Util

Util Bad

Privacy First

Freedom and dignity are ethically prior to security. Cohen, 2014Elliot D. Ph.D., ethicist and political analyst. He is the editor in chief of the International Journal of Applied Philosophy, Technology of Oppression: Preserving Freedom and Dignity in an Age of Mass, Warrantless Surveillance.. DOI: 10.1057/9781137408211.0011. The threat posed by mass, warrantless surveillance technologies Presently, such a threat to human freedom and dignity lies in the technological erosion of human privacy through the ever-evolving development and deployment of a global, government system of mass, warrantless surveillance. Taken to its logical conclusion, this is a systematic means of spying on, and ultimately manipulating and controlling, virtually every aspect of everybody's private life—a thoroughgoing, global dissolution of personal space, which is supposed to be legally protected. In such a governmental state of "total (or virtually total) information awareness," the potential for government control and manipulation of the people's deepest and most personal beliefs, feelings, and values can transform into an Orwellian reality—and nightmare. As will be discussed in Chapter 6, the technology that has the potential to remove such scenarios from the realm of science fiction to that of true science is currently being developed. This is not to deny the

legitimate government interest in "national security"; however, the exceptional disruption of privacy for legitimate state reasons cannot and should not be mistaken for a usual and customary rule of mass invasion of people's private lives without their informed consent. Benjamin Franklin wisely and succinctly expressed the point: "Those who surrender freedom for security will not have, nor do they deserve, either one." In relinquishing our privacy to government, we also lose the freedom to control, and act on, our personal information, which is what defines us individually, and collectively, as free agents and a free nation. In a world devoid of freedom to control who we are, proclaiming that we are "secure" is an empty platitude.

Privacy must be valued above all else Goold, 10- Associate Professor at the University of British Columbia Faculty of Law and a Research Associate at the Oxford University Centre for Criminology, (Benjamin, “How Much Surveillance is Too Much? Some Thoughts on Surveillance, Democracy, and the Political Value of Privacy”, OVERVÅKNING I EN RETTSSTAT - SURVEILLANCE IN A CONSTITUTIONAL GOVERNMENT, 2010, PDF, page 45-47)//APThis all of course leads us back to the question at the beginning of this chapter, namely: how much state surveillance is too much?

Perhaps the first and most obvious response to this question is that the state should at all times be sensitive to the fact that privacy is a basic human right, and that it is essential to personal development, individual dignity, and the ability of citizens to engage in meaningful social relationships. We have, in the words of Article 8 of the European Convention on Human Rights, a right to “respect for private and family life” because

without such privacy we can never truly flourish. Going further, however, the state must also recognize that privacy has an important role to play in the promotion of democracy and the meaningful exercise of a number of other fundamental rights, such as the right tofreedom of expression and freedom of association. As a

consequence, all state surveillance activities – regardless of whether the justification for such measures is the prevention of crime, the promotion of security, or even the efficient delivery of public services – must be evaluated in terms of the potential cost to political freedom and the maintenance of democratic values. This is particularly important given that, as Bennett and Raab rightly point out, the social value of privacy can be easily forgotten in our efforts to protect individuals from the personal effects of overzealous state

surveillance: The social value [of privacy] is underpowered and survives precariously unless it can be

specifically reinforced by a change in the privacy culture, for it is powerfully challenged by the legacy of the conventional paradigm and by forces that tend to the protection of privacy seen as an individual value, if a value at all.62 Put simply,

there is little point in the state seeking to create a society free from crime and secure against terrorist threats if the overall cost is a severe loss of personal freedom and the introduction of Orwellian, authoritarian government. Put more simply, we know that there is too much surveillance when citizens begin to fear the surveillance activities of the state, and no longer feel free to exercise their lawful rights for fear of unwanted scrutiny and possible

censure. Finally, given that a democratic state can only be legitimate and thrive in an atmosphere of mutual trust between government and governed, it follows that any surveillance measure that threatens to erode or destroy that trust must be resisted, or at the very least its potential costs and benefits carefully considered. As anyone who has lived in a state where the rule of law is not taken for granted – and where there is little in

