, Congress, and the Use of Force,” http://www.princeton.edu/csdp/events/Howell102402/howell_paper.pdf, CMR

While much divides the protagonists in the use of force literature, one assumption is ¶ consensual: Congress is weak .1¶

Indeed, an assumption of legislative impotence has achieved ¶ the status of conventional wisdom :¶ The

literature on U.S. foreign policymaking unambiguously demonstrates that ¶ because of his constitutional prerogatives and political incentives

as well as ¶ congressional weaknesses in foreign policy, it is the president who exercises supreme ¶

control over the nation’s military actions. (Meernik 1994: 122-3)¶ Because the president is commander in chief of the military, Congress cannot (or will not) ¶ try to constrain his freedom to pick battles, define the scope and duration of conflict, or set ¶ the terms by which a conflict ultimately is resolved . While Congress may direct domestic ¶ policymaking, its hold over foreign policy is quite tenuous; and when the president decides ¶ to exercise military force abroad, members of Congress can only complain on Sunday ¶ morning talk shows. For the most part, the president’s authority over military matters is ¶ beyond repute.

Link---Congressional Restrictions x Flexibility Congressional restrictions on war powers undermine executive flexibility necessary for foreign policy Yoo 11

Mr. John Yoo, a law professor at the University of California, Berkeley and visiting scholar at the American Enterprise Institute, was a Justice Department official from 2001-03, “Antiwar Senator, War-Powers President”, March 25, http://online.wsj.com/article/SB10001424052748704050204576218540505216146.html, CMR

President Barack Obama has again flip-flopped on national security—and we can all be grateful. Having kept Guantanamo Bay open, resumed

military commission trials for terrorists, and expanded the use of drones, the president has now ordered the U.S. military into action without Congress's blessing.¶ Imagine the uproar if President Bush had unilaterally launched air attacks against Libya's Moammar Gadhafi. But since it's Mr. Obama's finger on the trigger, Democratic leaders in Congress have kept quiet—demonstrating that their opposition to presidential power during the Bush years was political,

not principled.¶ Mr. Obama's exercise of war powers in Libya is firmly in the tradition of American foreign policy. Throughout our history, neither presidents nor Congress have acted under the belief that the Constitution requires a declaration of war before the U.S. can conduct military hostilities abroad. We have used force abroad more than 100 times but declared war in only five cases: the War of 1812, the Mexican-American and Spanish-American Wars, and World Wars I and II.¶ Without any approval from Congress, presidents have sent forces to battle Indians, Barbary Pirates and Russian revolutionaries, to fight North Korean and Chinese Communists in Korea, to engineer regime changes in South and Central America, and to prevent human rights disasters in the Balkans. Other conflicts, such as the 1991 Persian Gulf War and the 2003 Iraq War, received legislative "authorization" but not declarations of war.¶

Since Vietnam, however, antiwar Democrats have sought to replace the Constitution's reliance on swift presidential action in war with a radically different system appropriate for peacetime: Congress makes policy, the president implements it. In 1973, they passed the War Powers Resolution to require congressional permission for any military intervention abroad, but no president has accepted the law's constitutionality.¶ Enlarge Image¶ yoo¶ Martin Kozlowski¶ President George W. Bush's campaign against terror upped the stakes in this contest. Opening the detention center at Guantanamo Bay, establishing special military courts for terrorist trials, ordering tough interrogation of al Qaeda leaders, and conducting warrantless wiretaps of electronic communications—all without congressional approval—fed the left-wing narrative of an "imperial presidency." Senate Majority Leader Harry Reid and other prominent Democrats regularly attacked Mr. Bush for acting "above the law" and "cutting out Congress." Then-Sen. Joe Biden even opposed the Supreme Court nomination of Samuel Alito because he would not agree that Mr. Bush would need congressional permission to attack Iran.¶ Mr. Obama once agreed with his Democratic colleagues, saying in 2007 that "The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Fast forward four years: Last Monday, Mr. Obama notified Congress that he ordered military action in Libya "pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief

Executive."¶ For once, Mr. Obama has the Constitution about right. As Alexander Hamilton wrote in Federalist 74, "The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the

executive authority." Presidents should conduct war, he wrote, because they could act with "decision, activity, secrecy, and dispatch." In perhaps his most famous words, Hamilton wrote that "Energy in the executive is a leading character in the

definition of good government. . . . It is essential to the protection of the community against foreign attacks."¶ The truth is that Mr. Bush's case for constitutional authority far outstrips Mr. Obama's. In 2001 and 2002, Mr. Bush won legislative approval for both the Afghanistan and Iraq wars even though he didn't need it.¶ A few usual suspects have piped up against Mr. Obama's switch. Rep. Dennis Kucinich is talking impeachment again, and fellow isolationist Rep. Ron Paul has suggested that Mr. Obama is acting "outside the Constitution." A few moderates, such as Sens. Richard Lugar and Jim Webb, have called for a congressional debate over a declaration of war—an idea supported by conservative pundit George Will. But don't expect Sen. Reid or former Speaker Nancy Pelosi to introduce legislation blocking the war in Libya. Don't wait for Mr. Biden to thunder forth about saving the Constitution from the president. They are just as silent now as they were when President Bill Clinton bombed Serbia in 1999 without congressional approval.¶ Real opposition comes from a different quarter: young congressional Republicans like Jason Chaffetz of Utah or Justin Amash of Michigan. Their praiseworthy opposition to the growth of federal powers at home misleads them to resist Washington's indispensable role abroad. They mistakenly read the 18th-century constitutional text through a modern lens—for example, understanding "declare war" to mean "start war." When the Constitution was written, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain fought numerous major conflicts but declared war only once beforehand.¶ ¶ Our Constitution sets out specific procedures for passing laws, appointing officers, and making treaties. There are none for waging war. The Constitution declares that states shall not "engage" in war "without the consent of Congress" unless "actually invaded, or in such imminent Danger as will not admit of delay"—exactly the limits desired by antiwar critics, complete with an exception for self-defense. But even these limits are absent when it comes to war waged by the

president. The Framers wanted Congress and the president to struggle over war through the political process, not the courts.¶ Congress is too fractured, slow and inflexible to manage war. Its loose, decentralized structure would paralyze American policy while foreign threats loom. The Framers understood that Congress's real power would lie in the purse. During the 1788 Virginia ratifying convention, Patrick Henry attacked the Constitution for failing to limit presidential militarism. James Madison replied: "The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist."¶ If Congress opposes action, it can reduce funding for the military, eliminate units,

or freeze supplies. Congress ended U.S. involvement in Vietnam by cutting off funds for the war. Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress's funding power.

Congressional restrictions gut war powers---flexibility key to check WMD prolif and terror Yoo 6 John Yoo, law professor at University of California, Berkeley. He was Deputy¶ Assistant Attorney General in the Office of Legal Counsel at the US Department¶ of Justice from 2001 to 2003, “Exercising Wartime Powers,” Harvard International¶ Review28. 1 (Spring 2006): 22-25. CMR

Critics of these conflicts want to upend long practice by appealing to an "original ¶ understanding" of the Constitution. But the text and structure of the Constitution, as well as its application over the¶ last two centuries, confirm that the president can begin military hostilities without the approval of Congress. The Constitution ¶ does not establish a strict warmaking process because the Framers understood that war ¶ would require the speed , decisiveness , and secrecy that only the presidency could bring . "Energy¶ in the executive,"

Alexander Hamilton argued in the Federalist Papers, "...is essential to the protection of the community against¶ foreign attacks." He continued, "the direction of war most peculiarly demands those qualities which distinguish the

exercise of¶ power by a single hand." Rather than imposing a fixed , step-by-step method for going to war, the ¶ Constitution allows the executive and legislative branches substantial flexibility in shaping the ¶ decisionmaking process for engaging in military hostilities. Given the increasing ability of ¶ rogue states to procure weapons o f mass destruction

(WMDs) and the rise of international ¶ terrorism, maintaining this flexibility is critical to preserving US national security.

Link---Congressional Restrictions Ext.Laws constraining executive flexibility destroy Presidential powersCrovitz, assistant editor to the Wall Street Journal, 1989 (L Gordon, “Introduction,” The Fettered Presidency: Legal Constraints on the Executive Branch, ed. Crovitz and Rabkin, p. 1)

This book addresses the proliferation of legal constraints on policy making in the executive branch of the federal government and highlights the

risks and dangers this poses for public policy. To some extent, this subject is as old as the republic. The Federalist calls "energy" in the executive branch "a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws." Energy encompasses many virtues-the ability to move quickly, to alter course, to maneuver amid changing conditions. Laws that limit executive discretion reduce the protections of individual liberty and equally

cripple the efficient pursuit of national goals. Good government requires a vibrant executive branch free of improper constraints.

Restrictions harm presidential flexibility necessary to respond to future crises Adrian Vermeule, Professor of Law, Harvard Law School, 2006,¶ “THE EMERGENCY CONSTITUTION IN THE POST-SEPTEMBER 11 WORLD ORDER: SELF-DEFEATING¶

PROPOSALS: ACKERMAN ON EMERGENCY POWERS,” Fordham Law Review, Nov., pp. LN. CMR

The reason for the failure of statutory frameworks is plain. When an emergency or war or ¶ crisis arises, the executive needs flexibility ; because statutory limitations determined in ¶ advance can only reduce flexibility, and do so in a way that does not anticipate the particular ¶ requirements of a new emergency , no one has any ex post interest in insisting that these limitations be respected.¶ Ackerman acknowledges the grim historical record but provides no valid reason for thinking that his framework statute - which is far¶ more ambitious than the other ones - might fare differently.

Link---Military Backlash Perception of the micromanagement by the plan causes military backlashRuffaa et al ’13 [Chiara Ruffaa, Department of Peace and Conflict Research, Uppsala University, Christopher Dandekerb, Department of Peace and Conflict Research, Uppsala University, Pascal Vennessonc, S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University, “Soldiers drawn into politics? The influence of tactics in civil –military relations,” June, Small Wars & Insurgencies, Vol. 24, No. 2, 322–334, http://www.kcl.ac.uk/kcmhr/publications/assetfiles/other/Ruffa2013politics.pdf]

Actions in the theater of operation may have consequences for c ivil–military¶ relations back home. Furthermore, the desired objectives to be achieved have¶ shifted . Recent literature has agreed on ‘a shift away from the idea of the pursuit¶ of victory to that

of success’ specifically at ‘establishing security condition’.16¶ Another feature of contemporary operations is the ‘process of dispersion of¶ military authority to lower levels of the command chain’ .17 The dispersion of ¶ military authority combines coercive and hierarchical elements typical of a ¶ military organization with ‘ group consensus’ and persuasive forms of authority¶ and it has led to the emergence of different leadership styles.18While sometimes¶ combined with

micromanagement, this dispersion has led to greater autonomy for ¶ soldiers in the field and to a reduced control . Military operations have traditionally¶ been exceptional environments but in contemporary missions decisions often¶ have to be taken without orders.19 To be sure, communication technology has¶ encouraged both decentralization and centralization. Still, it is only a technology¶ and much depends on culture and organization of the user. This becomes¶ particularly difficult to control when soldiers have wider margins of maneuver.¶ These interventions, Afghanistan and Iraq in particular, are

‘wars of contested¶ choice’, meaning that notwithstanding their differences they are not of existential¶ necessity.20 To complicate things further, politicians get involved while the¶ operation is ongoing; they sometimes change the political objectives during the mission or they have a moral and politically unrealistic view of the political¶ objectives to be achieved. This is the result of a combination of two constituent¶

elements, of what has been called the ‘dialectic of control’: dispersion and¶ micromanagement.21 Dispersion occurs when the military authority is dispersed¶ across levels of command; while micromanagement refers to a growing tendency ¶

of centralizing control.22 Dispersion and micromanagement lead to a¶ compression of the three levels of war, namely strategic, operational, and¶ tactical .23 While these two elements may seem at odds with each other, they are¶ in fact connected.

Micromanagement matters as much as dispersion. The tensions ¶ between micromanagement ---which refers to a centralized control and a

topdown process---and diffusion lead to inconsistencies between orders given from¶ the top (without in-depth knowledge of the context) and diffusion of the level of ¶ command . While potentially effective for operational activities,

micromanagement risks being potentially frustrating when soldiers have to carry out activities¶ that range from humanitarian tasks to building bridges because they need to¶ assess on the ground where this is needed. Thus communications technologies are¶ double edged: (a) technology allows for either dispersion with local actors being¶ able to use a common picture with others to make local decisions that nonetheless¶ conform to the strategic principles set down by higher authority, or (b) they allow¶ senior officers to micromanage as they think they know best because they can see¶ the detail that the lower levels can not.

The key point here is that which direction¶ is taken ---(a) or (b)---depends on factors such as the command culture of the military organization; the personality and orientation of senior officers; and the¶ political nervousness/sensitivity/choices of ministers worried or not about

what is¶ going on ‘down there’ and the consequences for the mission, their reputation, and¶ that of the government of which they are a part. These elements taken together¶ have created a set of conditions that have changed soldiers’ role in operations and¶ have made the tactical level more relevant and altered the ways in which they¶ connect to politicians and the political process.

That triggers the DA and there’s an independent nuclear war impact

COHEN 1997 [Eliot, PhD from Harvard in political science, Professor of Strategic Studies at the Paul H. Nitze School of Advanced International Studies (SAIS) at the Johns Hopkins University, Director of the Strategic Studies Program at SAIS, served as Counselor to the United States Department of State under Secretary Condoleezza Rice from 2007 to 2009, http://www.fpri.org/americavulnerable/06.CivilMilitaryRelations.Cohen.pdf]

Left uncorrected, the trends in American civil-military relations could breed certain pathologies. The most serious possibility is that of a dramatic civil-military split during a crisis involving the use of force . In the recent past, such tensions did not result in open division. For example, Franklin Roosevelt insisted that the United States invade North Africa in 1942, though the chiefs of both the army and the navy vigorously

opposed such a course, favoring instead a buildup in England and an invasion of the continent in 1943. Back then it was inconceivable that a senior military officer would leak word of such a split to the media, where it would have reverberated loudly and destructively. To be sure, from time to time individual officers broke the vow of professional silence to protest a course of action, but in these

isolated cases the officers paid the accepted price of termination of their careers. In the modern environment , such cases might no longer be isolated . Thus, presidents might try to shape U.S. strategy so that it complies with military opinion, and rarely in the annals of statecraft has military opinion alone been an adequate guide to sound foreign policy choices. Had Lincoln followed the advice of his senior military advisers there is a good chance that the Union would have fallen. Had Roosevelt deferred to General George C. Marshall and Admiral Ernest J. King there might well have been a gory debacle on the shores of France in 1943. Had Harry S. Truman heeded the advice of his theater commander in the Far East (and it should be remembered that the Joint Chiefs

generally counseled support of the man on the spot) there might have been a third world war . Throughout much of its history, the U.S. military was remarkably politicized by contemporary standards. One commander of the army, Winfield Scott, even ran for president while in uniform, and others (Leonard Wood,

for example) have made no secret of their political views and aspirations. But until 1940, and with the exception of periods of outright warfare, the military was a negligible force in American life, and America was not a central force in international politics. That has changed. Despite the near halving of the defense budget from its high in the 1980s, it remains a significant portion of the

federal budget, and the military continues to employ millions of Americans. More important, civil-military relations in the U nited S tates now no longer affect merely the closet-room politics of Washington, but the relations of countries around the world . American choices about the use of force , the shrewdness of American strategy , the soundness of American tactics , and the will of American leaders have global consequences . What might have been petty squabbles in bygone years are now magnified into quarrels of a far larger scale, and conceivably with far more grievous consequences. To ignore the problem would neglect one of the cardinal purposes of the federal government: “to provide for the common defense” in a world in which security cannot be taken for granted.

Link---Armed Forces The plan’s restrictions straightjacket presidential flexibility---collapses deterrence making preemptive strikes likely.Zeisberg, ‘4 [Mariah Zeisberg, PhD in Politics from Princeton, Postdoc Research Associate at the Political Theory Project of Brown University; “INTERBRANCH CONFLICT AND CONSTITUTIONAL MAINTENANCE: THE CASE OF WAR POWERS”; June 2004; found in Word document, can be downloaded from www.brown.edu/Research/ppw/files/Zeisberg%20Ch5.doc]

The first significant argument of pro-Presidency insularists is that flexibility is a prime value in the conduct of foreign affairs, and especially war. Implicit in this argument is the recognition that the executive is functionally superior to Congress in achieving flexibility and swiftness in war operations, a recognition I share. The Constitution cannot be meant to curtail the very flexibility that may be necessary to preserve the nation; and yet, according to the insularists, any general norm which would include Congress in decision-making about going to war could only undermine that flexibility . Writing on the War Powers Act, Eugene Rostow predicts that it would, “put the Presidency in a straightjacket of a rigid code, and prevent new categories of action from emerging, in response to the necessities of a tense and unstable world.” In fact, Rostow believes, “[t]he centralization of authority in the president is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch.” Pro-presidency insularists are fond of quoting Hamilton, who argued that “[o]f all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” This need for flexibility, some insularists argue, is especially acute given modern conditions, where devastating wars can develop quickly. Today, “many foreign states have the power to attack U.S. forces - and some even the U.S. mainland - almost instantly,” and in such a world it is impracticable to require the President to seek advance authorization for hostilities. Such a requirement would simply be too risky to U.S. security. We furthermore face a nuclear age, and the system of deterrence that operates to contain that threat requires that a single person be capable of responding to nuclear attack with nuclear weapons immediately . Rostow writes, “ the requirement for advance authorization would collapse the system of deterrence, making preemptive strikes by our enemies more likely .” Hence, “modern conditions” require the President to “act quickly, and often alone.” While this does not mean that Congress has no role to play in moments of crisis, it does mean that Congress should understand its role largely in terms of cooperating with the President to support his negotiations and decisions regarding relationships with foreign powers. Rostow writes, “Congress should be able to act effectively both before and after moments of crisis or potential crisis. It may join the President in seeking to deter crisis by publicly defining national policy in advance, through the sanctioning of treaties or other legislative declarations. Equally, Congress may participate formally in policymaking after the event through legislative authorization of sustained combat, either by means of a declaration of war, or through legislative action having more limited legal and political consequences. Either of these devices, or both in combination, should be available in situations where cooperation between the two branches is indicated at many points along an arc ranging from pure diplomacy at one end to a declaration of war at the other.” In other words, for Congress to understand itself as having any justifiable role in challenging executive security determinations , especially at moments of crisis, would be to undermine the strength that the executive requires in order to protect the nation. Conflict in this domain represents political degradation.

Plan freezes all military optionsHowell et al., Chicago political science professor, 2007

(William, While Dangers Gather : Congressional Checks on Presidential War Powers, pg 23, CMR)

Immersed in all of the uncertainty that precedes war, presidents struggle mightily to assess the possibility that the military's plans will fail, and to evaluate whether Congress in due course either will publicly condemn him and actively work to dismantle the engagement or will affirm its allegiance to him and give him the money and delegated authority he needs to proceed. If Congress will come to the president's aid and ptovide him with political

cover, then he may have the assurances he needs to incur the risks involved. On the other hand, if the president looks up at Capitol Hill and sees a swarm of representatives poised to pounce at the first misstep taken, he may instead choose to abandon military options altogether . In chapter 2 of this book, we discuss in some detail how presidents make this calculation.

Wouldn’t pursue necessary interventions even if the president would win-doesn’t want the fight or strategy changesHeder, BYU JD, 2010

(Adam, “The Power To End War: The Extent And Limits Of Congressional Power,” St. Mary’s Law Journal Vol. 41 No. 3, http://www.stmaryslawjournal.org/pdfs/Hederreadytogo.pdf, CMR)

Congressional attempts to repeal an authorization for war, in fact, would conflict with the President’s plenary powers contained in the Commander in Chief Clause.

The Commander in Chief Clause, if it means anything, means the power to prosecute a war. 87 As noted, the structure of the Constitution splits the war powers between the two elected branches. Giving Congress the unilateral power to legally end, limit, or redefine a conflict would , no doubt, deter the President from executing a war in the way he sees fit. If the President’s goals or strategies diverge from those of Congress , then Congress would have an incredibly robust veto power over the President — one that would not suffer the extreme political or practical consequences that a use of the appropriation power would . Consequently, knowing that Congress is always

looking over his shoulder, the President likely would not conduct the war as he deems fit ; he would conduct the war more

consistently with Congress’s strategies. 88 Such a scheme would tilt the scales heavily in favor of Congress and run afoul of the basic power-sharing scheme of the Constitution, wherein neither branch has some unilateral right to effectively control all major aspects of a war. 89

Link Magnifier---War Powers Zero-SumCongressional-executive battles for war powers zero-sumHowell 5

WILLIAM G. HOWELL AND JON C. PEVEHOUSE are Associate Professors at the Harris School of Public Policy at the University of Chicago, “Presidents, Congress, and the Use of Force,” http://www.princeton.edu/csdp/events/Howell102402/howell_paper.pdf, CMR

When large and unified majorities govern Congress, presidents rarely exercise their ¶ unilateral powers. As shown elsewhere (Howell 2003), when strong majorities stand in ¶ support, the president would do better to engage the legislative process and set policy with ¶ firm legislative footings; and when such majorities stand in opposition, the president cannot ¶ hope to unilaterally set

any public policy of consequence without provoking a congressional ¶ response. But when small and divided majorities govern Congress, presidents have ¶ incentives to strike out on their own. In this sense, congressional strength marks ¶ presidential weakness, and congressional weakness presidential strength. The outcome

is ¶ hardly accidental, for it is the checks that each institution places on the other that determines ¶ the overall division of power.