the way of institutional trust – will be able to tell you, confidence in the institutions of government is hard won and easily lost.63 For this reason, the presumption should be that any surveillance measure which is directed at the public at large – and which treats all citizens as potential threats or management challenges – has prima facie gone a step too far, and demands an extra-ordinary justification. According to this view, mass state surveillance should always be the exception and never the rule. In short, we will know when there is too much state surveillance when political rights and democratic participation are

threatened, and it is at this point that the citizenry should demand that the state pulls back and accepts that there are times when it is better for the government to know less rather than more. Of course, some will say that we have already passed this point, that the current surveillance infrastructure already poses a serious threat to democracy and the rule of law. If this is true, then there is an even more pressing need for us to demand a halt to any further expansion in the surveillance apparatus of the state, and a fundamental reappraisal of the state’s use of technologies like public area CCTV.

Privacy is a fundamental moral right.Alfino and Mayes, 2003Mark Alfino Department of Philosophy Gonzaga University G. Randolph Mayes Department of Philosophy California State University, Sacramento "Reconstructing the right to privacy." Social Theory and Practice 29.1 (2003): 1-18.

The core claim in our theory is that privacy is a fundamental moral right. The argument to support this claim is simple, but the consequences and implications of the argument are not. In this section, we focus on establishing the right to privacy as a fundamental moral right and elucidating some of the most obvious implications of the view. We leave further development of the view and an exploration of objections to the next section. In arguing for privacy as a fundamental moral right, we obviously assume that a scheme of rights and correlative duties is a well-justified way to describe social relations among individuals. Specifically,

moral rights describe the legitimate exercise of power, both of individuals and others, severally and collectively. Rights can be thought of negatively as mutual protection schemes and positively as a reflection of our best understanding of how individuals establish and maintain their moral agency." At the heart of our understanding of moral agency is a belief about the ability of moral individuals to be "self-legislating" or autonomous. We will look at important differences of emphasis in different definitions of autonomy in a moment, but at present the important point is that in a system of rights and duties the concept of the self-legislating individual is

central. In fact, most basic moral rights can be understood as explications of the concept of a self-legislating agent, or the implications of how such a person necessarily interacts with a physical and social world. For example, rights of due process are fundamental moral rights, because in an environment in which I could not be guaranteed a rational (due) process for losing rights and privileges, I could not formulate rational rules for my own conduct. Privacy plays a fundamental and ineliminable role in constructing personal autonomy. To see this, it may help to extend the juridical metaphor at the heart of the notion of autonomy. What kinds of law do agents legislate? To what realm of objects does such law apply? Of course, these are questions that Immanuel Kant posed and answered extensively.12 Kant demonstrated that a basic heuristic of moral life is an analogy between physical space and the laws of nature that govern it, on the one hand, and moral space and the moral law on the other hand. This analogy lies at the heart of "rights talk." It is common to speak of rights as law-like background conditions from which we can predict the out come of claims and torts. Jurists and legislators use rights instrumentally—for good and ill—to establish various kinds of space: a private space of property relationships and private social relationships, a public space of communal expectations for fair treatment and access. When we grant "privilege" to specific kinds of relationships, such as the confidential conversations between priests and confessors or lawyers and their clients, we are using moral laws to configure moral space just as a divine creator might be imagined to configure physical space from a set of possible physical laws.

Whether or not we grant moral space any ontological significance, it still helps to elucidate our basic theoretical framework. The analogy between moral and physical space also reminds us of the need to configure the moral space needed for individuals to become autonomous agents upon a realistic view of how individuals actually develop, both cognitively and emotionally. We can criticize competing explications of moral space by reference to our background knowledge of human behavior and development.

Facts about our psychology do not by themselves justify moral rights. However, our understanding of the moral space that an autonomous agent inhabits and the moral laws that govern that space must cohere with our understanding of the laws of the physical world, especially those governing the psychological development of human animals and the physical conditions of their existence. Within these constraints we make a variety of choices about which aspects of our physical and psychic environment to value, and in so doing we construct the specific moral space that governs social life.

Additionally, because of foundational nature of privacy, it is not optional. Allen, 2011 Anita. J.D., Ph.D, Henry R Silverman Professor of Law and Professor of Philosophy, University of Pennsylvania School of Law. Unpopular privacy: what must we hide?. Oxford University Press, 2011. Pp 172-3

Since the 1970s, when scholars first began to analyze privacy in earnest, philosophers have linked the experience of privacy with dignity, autonomy, civility, and intimacy. They linked it also to repose, self-expression, creativity, and reflection. They tied it to the preservation of unique preferences and distinct traditions. Privacy is a foundational good. The argument that privacy is a right whose normative basis is respect for persons opens the door to the further argument that privacy is also potentially a duty. "To respect someone as a person is to concede that one ought to take account of the way in which his enterprise might be affected by one's decision," S. I. Benn wrote.3S And to respect oneself may require taking into account the way in which one; personality and life enterprises could be affected by decisions to dispense with foundational goods that are lost when one decides to flaunt, expose, and share rather than to reserve, conceal, and

keep. The idea that the experience of privacy is ethically mandatory is logically consistent with leading normative accounts. It is consistent with Robert Post's (citing Erving Goffman and Jeffrey Reiman) "characterization of respecting privacy as respecting civility norms" of deference and demeanor. 39 It is likewise consistent with

Helen Nissenbaum's analysis of privacy. She defines privacy and its value in relation to norms of the appropriateness of specific behaviors and the distribution of certain information in social and cultural context.40 If people are completely morally and legally free to pick and choose the privacy they will experience, such as deferential civility, appropriateness and limited data flow, they are potentially deprived of highly valued states that promote their vital interests, and those of fellow human beings with whom they associate. We need to restrain choice—if not by law, then

somehow. Respect for privacy rights and the ascription of privacy duties must both be a part of a society's formative project for shaping citizens. Lior Jacob Strahilevitz has argued that privacy violations can be understood as rechanneling information flow, so that information unknown or obscure in a network becomes known: "Where a defendant's (in a suit alleging informational privacy invasion disclosure materially alters the flow of otherwise obscure information through a social net- work, such that what would have otherwise remained obscure becomes widely known, the defendant should be liable for public disclosure of private facts."41 Viewed in this way, it may not seem to matter that privacy is invaded unless the person whose information flows out against his will cares. We have to go back to dignitarian ideals about privacy to see why we, as

liberals, should care about optional dismissals of privacy. Jeffrey Reiman defined privacy as the "social rituals" that serve to teach us that we are distinct moral persons and autonomous moral agents.42 Liberals

agree that there is something wrong with being watched and investigated all the time. As legal theorist Daniel Solove argues, surveillance can make "a person feel extremely uncomfortable" and can lead to "self-censorship and inhibition."43 Surveillance is a form of social control. As such, it impacts freedom. I have been urging that dispensing with one's privacy is yielding to social control, and that that impacts freedom, too. Realizing this, the notion that some privacy should not be optional, waivable, or alienable should have instant credibility.

Privacy = Gateway Right

The impact is the loss of personal autonomy and agency. Privacy is a gateway right, it enables all of our other freedoms. PoKempne 14, Dinah, General Counsel at Human Rights Watch, “The Right Whose Time Has Come (Again): Privacy in the Age of Surveillance” 1/21/14 http://www.hrw.org/world-report/2014/essays/privacy-in-age-of-surveillanceTechnology has invaded the sacred precincts of private life, and unwarranted exposure has imperiled our security, dignity, and most basic values. The law must rise to the occasion and protect our rights. Does this sound familiar? So argued Samuel Warren and Louis Brandeis in their 1890 Harvard Law Review article announcing “The Right to Privacy.” We are again at such a juncture. The technological developments they saw as menacing—photography and the rise of the mass circulation press—appear rather quaint to us now. But the harms to emotional, psychological, and even physical security from unwanted exposure seem just as vivid

in our digital age. Our renewed sense of vulnerability comes as almost all aspects of daily social life migrate online. At the same time, corporations and governments have acquired frightening abilities to amass and search these endless digital records, giving them the power to “know” us in extraordinary detail. In a world where we share our lives on social media and trade immense amounts of personal information for the ease and convenience of online living, some have questioned

whether privacy is a relevant concept. It is not just relevant, but crucial. Indeed , privacy is a gateway right that affects our ability to exercise almost every other right, not least our freedom to speak and associate with those we choose, make political choices, practice our religious beliefs, seek medical help, access education, figure out whom we love, and create our family life. It is nothing less than the shelter in which we work out what we think and who we are; a fulcrum of our autonomy as individuals. The importance of privacy , a right we often take for granted, was thrown into sharp relief in 2013 by the steady stream of revelations from United States government files released by former