Flexibility KeyPrez flex key to quick action and intel Glenn Sulmasy 9, law faculty of the United States Coast Guard Academy, , Anniversary Contributions: Use of Force: Executive Power: the Last Thirty Years, 30 U. Pa. J. Int'l L. 1355

Since the attacks of 9/11, the original concerns noted by Hamilton, Jay, and Madison have been heightened. Never before in the young history of the United States has the need for an energetic exec utive been more vital to its national security . The need for quick action in this arena requires an executive response - particularly when fighting a shadowy enemy like al Qaeda - not the deliberative bodies

opining on what and how to conduct warfare or determining how and when to respond. The threats from non-state actors , such as al Qaeda,

make the need for dispatch and rapid response even greater . Jefferson's concerns about the slow and deliberative institution of

Congress being prone to informational leaks are even more relevant in the twenty-first century. The advent of the twenty-four hour media only leads

to an increased need for retaining enhanced levels of executive [*1362] control of foreign policy. This is particularly true in modern warfare. In the w ar o n international t error , intel ligence is vital to ongoing operations and successful prevention of attacks . Al Qaeda now has both the will and the ability to strike with the equivalent force and might of a nation's armed forces. The need to identify these individuals before they can operationalize an attack is vital. Often international terror cells consist of only a small number of individuals - making intelligence that much more difficult to obtain and even more vital than in previous conflicts. The normal movements of tanks, ships, and aircrafts that, in traditional armed conflict are

indicia of a pending attack are not the case in the current "fourth generation" war. Thus, the need for intelligence becomes an even greater concern for the commanders in the field as well as the Commander-in-Chief. ¶ Supporting a strong executive in foreign affairs does not necessarily mean the legislature has no role at all. In fact, their dominance in domestic affairs remains strong. Additionally, besides the traditional roles identified in the Constitution for the legislature in foreign affairs - declaring war, ratifying treaties, overseeing appointments of ambassadors, etc. - this growth of executive power now, more than ever, necessitates an enhanced, professional, and apolitical oversight of the executive. An active, aggressive oversight of foreign affairs, and warfare in particular, by the legislature is now critical. Unfortunately, the United States - particularly over the past decade - has witnessed a legislature unable to muster the political will necessary to adequately oversee, let alone check, the executive branch's growing power. Examples are abundant: lack of enforcement of the War Powers Resolution abound the executive's unchecked invasions of Grenada, Panama, and Kosovo, and such assertions as the Authorization for the Use of Military Force, the USA Patriot Act, military commissions, and the updated Foreign Intelligence Surveillance Act ("FISA"). There have been numerous grand-standing complaints registered in the media and hearings over most, if not all, of these issues. However, in each case, the legislature has all but abdicated their constitutionally mandated role and allowed the judicial branch to serve as the only real check on alleged excesses of the executive branch. This deference is particularly dangerous and, in the current environment of foreign affairs and warfare, tends to unintentionally politicize the Court.¶ The Founders clearly intended the political branches to best serve the citizenry by functioning as the dominant forces in [*1363] guiding the nation's foreign affairs. They had anticipated the political branches to struggle over who has primacy in this arena. In doing so, they had hoped neither branch would become too strong. The common theme articulated by Madison, ambition counters ambition, n17 intended foreign affairs to be a "give and take" between the executive and legislative branches. However, inaction by the legislative branch on myriad policy and legal issues surrounding the "war on terror" has forced the judiciary to fulfill the function of questioning, disagreeing, and "checking" the executive in areas such as wartime policy, detentions at Guantanamo Bay, and tactics and strategy of intelligence collection. The unique nature of the conflict against international terror creates many areas where law and policy are mixed. The actions by the Bush administration, in particular, led to outcries from many on the left about his intentions and desire to unconstitutionally increase the power of the Presidency. Yet, the Congress never firmly exercised the "check" on the executive in any formal manner whatsoever.¶ For example, many policymakers disagreed with the power given to the President within the Authorization to Use Military Force ("AUMF"). n18 Arguably, this legislation was broad in scope, and potentially granted sweeping powers to the President to wage the "war on terror." However, Congress could have amended or withdrawn significant portions of the powers it gave to the executive branch. This lack of withdrawal or amendment may have been understandable when Republicans controlled Congress, but as of November 2006, the Democrats gained control of both houses of the Congress. Still, other than arguing strongly against the President, the legislature did not necessarily or aggressively act on its concerns. Presumably this inaction was out of concern for being labeled "soft on terror" or "weak on national security" and thereby potentially suffering at the ballot box. This virtual paralysis is understandable but again, the political branches were, and remain, the truest voice of the people and provide the means to best represent the country's beliefs, interests, and national will in the arena of foreign affairs. It has been this way in the past but the more recent (certainly over the past thirty years and even more so in the past decade) intrusions of the judicial branch into what [*1364] was intended to be a "tug and pull" between the political branches can properly be labeled as an unintended consequence of the lack of any real legislative oversight of the executive branch.¶ Unfortunately, now nine unelected, life-tenured justices are deeply involved in wartime policy decision making. Examples of judicial policy involvement in foreign affairs are abundant including Rasul v. Bush; n19 Hamdi v. Rumsfeld; n20 Hamdan v. Rumsfeld; n21 as well as last June's Boumediene v. Bush n22 decision by the Supreme Court, all impacting war policy and interpretation of U. S. treaty obligations. Simply, judges should not presumptively impact warfare operations or policies nor should this become acceptable practice. Without question, over the past thirty years, this is the most dramatic change in executive power. It is not necessarily the strength of the Presidency that is the change we should be concerned about - the institutional search for enhanced power was anticipated by the Founders - but they intended for Congress to check this executive tendency whenever appropriate. Unfortunately, this simply is not occurring in twenty-first century politics. Thus, the danger does not necessarily lie with the natural desire for Presidents to increase their power. The real danger is the judicial branch being forced, or compelled, to fulfill the constitutionally mandated role of the Congress in checking the executive.¶ 4. PRESIDENT OBAMA AND EXECUTIVE POWER¶ The Bush presidency was, and continues to be, criticized for having a standing agenda of increasing the power of the executive branch during its eight-year tenure. Numerous articles and books have been dedicated to discussing these allegations. n23 However, as argued

earlier, the reality is that it is a natural bureaucratic tendency, and one of the Founders presciently anticipated, that each branch would seek greater powers whenever and wherever possible. As the world becomes increasingly interdependent , technology and armament become more sophisticated, and with [*1365] the rise of twenty-first century non-state actors , the need for strong executive power is not only preferred, but also necessary. Executive power in the current world dynamic is something, regardless of policy preference or

political persuasions, that the new President must maintain in order to best fulfill his constitutional role of providing for the nation's security. This is simply part of the reality of

executive power in the twenty-first century. n24

Link - Judicial Deference

Link - DeferenceThe plan reverses court deference and rules on a political questionLederman 11 (Martin, Professor of Law – Georgetown University Law Center, “War, Terror, and the Federal Courts, Ten Years After 9/11: Conference*: Association of American Law Schools' Section on Federal Courts Program at the 2012 AALS Annual Meeting in Washington, D.C.,” American University Law Review, June, 61 Am. U.L. Rev. 1253, Lexis)

Number two: Numerous very important, contested, hotly debated topics have arisen in the last ten years, many of them in the Bush Administration, involving for example interrogation techniques, the scope of detention authority , habeas review, military commissions, targeted killings, and the use of force more broadly. On some of these questions, the federal courts - and the Supreme Court in particular - have had quite a lot to say; and on others, not so much, at least in part because of several different federal courts doctrines that prevent the courts from speaking too much about those . You're all familiar with standing limits, political questions, state secrets, etc. We're going to focus particularly on a couple of them, which are immunity doctrines and the weakening of the Bivens n2 and state court sorts of causes of action.

We will also discuss the fact that there are many people who think the federal courts have become too involved at supervising and resolving substantive questions involving the political branches, including some of Judge Kavanaugh's colleagues, who have been particularly vocal about that, engaging in what appears to be a form of resistance to the Supreme Court's Boumediene n3 decision. By contrast, many other people think the courts have not been nearly involved enough at resolving some of the unresolved questions about the scope of interrogation and detention and military commissions and the like, that might be lingering from the last administration, or occurring now in the new administration, such as with respect to use of force . So that's the second broad topic - whether the federal courts have been too timid or too aggressive in this area.

I/L - War Powers Spill-Over

I/L - SpilloverCongressional restraints spill over to destabilize all presidential war powers. Heder ’10

(Adam, J.D., magna cum laude , J. Reuben Clark Law School, Brigham Young University, “THE POWER TO END WAR: THE EXTENT AND LIMITS OF CONGRESSIONAL POWER,” St. Mary’s Law Journal Vol. 41 No. 3, http://www.stmaryslawjournal.org/pdfs/Hederreadytogo.pdf)

This constitutional silence invokes Justice Rehnquist’s oftquoted language from the landmark “political question” case, Goldwater v. Carter . 121 In Goldwater , a group of senators challenged President Carter’s termination, without Senate approval, of the United States ’ Mutual Defense Treaty with Taiwan. 122 A plurality of the Court held, 123 in an opinion authored by Justice Rehnquist, that this was a nonjusticiable political question. 124 He wrote: “In light of the absence of any constitutional provision governing the termination of a treaty, . . . the instant case in my view also ‘must surely be controlled by political standards.’” 125 Notably, Justice Rehnquist relied on the fact

that there was no constitutional provision on point. Likewise, there is no constitutional provision on whether Congress has the legislative power to limit, end, or otherwise redefine the scope of a war . Though Justice Powell argues in Goldwater that the Treaty Clause and Article VI of the Constitution “add support to the view that the text of the Constitution does not unquestionably commit the power to terminate treaties to the President alone,” 126 the same cannot be said about Congress’s legislative authority to terminate or limit a war in a way that goes beyond its explicitly enumerated powers. There are no such similar provisions that would suggest Congress may decline to exercise its appropriation power but nonetheless legally order the President to cease all military operations. Thus, the case for deference to the political branches on this issue is even greater than it was in the Goldwater context. Finally, the Constitution does not imply

any additional powers for Congress to end, limit, or redefine a war. The textual and historical evidence suggests the Framers purposefully declined to grant Congress such powers . And as this Article argues, granting Congress this power would be inconsistent with the general war powers structure of the Constitution. Such a reading of the Constitution would unnecessarily empower Congress and tilt the scales heavily in its favor . More

over, it would strip the President of his Commander in Chief authority to direct the movement of troops at a time when the Executive’s expertise is needed. 127 And fears that the President will grow too powerful are

unfounded, given the reasons noted above. 128 In short, the Constitution does not impliedly afford Congress any authority to prematurely terminate a war above what it explicitly grants . 129 Declaring these issues nonjusticiable political questions would be the most practical means of balancing the textual and historical demands, the structural demands, and the practical demands that complex modern warfare brings . Adjudicating these matters would only lead the courts to engage in impermissible line drawing — lines that would both confus e the issue and add layers to the text of the Constitution in an area where the Framers themselves declined to give such guidance.

That goes nuclear

Li ‘9

Zheyao, J.D. candidate, Georgetown University Law Center, 2009; B.A., political science and history, Yale University, 2006. This paper is the culmination of work begun in the "Constitutional Interpretation in the Legislative and Executive Branches" seminar, led by Judge Brett Kavanaugh, “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7 Geo. J.L. & Pub. Pol'y 373 2009 WAR POWERS IN THE FOURTH GENERATION OF WARFARE

A. The Emergence of Non-State Actors

Even as the quantity of nation-states in the world has increased dramatically since the end of World War II, the institution of the nation-state has been in decline over the past few decades. Much of this decline is the direct

result of the waning of major interstate war, which primarily resulted from the introduction of nuclear weapons.122 The prolif eration of nuclear weapons, and their immense capacity for absolute destruction, has ensured that conventional wars remain limited in scope and duration. Hence, "both the size of the armed forces and the quantity of weapons at their disposal has

declined quite sharply" since 1945.123 At the same time, concurrent with the decline of the nation-state in the second half of the twentieth century, non-state actors have increasingly been willing and able to use force to advance their causes. In contrast to nation-states, who adhere to the Clausewitzian distinction between the ends of policy and the

means of war to achieve those ends, non-state actors do not necessarily fight as a mere means of advancing any coherent policy. Rather,

they see their fight as a life-and-death struggle , wherein the ordinary terminology of war as an instrument of policy breaks down because of this blending of means and ends .124 It is the existential nature of this struggle and the disappearance of the Clausewitzian distinction between war and policy that has given rise to a new generation of warfare. The concept of fourth-generational warfare was first articulated in an influential article in the Marine Corps Gazette in 1989, which has proven highly prescient. In describing what they saw as the modem trend toward a new phase of warfighting, the authors argued that: In broad terms, fourth generation warfare seems likely to be widely dispersed and largely undefined; the distinction between war and peace will be blurred to the vanishing point. It will be nonlinear, possibly to the point of having no definable battlefields or fronts. The distinction between "civilian" and "military" may disappear. Actions will occur concurrently throughout all participants' depth, including their society as a cultural, not just a physical, entity. Major military facilities, such as airfields, fixed communications sites, and large headquarters will become rarities because of their vulnerability; the same may be true of civilian equivalents, such as seats of government, power plants, and industrial sites (including

knowledge as well as manufacturing industries). 125 It is precisely this blurring of peace and war and the demise of traditional ly definable battlefields that provides the impetus for the formulation of a new theory of war powers. As evidenced by Part M, supra, the constitutional allocation of war powers, and the Framers' commitment of the

war power to two co-equal branches, was not designed to cope with the current international system , one that is characterized by the persistent machinations of international terrorist organizations , the rise of

multilateral alliances , the emergence of rogue states , and the potentially wide prolif eration of easily deployable w eapons of m ass d estruction , nuclear and otherwise. B. The Framers' World vs. Today's World The Framers crafted the Constitution, and the people ratified it, in a time when everyone understood that the state controlled both the raising of

armies and their use. Today, however, the threat of terrorism is bringing an end to the era of the nation-state's legal monopoly on violence, and the kind of war that existed before-based on a clear division between government, armed forces, and the people-is on the decline. 126 As states are caught between their decreasing ability to fight each other due to the existence of nuclear weapons and the increasing threat from non-state actors, it is clear that the Westphalian system of nation-states that informed the Framers'

allocation of war powers is no longer the order of the day. 127 As seen in Part III, supra, the rise of the modem nation-state occurred as a result of its military effectiveness and ability to defend its citizens. If nation-states such as the

United States are unable to adapt to the changing circumstances of fourth-generational warfare-that is, if they are

unable to adequately defend against low-intensity conflict conducted by non-state actors-"then clearly [the modem state] does not have a future in front of it.' 128 The challenge in formulating a new theory of war powers for fourthgenerational warfare that remains legally justifiable lies in the difficulty of adapting to changed circumstances while remaining faithful to the constitutional text and the

original meaning. 29 To that end, it is crucial to remember that the Framers crafted the Constitution in the context of the Westphalian system of nation-states. The three centuries following the Peace of Westphalia of 1648 witnessed an international system characterized by wars, which, "through the efforts of governments, assumed a more regular, interconnected character."' 130 That period saw the rise of an independent military class and the stabilization of military institutions. Consequently, "warfare became more

regular, better organized, and more attuned to the purpose of war-that is, to its political objective."' 1 3' That era is now over . Today,

the stability of the long-existing Westphalian international order has been greatly eroded in recent years

with the advent of international terrorist organizations , which care nothing for the traditional norms of the laws of war. This new global environment exposes the limitations inherent in the interpretational methods of originalism and textualism and necessitates the adoption of a new method of constitutional interpretation. While one must always be aware of the text of the Constitution and the original understanding of that text, that very awareness identifies the extent to which fourth-generational warfare epitomizes a phenomenon unforeseen by the Framers, a problem the constitutional resolution of which must rely on the good judgment of the present generation. 13 Now, to adapt the constitutional warmarking scheme to the new international order characterized by

fourth-generational warfare, one must understand the threat it is being adapted to confront. C. The Jihadist Threat The erosion of the Westphalian and Clausewitzian model of warfare and the blurring of the distinction between the means of warfare and the ends of policy, which is one characteristic of fourth-generational warfare, apply to al-Qaeda and other adherents of jihadist ideology who view the United States as an enemy. An excellent analysis of jihadist ideology and its implications for the rest of the world are presented by Professor Mary Habeck. 133 Professor Habeck identifies the centrality of the Qur'an, specifically a particular reading of the Qur'an and hadith (traditions about the life of Muhammad), to the jihadist terrorists. 134 The jihadis believe that the scope of the Qur'an is universal, and "that their interpretation of Islam is also intended for the entire world, which must be brought to recognize this fact peacefully if possible and through violence if not."' 135 Along these lines, the jihadis view the United States and her allies as among the greatest enemies of Islam: they believe "that every element of modern Western liberalism is flawed, wrong, and evil" because the basis of liberalism is secularism. 136 The jihadis emphasize the superiority of Islam to all other religions, and they believe that

"God does not want differing belief systems to coexist."' 37 For this reason, jihadist groups such as al-Qaeda "recognize that the West

will not submit without a fight and believe in fact that the Christians, Jews, and liberals have united against Islam in a war that will end in the complete destruction of the unbelievers.' 138 Thus, the adherents of this jihadist ideology, be it al-Qaeda or other groups, will continue to target the United States until she is destroyed. Their ideology demands it. 139 To effectively combat terrorist groups such as al-Qaeda, it is necessary to understand not only how they think, but also

how they operate. Al-Qaeda is a transnational organization capable of simultaneously managing multiple operations all over the world."14 It is both centralized and decentralized: al-Qaeda is centralized in the sense that Osama bin Laden is the unquestioned leader, but it is decentralized in that its operations are carried out locally, by distinct cells."4 AI-Qaeda benefits immensely from this arrangement because it can exercise direct control over high-probability operations, while maintaining a distance from low-probability attacks, only taking the credit for those that succeed. The local terrorist cells benefit by gaining access to al-Qaeda's "worldwide

network of assets, people, and expertise."' 42 Post-September 11 events have highlighted al-Qaeda's resilience. Even as the United States and her allies fought back, inflicting heavy casualties on al-Qaeda in Afghanistan and destroying dozens of

cells worldwide, "al-Qaeda's networked nature allowed it to absorb the damage and remain a threat." 14 3 This is a far cry from earlier generations of warfare, where the decimation of the enemy's military forces would generally bring an end to the conflict. D. The Need for Rapid Reaction and Expanded Presidential War Power By now it should be clear just how different this conflict against the extremist terrorists is from the type of warfare that occupied the minds of the Framers at the time of the Founding. Rather than

maintaining the geographical and political isolation desired by the Framers for the new country, today's U nited S tates is an international power targeted by individuals and groups that will not rest until seeing her demise. The Global War on Terrorism is not truly a war within the Framers' eighteenth-century conception of the term,

and the normal constitutional provisions regulating the division of war powers between Congress and the President do not apply. Instead, this "war" is a struggle for survival and dominance against forces that threaten to destroy the United States and her allies, and the fourth-generational nature of the conflict, highlighted by an indiscernible distinction between wartime and peacetime, necessitates an evolution of America's traditional constitutional warmaking scheme. As first illustrated by the military strategist Colonel John Boyd, constitutional decision-making in the realm of war powers in the fourth generation should consider the implications of the OODA Loop:

Observe, Orient, Decide, and Act. 44 In the era of fourth-gen erational warfare , quick reactions, proceeding through the

OODA Loop rapidly, and disrupting the enemy's OODA loop are the keys to victory. "In order to win," Colonel Boyd

suggested, " we should operate at a faster tempo or rhythm than our adversaries ." 145 In the words of Professor Creveld, "[b]oth organizationally and in terms of the equipment at their disposal, the armed forces of the world will have to adjust themselves to this situation by changing their doctrine, doing away with much of their heavy equipment and becoming more like police."1 46 Unfortunately, the existing constitutional understanding, which diffuses war power between two branches of government, necessarily (by the Framers' design) slows down decision- making. In circumstances where war is undesirable (which is, admittedly, most of the time, especially against other nation-states), the deliberativeness of the existing decision-making process is a positive attribute. In America's current situation,

however, in the midst of the conflict with al-Qaeda and other international terrorist organizations, the existing

process of constitutional decision-making in warfare may prove a fatal hindrance to achieving the initiative necessary for victory . As a slow-acting , deliberative body, Congress does not have the ability to adequately deal with fast-emerging situations in fourth-generational warfare. Thus, in order to combat transnational threats such as al-Qaeda, the executive branch must have the ability to operate by taking offensive military action even without congressional authorization, because only the executive branch is capable of the swift decision-making and action necessary to prevail in fourth-generational conflicts against fourthgenerational opponents.