National Security Agency (NSA) contractor Edward Snowden, and published in the Guardian and other major newspapers around

the world. These revelations, supported by highly classified documents, showed the US, the UK, and other governments engaged in global indiscriminate data interception, largely unchecked by any meaningful legal constraint or oversight, without regard for the rights of millions of people who were not suspected of wrongdoing. The promise of the digital age is the effortless, borderless ability to share

information. That is its threat as well. As the world’s information moves into cyberspace, surveillance capabilities have grown commensurately. The US now leads in ability for global data capture, but other nations and actors are likely to catch up, and some already insist that more data be kept within their reach. In the end, there will be no safe haven if privacy is seen as a strictly domestic issue, subject to many carve-outs and lax or non-existent oversight. Human Rights Watch weighed in repeatedly throughout 2013 on the human rights implications of Snowden’s revelations of mass surveillance, and the need to protect whistleblowers. This essay looks at how the law of privacy developed, and where it needs to

reach today so that privacy is globally respected by all governments, for all people. Global mass surveillance poses a threat to human rights and democracy, and once again, the law must rise to the challenge.

Privacy = Moral Obligation

Equal freedom establishes privacy not only as a duty but also as a rightMokrosinska, 2014Dorota, Research Fellow in Philosophy at the University of Amsterdam, The Netherlands (2014), Privacy and the Integrity of Liberal Politics: The Case of Governmental Internet Searches. Journal of Social Philosophy, 45: 369–389. doi: 10.1111/josp.12068I close my argument by drawing attention to the value and the normative status of privacy in political practice. I have argued that privacy is implicated in the concept of public justification that liberals place at the core of the concept of political

legitimacy. Public justification requires that people explain to one another how the principles and policies they advocate can be supported by reasons that everyone can reasonably accept. That requirement is substantially linked to the idea of the equal freedom of individuals: equal freedom between individuals acting in the political domain is not realized unless policies are justified to all those who are subject to them. Political liberals tie the concept of public justification to an obligation that falls on individuals as members of political societies. In this context, Rawls speaks of a “duty of civility,”62 Lafont and Audi speak of a similar duty.63 Now one cannot appeal to reasons that everyone can accept unless one holds back and refrains from bringing under collective attention one's unreasonable and comprehensive views. This is to say that one

cannot perform the duty of civility unless one brackets such material as private. From this perspective, privacy is an aspect of the duty of civility and a condition of equal freedom. Equal freedom requires not only that individuals withhold their unreasonable and/or comprehensive views from the political forum. It also requires that they not attend to similar material in others. Given that such material is equally dysfunctional to the political realm, its exposure would be equally threatening to equal freedom. From that perspective, refraining from seeking, scrutinizing and exposing unreasonable and/or comprehensive beliefs of

others is another aspect of the duty of civility. The same point can be expressed in the language of rights. If one's equal freedom cannot be realized unless others refrain from attending to one's (unreasonable) comprehensive views, then one is entitled, by virtue of equal freedom, that they do so. In this

sense, equal freedom establishes privacy not only as a duty but also as a right.

Moral obligation to protect privacy — just as important as any other rightGavison 12 — Ruth E. Gavison, Professor of Human Rights Law at Hebrew University Law Faculty. Born in Jerusalem. Received an LLB (cum laude) in 1969, LLM (summa cum laude) in 1971, and BA in economics and philosophy (1970), all from Hebrew University. Law clerk at the Israel Supreme Court (Justice Benjamin Halevi). Admitted to the Israeli bar in 1971. In 1975 she received a D.Phil. in legal philosophy from Oxford University, 2012 (“Privacy and the Limits of Law,” Yale Law Journal, Vol 28 No. 3, Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2060957, Accessed on 7-15-15)It is here that understanding the reasons for the new concern with privacy becomes crucial. It is true that individuals today enjoy more opportunities for privacy in some areas, but this observation, taken alone, is misleading. The rarity of actions is not a good indication of the need for privacy, or of the extent to which invasions are un-