I/L – Deference Key to ReadinessNon-deferential judicial review kills military readinessChensey 2009

[Robert M. is a Professor at University of Texas School of Law, NATIONAL SECURITY FACT DEFERENCE, VIRGINIA LAW REVIEW, 17 September 2009, http://www.virginialawreview.org/content/pdfs/95/1361.pdf, pg. 1426-1428]

Advocates of deference at times also emphasize the collateral ¶ consequences that non-deferential judicial review of executive ¶ branch factual judgments might have on related government operations or activities. On this view,

the benefits of judicial review—¶ measured in terms of enforcement of separation of powers values ¶ or even enhancement of

accuracy—in some circumstances may be ¶ outweighed by collateral costs entailed by the very process of nondeferential, or insufficiently deferential, review. ¶ When precisely does this argument come into play? Advocates ¶ of deference do not contend that collateral costs outweigh potential benefits in all national security related litigation. Indeed, the ¶ argument

played no significant role in most of the examples surveyed in Part I. Most if not all judicial review of government action, after

all, entails some degree of disruption to government operations . Government personnel, for example, often are obliged to ¶ spend some amount of time and resources participating, directly or ¶ indirectly, in the process of litigation, whether by serving as witnesses in a formal sense, gathering and reviewing documents, ¶ speaking informally with attorneys or investigators, and so forth. ¶ These litigation related activities to some extent are bound to disrupt the performance of ordinary government functions. ¶ But some such disruptions

are more serious than others. Disruption of military activity, for example, may impose unusually high ¶ costs . So said Justice Jackson in Johnson v. Eisentrager,¶ 218 a postWorld War II decision denying habeas rights to a group of Ger-[page 1427] mans convicted of war crimes and detained in a U.S. controlled facility in Germany. Jackson gave many reasons for the decision, but ¶ placed particular

emphasis on the undesirable practical consequences that would, in his view, follow from permitting any judicial ¶ review in this setting . These included: disruption of ongoing military operations, expenditure of scarce military resources, distraction of field commanders, harm to the prestige of commanders, and ¶ comfort to armed enemies.219 The government not surprisingly emphasized such concerns in the Hamdi litigation as well, though with ¶ much less success; and similar arguments continue to play a significant role today as courts grapple with still unresolved questions regarding the precise nature of habeas review of military determinations of enemy combatant status.220¶ But even in the enemy combatant setting, where disruption concerns arguably are near their zenith, this argument does not necessarily point in the direction of fact deference as the requisite solution. It did not persuade the Supreme Court in Hamdi to defer to ¶ the government’s factual judgment, nor did it do so in the more recent decision in Boumediene v. Bush dealing with noncitizen detainees held at Guantánamo. The impact of the argument in those ¶ cases instead was to prompt the Court to accept procedural innovations designed to ameliorate the impact of judicial review, rather ¶ than seeking to avoid that impact via deference.221 This is a useful ¶ reminder that even when the executive branch raises a legitimate ¶ concern in support of a fact deference argument, it does not follow ¶ automatically that deference is the only mechanism by which the ¶ judiciary can accommodate the

concern. ¶ This leaves the matter of secrecy. Secrecy relates to the collateral consequences inquiry in the sense that failure to maintain secrecy with respect to national security information can have extralitigation consequences for government operations—as well as for [page 1428] individuals or even society as a whole—ranging from the innocuous ¶ to the disastrous. Without a doubt this is a significant concern. But, ¶ again, it is not clear that deference is required in order to address ¶ it. Preservation of secrecy is precisely the reason that the state secrets privilege exists, of course, and it also is the motive for the ¶ Classified Information Procedures Act, which establishes a process ¶ through which judges work with the parties to develop unclassified ¶ substitutes for evidence that must be withheld on secrecy ¶ grounds.222

Impact- Fourth Gen WarfareThe aff spills over and guts broader executive war powers. Green 9 (Craig, Associate Professor, Temple Law School, University Fellowship, Princeton University, Ending the Korematsu Era: A Modern Approach,” http://works.bepress.com/cgi/viewcontent.cgi?article=1002&context=roger_craig_green)

Another lesson from sixty years of wartime cases concerns the role of precedent itself in guiding presidential action. Two viewpoints merit special notice, with each having roots in opinions by Justice Jackson. On one hand is his explanation in Korematsu that courts must not approve illegal executive action: A military order, however unconstitutional, is not apt to last longer than the military emergency. . . . But once a judicial opinion . . . show[s] that the Constitution sanctions such an order, the Court for all

time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes . . .. A military commander may overstep the bounds of constitutionality, and

it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.270 This “loaded weapon” idea is

orthodox in analysis of Korematsu as a racist morality play. The passage is cited as evidence that Supreme Court precedents really matter , and that tragically racist errors retain their menacing power throughout the decades.271 Students are reminded that Korematsu has never been directly overruled, thereby inviting imagination that Korematsu itself is a loaded weapon just waiting for a President to grasp and fire.272 This conventional approach is incomplete. As we have seen, the first and decisive precedent supporting World War II’s racist policies was not Korematsu but Hirabayashi; thus, Jackson himself helped to “load” the doctrinal “weapon” over which he worried just a year later.273 Jackson’s willingness to eviscerate Hirabayashi in Korematsu only exemplifies (as if anyone could doubt it) that no Supreme Court decision can fiat a legal principle “for all time.”274 Past cases can be overruled, disfavored, ignored, or reinterpreted if the Court finds reason to do so, and this is effectively what has happened to Korematsu and Hirabayashi themselves in the wake of Brown, the civil rights era, and other modern history.275 Korematsu was a direct “repetition” of Hirabayshi’s racism for “expand[ed]” purposes, yet it only

launched these two cases farther toward their current pariah status.276 A second perspective on war-power precedents is Jackson’s Youngstown concurrence, which rejected President Truman’s effort to seize steel mills and maintain output for the

Korean War.277 Jackson’s opinion ends with selfreferential pessimism about judicial authority itself: I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. . . . If not good law, there was worldly wisdom in the maxim attributed to Napoleon that “The tools belong to the man who can use them.” We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.278 This “no illusion” realism about presidential authority views judicial limitations on the President as contingent on Congress’s political wisdom and responsiveness — without any bold talk about precedents as “loaded weapons” or stalwart shields. On the contrary, if taken seriously, Jackson’s opinion almost suggests that judicial decisions about presidential wartime activities are epiphenomenal: When Congress asserts its institutional prerogatives and uses them wisely, the executive might be restrained, but the Court cannot do much to swing

that political balance of power. Jackson ’s hardnosed analysis may seem intellectually bracing, but it understates the real- world power of judicial precedent to shape what is politically possible .279 Although Presidents occasionally assert their willingness to disobey Supreme Court rulings, actual disobedience of this sort is vanishingly rare and would carry grave political consequences .280 Even President Bush’s repeated losses in the GWOT did not spur serious consideration of noncompliance, despite strong and obvious support from a Republican

Congress.281 Likewise, from the perspective of strengthening presidential power, Korematsu -era precedents clearly

emboldened President Bush in his twenty-first-century choices about Guantanamo and military commissions.282 The modern historical record thus shows that judicial precedent can both expand and limit the operative sphere of presidential action . Indeed, the influence of judicial precedent is stronger than a court-focused record might suggest . The past sixty years have witnessed a massive bureaucratization and legalization of all levels of executive government.283 From the White House Counsel, to the Pentagon, to other entities addressing

intelligence and national security issues, lawyers have risen to such high levels of governmental administration that almost no significant policy is determined without multiple layers of internal legal review .284 And these executive lawyers are predominantly trained to think — whatever else they may believe — that Supreme Court precedent is authoritative and binding .285 Some middle ground seems therefore necessary between the “loaded weapon” and “no illusion” theories of precedent. Although Supreme Court decisions almost certainly influence the scope of presidential war powers, such practical influence is neither inexorable nor timeless. A more accurate theory of war-power precedents will help explain why it matters that American case law includes a reservoir of Korematsu-era decisions supporting excessive executive war power, and will also suggest how lawyers, judges, and scholars might eviscerate such rulings’ force. Korematsu is the kind of iconic negative precedent that few modern lawyers would cite for its legal holding. Yet even as Korematsu’s negative valence is beyond cavil, the breadth and scope of that negativity are not clear.

Everyone knows that Korematsu is wrong, yet like other legal icons — Marbury, Dred Scott, Lochner, Erie, and Brown

— its operative meaning is debatable. Just as Korematsu was once an authoritative precedent and is now discredited, this Article has sought to revise Korematsu’s cultural meaning even further, transforming it from an isolated and irrelevant precedent about racial oppression to a broadly illuminating case about how courts supervise presidential war powers.

The impact is the loss of fourth-gen warfighting capabilities that escalate to nuclear use. Li ‘9Zheyao, J.D. candidate, Georgetown University Law Center, 2009; B.A., political science and history, Yale University, 2006. This paper is the culmination of work begun in the "Constitutional Interpretation in the Legislative and Executive Branches" seminar, led by Judge Brett Kavanaugh, “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7 Geo. J.L. & Pub. Pol'y 373 2009 WAR POWERS IN THE FOURTH GENERATION OF WARFARE

A. The Emergence of Non-State Actors

Even as the quantity of nation-states in the world has increased dramatically since the end of World War II, the institution of the nation-state has been in decline over the past few decades. Much of this decline is the direct

result of the waning of major interstate war, which primarily resulted from the introduction of nuclear weapons.122 The prolif eration of nuclear weapons, and their immense capacity for absolute destruction, has ensured that conventional wars remain limited in scope and duration. Hence, "both the size of the armed forces and the quantity of weapons at their disposal has

declined quite sharply" since 1945.123 At the same time, concurrent with the decline of the nation-state in the second half of the twentieth century, non-state actors have increasingly been willing and able to use force to advance their causes. In contrast to nation-states, who adhere to the Clausewitzian distinction between the ends of policy and the

means of war to achieve those ends, non-state actors do not necessarily fight as a mere means of advancing any coherent policy. Rather,

they see their fight as a life-and-death struggle , wherein the ordinary terminology of war as an instrument of policy breaks down because of this blending of means and ends .124 It is the existential nature of this struggle and the disappearance of the Clausewitzian distinction between war and policy that has given rise to a new generation of warfare. The concept of fourth-generational warfare was first articulated in an influential article in the Marine Corps Gazette in 1989, which has proven highly prescient. In describing what they saw as the modem trend toward a new phase of warfighting, the authors argued that: In broad terms, fourth generation warfare seems likely to be widely dispersed and largely undefined; the distinction between war and peace will be blurred to the vanishing point. It will be nonlinear, possibly to the point of having no definable battlefields or fronts. The distinction between "civilian" and "military" may disappear. Actions will occur concurrently throughout all participants' depth, including their society as a cultural, not just a physical, entity. Major military facilities, such as airfields, fixed communications sites, and large headquarters will become rarities because of their vulnerability; the same may be true of civilian equivalents, such as seats of government, power plants, and industrial sites (including

knowledge as well as manufacturing industries). 125 It is precisely this blurring of peace and war and the demise of traditionally definable battlefields that provides the impetus for the formulation of a new. theory of war powers. As evidenced by Part M, supra, the constitution al allocation of war powers , and the Framers' commitment of the

war power to two co-equal branches, was not designed to cope with the current international system, one that is

characterized by the persistent machinations of international terrorist organizations , the rise of multilateral

alliances , the emergence of rogue states , and the potentially wide proliferation of easily deployable w eapons of m ass d estruction , nuclear and otherwise . B. The Framers' World vs. Today's World The Framers crafted the Constitution, and the people ratified it, in a time when everyone understood that the state controlled both the raising of armies and their use.

Today, however, the threat of terrorism is bringing an end to the era of the nation-state's legal monopoly on violence, and the kind of war that existed before-based on a clear division between government, armed forces, and the people-is on the decline. 126 As states are caught between their decreasing ability to fight each other due to the existence of nuclear weapons and the increasing threat from non-state actors, it is clear that the Westphalian system of nation-states that informed the Framers' allocation of war

powers is no longer the order of the day. 127 As seen in Part III, supra, the rise of the modem nation-state occurred as a result of its military effectiveness and ability to defend its citizens. If nation-states such as the United States are

unable to adapt to the changing circumstances of fourth-generational warfare-that is, if they are unable to

adequately defend against low-intensity conflict conducted by non-state actors-"then clearly [the modem state] does not have a future in front of it.' 128 The challenge in formulating a new theory of war powers for fourthgenerational warfare that remains legally justifiable lies in the difficulty of adapting to changed circumstances while remaining faithful to the constitutional text and the

original meaning. 29 To that end, it is crucial to remember that the Framers crafted the Constitution in the context of the Westphalian system of nation-states. The three centuries following the Peace of Westphalia of 1648 witnessed an international system characterized by wars, which, "through the efforts of governments, assumed a more regular, interconnected character."' 130 That period saw the rise of an independent military class and the stabilization of military institutions. Consequently, "warfare became more

regular, better organized, and more attuned to the purpose of war-that is, to its political objective."' 1 3' That era is now over. Today,

the stability of the long-existing Westphalian international order has been greatly eroded in recent years

with the advent of international terrorist organizations, which care nothing for the traditional norms of the laws of war. This new global environment exposes the limitations inherent in the interpretational methods of originalism and textualism and necessitates the adoption of a new method of constitutional interpretation. While one must always be aware of the text of the Constitution and the original understanding of that text, that very awareness identifies the extent to which fourth-generational warfare epitomizes a phenomenon unforeseen by the Framers, a problem the constitutional resolution of which must rely on the good judgment of the present generation. 13 Now, to adapt the constitutional warmarking scheme to the new international order characterized by

fourth-generational warfare, one must understand the threat it is being adapted to confront. C. The Jihadist Threat The erosion of the Westphalian and Clausewitzian model of warfare and the blurring of the distinction between the means of warfare and the ends of policy, which is one characteristic of fourth-generational warfare, apply to al-Qaeda and other adherents of jihadist ideology who view the United States as an enemy. An excellent analysis of jihadist ideology and its implications for the rest of the world are presented by Professor Mary Habeck. 133 Professor Habeck identifies the centrality of the Qur'an, specifically a particular reading of the Qur'an and hadith (traditions about the life of Muhammad), to the jihadist terrorists. 134 The jihadis believe that the scope of the Qur'an is universal, and "that their interpretation of Islam is also intended for the entire world, which must be brought to recognize this fact peacefully if possible and through violence if not."' 135 Along these lines, the jihadis view the United States and her allies as among the greatest enemies of Islam: they believe "that every element of modern Western liberalism is flawed, wrong, and evil" because the basis of liberalism is secularism. 136 The jihadis emphasize the superiority of Islam to all other religions, and they believe that

"God does not want differing belief systems to coexist."' 37 For this reason, jihadist groups such as al-Qaeda "recognize that the West

will not submit without a fight and believe in fact that the Christians, Jews, and liberals have united against Islam in a war that will end in the complete destruction of the unbelievers.' 138 Thus, the adherents o f this jihadist ideology , be it al- Qaeda or other groups, will continue to target the U nited S tates until she is destroyed. Their ideology demands it. 139 To effectively combat terrorist groups such as al-Qaeda, it is necessary to understand not only how they think, but also

how they operate. Al-Qaeda is a transnational organization capable of simultaneously managing multiple operations all over the world."14 It is both centralized and decentralized: al-Qaeda is centralized in the sense that Osama bin Laden is the unquestioned leader, but it is decentralized in that its operations are carried out locally, by distinct cells."4 AI-Qaeda benefits immensely from this arrangement because it can exercise direct control over high-probability operations, while maintaining a distance from low-probability attacks, only taking the credit for those that succeed. The local terrorist cells benefit by gaining access to al-Qaeda's "worldwide

network of assets, people, and expertise."' 42 Post-September 11 events have highlighted al-Qaeda's resilience. Even as the United States and her allies fought back, inflicting heavy casualties on al-Qaeda in Afghanistan and destroying dozens of

cells worldwide, "al-Qaeda's networked nature allowed it to absorb the damage and remain a threat." 14 3 This is a far cry from earlier generations of warfare, where the decimation of the enemy's military forces would generally bring an end to the conflict. D. The Need for Rapid Reaction and Expanded Presidential War Power By now it should be clear just how different this conflict against

the extremist terrorists is from the type of warfare that occupied the minds of the Framers at the time of the Founding. Rather than

maintaining the geographical and political isolation desired by the Framers for the new country, today's United States is an international power targeted by individuals and groups that will not rest until seeing her demise. The Global War on Terrorism is not truly a war within the Framers' eighteenth-century conception of the term,

and the normal constitutional provisions regulating the division of war powers between Congress and the President do not apply. Instead, this "war" is a struggle for survival and dominance against forces that threaten to destroy the United States and her allies, and the fourth-generational nature of the conflict, highlighted by an indiscernible distinction between wartime and peacetime, necessitates an evolution of America's traditional constitutional warmaking scheme. As first illustrated by the military strategist Colonel John Boyd, constitutional decision-making in the realm of war powers in the fourth generation should consider the implications of the OODA Loop:

Observe, Orient, Decide, and Act. 44 In the era of fourth-gen erational warfare , quick reactions, proceeding through the

OODA Loop rapidly, and disrupting the enemy's OODA loop are the key s to victory . "In order to win ," Colonel Boyd

suggested, " we should operate at a faster tempo or rhythm than our adversaries ." 145 In the words of Professor Creveld, "[b]oth organizationally and in terms of the equipment at their disposal, the armed forces of the world will have to adjust themselves to this situation by changing their doctrine, doing away with much of their heavy equipment and becoming more like police."1 46 Unfortunately, the existing constitutional understanding, which diffuses war power between two branches of government, necessarily (by the Framers' design) slows down decision- making. In circumstances where war is undesirable (which is, admittedly, most of the time, especially against other nation-states), the deliberativeness of the existing decision-making process is a positive attribute. In America's current situation,

however, in the midst of the conflict with al-Qaeda and other international terrorist organizations, the existing

process of constitutional decision-making in warfare may prove a fatal hindrance to achieving the initiative necessary for victory . As a slow-acting , deliberative body, Congress does not have the ability to adequately deal with fast-emerging situations in fourth-generational warfare. Thus, in order to combat transnational threats such as al-Qaeda, the executive branch must have the ability to operate by taking offensive military action even without congressional authorization , because only the executive branch is capable of the swift decision-making and action necessary to prevail in fourth-gen erational conflicts against fourthgenerational opponents.

Bioterror causes extinction Mhyrvold ‘13

Nathan, Began college at age 14, BS and Masters from UCLA, Masters and PhD, Princeton “Strategic Terrorism: A Call to Action,” Working Draft, The Lawfare Research Paper Series

Research paper NO . 2 – 2013

As horrible as this would be, such a pandemic is by no means the worst attack one can imagine, for several reasons. First, most of the classic bioweapons are based on 1960s and 19 70s tech nology because the 1972 treaty halted bioweapons development efforts in the United States and most other Western countries.

Second, the Russians, although solidly committed to biological weapons long after the treaty deadline, were never on the cutting edge of biological research. Third and most important, the science and technology of molecular biology have made enormous advances , utterly transforming the field in the last few decades. High school biology students routinely perform molecular-biology manipulations that would have been impossible even for the best superpower-funded program back in the heyday of biological-

weapons research. The biowarfare methods of the 1960s and 1970s are now as antiquated as the lumbering mainframe computers of

that era. Tomorrow’s terrorists will have vastly more deadly bugs to choose from . Consider this sobering development: in 2001, Australian researchers working on mousepox, a nonlethal virus that infects mice (as chickenpox does in humans), accidentally discovered that a simple genetic modification transformed the virus.10, 11 Instead of producing mild symptoms, the new virus killed 60% of even those mice already immune to the naturally occurring strains of mousepox. The new virus, moreover, was unaffected by any

existing vaccine or antiviral drug. A team of researchers at Saint Louis University led by Mark Buller picked up on that work and, by late 2003, found a way to improve on it: Buller’s variation on mousepox was 100% lethal, although his team of investigators also devised combination vaccine and antiviral therapies that were partially effective in protecting animals from the engineered strain.12, 13 Another saving grace is that the genetically altered virus is no longer contagious. Of course, it is quite possible that future tinkering with the virus will change that property, too. Strong reasons exist to believe that the genetic modifications Buller made to mousepox would work for other poxviruses and possibly for other classes of viruses as well. Might the same techniques allow chickenpox or another poxvirus that infects humans to be turned into a 100% lethal bioweapon, perhaps one that is resistant to any known antiviral therapy? I’ve asked this question of experts many times, and no one has yet replied that such a manipulation couldn’t be done. This case is just one example. Many more are pouring out of scientific journals and

conferences every year. Just last year, the journal Nature published a controversial study done at the

University of Wisconsin–Madison in which virologists enumerated the changes one would need to make to a highly lethal strain of bird flu to make it easily transmitted from one mammal to another.14 Biotech nology is advancing so rapidly that it is hard to keep track of all the new potential threats. Nor is it clear that anyone is even trying. In addition to lethality and drug resistance, many other parameters can be played with, given that the infectious power of an epidemic depends on many properties, including the length of the latency period during which a person is contagious but asymptomatic. Delaying the onset of serious symptoms allows each new case to spread to more people and thus makes the virus harder to stop. This dynamic is perhaps best illustrated by HIV , which is very difficult to transmit compared with smallpox and many other viruses. Intimate contact is needed, and even then, the infection rate is low. The balancing factor is that HIV can take years to progress to AIDS , which can then take many more years to kill the victim. What makes HIV so dangerous is that infected people have lots of opportunities to infect others. This property has allowed HIV to claim more than 30 million

lives so far, and approximately 34 million people are now living with this virus and facing a highly uncertain future.15 A virus genetically engineered to infect its host quickly, to generate symptoms slowly—say, only after weeks

or months—and to spread easily through the air or by casual contact would be vastly more devastating than HIV . It could silently penetrate the population to unleash its deadly effects suddenly. This type of epidemic would be

almost impossible to combat because most of the infections would occur before the epidemic became obvious. A technologically sophisticated terror ist group could develop such a virus and kill a large part of humanity with it. Indeed, terrorists may not have to develop it themselves: some scientist may do so first and publish the details . Given the rate at which biologists are making discoveries about viruses and the immune system, at some point in the near future, someone may create artificial pathogens th at could drive the human race to extinction. Indeed, a detailed species-elimination plan of this nature was openly proposed in a scientific journal. The ostensible purpose of that particular research was to suggest a way to extirpate the malaria mosquito, but similar techniques could be directed toward humans.16 When I’ve talked to molecular biologists about this method, they are quick to point out that it is slow and easily detectable and could be fought with biotech remedies. If you challenge them to come up with improvements to the suggested attack plan, however, they have plenty of ideas. Modern biotech nology will soon be capable , if it is not already, of bringing about the demise of the human race — or at least of killing a sufficient number of people to end high-tech civilization and set humanity back 1,000 years or more . That terrorist

groups could achieve this level of technological sophistication may seem far-fetched, but keep in mind that it takes only a handful of individuals to accomplish these tasks. Never has lethal power of this potency been accessible to so few, so easily. Even

more dramatically than nuclear proliferation, modern biological science has frighteningly undermined the correlation between the lethality of a weapon and its cost , a fundamentally stabilizing mechanism throughout

history. Access to extremely lethal agents —lethal enough to exterminate Homo sapiens—will be available to anybody with a solid background in biology , terrorists included .

The war on terror requires quick execution and accuracyYoo 11 (John, professor of law at UC Berkeley, “Assassination or Targeted Killings after 9/11,” Berkeley Law Review, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2215&context=facpub) DMD

War, however, brings forth a different set of concerns. When a nation goes to ¶ war, it seeks to defeat the enemy in order to prevent future harms to society inflicted ¶ by enemy attacks . Because war deals with prospective concerns, it must rely less on ¶ exact information and more on probabilities, predictions, and guesswork. Often the ¶ military attempts to destroy a building because it estimates with varying degrees

of¶ certainty that enemy soldiers are hiding within it or enemy munitions are located¶ there. It does not wait to attack until it has proof beyond a reasonable doubt, or even ¶ probable cause; that would risk allowing the enemy forces to escape, to strengthen ¶ their position, or to live to attack the country's own forces or citizens another day. ¶ War by its nature seeks prevention, not punishment.¶ When the United States considered terrorism to be a matter for the criminal¶ justice system, it waited until after attacks on the United States had occurred before¶ attempting to

capture al-Qaeda leaders. Now that the United States is at war with ¶ al-Qaeda, it is entitled to kill the enemy's commanders. This is done in an effort to¶ demoralize the enemy, throw their troops into confusion and disarray, undermine¶ their planning, and remove their most able leaders. Such is a well-documented wartime¶ strategy. World War II and the Korean War witnessed numerous attacks on enemy¶ military leaders." In the 1980s, President Ronald Reagan ordered U.S. jets to bomb¶ Libyan locations where Colonel Muammar Qadhafi might be living and working. 6¶ Launching a missile to kill al-Qaeda commanders like Derwish, even though he¶ was an American citizen, is legal. They are members of the enemy forces, the¶ equivalent of officers-Derwish amounted to a captain

or major in command of¶ al-Qaeda cells, the equivalent of enemy military units. The U.S. military and ¶ intelligence services are legally and morally free to target them for attack whether ¶ they were on the front lines or behind them. Killing an enemy commander will¶ better promote the principles behind the rules of civilized war than other

means.¶ Over the centuries, the laws and customs of war have developed to reduce the harm ¶ to noncombatants and limit the use of force to that which is proportional to military ¶ objectives. By specifically targeting enemy leaders, the United States can render ¶ enemy forces leaderless and frustrate their operations, prevent the enemy from ¶ mounting effective plots and campaigns, and reduce both civilian and military ¶ casualties. ¶ Using targeted killing as a primary tactic also takes better account of the new ¶ kind of war facing the United States. The United States has prevailed in conventional ¶ wars by invading the territory of an enemy nation, destroying its armed forces on the ¶ battlefield, and capturing key cities and population centers. It has won by outproducing its opponents. During the lead-up to World War II, President Franklin D.¶ Roosevelt aptly declared the United States to be the great "arsenal of democracy."37¶ Historically, the United States has deployed its large productive capacity and¶ population in war, and its large, well-equipped and well-supplied armies and navies¶ have, generally speaking, overwhelmed the soldiers of the other side. The United States cannot win the war on terrorism by producing more tanks,¶ fielding more army divisions, or setting more carrier battle groups and submarines to¶ sail than this enemy. This did not work in Vietnam and it will not work

against the¶ even more diffuse enemy of today. Military plans based on traditional deterrence and ¶ the threat of retaliation will not be effective against this terrorist network because it ¶ has no territory or armed forces to crush, and its members welcome death. The ¶ amount of actual force needed to frustrate or cripple al-Qaeda is quite small, and ¶ well within the capabilities of a single division of U.S. troops. ¶ Indeed, the problem is not with the strength of America's power, but how and ¶ where to aim it . Al-Qaeda does not mass its operatives into units onto a battlefield,¶ or at least it has not after its setbacks in Afghanistan in the fall and winter of 2001.¶ Instead, al-Qaeda will continue to disguise its members as civilians, hide its bases in¶

remote mountains and deserts or among unsuspecting city populations, and avoid¶ military confrontation. The only way for the United States to defeat al-Qaeda is to ¶ destroy its ability to function-by selectively killing or capturing its key members.

President needs flexibility for rapid action to solve terrorismRoyal 11 (John Paul, Institute of World Politics, “War Powers and the Age of Terrorism,” Center for the Study of the Presidency & Congress The Fellows Review, 2010-2011)

Proliferation of weapons of mass destruction (WMD), especially nuclear weapons, into the hands of ¶ these terrorists is the most dangerous threat to the United States. We know from the 9/11¶ Commission Report

that Al Qaeda has attempted to make and obtain nuclear weapons for at ¶ least the past fifteen years. Al Qaeda considers the acquisition of weapons of mass destruction ¶ to be a religious obligation while “more than two dozen other terrorist groups are pursing ¶ CBRN [chemical,

biological, radiological, and nuclear] materials” (National Commission 2004, 397). Considering these¶ statements, rogue regimes that are openly hostile to the United States and have or seek to develop nuclear weapons capability¶ such as North Korea and Iran, or

extremely unstable nuclear countries such as Pakistan, pose a special threat to American national security interests. These nations were not necessarily a direct threat to the Unite d States in the¶ past. Now, however, due to proliferation of nuclear weapons and missile technology, they can inflict damage at considerably higher¶ levels and magnitudes than in the past. In addition,

these regimes may pursue proliferation of nuclear weapons and missile¶ technology to other nations and to allied terrorist organizations. The United States must pursue condign ¶ punishment and appropriate, rapid action against hostile terrorist organizations, rogue nation ¶ states, and nuclear weapons proliferation threats in order to protect American interests both ¶ at home and abroad. Combating these threats are the “top national security priority for the ¶ United States... with the full support of Congress , both major political parties, the media, and the American¶ people” (National Commission 2004, 361). Operations may take the form of pre-emptive and sustained ¶ action against those who have expressed hostility or declared war on the United States. Only ¶ the executive branch can effectively execute this mission , authorized by the 2001 AUMF. If the national¶ consensus or the nature of the threat changes, Congress possesses the intrinsic power to rescind and limit these powers.

Flexibility is key to defeat al-QaedaLi 9 (Zheyao, JD Georgetown 2009, “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7 Geo. J.L. & Pub., Policy 373, Lexis)

By now it should be clear just how different this conflict against the extremist terrorists is from the type of warfare that occupied the minds of the Framers at the time of the Founding. Rather than maintaining the geographical and political isolation desired by the Framers for the new country, today's United States is an international power targeted by individuals and

groups that will not rest until seeing her demise. The Global War on Terrorism is not truly a war within the Framers' eighteenth-century conception of the term, and the normal constitutional provisions regulating the division of war powers between Congress and the President do not apply. Instead,

this "war" is a struggle for survival and dominance against forces that threaten to destroy the United States and her allies, and the fourth-generational nature of the conflict, highlighted by an indiscernible distinction between wartime and peacetime,

necessitates an evolution of America's traditional constitutional warmaking scheme.¶ As first illustrated by the military strategist Colonel John Boyd, constitutional decision-making in the realm of war powers in the fourth generation

should [*399] consider the implications of the OODA Loop: Observe, Orient, Decide, and Act. n144 In the era of fourth-generational warfare, quick reactions, proceeding through the OODA Loop rapidly, and

disrupting the enemy's OODA loop are the keys to victory. "In order to win," Colonel Boyd suggested, "we should operate at a faster tempo or rhythm than our adversaries." n145 In the words of Professor Creveld, "[b]oth organizationally and in terms of the equipment at their disposal, the armed forces of the world will have to adjust themselves to this situation by changing their doctrine, doing

away with much of their heavy equipment and becoming more like police." n146 Unfortunately, the existing constitutional understanding, which diffuses war power between two branches of government, necessarily (by the Framers' design) slows down decision-making. [*400] In circumstances where war is undesirable (which is, admittedly, most of the time, especially against other nation-states), the deliberativeness of the existing decision-making process is a positive attribute.¶ In America's current situation, however, in the midst of the conflict with al-Qaeda and other international terrorist organizations, the existing process of constitutional decision-making in warfare may prove a fatal hindrance to achieving the initiative necessary for victory. As a slow-acting, deliberative body, Congress does not have the ability to adequately deal with fast-emerging situations in fourth-generational warfare. Thus, in order to combat transnational threats such as al-Qaeda, the executive branch must have the ability to operate by taking offensive military action even without congressional authorization, because only the executive branch is capable of the swift decision-making and action necessary to prevail in fourth-generational conflicts against fourth-generational opponents.

Strong executive key to effective defense, war, and foreign policyYoo 1 (John C., attorney, law professor, Deputy Assistant US Attorney General, Harvard University, Yale Law School, served under the Clinton and Bush Administrations, “THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM,” Memorandum Opinion For the Deputy Counsel To the President, September 25th, http://www.justice.gov/olc/warpowers925.htm) DMD

Constitutional Structure. Our reading of the text is reinforced by analysis of the constitutional structure. First, it is clear that the Constitution secures all federal executive power in the President to ensure a unity in purpose and energy in action. "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number." The FederalistNo. 70, at 392 (Alexander Hamilton). The centralization of authority in the President alone is particularly crucial in matters of national defense, war, and foreign policy , where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch. As Hamilton noted, "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." Id. at 391. This is no

less true in war. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Id. No. 74, at 415 (Alexander Hamilton).

Flexible war-making policies key to national securityYoo 5 (John, professor of law at UC Berkeley Law School, scholar at the American Enterprise Institute, deputy assistant attorney general in the office of Legal Counsel of the US DoJ from 2001-2003, expert in foreign affairs, national security, and separation of powers, “The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11,” University of Chicago Press, pp. ix-xi) DMD

The world after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduce the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. Rather than disappearing from the world, the

threat of war may well be increasing. Threats now come from at least three primary sources: the easy availability of the knowledge and technology to create weapons of mass destruction (WMD); the emergence of rogue nations; and the rise of international terrorism of the kind represented by the al Qaeda terrorist organization. Because of these developments, the United States may no longer have the luxury of assuming that military conflict is a

thing of the past, and the need to use force may actually be dramatically higher than before. In particular,

the emergence of direct threats to the United States that are more difficult to detect and prevent may demand that the United Sates undertake preemptive military action to prevent these threats from coming to fruition the costs of inaction, for example, by allowing the vetoes of multiple decision makers to block war making, could entail much higher costs than scholars in the 1990s had envisioned. At the time of the Cold War, the costs to American national security of refraining from the use of force

in places like Haiti, Somalia, or Kosovo would have appeared negligible. The September 11, 2001, terrorist attacks, however,

demonstrate that the costs of inaction can be extremely high—the possibility of a direct attack on the United

States and the deaths of thousands of civilians¶ These new threats to American national security, driven by changes in

the international environment, should change the way we think about the relationship between the process and substance of the war making system. The scholar consensus of the 1990s might have been more appropriate at the end of the Cold War, when conventional warfare between nation-states remained the chief focus of concern and few threats seemed to challenge American national security. The international system allowed the United States to choose a war making system that placed a premium on consensus, time for deliberation, and the approval of multiple institutions. ¶ If however, the nature and the level of

threats are increasing, and military force unfortunately remains the most effective means for responding to those threats then it makes little sense to commit our political system to a single method for making war. At the very least teams

clear that we should not adopt a warmaking process that contains a built-in presumption against using force abroad. Earlier, scholarly approaches assumed that in the absence of government action peace would generally be the

default state. The events of September 11 strongly suggest that this assumption is no longer realistic. The United States must have the option to use force earlier and more quickly than in the past. This book proposes that we understand our Constitution’s allocation of the foreign affairs power to permit a flexibility decision-making system that can respond to such sweeping changes in the international system and in America’s national security posture.

Statutory restrictions guarantee WMD attacks on the USYoo 12 (John, law professor at University of California, Berkeley. He was Deputy Assistant Attorney General in the Office of Legal Counsel at the US Department of Justice from 2001 to 2003, “Exercising Wartime Powers,” Harvard International Review28. 1 (Spring 2006): 22-25.)

Critics of these conflicts want to upend long practice by appealing to an "original understanding" of the Constitution. But the text and structure of the Constitution, as well as its application over the¶ last two

centuries, confirm that the president can begin military hostilities without the approval of Congress. The Constitution ¶ does not establish a strict warmaking process because the Framers understood that war ¶ would require the speed, decisiveness, and secrecy that only the presidency could bring. "Energy¶ in the executive,"

Alexander Hamilton argued in the Federalist Papers, "...is essential to the protection of the community against¶ foreign attacks." He continued,

"the direction of war most peculiarly demands those qualities which distinguish the exercise of¶ power by a single hand." Rather than imposing a fixed, step-by-step method for going to war, the ¶ Constitution allows the executive and legislative branches substantial flexibility in shaping the ¶ decisionmaking process for engaging in military hostilities. Given the increasing ability of rogue states to procure weapons of mass destruction (WMDs) and the rise of international terrorism, maintaining this flexibility is critical to preserving US national security .

Here is comparative evidence that the Executive should have flexible decision makingLi 9 (Zheyao, JD Georgetown 2009, “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7 Geo. J.L. & Pub., Policy 373, Lexis)

On the other hand, the slow-moving, deliberative Congress has no role to play in authorizing military action against non-state actors in the fourth generation of warfare. The President must have the ability to react quickly in conducting offensive military action against these transnational enemies, both in response to terrorist attacks that have already occurred and to prevent imminent attacks. Congress's powers over the initiation of war or the seeking of peace have no role in this civilizational conflict against extremist terrorists who will not rest until they destroy the United States and who have made such intentions known. In light of the fundamental difference in the nature of the threats posed, the nature of the adversaries, and the different strategies and tactics necessary to combat them, these parallel constitutional decision-making processes in the area of war--one conforming to the Framers' conception of traditional Westphalian warfare against nation-states, and the other adapting

to the realities of asymmetric warfare waged by non-state actors--are both necessary to ensure the survival and prosperity of the United States in the twenty-first century and beyond.

Flexible executive key to deter terrorism – statutory restrictions facilitate INFORMED terrorist attacksTurner 5 (Robert F., University of Virginia Law School, Associate Director of the Center of National Security Law, “The War Powers Resolution: An Unnecessary, Unconstitutional Source of "Friendly Fire" in the War Against International Terrorism?” Feb. 15th, The Federalist Society for Law and Public Policy Studies, http://www.fed-soc.org/publications/detail/the-war-powers-resolution-an-unnecessary-unconstitutional-source-of-friendly-fire-in-the-war-against-international-terrorism) DMD

Sadly, the idea that the War Powers Resolution might endanger American lives in the struggle against terrorism is more than just a hypothetical. Indeed, more Americans were murdered by terrorists as a direct result of the War Powers Resolution than were killed in all of our military operations since the end of the Vietnam War. The War Powers Resolution was a primary factor in the decision by Middle Eastern terrorists to blow up the Battalion Landing Team Headquarters at the Beirut International Airport on October 23, 1984, killing 241 sleeping marines, sailors, and soldiers. When President Reagan sent the Marines to Lebanon as part of an international peacekeeping force alongside British,

French, and Italian forces, the decision was not even arguably an infringement upon the power of Congress "to declare War." We were not going to "War," we were sending a contingent of U.S. forces at the request of all of the warring factions in Lebanon to stand between them so they could meet in confidence and try to negotiate a peaceful end to their conflict. Every country in the region originally endorsed the

deployment, and no one in Congress spoke against it on the merits. But several noted there were risks involved-risks the President openly acknowledged-and soon the demands started coming in for a report under Section 4(a)(1) of the War Powers Resolution, the provision governing the sending of U.S. Armed Forces "into hostilities or into situations where

imminent involvement in hostilities is clearly indicated by the circumstances." To begin with, to send such a report to Congress might well have undermined the mission in Beirut. There were numerous, highly paranoid factions engaged in the Lebanese quarrels who had consented to the American presence on the theory that it was going to be a peacekeeping mission. Had the President notified Congress that he was taking the nation to "War," militia leaders who had been assured the Americans were coming in peace might well have concluded that they were going to be the object of the American hostilities. Why else would President Reagan or his representatives have lied to them about the nature of the mission? As it turned out, the congressional critics were wrong about "imminent involvement in hostilities," as nearly a year passed before any of the

marines came under hostile fire. During that year, the situation in Beirut became more dangerous because the debate in Congress took a highly partisan turn. Democrats like Senator Alan Cranston of California and former Majority Leader Robert Byrd announced that they would not authorize the President to continue the deployment unless he first told Congress, as Cranston put it, "exactly how and when we propose to extricate them." [59] One of the points on which there was no apparent discord at the Federal Convention in Philadelphia was that Congress had no role in the actual conduct of military operations. They were given only a "veto" over certain kinds of commitments, leaving to the President such decisions as where to deploy troops, when to attack

or redeploy troops, and when to bring them home. As Locke explained, such decisions are heavily dependent upon the behavior of external actors, and it would have been foolish for the President to declare in advance that U.S. forces would be withdrawn on a given date irrespective of those realities. Imagine the reaction of Franklin D. Roosevelt had Congress demanded a withdrawal deadline before it would consider authorizing the President to defend the United States following Pearl Harbor? Once they knew the artificial date on which the United States would withdraw, opponents of a peace settlement in Beirut would be able to orchestrate their strategy for maximum advantage. For much of the press and many Americans, the issue no longer became whether the United States should assist the parties in an important Middle Eastern country to resolve differences and achieve peace, but whether the President was "above the law." Legislation to authorize the President to continue the deployment led to more partisan debate, and the Washington Post noted that the active involvement of Senate Democratic Campaign Chairman Lloyd Bentsen in the debate suggested that "the Democrats are doing push-ups" for the 1984 elections [60]. Marine Corps Commandant P.X. Kelley became so concerned about the partisan debate that he testified before the Senate Foreign Relations Committee that the partisan debate could "encourage hostile forces or forces inimical to the best interest, the life and limb of the Marines." General Kelley warned that "hostile forces would use this as an opportunity to up the ante against our Marines." [61] A few days later, when an unidentified White House staff member repeated General Kelley's concern, the Washington Post reported that Senate Democrats were outraged:¶ "To suggest . . . that congressional insistence that the law be lived up to is somehow giving aid and comfort to the enemy is totally unacceptable," said Sen. Thomas F. Eagleton (D-Mo.). . . . "The Administration has thrown out a red herring," Eagleton said, with "an attempt to intimidate the Congress and frighten the American people with this kind of ludicrous argument."¶ This partisan nature of the debate became even more apparent when the Foreign Relations Committee split completely upon party lines on the deployment, and the minority report was entitled "Minority Views of All Democratic Members of the Committee." In the end, with several references to avoiding future "Vietnams," the Senate voted 54-46 to allow the Marines to remain, with but two Senate Democrats supporting the President. But even then, the issue was not over, as Republicans and Democrats alike emphasized that Congress could reconsider the issue at any time if there were

further casualties among the Marines. All of this partisan bickering was not lost on radical states in the Middle East, and the Syrian Foreign Minister announced that the United States was "short of breath." [62] The message had also not escaped radical Muslim militia members in Beirut, and in October U.S. intelligence intercepted a message between two terrorist units saying: "If we kill 15 Marines, the rest will leave." Inadvertently, by its partisan debate and repeated pronouncements that further Marine casualties could provoke another debate and a withdrawal of funds for the deployment (such legislation had already been reported out of a key House subcommittee), in their partisan effort to invoke the War Powers Resolution,

Congress had essentially placed a bounty on the lives of American forces. The rest is history. Early on the morning of Sunday, October 23, 1983, a Mercedes truck loaded with highly-sophisticated explosives drove into the Marine Corps compound at the

Beirut International Airport and exploded. America's terrorist enemies had capitalized on the congressional signals of weakness by murdering 241 sleeping marines, sailors, and soldiers-more Marines than had been lost on any single day since the height of the Vietnam War in 1968 and more American military personnel than had been killed in the Gulf War, Grenada, Haiti, Somalia, the Former Yugoslavia, and all other military operations since Vietnam until the September 11, 2001 attack on the Pentagon. Just as Congress had passed the War Powers Resolution in 1973 to misdirect the American people into believing that it bore no responsibility for the tragic defeat in Indochina-when, in reality, by cutting off funds it had snatched defeat from the jaws of victory-after the Beirut bombing Congress demanded that Commandant Kelley bring them the head of a Marine they could blame the latest catastrophe upon. General Kelley, an officer of legendary ability, principle, and courage, who was widely expected to soon be named the first Marine to chair the Joint Chiefs of Staff, refused to sacrifice his subordinates to appease Congress or the press. In taking a principled stand, he understood that he would never become Chairman. Congress deserves the appreciation of all Americans for its bipartisan unity immediately following the September 11 terrorist attacks. But the multiple references to the War Powers Resolution in the statutory authorization approved

three days later suggests either that things really have not changed or that the tragedy of October 23, 1983 had been forgotten. The thousands of people murdered in the World Trade Center and the Pentagon on September 11, 2001, would not have died had the terrorists been deterred. Deterrence is a function of perceptions of

strength and will. Nothing in the past three decades has done more to undermine perceptions of U.S. will than the behavior of Congress, outlawing efforts to prevent international aggression in places like Angola and Central America and threatening to do so if there were casualties time and again in crisis spots around the globe. Both Democrats and Republicans have ignored the fundamental principle that partisan politics should stop at the water's edge. And nothing has facilitated this process more than the War Powers Resolution.

Plan allows Congress to vocally oppose crisis intervention- that destroys international perception of U.S. resolveWaxman 13 (Matthew Waxman, Professor of Law at Columbia and Adjunct Senior Fellow for Law and Foreign Policy at CFR, “The Constitutional Power to Threaten War,” Forthcoming in Yale Law Journal, vol. 123, August 25, 2013, SSRN)

When members of Congress vocally oppose a use of force, they undermine the president’s ability to convince foreign states that he will see a fight through to the end. Sensing hesitation on the part of the United States, allies may be reluctant to contribute to a military campaign , and adversaries are likely to fight harder and longer when conflict erupts— thereby raising the costs of the military campaign, decreasing the president’s ability to negotiate a satisfactory resolution , and increasing the probability that American lives are lost along the way. Facing a limited band of allies willing to participate in a military venture and an enemy emboldened by domestic critics , presidents may choose to curtail, and even abandon , those military operations that do not involve vital strategic interests.

Adversaries won’t perceive Congressional participation as a sign of resolveWaxman 13 (Matthew Waxman, Professor of Law at Columbia and Adjunct Senior Fellow for Law and Foreign Policy at CFR, “The Constitutional Power to Threaten War,” Forthcoming in Yale Law Journal, vol. 123, August 25, 2013, SSRN)

The credibility-enhancing effects of legislative constraints on threats are subject to dispute . Some

studies question the assumptions underpinning theories of audience costs – specifically the idea that democratic leaders suffer domestic political costs to failing to make good on their threats , and therefore that their threats are especially credible171 – and others question whether the empirical data supports claims that

democracies have credibility advantages in making threats.172 Other scholars dispute the likelihood that leaders will really be punished politically for backing down, especially if the threat was not explicit and unambiguous or if they

have good policy reasons for doing so.173 Additionally, even if transparency in democratic institutions allows domestic dissent from threats of force to be visible to foreign audiences, it is not clear that adversaries would interpret these mechanisms as political scientists expect in their models of strategic interaction, in light of various common problems of misperception in international relations . 174 These disputes are not just between competing theoretical models but also over the links between any of the models and real-world political behavior by states. At this point there remains a dearth of good historical evidence as to how foreign leaders interpret political maneuvers within Congress regarding threatened force.