desirable. We enjoy our privacy not because of new opportunities for seclusion or because of greater control over our interactions, but be- cause of our anonymity, because no one is interested in us. The moment someone becomes sufficiently interested, he may find it quite easy to take all that privacy away. He may follow us all the time, ob- tain information about us from a host of data systems, record our con- versations, and intrude into our bedrooms. What protects privacy is not the difficulty of invading it, but the lack of motive and interest of others to do so. The

important point, however, is that if our privacy is invaded, it may be invaded today in more serious and more permanent ways than ever before. Thus, although most of us are unlikely to experience a substantial loss of privacy, we have an obligation to protect those who lose their anonymity. In

this sense, privacy is no different from other basic entitlements. We are not primarily concerned with the rights of criminal suspects because we have been exposed to police brutality ourselves. We know that we may be exposed to it in the future, but, more generally, we want to be part of a society that is committed to minimizing violations of due process.

NSA bulk surveillance violates a global obligation to protect privacy, that of a social contract(Wittes 15, Benjamin Wittes, Monday, November 11, 2013, 5:05 PM, Acc. 7-15-2015, "A Global Human Right to Privacy?," Lawfare, http://www.lawfareblog.com/global-human-right-privacy, editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution) LSIt's time for governments to come clean about their practices, and not wait for the newest revelations. All should acknowledge a global obligation to protect everyone's privacy, clarify the

limits on their own surveillance practices (including surveillance of people outside their own borders), and ensure they don't trade mass surveillance data to evade their own obligations. Of course it is important to protect security, but western allies should agree that mass, rather than narrowly targeted, surveillance is never a normal or proportionate measure in a democracy. Washington is finally grappling with the Snowden revelations, holding hearings and considering legislation that might help to rein in the NSA's seemingly unconstrained power. Some of these bills would limit or end bulk data collection, institute greater transparency, and give the secret court that oversees surveillance requests a more adversarial character. These are important proposals, but none include protection for non-Americans abroad. The US has the capacity to routinely invade the digital lives of people the world over, but it barely recognises any privacy interest of those outside the US (emphasis added). Roth's article echoes arguments made recently by David Cole on Just Security (here and here), to which

Orin Kerr responded (here and here) on Lawfare. I fully agree with Orin's response to Cole, which essentially posits that the US government's obligation to respect the privacy of its citizens and those within its territory stems from a social contract not present with everyone else in the world.

Privacy sustains a sense a self-agency Magi, Trina J., "Fourteen Reasons Privacy Matters: A Multidiscipinary Review of Scholarly

Literature" (2011). University Libraries Faculty and Staff Publications. Paper 4.2. Privacy affirms self-ownership and the ability to be a moral agent.—Jeffrey Reiman identifies privacy as the “social ritual by which we show one another that we regard each person as the owner of [her]self, [her] body, and [her ]thoughts” [27, p. 205]. Through privacy, he says, society lets the

individual know he or she has the ability and the authority to withdraw from others’ scrutiny, and “those who lose this ability and authority are thereby told that they don’t belong to themselves; they are specimens belonging to those who would investigate them” [27, p. 205]. Reiman claims that we understand only selves that think of themselves as “owning themselves” to be “moral selves”—selves that accept ownership of and responsibility for their

actions [27, p. 206]. Understood this way, privacy is a fundamental right that enables people to think of their existence as their own and “protects the individual’s interest in becoming, being, and remaining a person” [17, p. 44]. As evidence (though not proof) of the fact that privacy is essential to the creation and maintenance of selves, Reiman refers to Goffman’s study “On the Characteristics of Total Institutions,” which says that such institutions (e.g., prisons) include deprivation of privacy as an essential ingredient in achieving their goal of mortification of the self [17, p. 40].