Congress is too slow to respond to 21st century threats --- executive deference is criticalRudalevige 6 (Andrew Rudalevige 6, the Thomas Brackett Reed Professor of Government at Bowdoin College, “The New Imperial Presidency,” UMich-Ann Arbor Press, Book, p. 264-67)

That fragmentation is most obvious at the other end of Pennsylvania Avenue. Despite common grammatical

usage, including in this book, Congress is not an “it” but a “they. ” That is, Congress is not singular but plural and a fractious plural at that. The geographic basis of House representation— the “territorial imperative”—means that no two House members share identical interests . 6 The distinctive constituencies and terms of

the House and Senate generate few overlapping sympathies across the chambers. Sequential majorities and

supermajorities are required for action, but only a small minority for inaction. This became even more true after the application of reforms in the 1970s designed to apply the openness and decentralization aimed at the executive branch to Congress itself. The reforms enhanced the power of subcommittees and gave party rank-and-‹le more power to override seniority in selecting committee chairs. What nineteenth-century observers like Woodrow Wilson condemned as “committee government” often atomized further into “subcommittee government” instead. As a result, one scholar noted, members of Congress can make laws “only with sweat patience, and a remarkable skill in the handling of creaking machinery.” But stopping laws is a feat “they perform daily, with ease and infinite variety.”7¶ Thus

even an alert and aggressive Congress has endemic weaknesses.8 Its large size and relative lack of hierarchy hamper quick decision making . The specialized jurisdictions inherent in the committee system, so necessary for dividing labor, also divide issues and make their comprehensive consideration across functional lines nearly impossible. (Nor do House members’ two-year terms give much incentive for long-term

planning.) For similar reasons Congress has difficulty in planning and agenda setting. The ready acceptance of the idea of a presidential legislative program after World War II was partly a question of legislative convenience, a way to weed through

innumerable proposals and provide a focus for limited floor time. Finally, with so many members, each seeking press attention, Congress also finds it hard to keep a secret. As President George H. W. Bush’s counsel, Boyden Gray, put

it, “ any time you notify Congress, it’s like putting an ad in the Washington Post. Notification is tantamount to declaration . ”9¶ In short, Congress has the problems inherent to any body of individuals that must take collective action. The decisions that are rational for a single member—especially those aimed at gaining particular benefits for his or her district—are not always good decisions for the body as a whole.10 James Madison wrote as early as 1791 that whenever a question of “general. . . advantage to the Union was before the House . . . [members] commonly resorted to local views.” Then, as now, coalition building had to overcome

decentralized inertia, with the result that governing often comes down to, in the words of LBJ budget official Charles Schultze, “a lot of boodle being handed out in large numbers of small boodle.”11¶ Worse, fragmentation is not limited to the legislative branch. After all, Congress created most of the executive branch as well—and in its own image. The “politics of bureaucratic structure” result in a bureaucracy far different than what organization theorists would draw up on a blank page, one rarely aligned along functional lines or with clear lines of executive authority. Legislative majorities hope to institutionalize their own interests in government agencies and to structurally insulate those preferences against future majorities seeking to meddle. They hope to gain access to the bureaucratic decision-making process and to influence it whenever desirable. They hope to gain points with constituents for fixing the errors agencies make, perhaps to the point of structuring agencies that cannot help but make errors. If nothing else, the historical pattern of executive branch development has spurred a particular array of legislative committees—and organized special interests linked to both.12¶ As the size and scope of the national government grew, its organizational inefficiencies became more obvious and more meaningful. This in turn focused increased attention on the need for direction and coordination— for a chief executive who could actually manage the executive branch. The areas of homeland security and intelligence analysis are only the most recent cases where failures of communication or analysis within the bureaucracy have magnified the need for those qualities.¶ Globalization in some ways highlights the continuing limits of the presidency’s authority: its incumbent is not, after all, president of

the world. Yet the practical advantages of presidential leadership vis-à-vis the legislature , at least, are further magnified in an era where rapid transportation, instantaneous communication, and huge flows of trade have changed the context of governance in ways that play to presidential strengths. Both opportunities and threats arise quickly and demand immediate response. Their resolution requires a broad national view, not territorialism; resident expertise, not the give-and-take of log-rolling compromise . Further, if, as Richard Neustadt suggested, the cold war’s omnipresent fear of nuclear war made the president for a time the “final arbiter” in the balance of power, the rise of rogue states and nonstate actors with access to similar weaponry ups the ante again. In this one sense at least the “modern presidency” described earlier may have given way to a “postmodern” one.13 As the Bush administration argued to the Supreme Court on behalf of the president’s power to designate enemy combatants,¶ The court of appeals’ attempt to cabin the Commander-in-Chief authority to the conduct of combat operations on a traditional battlefield is particularly ill-considered in the context of the current conflict. . . . The September 11 attacks not only struck targets on United States soil; they also were launched from inside the Nation’s borders. The “full power to repel and defeat the enemy” thus necessarily embraces determining what measures to take against enemy combatants found within the United States. As the September 11 attacks make manifestly clear, moreover, al Qaeda eschews conventional battlefield combat, yet indiicts damage that, if anything, is more devastating.

Congressional restrictions cause adversaries to doubt the credibility of our threats- that causes crisis escalationWaxman 13 (Matthew Waxman, Professor of Law at Columbia and Adjunct Senior Fellow for Law and Foreign Policy at CFR, “The Constitutional Power to Threaten War,” Forthcoming in Yale Law Journal, vol. 123, August 25, 2013, SSRN)

A claim previously advanced from a presidentialist perspective is that stronger legislative checks on war powers is harmful to coercive and deterrent strategies, because it establishes easily-visible impediments to the President’s authority to follow through on threats . This was a common policy

argument during the War Powers Resolution debates in the early 1970s. Eugene Rostow, an advocate inside and outside the government

for executive primacy, remarked during consideration of legislative drafts that any serious restrictions on presidential use of force would mean in practice “ no President could make a credible threat to use force as an instrument of deterrent diplomacy, even to head off explosive confrontations .” 178 He continued:¶ In the tense and cautious diplomacy of our present relations with the Soviet Union, as they have developed over the last twenty-five years, the authority of the President to set clear and silent limits in advance is perhaps the most important

of all the powers in our constitutional armory to prevent confrontations that could carry nuclear implications. … [I]t is the diplomatic power the President needs most under the circumstance of modern life— the power to make a credible threat to use force in order to prevent a confrontation which might escalate .

The structure of Congress inherently favors delay and inaction- that’s awful for crisis responseYoo 4 (John, Emanuel S. Heller Professor of Law at UC-Berkeley Law, “War, Responsibility, and the Age of Terrorism,” UC-Berkeley Public Law and Legal Theory Research Paper Series, http://works.bepress.com/cgi/viewcontent.cgi?article=1015&context=johnyoo)

In order to weigh the advantages of the Congress-first approach, it is also important to understand its potential costs. The costs may not be obvious, since grounding the use of force in ex ante congressional consent bears a close resemblance to the process for enacting legislation.

The legislative process increases the costs of government action. It is heavily slanted against the enactment of legislation by requiring the concurrence not just of the popularly elected House but also the state-representing Senate and the President. This raises decision costs by increasing the delay needed to get legislative concurrence, requiring an effort to coordinate between executive and legislature, and demanding an open, public discussion of potentially sensitive information . Decision costs are not encapsulated merely in the time-worn hypotheticals that ask whether the President must go to Congress for permissions to launch a preemptive strike against a nation about to launch its own nuclear attack. Rather, these

decision costs might arise from delay in using force that misses a window of opportunity, or one in which legislative discussion alerts an enemy to a possible attack, or the uncertainty over whether congressional authorization will be forthcoming.

Presidential flexibility is key to responding to terrorism and WMD attacks- Congressional action causes slow response times Yoo 13 (John, law professor at the University of California Berkeley, “Like it or not, Constitution allows Obama to strike Syria without Congressional approval,” Fox News, August 30, 2013, http://www.foxnews.com/opinion/2013/08/30/constitution-allows-obama-to-strike-syria-without-congressional-approval/#ixzz2dt2z2ocD) PCS

Since World War II, it has been Congress that has authorized and funded our large standing military, one primarily designed to conduct offensive, not defensive, operations (as we learned all too tragically on 9/11) and to swiftly

project power worldwide. ¶ If Congress wanted to discourage presidential initiative in war, it could build a smaller, less offensive-minded military.¶ Congress’s check on the presidency lies not just in the long-term raising of the military. It can also block any immediate armed conflict through the power of the purse.¶ If Congress feels it has been misled in authorizing war, or it disagrees with the president's

decisions, all it need do is cut off funds, either all at once or gradually.¶ It can reduce the size of the military, shrink or eliminate units, or freeze supplies. Using the power of the purse does not even require affirmative congressional action.¶ Congress can just sit on its hands and refuse to pass a law funding the latest presidential adventure, and the war will end quickly. ¶ Even the Kosovo war, which lasted little more than two months and involved no ground troops,

required special funding legislation.¶ The Framers expected Congress's power of the purse to serve as the primary check on presidential war. During the 1788 Virginia ratifying convention, Patrick Henry attacked the Constitution for

failing to limit executive militarism. James Madison responded: “The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.”

Congress ended America’s involvement in Vietnam by cutting off all funds for the war.¶ Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress’s funding power. If a president continues to wage war without congressional authorization, as in Libya, Kosovo, or Korea,

it is only because Congress has chosen not to exercise its easy check.¶ We should not confuse a desire to escape political responsibility for a defect in the Constitution. A radical change in the system for making war might appease critics of presidential power. But it could also seriously threaten American national security.¶ In order to forestall another 9/11 attack, or to take advantage of a window of opportunity to strike terrorists or rogue nations, the executive branch needs flexibility.¶ It is not hard to think of situations where congressional consent cannot be obtained in time to act. Time for congressional deliberation, which leads only to passivity and isolation and not smarter decisions, will come at the price of speed and secrecy.¶ The Constitution creates a presidency that can respond forcefully to prevent serious threats to our national security.¶ Presidents can take the initiative and Congress can use its funding power to check them. Instead of demanding a legalistic process to begin war, the Framers left war to politics.¶ As we confront the new challenges of terrorism, rogue nations and WMD proliferation, now is not the time to introduce sweeping, untested changes in the way we make war.

Impact- HegemonyDeference is key to hegemony. Fenster et al ‘10

Herbert, Phillip Carter, MCKENNA LONG & ALDRIDGE LLP, “BRIEF OF THE VETERANS OF FOREIGN WARS OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF DEFENDANTS AND DISMISSAL,” http://ccrjustice.org/files/Amicus_Curiae_Brief_of_VFW.pdf

C. Military Leadership And Decisionmaking Would Suffer

War is the province of chance. “If we now consider briefly the subjective nature of war—the means by which war has to be fought—it will look more than ever like a gamble . . . [i]n the whole range of human activities, war most closely resembles a game of cards.” Clausewitz, 86-87.

Within this field of human endeavor, the most successful armies are those led by decisive commanders who visualize the operational environment and make rapid , sound decisions . Combat leadership involves the motivation of others to risk their lives, and only the most decisive and confident leaders

can inspire this kind of self-sacrifice. Leadership is the multiplying and unifying element of combat power. Confident, competent, and informed leadership intensifies the effectiveness of all other elements of combat power by formulating sound operational ideas and assuring discipline and motivation in the force . . . Leadership in today’s operational environment is often the difference between success and

failure. Dept. of the Army, Field Manual 3-0, Operations, at ¶¶ 4-6 - 4-8 (2008), available at http://www.army.mil/fm3-0/fm3-0.pdf. Battle command is a subset of combat leadership—it is how wartime leaders operationalize their intent and transmit their guidance to subordinate units. Battle command is the art and science of understanding, visualizing, describing, directing, leading, and assessing forces to impose the commander’s will on a hostile, thinking, and adaptive enemy. Battle command applies leadership to translate decisions into actions—by synchronizing forces and warfighting functions in time, space, and purpose—to accomplish missions. Battle command is guided by professional judgment gained from experience, knowledge, education, intelligence, and intuition. It is driven by commanders. Id. at ¶ 5-9. Battlefield decisionmaking involves the visualization of the battlefield and all its components, the deliberate assessment of operational risk, and the selection of a course of action which accepts certain risks in order to achieve tactical, operational or strategic success. Id. at ¶ 5-10; see also Gen. Frederick M. Franks, Jr., Battle Command: A Commander’s Perspective, Military Review, May-June 1996, at 120-121. “Given the inherently uncertain nature of war, the object of planning is not to eliminate or minimize uncertainty but to foster decisive and effective action in the midst of such uncertainty.” Army Field Manual 3-07, Stability Operations, at ¶ 4-4

(2008), available at http://usacac.army.mil/cac2/repository/FM307/FM307.pdf. In bringing this case, Plaintiff asks this Court to substitute itself as the battlefield commander , and to second-guess the strategic, operational and tactical decisions made by this nation’s military chain of command in the campaign against Al Qaeda.

Judicial decisionmaking is incompatible with military decisionmaking. Rather than produce rapid, confident, decisive actions, judicial resolution of this matter would produce deliberate and measured decisions which are the product of adversarial process, and which would reflect judicial considerations, not strategic or tactical ones . Also, judicial involvement may induce risk aversion among commanders , who would worry about how their actions might be judged in courtrooms far removed from the battlefield, and thus hedge their battlefield decisions in order to protect themselves and their units from future judicial scrutiny. This is particularly true of Plaintiff’s prayer for relief, which calls upon the Court to enjoin the Government from using lethal force “except in circumstances in which they present concrete, specific, and imminent threats to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threats.” Such decisions about the use of force can often be made by soldiers in a split-second, on the basis of intuition and

training. The specter of judicial involvement will affect the way soldiers and leaders approach

these decisions, potentially complicating and slowing their decisions by injecting judicial considerations which have no place on the battlefield.

Perception of weak Presidential crisis response collapses hegJohn R. Bolton 9, Senior fellow at the American Enterprise Institute & Former U.S. ambassador to the United Nations, “The danger of Obama's dithering,” Los Angeles Times, October 18, http://articles.latimes.com/2009/oct/18/opinion/oe-bolton18

Weak ness in American foreign policy in one region often invites challenges elsewhere , because our adversaries carefully follow diminished American resolve . Similarly, presidential indecisiveness , whether because of uncertainty or internal political struggles , signals that the U nited S tates may not respond to international challenges in clear and coherent ways. Taken together, weakness and indecisiveness have proved historically to be a toxic combination for America's global interests . That is exactly the combination we now see under President Obama. If anything, his receiving the Nobel Peace Prize only underlines the problem. All of Obama's campaign and inaugural talk about "extending an open hand" and "engagement," especially the multilateral variety, isn't exactly unfolding according to plan.

Entirely predictably, we see more clearly every day that diplomacy is not a policy but only a technique. Absent presidential leadership, which at a minimum means clear policy direction and persistence in the face of criticism and adversity , engagement simply embodies weakness and indecision.

Hegemony solves great power warKhalilzad 11 – Zalmay Khalilzad, the United States ambassador to Afghanistan, Iraq, and the United Nations during the presidency of George W. Bush and the director of policy planning at the Defense Department from 1990 to 1992, February 8, 2011, “The Economy and National Security; If we don’t get our economic house in order, we risk a new era of multi-polarity,” online: http://www.nationalreview.com/articles/259024/economy-and-national-security-zalmay-khalilzad

We face this domestic challenge while other major powers are experiencing rapid economic growth. Even though countries such as China, India, and Brazil have profound political, social, demographic, and economic problems, their economies are growing faster than ours, and this could alter the global distribution of power. These trends could in the long term produce a multi-polar world. If U.S. policymakers fail to act and other powers continue to grow, it is not a question of whether but when

a new international order will emerge. The closing of the gap between the United States and its rivals could intensify geopolitical competition among major powers , increase incentives for local powers to play major powers against one another, and undercut our will to preclude or respond to international crises because of the higher risk of escalation.¶ The stakes are high. In modern history, the longest period of peace among the great powers has been the era of U.S. leadership. By contrast, multi-polar systems have been unstable,

with their competitive dynamics resulting in frequent crises and major wars among the great powers. Failures of

multi-polar international systems produced both world wars.¶ American retrenchment could have devastating consequences. Without an American security blanket, regional powers could rearm in an attempt to balance

against emerging threats. Under this scenario, there would be a heightened possibility of arms races, miscalculation, or other crises spiraling into all-out conflict . Alternatively, in seeking to accommodate the

stronger powers, weaker powers may shift their geopolitical posture away from the United States.

Either way, hostile states would be emboldened to make aggressive moves in their regions.¶ As rival powers rise, Asia in particular is likely to emerge as a zone of great-power competition . Beijing’s economic rise has enabled a dramatic military buildup focused on acquisitions of naval, cruise, and ballistic missiles, long-range stealth aircraft, and anti-satellite capabilities. China’s strategic modernization is aimed, ultimately, at denying the United States access to the seas around China. Even as cooperative economic ties in the region have grown, China’s expansive territorial claims — and provocative statements and actions following crises in Korea and incidents

at sea — have roiled its relations with South Korea, Japan, India, and Southeast Asian states. Still, the United States is the most significant barrier facing Chinese hegemony and aggression.

Congressional involvement cripples warfighting – extinctionWeinberger 9 [Seth Weinberger, Assistant Professor in the Department of Politics and Government at the University of Puget Sound, M.A. and Ph.D. in Political Science from Duke University, "Balancing War Powers in an Age of Terror", The Good Society, 18(2), http://muse.jhu.edu/journals/good_society/v018/18.2.weinberger.html]

In wartime, however, it may be neither expedient nor strategically sound for the president to be forced to come before Congress for permission for each and every legislative action deemed necessary for the war effort. Circumstances in war are fluid and unpredictable , and legislation passed at one time may quickly become irrelevant or obsolete. The deliberation and compromise that are the hallmarks of congress ional legislation may be ill-suited to war, which demands swift and decisive action to keep on top of rapidly shifting military situations. As one scholar puts it, "Congress at war is not a pretty sig ht. The legislative branch can be questioning and judgmental, impatient for victories yet free with inexpert advice, slow to provide the men and materiel for combat, reluctant to vote the taxes needed to pay for the war, critical of generals, and careless with secrets."25 In times in which the country faces an existential , or otherwise exceedingly dangerous, threat , it may not behoove the president, the military, or the nation as a whole to require the president to ask Congress time and time again to enact laws to advance the war effort.

Key to victory in every domainJohson ‘6

Karlton, Army War College, “Temporal and Scalar Mechanics of Conflict Strategic Implications of Speed and Time on the American Way of War,” http://www.dtic.mil/dtic/tr/fulltext/u2/a449394.pdf

Military services appear to be increasingly dependent on speed , and these organizations continue to place a premium

on its relative value. The Army ’s “ Field Manual 1: The Army,” embraces the idea that speed is critical to its operational concept, necessary for maneuver forces to keep the initiative in battle, and vital towards achieving shock and surprise .25 The United States Navy looks to speed as an essential component of maritime operations. In

“Fleet Tactics and Costal Combat,” Wayne P. Hughes reasons that speed is necessary to win the sea battle within the first few shots of an engagement .26 The United States Air Force has plans to increase the speed and fidelity of command, control, communications and computers, intelligence, surveillance and reconnaissance (C4ISR) to create Predictive Battlespace Awareness over the

combat area. The desired end state of these capabilities will be “getting a cursor over a target” upon demand.27 Even U.S. Air Force doctrine is replete with references to speed. The concept of speed clearly underlies the tenets and principles of airpower as an enabling factor.28

Executive flexibility and ability to launch force quickly is vital to solve multiple nuclear threatsLi 9 Zheyao, J.D. candidate, Georgetown University Law Center, 2009; B.A., political science and history, Yale University, 2006. This paper is the culmination of work begun in the "Constitutional Interpretation in the Legislative and Executive Branches" seminar, led by Judge Brett Kavanaugh, “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” 7 Geo. J.L. & Pub. Pol'y 373 2009 WAR POWERS IN THE FOURTH GENERATION OF WARFARE

A. The Emergence of Non-State Actors

Even as the quantity of nation-states in the world has increased dramatically since the end of World War II, the institution of the nation-state has been in decline over the past few decades. Much of this decline is the direct result of the

waning of major interstate war, which primarily resulted from the introduction of nuclear weapons.122 The prolif eration of nuclear weapons, and their

immense capacity for absolute destruction, has ensured that conventional wars remain limited in scope and duration. Hence, "both the size of the armed forces and the quantity of weapons at their disposal has declined quite sharply" since 1945.123 At the same time, concurrent with the decline of the nation-state in the second half of the twentieth century , non-state actors have increasingly been willing and able to use force to advance their causes. In contrast to nation-states, who adhere to the

Clausewitzian distinction between the ends of policy and the means of war to achieve those ends, non-state actors do not necessarily fight as a mere means of advancing any

coherent policy. Rather, they see their fight as a life-and-death struggle , wherein the ordinary terminology of war as an instrument of policy breaks down because of this blending of means and ends .124 It is the existential nature of this struggle and the disappearance of the Clausewitzian distinction between war and policy that has given rise to a new generation of warfare. The concept of fourth-generational warfare was first articulated in an influential article in the Marine Corps Gazette in 1989, which has proven highly prescient. In describing what they saw as the modem trend toward a new phase of warfighting, the authors argued that: In broad terms, fourth generation warfare seems likely to be widely dispersed and largely undefined; the distinction between war and peace will be blurred to the vanishing point. It will be nonlinear, possibly to the point of having no definable battlefields or fronts. The distinction between "civilian" and "military" may disappear. Actions will occur concurrently throughout all participants' depth, including their society as a cultural, not just a physical, entity. Major military facilities, such as airfields, fixed communications sites, and large headquarters will become rarities because of their vulnerability; the same may be true of civilian equivalents, such as seats of government, power plants, and industrial sites (including

knowledge as well as manufacturing industries). 125 It is precisely this blurring of peace and war and the demise of traditionally definable battlefields that provides the impetus for the formulation of a new. theory of war powers. As evidenced by Part M, supra, the constitution al allocation of war powers , and the Framers' commitment of the war power to

two co-equal branches, was not designed to cope with the current international system, one that is characterized by the persistent machinations of international terrorist organizations , the rise of multilateral alliances , the

emergence of rogue states , and the potentially wide proliferation of easily deployable w eapons of m ass d estruction , nuclear and otherwise . B. The Framers' World vs. Today's World The Framers crafted the Constitution, and the people ratified it, in a time

when everyone understood that the state controlled both the raising of armies and their use. Today, however, the threat of terrorism is bringing an end to the era of the nation-state's legal monopoly on violence, and the kind of war that existed before-based on a clear division between government, armed forces, and the people-is on the decline. 126 As states are caught between their decreasing ability to fight each other due to the existence of nuclear weapons and the increasing threat from non-state actors, it is clear that the Westphalian system of nation-states that informed the Framers' allocation of war powers is no longer the order of the day. 127 As

seen in Part III, supra, the rise of the modem nation-state occurred as a result of its military effectiveness and ability to defend its citizens. If nation-states such as the United States are unable to adapt to the changing circumstances of fourth-generational warfare-that is, if they are unable to adequately defend against low-intensity conflict conducted by non-state

actors-"then clearly [the modem state] does not have a future in front of it.' 128 The challenge in formulating a new theory of war powers for fourthgenerational warfare that remains legally justifiable lies in the difficulty of adapting to changed circumstances while remaining faithful to the constitutional text and the

original meaning. 29 To that end, it is crucial to remember that the Framers crafted the Constitution in the context of the Westphalian system of nation-states. The three centuries following the Peace of Westphalia of 1648 witnessed an international system characterized by wars, which, "through the efforts of governments, assumed a more regular, interconnected character."' 130 That period saw the rise of an independent military class and the stabilization of military

institutions. Consequently, "warfare became more regular, better organized, and more attuned to the purpose of war-that is, to its political objective."' 1 3' That era is now over. Today, the stability of the long-existing Westphalian international order has been greatly eroded in

recent years with the advent of international terrorist organizations, which care nothing for the traditional norms of the laws of war. This new global environment exposes the limitations inherent in the interpretational methods of originalism and textualism and necessitates the adoption of a new method of constitutional interpretation. While one must always be aware of the text of the Constitution and the original understanding of that text, that very awareness identifies the extent to which fourth-generational warfare epitomizes a phenomenon unforeseen by the Framers, a problem the constitutional resolution of which must rely on the good judgment of the present generation. 13 Now, to adapt the constitutional warmarking scheme to the new international order characterized by fourth-generational warfare, one must

understand the threat it is being adapted to confront. C. The Jihadist Threat The erosion of the Westphalian and Clausewitzian model of warfare and the blurring of the distinction between the means of warfare and the ends of policy, which is one characteristic of fourth-generational warfare, apply to al-Qaeda and other adherents of jihadist ideology who view the United States as an enemy. An excellent analysis of jihadist ideology and its implications for the rest of the world are presented by Professor Mary Habeck. 133 Professor Habeck identifies the centrality of the Qur'an, specifically a particular reading of the Qur'an and hadith (traditions about the life of Muhammad), to the jihadist terrorists. 134 The jihadis believe that the scope of the Qur'an is universal, and "that their interpretation of Islam is also intended for the entire world, which must be brought to recognize this fact peacefully if possible and through violence if not."' 135 Along these lines, the jihadis view the United States and her allies as among the greatest enemies of Islam: they believe "that every element of modern Western liberalism is flawed, wrong, and evil" because the basis of liberalism is secularism. 136 The jihadis emphasize the superiority of Islam to all other religions, and they believe that "God does not want differing belief systems to coexist."' 37 For this reason, jihadist groups such as al-Qaeda "recognize that the West will not submit without a fight and believe in

fact that the Christians, Jews, and liberals have united against Islam in a war that will end in the complete destruction of the unbelievers.' 138 Thus, the adherents o f this jihadist ideology , be it al-Qaeda or other groups, will continue to target the U nited S tates until she is destroyed. Their ideology demands it. 139 To effectively combat terrorist groups such as al-Qaeda, it is necessary to understand not only how they think,

but also how they operate. Al-Qaeda is a transnational organization capable of simultaneously managing multiple operations all over the world."14 It is both centralized and decentralized: al-Qaeda is centralized in the sense that Osama bin Laden is the unquestioned leader, but it is decentralized in that its operations are carried out locally, by distinct cells."4 AI-Qaeda benefits immensely from this arrangement because it can exercise direct control over high-probability operations, while maintaining a distance from low-probability attacks, only taking the credit for those that succeed. The local terrorist cells benefit by gaining access to al-Qaeda's "worldwide

network of assets, people, and expertise."' 42 Post-September 11 events have highlighted al-Qaeda's resilience. Even as the United States and her allies fought back, inflicting heavy casualties on al-Qaeda in Afghanistan and destroying dozens of cells worldwide, "al-Qaeda's networked nature allowed it to absorb the damage and remain a threat." 14 3 This is a far cry from earlier generations of warfare, where the decimation of the enemy's military forces would generally bring an end to the conflict. D. The Need for Rapid Reaction and Expanded Presidential War Power By now it should be clear just how different this conflict against the extremist terrorists is from the type of warfare that occupied the minds of the Framers at the time of the Founding. Rather

than maintaining the geographical and political isolation desired by the Framers for the new country, today's United States is an international power targeted by individuals and groups that will not rest until seeing her demise. The Global War on Terrorism is not truly a war within the Framers' eighteenth-century conception of the term, and the normal constitutional provisions

regulating the division of war powers between Congress and the President do not apply. Instead, this "war" is a struggle for survival and dominance against forces that threaten to destroy the United States and her allies, and the fourth-generational nature of the conflict, highlighted by an indiscernible distinction between wartime and peacetime, necessitates an evolution of America's traditional constitutional warmaking scheme. As first illustrated by the military strategist Colonel John Boyd, constitutional decision-making in the realm

of war powers in the fourth generation should consider the implications of the OODA Loop: Observe, Orient, Decide, and Act. 44 In the era of fourth-gen erational warfare, quick reactions, proceeding through the OODA Loop rapidly, and disrupting the enemy's OODA loop are the key s to victory . "In order to win ," Colonel Boyd suggested, " we should operate at a faster tempo or rhythm than our adversaries." 145 In the words of Professor Creveld, "[b]oth organizationally and in terms of the equipment at their disposal, the armed forces of the world will have to adjust themselves to this situation by changing their doctrine, doing away with much of their heavy equipment and becoming more like police."1 46 Unfortunately, the existing constitutional understanding, which diffuses war power between two branches of government, necessarily (by the Framers' design) slows down decision- making. In circumstances where war is undesirable (which is, admittedly, most of the time, especially against other nation-states), the deliberativeness of the existing decision-making process is a positive attribute. In America's current situation,

however, in the midst of the conflict with al-Qaeda and other international terrorist organizations, the existing process

of constitutional decision-making in warfare may prove a fatal hindrance to achieving the initiative necessary for victory . As a slow-acting , deliberative body, Congress does not have the ability to a dequately deal with fast-emerging situations in fourth-generational warfare. Thus, in order to combat transnational threats such as al-Qaeda,

the executive branch must have the ability to operate by taking offensive military action even without congressional authorization , because only the executive branch is capable of the swift decision-making and action necessary to prevail in fourth-gen erational conflicts against fourthgenerational opponents.

Great power war John Yoo 9, Emanuel S. Heller Professor of Law @ UC-Berkeley Law, visiting scholar @ the American Enterprise Institute, former Fulbright Distinguished Chair in Law @ the University of Trento, served as a deputy assistant attorney general in the Office of Legal Council at the U.S. Department of Justice between 2001 and 2003, received his J.D. from Yale and his undergraduate degree from Harvard, “Crisis and Command,” Book, p. 360-63

*We do not endorse ableist language

What did not happen in the Cold War is even more important than what did. For the three centuries after the recognition of the nation-state system in the Peace of Westphalia, great power wars were commonplace . Just as the twentieth century had its World Wars I and II, the nineteenth had the Napoleonic Wars, and the seventeenth had the

Thirty Years' War, to name but a few. These wars took an enormous toll on humanity -- military deaths in World War I reached about 10 million for all nations, and 25 million in World War II, with estimates ranging from double to triple those numbers in civilian deaths. By the twentieth century, the United States could no longer isolate itself from the struggles in Europe. World War I cost the United States 116,000 soldiers and sailors killed and 204,000 wounded. In World War II, the U.S. armed forces had 405,000 killed and 672,000

wounded. In World War I, the Wilson administration spent about $310 billion on the military. In World War II, the military consumed about $3.5 trillion (both figures in 2008 dollars). With the development of tactical and strategic nuclear weapons, military conflict between the U nited

States and the Soviet Union would have been far worse in terms of casualties and financial costs than both World Wars -- and probably

all U.S. wars -- put together. That the U nited S tates avoided another great power conflict from 1945-92 is a testament to the stewardship of Presidents from Truman through George H. W.

Bush. Nine American Presidents from different parties, over half a century, patiently pursued a policy that contained, and ultimately exhausted, an enemy that outmatched the United States in land power. They had to follow a moderate course that sometimes required active challenges to the Soviets, at other times, restraint. It was not produced by a system where Congress generally controls foreign and national security policy . Many academics assume that congressional dominance would lead to less war , because Congress is slower to move at home and less adventuresome abroad. In effect, this approach finds a virtue in the internal transaction costs within Congress, which make it difficult for a large number of people to reach agreement.49 But there is no historical reason why Congress should be less warlike than Presidents. It was the war hawks in Congress, not President Madison, who pushed the United States into the War of 1812, for example. A Congress eager for territorial expansion sought war in 1846 and 1898. Putting aside whether their assumptions about Congress are accurate, the critics' reading of the Constitution could have placed the nation in a straitjacket as it rose to confront the challenges of the Cold War. It is true that a high level of cooperation among the branches was necessary to prevail, but containing the Soviet Union called for a wide range of instruments of national power, ranging from covert action , to crisis management , to shorter conflicts , to long-term national security planning. Congress could not have conducted successful policy along these dimensions. The unpredictability , suddenness , and high stakes of foreign affairs were the very reasons for the Framers' creation of an independent executive branch. Presidential leadership during the Cold War did not just advance American

interests in the short term, but benefited human welfare in the West and Asia. At the end of World War II, the economies and populations of the Axis powers were ruined. Germany's population had fallen to its 1910 level, 68 million, and its economy had collapsed. Japan was similarly devastated; its population in 1950 was estimated to be roughly 84 million, and the war destroyed about 40 percent of its industrial capacity.

Today, Germany's population is 82 million, and its GDP is $2.9 trillion, third in the world. Japan's population today is 127 million, and its

GDP is $4.34 trillion, second in the world. Italy's GNP today is $1.84 trillion, seventh in the world. Although Presidents had demanded unconditional

surrender, once the war was over they reintegrated our former enemies into the political and economic systems of the West. Presidents supported a system of market-based economies and constitutional democracy -- with the financial support of Congress at times -- primarily through their control over foreign policy.50 We can also see the effects in the countries that witnessed the most direct American intervention. South Korea, a small agrarian nation with a population of 21 million in 1955, today has a population of 48 million and is the 13th largest economy in the world with a GNP of $888 billion. (Nominal GNP in 1962 was only $2.3 billion.) North Korea's population, by contrast, has stagnated for the past decade at around 21-22 million, with annual economic growth of less than half of one percent; its economy is barely functional, with a GNP of no more than $40 billion (which ranks it at the very bottom in the world), and its society is governed by the most extreme Communist dictatorship left on earth. Vietnam, too, took its toll on the lives and treasury of the United States and arguably destroyed two Presidencies, but the effects of American withdrawal may have

been even steeper -- millions of Vietnamese were killed or sent to concentration camps, or fled as boat people. Wars in both Korea and Vietnam sent important signals to the Soviet Union and China that the United States would continue to resist Communist expansion forcefully. It is impossible to answer counterfactual questions, but if Congress had held the upper constitutional hand in war and had refused to send troops to Korea and Vietnam, the Cold War may have ended very differently . The costs of congressional paralysis during the Cold War could well have been higher than the costs of executive action, even taking into account these setbacks.

Impact- Nuclear TerrorismNuclear terrorism is feasible---high risk of theft and attacks escalateVladimir Z. Dvorkin ‘12 Major General (retired), doctor of technical sciences, professor, and senior fellow at the Center for International Security of the Institute of World Economy and International Relations of the Russian Academy of Sciences. The Center participates in the working group of the U.S.-Russia Initiative to Prevent Nuclear Terrorism, 9/21/12, "What Can Destroy Strategic Stability: Nuclear Terrorism is a Real Threat," belfercenter.ksg.harvard.edu/publication/22333/what_can_destroy_strategic_stability.html

Hundreds of scientific papers and reports have been published on nuclear terrorism. International conferences have been held on this threat with participation of Russian organizations, including IMEMO and the Institute of U.S. and Canadian Studies. Recommendations on how to combat the threat have been issued by the International Luxembourg Forum on Preventing Nuclear Catastrophe, Pugwash Conferences on Science and World Affairs, Russian-American Elbe Group, and other organizations. The UN General Assembly adopted the International Convention for the Suppression of Acts of Nuclear Terrorism in 2005 and cooperation among intelligence services of leading states in this

sphere is developing.¶ At the same time, these efforts fall short for a number of reasons, partly because various acts of nuclear terrorism are possible. Dispersal of radioactive material by detonation of conventional explosives (“dirty bombs”) is a method that is most accessible for terrorists. With the wide spread of radioactive sources , raw materials for such attacks have become much more accessible than weapons-useable nuclear material or nuclear weapons. The use of

“ dirty bombs ” will not cause many immediate casualties, but it will result in to long-term radioactive contamination, contributing to the spread of panic and socio-economic destabilization . ¶ Severe

consequences can be caused by sabotaging nuclear power plants, research reactors, and radioactive materials storage facilities. Large cities are especially vulnerable to such attacks . A large city may host dozens of research reactors with a nuclear power plant or a couple of spent nuclear fuel storage facilities and dozens of large radioactive materials storage facilities located nearby. The past few years have seen significant efforts made to enhance organizational and physical aspects of security at facilities, especially at nuclear power plants.

Efforts have also been made to improve security culture. But these efforts do not preclude the possibility that well-trained terrorists may be able to penetrate nuclear facilities . ¶ Some estimates show that sabotage of a research reactor in a metropolis may expose hundreds of thousands to high doses of radiation. A formidable part of the city would become uninhabitable for a long time.¶ Of all the scenarios, it is building an improvised nuclear device by terrorists that poses the maximum risk. There are no engineering problems that cannot be solved if terrorists decide to build a simple “gun-type” nuclear device. Information on the design of such devices, as well as implosion-type devices, is available in the public domain. It is the acquisition of weapons-grade uranium that presents the sole serious obstacle. Despite numerous preventive measures taken, we cannot rule out the

possibility that such materials can be bought on the black market. Theft of weapons-grade uranium is also possible . Research reactor fuel is considered to be particularly vulnerable to theft, as it is scattered at sites in dozens of countries. There are about 100 research reactors in the world that run on weapons-grade uranium fuel, according to the International Atomic Energy Agency (IAEA).¶ A terrorist “gun-type” uranium bomb can have a yield of least 10-15 kt, which is comparable to the yield of the bomb dropped on Hiroshima . The explosion of such a bomb in a modern metropolis can kill and wound hundreds of thousands and cause serious economic damage. There will also be long-term sociopsychological and political consequences.¶ The vast

majority of states have introduced unprecedented security and surveillance measures at transportation and other large-scale public facilities after the terrorist attacks in the United States, Great Britain, Italy, and other countries. These measures have proved burdensome for the

countries’ populations, but the public has accepted them as necessary. A nuclear terrorist attack will make the public accept further measures meant to enhance control even if these measures significantly restrict the democratic liberties they are accustomed to. Authoritarian states could be expected to adopt even more restrictive measures.¶ If a nuclear terrorist act occurs, nations will delegate tens of thousands of their secret services’ best personnel to investigate and attribute the attack. Radical Islamist groups are among those capable of such an act. We can imagine what would

happen if they do so, given the anti-Muslim sentiments and resentment that conventional terrorist attacks by Islamists have generated in developed democratic countries. Mass deportation of the non-indigenous population and severe sanctions would follow such an attack in what will cause violent protests in the Muslim world . Series of armed clashing terrorist attacks may follow . The prediction that Samuel Huntington has made in his book “ The Clash of Civilizations and the Remaking of World Order” may come true. Huntington’s book clearly demonstrates that it is not Islamic extremists that are the cause of the Western world’s problems. Rather there is a deep, intractable conflict that is rooted in the fault lines that run between

Islam and Christianity. This is especially dangerous for Russia because these fault lines run across its territory. To sum it up, the political leadership of Russia has every reason to revise its list of factors that could undermine strategic stability. BMD does not deserve to be even last on that list because its effectiveness in repelling massive missile strikes will be extremely low. BMD systems can prove useful only if deployed to defend against launches of individual ballistic missiles or groups of such missiles. Prioritization of other destabilizing factors—that could affect global and regional stability—merits a separate study or studies. But even without

them I can conclude that nuclear terrorism should be placed on top of the list. The threat of nuclear terrorism is real , and a successful nuclear terrorist attack would lead to a radical transformation of the global order . All of the threats on the revised list must become a subject of thorough studies by experts. States need to work hard to forge a common understanding of these threats and develop a strategy to combat them.

Extinction---equivalent to full-scale nuclear war Owen B. Toon 7, chair of the Department of Atmospheric and Oceanic Sciences at CU-Boulder, et al., April 19, 2007, “Atmospheric effects and societal consequences of regional scale nuclear conflicts and acts of individual nuclear terrorism,” online: http://climate.envsci.rutgers.edu/pdf/acp-7-1973-2007.pdf

To an increasing extent, people are congregating in the world’s great urban centers, creating megacities with populations exceeding 10 million individuals. At the same time, advanced technology has designed nuclear explosives of such small size they can be easily transported in a car , small plane or boat to the heart of a city. We

demonstrate here that a single detonation in the 15 kiloton range can produce urban fatalities approaching one million in some cases, and casualties exceeding one million . Thousands of small weapons still exist in the arsenals of the U.S. and Russia, and there are at least six other countries with substantial nuclear weapons inventories. In all, thirty-three countries control sufficient amounts of highly enriched uranium or plutonium to assemble nuclear explosives. A conflict between any of these countries involving

50-100 weapons with yields of 15 kt has the potential to create fatalities rivaling those of the Second World War. Moreover, even a single surface nuclear explosion, or an air burst in rainy conditions, in a city center is likely to cause the entire metropolitan area to be abandoned at least for decades owing to infrastructure damage and radioactive contamination. As

the aftermath of hurricane Katrina in Louisiana suggests, the economic consequences of even a localized nuclear catastrophe would most likely have severe national and international economic consequences . Striking effects result even from relatively small nuclear attacks because low yield detonations are most effective against city centers where business

and social activity as well as population are concentrated. Rogue nations and terrorists would be most likely to strike there . Accordingly, an organized attack on the U.S. by a small nuclear state, or terrorists supported by such a state, could generate casualties comparable to those once predicted for a full-scale nuclear “counterforce” exchange in a superpower conflict. Remarkably, the estimated quantities of smoke generated by attacks

totaling about one megaton of nuclear explosives could lead to significant global climate perturbations (Robock et al., 2007). While we did not extend our casualty and damage predictions to include potential medical, social or economic impacts following the initial explosions, such analyses have been performed in the past for large-scale nuclear war scenarios (Harwell and Hutchinson, 1985). Such a study should be carried out as well for the present scenarios and physical outcomes.

Nuke Terror Outweighs All Other Impacts – Most Likely Scenario For Extinction-this evidence cites multiple peer-reviewed studies as well as terrorist group statements

-answers defense based on means – there’s lots of unsafe material around the world and a lot of providers

-answers defense based on motives – terrorists have an incentive to spur retaliation because it create chaos

Jaspal– Associate Professor at the School of Politics and International Relations, Quaid-i-Azam University, Islamabad, Pakistan 12 (Zafar Nawaz, “Nuclear/Radiological Terrorism: Myth or Reality?”, Journal of Political Studies, Vol. 19, Issue - 1, 2012, 91:111)

The misperception, miscalculation and above all ignorance of the ruling elite about security puzzles are perilous for the national security of a state. Indeed, in an age of transnational terrorism and unprecedented dissemination of dualuse nuclear technology, ignoring nuclear terrorism threat is an imprudent policy choice . The incapability of terrorist organizations to engineer fissile material does not eliminate completely the possibility of nuclear terrorism. At the same time, the absence of an example or precedent of a nuclear/ radiological terrorism does not qualify the assertion that the nuclear/radiological

terrorism ought to be remained a myth . Farsighted rationality obligates that one should not miscalculate transnational terrorist groups — whose behavior suggests that they have a death wish — of acquiring nuclear, radiological, chemical and biological material producing capabilities. In addition, one could be

sensible about the published information that huge amount of nuclear material is spread around the globe.

According to estimate it is enough to build more than 120,000 Hiroshima-sized nuclear bombs (Fissile

Material Working Group, 2010, April 1). The alarming fact is that a few storage sites of nuclear/radiological materials are inadequately secured and continue to be accumulated in unstable regions (Sambaiew, 2010, February).