Security and Liberty trade-offVermeule and Posner, [Posner is an American law professor and son of the United States Court of Appeals for the Seventh Circuit judge Richard Posner. He is an expert in law and economics, international law, contract law, and bankruptcy, among other areas. As of 2014, he was the 4th most-cited legal scholar in the United States.] [Vermeule is a graduate of Harvard College (A.B., 1990) and Harvard Law School. Vermeule clerked for Supreme Court Associate

Justice Antonin Scalia and Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit.] “Terror In The Balance” Pgs 21-26, 2007The general framework for our position is the tradeoff thesis. With other scholars, we argue that there is a tradeoff between security and liberty. The basic idea of the tradeoff is not original with us;7 indeed, it is one of the oldest theories of emergency powers. Our contribution is to analyze the comparative statics of institutional performance, of both government and courts, in striking the security-liberty balance during both emergencies and normal times. We pursue the tradeoff thesis to its ultimate conclusions without flinching at its implications, particularly its implications for judicial review of government action in

times of emergency. The tradeoff thesis can be stated in simple terms. Both security and liberty are valuable goods that contribute to individual well-being or welfare. Neither good can simply be maximized without regard to the other. The problem from the social point of view is to optimize: to choose the joint level of liberty and security that maximizes the aggregate welfare of the population. Liberty, of course, has many different strands—there are many different kinds of negative and positive freedom—but those complexities are not material to our approach. As political theorist Jon Elster puts it, "[t]he metric for security can be established as the risk of harm. The metric for liberty is more difficult to determine, since the value includes such disparate components as freedom of speech, freedom of association, due process, and privacy. To get around this problem we basically have to ignore it, by stipulating that we have some way of aggregating the components of liberty into an aggregate measure."8 In our view, any conceptual imprecision that arises from this aggregation does not affect the lower-level institutional problems we will discuss. To motivate the tradeoff theory, consider the wide range of real-world settings in which security and liberty, in its various aspects, trade

off against one another: Security and privacy. Under the USA PATRIOT Act, passed in 2001 and renewed in 2005 and 2006, executive officials may inspect records held by businesses and other institutions, including the records held by libraries and

bookstores about the activities of their patrons. As a doctrinal matter, such records do not carry a "reasonable expectation of privacy" sufficient to trigger the Fourth Amendment's protections against unreasonable searches and seizures. Nonetheless, civil libertarians have protested that this provision of the USA PATRIOT Act goes too far in authorizing governmental intrusion on personal information and chills the exercise of free speech. Security and due process. After the 9/11 attacks, President George W. Bush issued an executive order that created military commissions to try noncitizen detainees charged with being enemy combatants. The order granted defendants some procedural protections but far fewer than would be afforded in ordinary criminal trials; most notably, the fact finder is not a jury but a panel of military officers, and proof is by a less stringent standard than that used in criminal trials, which require proof beyond a reasonable doubt.9 Recently, the Supreme Court invalidated, on statutory grounds, part of the administration's scheme. Apart from trials before military commissions, the president has also claimed the authority to detain citizen or noncitizen enemy combatants for the duration of hostilities. A decision by the Supreme Court, Hamdi v. United States,10 placed some procedural restrictions on executive detention of enemy combatants but left open the possibility that military tribunals charged with reviewing combatant status, rather than judicial hearings, will satisfy those restrictions. In these respects, the law of military detention and military commissions sacrifices due process protections to expedite the handling of suspected enemy combatants. Security and free speech. In the United Kingdom, after the July 7, 2005, attacks on the London bus and train system, Parliament enacted major legislation, the Terrorism Act 2006, that curtails speech in the name of security. Among other broad provisions, the law prohibits statements that directly or indirectly encourage terrorist acts and proscribes organizations that glorify terrorism.11 At the same time, however, the U.K. government has also sought to restrict speech along another margin, by prohibiting "hate speech" directed against Muslims.12 We return to the latter point in chapter 3. These proposals build on existing laws,13 enacted after 9/11, that have allowed the conviction of radical Muslim clerics for inciting "racial and religious hatred" and violence. 14 In the United States, a similar (albeit much more tentative) reform involves changes in FBI guidelines, after 9/11, that permitted agents to enter public places—including mosques—to monitor possible terrorist activity.15 Security and nondiscrimination. After 9/11, federal agencies engaged in the profiling of possible terrorists on racial, ethnic, national, and religious grounds. Examples include the special registration program, now defunct, which required aliens in the United States from a designated list of (almost exclusively) Muslim nations to register with the Immigration and Naturalization Service (INS); the Absconder Initiative, under which aliens from nations with substantial al Qaeda presence were targeted for removal; and Operation