Attempts at stealing fissile material had already been discovered (Din & Zhiwei, 2003: 18). Numerous evidences confirm that terrorist groups had aspired to acquire fissile material for their terrorist acts. Late Osama bin Laden, the founder of al Qaeda stated that acquiring nuclear weapons was a“religious duty” (Yusufzai, 1999, January 11). The IAEA also reported that “al-Qaeda was actively seeking an atomic bomb.” Jamal Ahmad al-Fadl, a dissenter of Al Qaeda, in his trial testimony had “revealed his extensive but unsuccessful efforts to acquire enriched uranium for al-Qaeda” (Allison, 2010, January: 11). On November 9, 2001, Osama bin Laden claimed that “we have chemical and nuclear weapons as a deterrent and if America used them against us we reserve the right to use them (Mir, 2001, November 10).” On May 28, 2010, Sultan Bashiruddin Mahmood, a Pakistani nuclear scientist confessed that he met Osama bin Laden. He claimed that “I met Osama bin Laden before 9/11 not to give him nuclear know-how, but to seek funds for establishing a technical college in Kabul (Syed, 2010, May 29).” He was arrested in 2003 and after extensive interrogation by American

and Pakistani intelligence agencies he was released (Syed, 2010, May 29). Agreed, Mr. Mahmood did not share nuclear know-how with Al Qaeda, but his meeting with Osama establishes the fact that the terrorist organization was in contact with nuclear scientists. Second, the terrorist group has sympathizers in the nuclear scientific bureaucracies. It also authenticates bin Laden’s Deputy Ayman Zawahiri’s claim which he made in December 2001: “If you have $30 million, go to the black market in the central Asia, contact any disgruntled Soviet scientist and a lot of dozens of smart briefcase bombs are available (Allison, 2010,

January: 2).” The covert meetings between nuclear scientists and al Qaeda members could not be interpreted as idle threats and thereby the threat of nuclear/radiological terrorism is real. The 33Defense Secretary Robert Gates admitted in 2008 that “what keeps every senior government leader awake at night is the thought of a terrorist ending up with a weapon of

mass destruction, especially nuclear (Mueller, 2011, August 2).” Indeed, the nuclear deterrence strategy cannot deter the transnational terrorist syndicate from nuclear/radiological terrorist attacks. Daniel Whiteneck pointed out:

“Evidence suggests, for example, that al Qaeda might not only use WMD simply to demonstrate the magnitude of its capability

but that it might actually welcome the escalation of a strong U.S. response, especially if it included catalytic effects on governments and societies in the Muslim world. An adversary that prefers escalation regardless of the consequences cannot be deterred ” (Whiteneck, 2005, Summer: 187) Since taking office, President Obama has been reiterating that “nuclear weapons represent the ‘gravest threat’ to United States and international security.” While realizing that the US could not prevent nuclear/radiological terrorist attacks singlehandedly, he launched 47an international campaign to convince the

international community about the increasing threat of nuclear/ radiological terrorism. He stated on April 5, 2009: “Black market trade in nuclear secrets and nuclear materials abound. The technology to build a bomb has spread. Terrorists are

determined to buy, build or steal one. Our efforts to contain these dangers are centered on a global non-proliferation regime, but as more people and nations break the rules, we could reach the point where the center cannot hold (Remarks by President Barack Obama, 2009, April 5).” He added: “One terrorist with one nuclear weapon could unleash massive destruction. Al Qaeda has said it seeks a bomb and that it would have no problem with using it. And we know that there is unsecured nuclear material across the globe” (Remarks by President Barack Obama, 2009, April 5). In July 2009, at the G-8 Summit, President Obama announced the convening of a Nuclear Security Summit in 2010 to deliberate on the mechanism to “secure nuclear materials, combat nuclear smuggling, and prevent nuclear terrorism” (Luongo, 2009, November 10). President Obama’s nuclear/radiological threat perceptions were also accentuated by the United Nations Security Council (UNSC) Resolution 1887 (2009). The UNSC expressed its grave concern regarding ‘the threat of nuclear terrorism.” It also recognized the need for all States “to take effective measures to prevent nuclear material or technical assistance becoming available to terrorists.” The UNSC Resolution called “for universal adherence to the Convention on Physical Protection of Nuclear Materials and its 2005 Amendment, and the Convention for the Suppression of Acts of Nuclear Terrorism.” (UNSC Resolution, 2009) The United States Nuclear Posture Review (NPR) document revealed on April 6, 2010

declared that “terrorism and proliferation are far greater threats to the United States and international stability.” (Security of Defence, 2010, April 6: i). The United States declared that it reserved the right to“hold fully accountable” any state or group “that supports or enables terrorist efforts to obtain or use weapons of mass destruction, whether by facilitating, financing, or providing expertise or safe

haven for such efforts (Nuclear Posture Review Report, 2010, April: 12)”. This declaration underscores the possibility that terrorist groups could acquire fissile material from the rogue states.

Impact- TerrorismTerrorist groups and proliferation requires efficient executive actionLi 9 (Zheyao, George University, Yale Law School, internship in the department of justice, “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” Georgetown Journal of Law and Public Policy, vol. 7, pp. 380-381) DMD

Another shortcoming of Professor Koh's proposal to introduce new institutional¶ checks and balances on the war powers through statutory enactment is¶ revealed when he quotes, but quickly dismisses, the concerns of Professor Paul¶ Kennedy, who wrote even before the end of the Cold War that the United States¶ "may not always be assisted by its division of constitutional and decision making¶ powers, deliberately created when it was geographically and strategically¶ isolated from the rest of the world two centuries ago.., but which may¶ be harder to operate when it has become a global superpower, often called¶ upon to make swift decisions vis-A-vis countries which enjoy far fewer¶ constraints."¶ 30¶ While Koh is absolutely correct when he argues that, simply because other ¶ nation-states might not abide by the same constitutional or democratic constraints,¶ that does not entitle America to freely disregard her own Constitution,31¶ this tautology does not provide a satisfactory conclusion to the inquiry, especially ¶ when American lives are at stake. ¶ Specifically, Professor Koh fails to foresee the unique problems presented by ¶ the rise of non-state actors, particularly terrorist groups. He writes that "[e]xpecting,¶ perhaps, a response to a nuclear strike, the occasions are exceedingly rare ¶ when the president would jeopardize the nation by considering legality before ¶ committing the nation to a course of international action. ",32 This statement is¶ true when considered solely in the context of non-nuclear, state-based threats. In ¶ the modem age of international terrorism and rogue states, however, considering ¶ the proliferation of weapons of mass destruction and the ease and low cost ¶ with which WMDs may be deployed, the President may not have the luxury to wait on congressional debate and approval before acting to prevent the loss of¶ American lives.

Terrorism causes extinctionHellman 8 (Martin E, emeritus prof of engineering @ Stanford, “Risk Analysis of Nuclear Deterrence” SPRING, THE BENT OF TAU BETA PI, http://www.nuclearrisk.org/paper.pdf)

The threat of nuclear terrorism looms much larger in the public’s mind than the threat of a full-scale nuclear war, yet this article focuses primarily on the latter. An explanation is therefore in order before proceeding. A terrorist attack involving a nuclear weapon would be a catastrophe of immense proportions: “A 10-kiloton bomb detonated at Grand Central Station on a typical work day would likely kill some half a million people, and inflict over a trillion dollars in direct economic damage. America and its way of life would be changed forever.” [Bunn 2003, pages viii-ix]. The likelihood of such an attack is also significant. Former Secretary of Defense William Perry has estimated the chance of a nuclear terrorist incident within the next decade to be roughly 50

percent [Bunn 2007, page 15]. David Albright, a former weapons inspector in Iraq, estimates those odds at less than one percent, but notes, “We would never accept a situation where the chance of a major nuclear accident like Chernobyl would be anywhere near 1% .... A nuclear terrorism attack is a low-probability event, but we can’t live in a world where it’s anything but extremely low-probability.” [Hegland 2005]. In a survey of 85 national security experts, Senator Richard Lugar found a median estimate of 20 percent for the “probability of an attack involving a nuclear explosion occurring somewhere in the world in the next 10 years,” with 79 percent of the respondents believing “it more likely to be carried out by terrorists” than by a government [Lugar 2005, pp. 14-15]. I support increased efforts to reduce the threat of nuclear terrorism, but that is not inconsistent with the approach of this article. Because terrorism is one of the potential trigger mechanisms for a full-scale nuclear war, the risk analyses proposed herein will include estimating the risk of nuclear terrorism as one component of the overall risk. If that risk, the overall risk, or both are found to be unacceptable, then the proposed remedies would be directed to reduce which- ever risk(s) warrant attention. Similar remarks apply to a number of other threats (e.g., nuclear war between the U.S. and China over Taiwan). This article would be incomplete if it only dealt with the threat of nuclear terrorism and neglected the threat of full- scale nuclear war. If both risks are unacceptable, an effort to reduce only the terrorist component would leave humanity in great peril. In fact, society’s almost total neglect of the threat of full-scale nuclear war makes studying that risk all the more important. The cosT of World War iii The danger associated with nuclear deterrence depends on both the cost of a failure and the failure rate.3 This section explores the cost of a failure of nuclear deterrence, and the next section is concerned with the failure rate. While other definitions are possible, this article defines a failure of deterrence to mean a full-scale exchange of all nuclear weapons available to the U.S. and Russia, an event that will be termed World War III. Approximately 20 million people died as a result of the first World War. World War II’s fatalities were double or triple that number—chaos prevented a more precise deter- mination. In both cases humanity recovered, and the world today bears few scars that attest to the horror of those two wars. Many people therefore implicitly believe that a third World War would be horrible but survivable, an extrapola- tion of the effects of the first two global wars. In that view, World War III, while horrible, is something that humanity may just have to face and from which it will then have to recover. In contrast, some of those most qualified to assess the situation hold a very different view. In a 1961 speech to a joint session of the Philippine Con- gress, General Douglas MacArthur, stated, “Global war has become a Frankenstein to destroy both sides. … If you lose, you are annihilated. If you win, you stand only to lose. No longer does it possess even the chance of the winner of a duel. It contains now only the germs of double suicide. ” Former Secretary of Defense Robert McNamara ex- pressed a similar view: “If deterrence fails and conflict develops, the present U.S. and NATO strategy carries with it a high risk that Western civilization will be destroyed” [McNamara 1986, page 6]. More recently, George Shultz, William Perry, Henry Kissinger, and Sam Nunn4 echoed those concerns when they quoted President Reagan’s belief that nuclear weapons were “totally irrational, totally inhu- mane, good for nothing but killing, possibly destructive of life on earth and civilization.” [Shultz 2007] Official studies, while couched in less emotional terms, still convey the horrendous toll that World War III would exact: “The resulting deaths would be far beyond any precedent. Executive branch calculations show a range of U.S. deaths from 35 to 77

percent (i.e., 79-160 million dead) … a change in targeting could kill somewhere between 20 million and 30 million additional people on each side .... These calculations reflect only deaths during the first 30 days. Additional millions would be injured, and many would eventually die from lack of adequate medical care … millions of people might starve or freeze during the follow- ing winter, but it is not possible to estimate how many. … further millions … might eventually die of latent radiation effects.” [OTA 1979, page 8] This OTA report also noted the possibility of serious ecological damage [OTA 1979, page 9], a concern that as- sumed a new potentiality when the TTAPS report [TTAPS 1983] proposed that the ash and dust from so many nearly simultaneous nuclear explosions and their resultant fire- storms could usher in a nuclear winter that might erase homo sapiens from the face of the earth, much as many scientists now believe the K-T Extinction that wiped out the dinosaurs resulted from an impact winter caused by ash and dust from a large asteroid or comet striking Earth. The TTAPS report produced a heated debate, and there is still no scientific consensus on whether a nuclear winter would follow a full-scale nuclear war. Recent work [Robock 2007, Toon 2007] suggests that even a limited nuclear exchange or one between newer nuclear-weapon states, such as India and Pakistan, could have devastating long-lasting climatic consequences due to the large volumes of smoke that would be generated by fires in modern megacities. While it is uncertain how destructive World War III would be, prudence dictates that we apply the same engi- neering conservatism that saved the Golden Gate Bridge from collapsing on its 50th anniversary and assume that preventing World War III is a necessity—not an option.

Only the executive branch can operate swift enough in fourth generational warfare against terroristsLi 9 (Zheyao, George University, Yale Law School, internship in the department of justice, “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” Georgetown Journal of Law and Public Policy, vol. 7, pp. 380-381) DMD

D. The Need for Rapid Reaction and Expanded Presidential War Power¶ By now it should be clear just how different this conflict against the extremist¶ terrorists is from the type of warfare that occupied the minds of the Framers at¶ the time of the Founding. Rather than maintaining the geographical and political ¶ isolation desired by the Framers for the new country, today's United States is an ¶ international power targeted by individuals and groups that will not rest until ¶ seeing her demise. The Global War on Terrorism is not truly a war within the ¶ Framers' eighteenth-century conception of the term, and the normal constitutional ¶ provisions regulating the division of war powers between Congress and ¶ the President do not apply. Instead, this "war" is a struggle for survival and ¶ dominance against forces that threaten to destroy the United States and her ¶ allies, and the fourth-generational nature of the conflict , highlighted by an¶ indiscernible distinction between wartime and peacetime, necessitates an evolution ¶ of America's traditional constitutional warmaking scheme.¶ As first illustrated by the military strategist Colonel John Boyd, constitutional ¶ decision-making in the realm of war powers in the fourth generation should consider the implications of the OODA Loop: Observe, Orient, Decide, and ¶ Act. 44 In the era of fourth-generational warfare, quick reactions, proceeding ¶ through the OODA Loop

rapidly, and disrupting the enemy's OODA loop are ¶ the keys to victory . "In order to win," Colonel Boyd suggested, "we should ¶ operate at a faster tempo or rhythm than our adversaries ." 145 In the words of¶ Professor Creveld, "[b]oth organizationally and in terms of the equipment at¶ their disposal, the armed forces of the world will have to adjust themselves to¶ this situation by changing their doctrine, doing away with much of their heavy¶ equipment and becoming more like police."1 46 Unfortunately, the existing ¶ constitutional understanding, which diffuses war power between two branches ¶ of government, necessarily (by the Framers' design) slows down decision- making. In circumstances where war is undesirable (which is, admittedly, most¶ of the time, especially against other nation-states), the deliberativeness of the ¶ existing decision-making process is a positive attribute.¶ In America's current situation, however, in the midst of the conflict with ¶ al-Qaeda and other international terrorist organizations, the existing process of ¶ constitutional decision-making in warfare may prove a fatal hindrance to achieving ¶ the initiative necessary for victory. As a slow-acting, deliberative body, ¶ Congress does not have the ability to adequately deal with fast-emerging ¶ situations in fourth-generational warfare . Thus, in order to combat transnational¶ threats such as al-Qaeda, the executive branch must have the ability to operate ¶ by taking offensive military action even without congressional authorization ,¶

because only the executive branch is capable of the swift decision-making and ¶ action necessary to prevail in fourth-generational conflicts against fourthgenerational¶ opponents.

A terrorist attack draws in Russia and China- that causes escalation Ayson 10 [Robert, Professor of Strategic Studies, Senior Research Associate with Oxford’s Centre for International Studies, “After a Terrorist Nuclear Attack: Envisaging Catalytic Effects,” Studies in Conflict and Terrorism, Volume 33, Number 7, pg. 571, July 2010]

But these two nuclear worlds—a non-state actor nuclear attack and a catastrophic interstate nuclear exchange—are not necessarily separable.

It is just possible that some sort of terrorist attack, and especially an act of nuclear terrorism, could precipitate a chain of events leading to a massive exchange of nuclear weapons between two or more of the states that possess them. In this context, today’s and tomorrow’s terrorist groups might assume the place allotted during the early Cold War years to new state possessors of small nuclear arsenals who were seen as raising the risks of a catalytic nuclear war between the superpowers started by third parties. These risks were considered in the late 1950s and early 1960s as concerns grew about nuclear proliferation, the so-called problem. It may require a considerable amount of imagination to depict an

especially plausible situation where an act of nuclear terrorism could lead to such a massive inter-state nuclear war. For example, in the event of a terrorist nuclear attack on the United States, it might well be wondered just how Russia and/or China could plausibly be brought into the picture, not least because they seem unlikely to be

fingered as the most obvious state sponsors or encouragers of terrorist groups. They would seem far too responsible to be involved in supporting that sort of terrorist behavior that could just as easily threaten them as well. Some possibilities, however remote, do suggest themselves. For example, how might the United States react if it was thought or discovered that the fissile material used in the act of nuclear terrorism had come from Russian stocks, and if for some reason Moscow denied any responsibility for nuclear laxity? The correct attribution of that nuclear material to a particular country might not be a case of science fiction given the observation by Michael May et al. that while the debris resulting from a nuclear explosion would be “spread over a wide area in tiny fragments, its radioactivity makes it detectable, identifiable and collectable, and a wealth of information can be obtained from its analysis: the efficiency of the explosion, the materials used and, most important … some indication of where the nuclear material came

from.” Alternatively, if the act of nuclear terrorism came as a complete surprise, and American officials refused to believe that a terrorist group was fully responsible (or responsible at all) suspicion would shift immediately to state possessors. Ruling out Western ally countries like the United Kingdom and France, and probably Israel and India as well, authorities in Washington would be left with a very short list consisting of North Korea, perhaps Iran if its

program continues, and possibly Pakistan. But at what stage would Russia and China be definitely ruled out in this high stakes game of nuclear Cluedo? In particular, if the act of nuclear terrorism occurred against a backdrop of existing tension in Washington’s relations with Russia and/or China, and at a time when threats had already been traded between these major powers, would officials and political leaders not be tempted to assume the worst? Of course, the chances of this occurring would only seem to increase if the United States was already involved in some sort of limited armed conflict with Russia and/or China, or if they were confronting each other from a distance in a proxy

war, as unlikely as these developments may seem at the present time. The reverse might well apply too:

should a nuclear terrorist attack occur in Russia or China during a period of heightened tension or even limited conflict with the United States, could Moscow and Beijing resist the pressures that might rise domestically to consider the United States as a possible perpetrator or encourager of the attack? Washington’s early response to a terrorist nuclear attack on its own soil might also raise the possibility of an unwanted (and nuclear aided) confrontation with Russia and/or China. For example, in the noise and confusion during the immediate aftermath of the terrorist nuclear attack,

the U.S. president might be expected to place the country’s armed forces, including its nuclear arsenal, on a higher stage of alert. In such a tense environment, when careful planning runs up against the friction of reality, it is just possible that Moscow and/or China might mistakenly read this as a sign of U.S. intentions to use force (and possibly nuclear force) against them. In that situation, the temptations to preempt such actions might grow, although it must be admitted that any preemption would probably still meet with a devastating response.

Answers To Answers

Turns Privacy – FBI IsolationRestrictions on surveillance isolate the FBI from the NSA and CIA – this forces more intrusive, but less effective, FBI invesitgations of AmericansAriail 17

(J. E. Shreve Ariail is a senior federal prosecutor currently on leave from the Department of Justice (DOJ) and lecturing at the University of Virginia’s (UVA) School of Law and UVA’s Frank Batten School of Leadership and Public Policy. Professor Ariail also serves as a Faculty Associate with the Batten School’s National Security Policy Center, “The High Stakes of Misunderstanding Section 702 Reforms”, Lawfare Blog, December 6, https://www.lawfareblog.com/high-stakes-misunderstanding-section-702-reforms Accessed 7/30/18 SP)

Several Section 702 Legislative Reform Efforts are Misguided Despite the previously discussed legality and oversight framework,

public discussion about the program remains mired in rhetoric, untethered to any legal framework and instead is

lumped in with generalized fears of mass surveillance. Opponents of Section 702—without evidence—accuse the government of using it to intentionally and indirectly target Americans and of using statutory “loopholes” to conduct “unlimited searches” of Americans’ communications. But as it stands, Section 702 explicitly prohibits the government from “intentionally target[ing] a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States.” And the claim that the government uses Section 702 to conduct “unlimited” searches of Americans is

belied by the extensive oversight required by the statute. The public misunderstanding and general mistrust of U.S. surveillance authorities has led to some restrictive and problematic proposed revisions to the Section 702 program. In October, the House Judiciary Committee introduced H.B. 3989 (the “USA Liberty Act”). Most significantly, the USA Liberty Act would require the FBI to receive a court-issued warrant, upon a showing of probable cause, before it could access the content of Americans’ communications incidentally gathered under Section 702. As currently drafted, the bill would initially allow the FBI to run a check of Section 702 databases to see whether they contain identifying or “noncontents” information about a subject in the United States who has come under suspicion by the FBI. Assuming a hit, the FBI would be informed that the subject has had communications with the foreign target of Section 702 collection, but without a warrant, the FBI would be prevented from accessing the substance of any relevant communications unless they could certify that their search of the database for information on the U.S.-based target was “reasonably designed for the primary purpose of

returning foreign intelligence information.” This requirement, unfortunately, reflects a lack of appreciation for the FBI’s dual role as a law enforcement and intelligence agency alongside its primacy in identifying terrorist or intelligence threats to the homeland. That is, the FBI, in its post-9/11 existence, seeks foreign information when it is directly related to a domestic threat, and it seeks intelligence information when it is related to its law enforcement mission: forcing the FBI to articulate whether its “primary purpose” is the collection of “foreign intelligence” in those circumstances would upend the unique duality of the FBI’s mission and force the FBI back into the law enforcement box that it was in prior to Sept. 11. Essentially, this limitation and the

warrant requirement in the bill would effectively “wall off” the FBI from the content of these communications, and would “wall off” the FBI from the intelligence agencies, like the NSA and CIA, who would retain access to the content of the intercepted

substantive communications. Any effort to restrict the FBI’s access to Section 702’s valuable information about threats to the United States homeland through the creation of an artificial barrier between law enforcement and intelligence agencies should be understood for what it is: a Congressional effort to rebuild “the wall” that led to the devastating attacks on the United States on 9/11. The danger of obscuring FBI access to Section 702 information is plain: As the lead domestic law enforcement agency charged with handling threats to national security of the United States,

only the FBI is positioned to use incidentally intercepted information to prevent an attack on the homeland. Anyone prepared to “wall off” the FBI from this program should understand that this effort will inevitably compromise the national security of the United States and significantly jeopardize the public

safety of this country’s citizens. It will not be lost on members of the national security community that the triggering “primary purpose” language used in the USA Liberty Act is identical to the flawed language used by the Department of Justice in the years before the summer of

2001 to erect the artificial legal wall between the law enforcement and intelligence communities. A renewed effort to distinguish law enforcement and intelligence collection using the term “primary purpose” reflects a return to the flawed law and policymaking that led to the unchecked rise of al-Qaeda, the hijacking of United Flight 93, the destruction of the World Trade Center, and the attacks on the Pentagon. It is notable that the FISA appellate court then found the Justice

Department’s decision before Sept. 11 to rely on a “primary purpose” test to be “quite puzzling,” given that “effective counterintelligence…requires the wholehearted cooperation of all the government’s personnel who can be brought to the task.” The court further recognized that the “primary purpose,” policy, in creating the “wall” between the FBI and intelligence agencies, “may well have contributed… to the FBI missing opportunities to anticipate the September 11, 2001 attacks.” Those “missing opportunities,” which were detailed in the 9/11 Commission Report, include the government’s failure to locate two hijackers known to be in the United States prior to Sept. 11 and the failure to obtain a search warrant on an al-Qaeda computer that

could have led to the discovery of the Sept. 11 plot before it was carried out. Moreover, the implementation of a warrant requirement will create a perverse incentive for law enforcement to conduct invasive investigations of Americans whose information has been incidentally intercepted. As set forth above, under the USA Liberty Act’s proposed restrictions, after a search of the Section 702 database, the FBI would initially learn about the fact of the incidentally-collected Section 702 communication and not the substance of the communication unless the FBI could certify that the query is being done for the “primary purpose” of returning foreign

intelligence information. Although the FBI could learn that a U.S. person, such as a suspected homegrown extremist or potential lone wolf, has been in contact with a significant foreign terrorist or intelligence threat, the FBI probably would not have sufficient information about the U.S. person to establish probable cause to obtain

the substance of the communications. In turn, in carrying out its mission to protect the public, the FBI undoubtedly would be forced to conduct an extensive investigation into the U.S. person to eliminate or confirm the seriousness of the potential threat and the nefarious contact with an overseas target—a significant step the FBI otherwise might not have undertaken had it been

able to see the substance of the communication in the first place. These FBI investigations, which would have to be conducted through traditional law enforcement techniques that do not require a warrant (e.g. surveillance by law enforcement of a subject’s contacts and location, issuing national security letters or subpoenas for additional email and telephone records,

conducting searches of the target’s trash, obtaining a mail cover, inserting a confidential informant or undercover officer) would likely require more significant invasions of the U.S. person’s privacy. Given the potential danger to the national security of the United States and the likelihood that a warrant requirement would increase the FBI’s involvement in potentially unnecessary intrusive investigative conduct, it is nonsensical to require the FBI to establish probable cause in order to allow it to see information necessary to prevent an attack on the homeland, when that same information is already in the hands of the rest of the intelligence community. In addition to the House bill, the Senate Select Committee on Intelligence (SSCI) has also proposed a bill (the FISA Amendments Reauthorization Act) to reauthorize and change different parts of Section 702. Some of the changes proposed by the SSCI’s bill appear reasonable. Primarily, this bill, as originally drafted, sought to balance national security with valid civil liberties concerns by implementing “end-use” restrictions on incidentally intercepted Section 702 collection, and by increasing the program’s transparency, adding more Congressional reporting requirements. First, the bill would permit the FBI to only use Section 702-derived information in prosecutions of certain serious crimes. Though this change is potentially unnecessary—as the government already maintains this policy, and faces a natural institutional disincentive from using Section 702 information in insignificant prosecutions (if simply for the fact that doing so could jeopardize its use in future counter-intelligence and counter-terrorism prosecutions)—its statutory implementation raises no serious objections. Second, the bill helpfully provides for increased transparency by imposing additional reporting requirements on the FBI. Third, the bill restricts the intelligence community’s ability to conduct “abouts” collection. “Abouts” collection, which the NSA has currently abandoned, refers to the collection of communications under Section 702 that are “neither to nor from a tasked [email address or] selector but nevertheless are collected because they contain the selector [or email address] within them.” The statutory restrictions on “abouts” collection appears reasonable, given the NSA’s own concerns about its technological capability to minimize information gathered through this program. The bill, however, also provides an opportunity for “abouts” collection to resume upon recommendations from the Director of National Intelligence and the Attorney General and subsequent FISC approval. Given the fact that, as the NSA has declared, “abouts” collection allows the government to “discover information about new potential targets that it may never … otherwise acquire[],” and given the likelihood that NSA’s minimization procedures will likely continue to improve in sophistication, it would be wise to maintain the flexibility of re-initiating this significant counterterrorism and counterintelligence tool. Not all of the SSCI bill’s changes, however, are without issue. Though the bill—over the objection of some SSCI members—does not contain any pre-query warrant requirement, post-conference it now requires the FBI to submit to the FISC within “one business day” any query it conducts of the Section 702 databases that returns information on a U.S. person, along with the responsive information and the government’s justification for executing the query. As an initial matter, this post-query judicial review creates some awkwardness in the operation of Section 702: The FISA Court already pre-authorizes queries under the minimization procedures it approves during its annual review; having the FISC then post-hoc judge whether these queries

were constitutional and consistent with statutory authority would appear redundant. Oddly, the FISC would be sitting in review of its own prior legal determination of statutory and constitutional compliance. Further judicial review of the program is more appropriately left to the many independent Article III district and appellate judges that oversee national security prosecutions relying on the Section 702 program. As evidenced by the decisions discussed above—United States v. Muhotorov, United States v. Hasbajrami, United States v. Mohamud—there is a robust system of judicial review already in place. Moreover, while the idea of a post-query notification and review requirement is a less dangerous check on law enforcement’s use of incidentally collected Section 702 information than a pre-use warrant requirement, there is real concern in the law enforcement community about the limited timing permitted for the notification and FISC review process. Expecting every governmental actor involved in the review of the Section 702 program to collaborate and present the relevant information and justification to the FISC within “one business day” reveals a lack of appreciation for the stringent internal oversight and the multi-level review process that occurs within the U.S. government in the implementation of this program. In less than 24 hours, FBI agents and analysts essentially would be required to draft a sworn affidavit in support of the notification and, before submitting to the FISC, would have to secure concurrence or approval on the notification from the Department of Justice’s Office of Intelligence (OI). Housed within the National Security Division, OI is the key DOJ component that handles all filings before the FISC. The information would also be vetted by the FBI’s National Security Law Branch, which scrutinizes FBI representations to ensure accuracy and compliance with internal and external legal controls; the relevant operational field, headquarters and front-office components within the FBI whose intelligence or counter-terrorism equities would be affected; the legal offices at the CIA and the NSA, who likely would be required to coordinate with their own operational components to the extent that their equities were at issue; as well as the Director of National Intelligence and his or her legal representatives, the National Security Division leadership, and the Attorney General and his or her staff. All of this internal executive review is conducted in order to ensure accurate representations to the FISC, without compromising national security by protecting highly-sensitive and agency specific equities. This also all assumes that a FISC judge would be around and available on a 24-hour basis to receive the request and, potentially, to request additional information or modification of the notification. To expect this sort of thoughtful and rigorous process to occur within 24 hours is physically unworkable. For comparison, Section 702’s emergency provision, which allows the government to forego submission of a pre-search certification if both the DNI and AG conclude that exigent circumstances exist, allows the government 7 days to submit a post-search certification. Most recently, the House Permanent Select Committee on Intelligence (HPSCI) introduced yet another bill, entitled the FISA Amendments Reauthorization Act of 2017. Like the SSCI’s original FISA Amendments Reauthorization Act, the HPSCI’s bill reasonably seeks to balance national security with valid civil liberties concerns by implementing “end-use” restrictions on incidentally intercepted Section 702 collection, and by increasing the program’s transparency, adding more Congressional reporting requirements. As an initial matter, the bill adopts generally the restrictions on “abouts” collection contained in the SSCI bill, and maintains the flexibility to reinitiate “abouts” collection upon recommendation of the Director of National Intelligence and the Attorney General. The bill also maintains an ex ante warrant requirement, for use and review of the substance of Section 702-collected information on citizens and legal permanent residents, in cases in which foreign intelligence is not involved. That is, the bill essentially eliminates the problematic “primary purpose” test and provides the FBI with the discretionary authority to obtain a warrant from the FISC for substantive Section 702-collected information where a substantive query of the databases is “not designed to find and extract foreign intelligence information.” However, use of the Section 702 information in a criminal prosecution of a citizen or a legal permanent resident, without that warrant, is otherwise restricted—absent a determination by the Attorney General that the relevant “criminal proceeding affects, involves, or is related to the national security of the United States” or that it

involved “death,” “kidnapping,” or other serious criminal conduct. Overall, the warrant requirement in the HPSCI bill prevents Section 702-collected information from being used in non-serious criminal prosecutions, absent a warrant, and it appears to give the FBI the flexibility it needs to review and use critical foreign intelligence information

for intelligence and law enforcement purposes, without needlessly resurrecting the wall that was in place before Sept. 11. Ultimately, all of these issues surrounding Section 702 are profoundly important, hard and, unfortunately, driven by political sound bites that do not accurately capture the reality of the legislation or

the issues. Re-authorization of the Section 702 program is critical to our nation’s security . Every court to review the program has found it to be constitutional. The resurrection of a “wall” between the FBI and the rest of the intelligence community, in addition to perhaps creating even greater invasions of privacy, could turn back the clock to the summer of 2001, when the CIA and the FBI failed to communicate in the lead up to Sept. 11:

Thousands of Americans lost their lives as a result. Given what is at stake, Congress and the administration

would do well to ignore the political sound bites and move cautiously to conduct a thorough and thoughtful investigation into the impact any statutory changes might have to a surveillance program as significant as this one.

AT LeaksLeaks are a separate concern – the value of surveillance still outweighsGoldsmith and Hennessey 18

(Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution, and Susan Hennessey is the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She is a Brookings Fellow in National Security Law, “The Merits of Supporting 702 Reauthorization (Despite Worries About Trump and the Rule of Law)”, Lawfare Blog, https://www.lawfareblog.com/merits-supporting-702-reauthorization-despite-worries-about-trump-and-rule-law, Accessed 7/30/18, SP)

We acknowledge that the program has raised hard legal questions as well as difficult compliance issues, primarily

involving “abouts” collection. But these problems were identified by the system itself, long before the issues became

public, and the practices were fixed or terminated. In addition, over the past year, concerns—real and imagined—have arisen regarding the potential misuse of U.S. persons information obtained in foreign surveillance. Setting aside the president’s allegations about Trump Tower wiretapping and Rep. Devin Nunes’s “unmasking” scandal, there have been a number of serious leaks regarding U.S. persons information. It is far from clear, however, that any of these leaks concerned information collected by Section 702 specifically, as opposed to ordinary FISA processes or other forms of collection. Nevertheless, even in our world of regular leaks of classified information, those leaks represent the breaking of taboos—about leaking FISA information about a U.S. person and doing so for political purposes—that, as we both have written, are profoundly troubling. We suspect that many who support those leaks in the immediate context may soon come to regret them since the norms that were broken serve important values and may be hard to restore. Those emergence of those leaks may well call for increased protection in the handling of classified materials, but they do not go to the legal or operational justifications for foreign intelligence

collection in the first place. It is reasonable to argue that at some point, if the government cannot be trusted to responsibly prevent privacy-harming leaks of the fruits of incidental collection, then greater limits should be placed on such collection. This is one of the serious dangers of the U.S. persons leaks and should be weighed in the balance. But right now, and especially in light of the enormous overall value of the 702 program, we are persuaded by the counterargument that has prevailed—namely, that the leaks can and should be addressed as a distinct concern.

AT Trump AbusesSurveillance is safe and effective – Trump’s lies couldn’t undermine the program, and even leading Democrats place the program above political expediencyGoldsmith and Hennessey 18

(Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution, and Susan Hennessey is the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She is a Brookings Fellow in National Security Law, “The Merits of Supporting 702 Reauthorization (Despite Worries About Trump and the Rule of Law)”, Lawfare Blog, https://www.lawfareblog.com/merits-supporting-702-reauthorization-despite-worries-about-trump-and-rule-law, Accessed 7/30/18, SP)

Another testament to the value and integrity of Section 702 is that the democratic process worked well despite irresponsible interference from the top of the executive branch. Ordinarily, the president is a crucial

champion of surveillance authorities. President Trump, however, offered gift after gift to Section 702 opponents. In promulgating falsehoods about how the program worked and about how his predecessors used surveillance tools more generally, and in continually insulting and undermining the intelligence community, Trump harmed his national security team’s reauthorization efforts. His unpresidential behavior culminated in a rogue tweet last week the morning the House was set to take up the bill, setting his aides and members of Congress scrambling to do damage control and to explain to the commander in chief that he

was tweeting against his own administration’s position. In the past, passing major surveillance legislation has required an all-executive push. The fact that it managed to succeed this time, despite the president effectively pushing in the other direction, says something about the intensity and unity of the belief across the executive branch about the program’s value and legitimacy. And of course no small degree of credit should also go to the 19 Democratic senators who voted in favor of cloture and their 65 Democratic colleagues in the House who voted to pass the underlying bill last

week. The failure of 702 would have been an enormous black eye to the White House and to the Republican Party more generally. Opposing 702 held the promise of establishing privacy and civil liberties credentials for progressive politicians up for re-election or who harbor 2020 presidential ambitions. The attractions of opposing 702 were especially strong when the issue was a cloture vote, for in that context opponents can couch their opposition in a desire simply to see more debate and thus disavow the consequences of the underlying

legislation lapsing. In this political environment, and against the background of this presidency, a vote by a Democrat in support of 702 reauthorization is especially brave and a testament to the powerful merits of Section 702.

Presidential flexibility is key to responding to terrorism and WMD attacks Yoo 13 (John, law professor at the University of California Berkeley, “Like it or not, Constitution allows Obama to strike Syria without Congressional approval,” Fox News, August 30, 2013, http://www.foxnews.com/opinion/2013/08/30/constitution-allows-obama-to-strike-syria-without-congressional-approval/#ixzz2dt2z2ocD) PCS

Since World War II, it has been Congress that has authorized and funded our large standing military, one primarily designed to conduct offensive, not defensive, operations (as we learned all too tragically on 9/11) and to swiftly

project power worldwide. ¶ If Congress wanted to discourage presidential initiative in war, it could

build a smaller, less offensive-minded military.¶ Congress’s check on the presidency lies not just in the long-term raising of the military. It can also block any immediate armed conflict through the power of the purse.¶ If Congress feels it has been misled in authorizing war, or it disagrees with the president's

decisions, all it need do is cut off funds, either all at once or gradually.¶ It can reduce the size of the military, shrink or eliminate units, or freeze supplies. Using the power of the purse does not even require affirmative congressional action.¶ Congress can just sit on its hands and refuse to pass a law funding the latest presidential adventure, and the war will end quickly. ¶ Even the Kosovo war, which lasted little more than two months and involved no ground troops,

required special funding legislation.¶ The Framers expected Congress's power of the purse to serve as the primary check on presidential war. During the 1788 Virginia ratifying convention, Patrick Henry attacked the Constitution for

failing to limit executive militarism. James Madison responded: “The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.”

Congress ended America’s involvement in Vietnam by cutting off all funds for the war.¶ Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress’s funding power. If a president continues to wage war without congressional authorization, as in Libya, Kosovo, or Korea,

it is only because Congress has chosen not to exercise its easy check.¶ We should not confuse a desire to escape political responsibility for a defect in the Constitution. A radical change in the system for making war might appease critics of presidential power. But it could also seriously threaten American national security.¶ In order to forestall another 9/11 attack, or to take advantage of a window of opportunity to strike terrorists or rogue nations, the executive branch needs flexibility.¶ It is not hard to think of situations where congressional consent cannot be obtained in time to act. Time for congressional deliberation, which leads only to passivity and isolation and not smarter decisions, will come at the price of speed and secrecy.¶ The Constitution creates a presidency that can respond forcefully to prevent serious threats to our national security.¶ Presidents can take the initiative and Congress can use its funding power to check them. Instead of demanding a legalistic process to begin war, the Framers left war to politics.¶ As we confront the new challenges of terrorism, rogue nations and WMD proliferation, now is not the time to introduce sweeping, untested changes in the way we make war.

Terrorist groups and proliferation requires efficient executive actionLi 9 (Zheyao, George University, Yale Law School, internship in the department of justice, “War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare,” Georgetown Journal of Law and Public Policy, vol. 7, pp. 380-381) DMD

Another shortcoming of Professor Koh's proposal to introduce new institutional¶ checks and balances on the war powers through statutory enactment is¶ revealed when he quotes, but quickly dismisses, the concerns of Professor Paul¶ Kennedy, who wrote even before the end of the Cold War that the United States¶ "may not always be assisted by its division of constitutional and decision making¶ powers, deliberately created when it was geographically and strategically¶ isolated from the rest of the world two centuries ago.., but which may¶ be harder to operate when it has become a global superpower, often called¶ upon to make swift decisions vis-A-vis countries which enjoy far fewer¶ constraints."¶

30¶ While Koh is absolutely correct when he argues that, simply because other ¶ nation-states might not abide by the same constitutional or democratic constraints,¶ that does not entitle America to freely disregard her own Constitution,31¶ this tautology does not provide a satisfactory conclusion to the inquiry, especially ¶ when American lives are at stake. ¶ Specifically, Professor Koh

fails to foresee the unique problems presented by ¶ the rise of non-state actors, particularly terrorist groups. He writes that "[e]xpecting,¶ perhaps, a response to a nuclear strike, the occasions are exceedingly rare ¶ when the president would jeopardize the nation by considering legality before ¶ committing the nation to a course of international action.",32 This statement is¶ true when considered solely in

the context of non-nuclear, state-based threats. In ¶ the modem age of international terrorism and rogue states, however, considering ¶ the proliferation of weapons of mass destruction and the ease and low cost ¶ with which WMDs may be deployed, the President may not have the luxury to wait on congressional debate and approval before acting to prevent the loss of¶ American lives.

Terrorism causes extinctionHellman 8 (Martin E, emeritus prof of engineering @ Stanford, “Risk Analysis of Nuclear Deterrence” SPRING, THE BENT OF TAU BETA PI, http://www.nuclearrisk.org/paper.pdf)

The threat of nuclear terrorism looms much larger in the public’s mind than the threat of a full-scale nuclear war, yet this article focuses

primarily on the latter. An explanation is therefore in order before proceeding. A terrorist attack involving a nuclear weapon would be a catastrophe of immense proportions: “A 10-kiloton bomb detonated at Grand Central Station on a typical work day would likely kill some half a million people, and inflict over a trillion dollars in direct economic damage. America and its way of life would be changed forever.” [Bunn 2003, pages

viii-ix]. The likelihood of such an attack is also significant. Former Secretary of Defense William Perry has estimated the chance of a nuclear terrorist incident within the next decade to be roughly 50 percent [Bunn 2007, page 15]. David Albright, a former weapons inspector in Iraq, estimates those odds at less than one percent, but notes, “We would never accept a situation where the chance of a major nuclear accident like Chernobyl would be anywhere near 1%.... A

nuclear terrorism attack is a low-probability event, but we can’t live in a world where it’s anything but extremely low-probability.” [Hegland 2005]. In a survey of 85 national security experts, Senator Richard Lugar found a median estimate of 20 percent for the “probability of an attack involving a nuclear explosion occurring

somewhere in the world in the next 10 years,” with 79 percent of the respondents believing “it more likely to be carried out by terrorists” than by a government [Lugar 2005, pp. 14-15]. I support increased efforts

to reduce the threat of nuclear terrorism, but that is not inconsistent with the approach of this article. Because terrorism is one of the potential trigger mechanisms for a full-scale nuclear war, the risk analyses proposed herein will include estimating the risk of nuclear terrorism as one component of the overall risk. If that risk, the overall risk, or both are found to be unacceptable, then the proposed remedies would be directed to reduce whichever risk(s) warrant attention. Similar remarks apply to a number of other threats (e.g., nuclear war between the U.S. and China over Taiwan). This article would be incomplete if it only dealt with the threat of nuclear terrorism and neglected the threat of full-scale nuclear war. If both risks are unacceptable, an effort to reduce only the terrorist component

would leave humanity in great peril. In fact, society’s almost total neglect of the threat of full-scale nuclear war makes studying that risk all the more important. The cost of World War iii The danger associated with nuclear deterrence depends on both the cost of a failure and the failure rate.3 This section explores the cost of a failure of nuclear deterrence, and the next section is concerned with the failure rate. While other definitions are possible, this article defines a failure of deterrence to mean a full-scale exchange of all nuclear weapons available to the U.S. and Russia, an event that will be termed World War III. Approximately 20 million people died as a result of the First World War. World War II’s fatalities were double or triple that number—chaos prevented a more precise determination. In both cases humanity recovered, and the world today bears few scars that attest to the horror of those two wars. Many people therefore implicitly believe that a third World War would be horrible but survivable, an

extrapolation of the effects of the first two global wars. In that view, World War III, while horrible, is something that humanity may just have to face and from which it will then have to recover. In contrast, some of those most qualified to assess the situation hold a very different view. In a 1961 speech to a joint session of the Philippine Congress, General Douglas

MacArthur, stated, “Global war has become a Frankenstein to destroy both sides. … If you lose, you are annihilated. If you win, you stand only to lose. No longer does it possess even the chance of the winner of a duel. It contains now only the germs of double suicide. ” Former Secretary

of Defense Robert McNamara expressed a similar view: “If deterrence fails and conflict develops, the present U.S. and NATO strategy carries with it a high risk that Western civilization will be destroyed” [McNamara 1986, page 6]. More recently, George Shultz, William Perry, Henry Kissinger, and Sam Nunn4 echoed those concerns when they quoted President Reagan’s belief that nuclear weapons were “totally irrational, totally inhumane, good for nothing but killing, possibly

destructive of life on earth and civilization.” [Shultz 2007] Official studies, while couched in less emotional terms, still convey the horrendous toll that World War III would exact: “The resulting deaths would be far beyond any precedent. Executive branch calculations show a range of U.S. deaths from 35 to 77 percent (i.e., 79-160 million dead) … a change in targeting could kill somewhere between 20 million and 30 million additional people on each side ....

These calculations reflect only deaths during the first 30 days. Additional millions would be injured, and many would eventually die from lack of adequate medical care … millions of people might starve or freeze during the following winter, but it is not possible to estimate how many. … further millions … might eventually die of latent radiation effects.” [OTA 1979, page 8] This OTA report also noted the possibility of serious ecological damage [OTA 1979, page 9], a concern that assumed a new potentiality when the

TTAPS report [TTAPS 1983] proposed that the ash and dust from so many nearly simultaneous nuclear explosions and their resultant firestorms could usher in a nuclear winter that might erase homo sapiens from the face of the earth, much as many scientists now believe the K-T Extinction that wiped out the dinosaurs resulted from an impact winter caused by ash and dust from a large asteroid or comet striking Earth. The TTAPS report produced a heated debate, and there is still no scientific consensus on whether a nuclear winter would follow a full-scale nuclear war. Recent work [Robock

2007, Toon 2007] suggests that even a limited nuclear exchange or one between newer nuclear-weapon states, such as India

and Pakistan, could have devastating long-lasting climatic consequences due to the large volumes of smoke that would be generated by fires in modern megacities. While it is uncertain how destructive World War III would be, prudence dictates that we apply the same engineering conservatism that saved the Golden Gate Bridge from collapsing

on its 50th anniversary and assume that preventing World War III is a necessity—not an option.