Liberty Shield, which subjected asylum applicants from such nations to mandatory detentions.16 These were explicit policies; some critics have also claimed that federal officials have engaged in covert ethnic or racial profiling in airport screening and other security-related searches.17 These are examples in which government has curtailed civil liberties or civil rights, as compared to some baseline set by preexisting rights or by the ordinary legal system, in the name of increased security during an emergency. Of course, nothing so far said shows that these policies are good, that these restrictions of civil liberty really have increased security, or that judges should uphold the relevant policies. They do show, however, that in many domains government officials believe or at least say that an increase in security requires restricting liberty. It is occasionally suggested that some examples of this sort involve tradeoffs within the domain

of security, rather than between security and liberty. If government officials take intrusive action in order to fight terrorism, this can cause a kind of insecurity to those affected. But putting the problem this way does not eliminate the tradeoff; it just relabels it. We might then speak of a tradeoff between "security type 1"—

the social good that is increased to the extent that the terrorist threat is reduced—and "security type 2"—the social good that is reduced by governmental measures aimed at reducing the terrorist threat. It is not clear what this relabeling accomplishes, so we will stick with the conventional terms. The claim that security and liberty trade off against one another implies that respecting civil liberties often has real costs in the form of reduced security. Sometimes civil libertarians deny this; below, we offer an interpretation of that position. It is clear, however, that sometimes tangible security harms do in fact occur when claims of civil liberties are respected. Consider the following examples: 9/11 and the Intelligence Wall In 1978, Congress passed the Foreign Intelligence Surveillance Act,18 creating procedures for judicial oversight of searches and wiretaps in cases involving foreign agents and intelligence. The act provided that the "primary purpose" of the surveillance must be to gather foreign intelligence information. By a complex process of institutional change, the provision came to be interpreted—probably erroneously19—as having created a "wall," or barrier, to information sharing between intelligence and law enforcement. The rationale for the wall was civil libertarian, resting on fears that law enforcement would exploit intelligence information to bring ordinary criminal prosecutions; it was never clearly explained why such a practice would be bad. By the late 1990s, the prevailing understanding was that the wall was quite thick. This was itself an erroneous construal of internal Justice Department guidelines issued in 1995; but it was predictable that the guidelines would be misinterpreted by field agents in the FBI and elsewhere, as the guidelines had been made extremely complex and refined, in an effort to show punctilious respect for civil liberties.20 Although counterfactuals are uncertain, it is plausible that, absent the wall, the 9/11 attacks would have been thwarted—as the 9/11 Commission found.21 The commission documented a series of instances in which the CIA possessed information that would have helped the FBI, whose agents were intermittently on the trail of the 9/11 attackers. At crucial junctures, the wall blocked information sharing between these agencies. Screening and Profiling The 9/11 Commission also found that the attacks could have been prevented by more aggressive screening and profiling at immigration points. "More than half of the 19 hijackers were flagged by the Federal Aviation Administration's profiling system when they arrived for their flights, but the consequence was that bags, not people, were checked."2' The commission urged both a more systematic combination of immigration enforcement functions with counterterrorism functions and expanded discretion for line officials to use discretionary, intuitive judgment to screen out threats.23 These two reforms—combination rather than separation of functions and increased discretion for executive officers—are the sort of adjustment that governments routinely make during times of emergency and that are hallmarks of the administrative state where economic regulation is concerned, but that civil libertarians resist. Coercive Interrogation Statutes and treaties prohibit torture by the U.S. government; although the term is narrowly defined, the so-called McCain Amendment, enacted in 2006, also prohibits "cruel, inhuman and degrading" treatment.24 The civil libertarian arguments for such prohibitions are obvious, and we evaluate them in chapter 6. Here, we merely note strong evidence that coercive interrogation, in both its stronger and weaker forms, saves lives (that could not be saved through other means at acceptable cost). The director of the Central Intelligence Agency has stated that coercive interrogation has produced actionable intelligence that has helped to thwart terrorist attacks;25 in chapter 6, we recount evidence from Israel to the same effect and rebut critiques of that evidence. Quite probably, respecting the civil liberties of those who would otherwise be subject to coercive interrogation effectively causes the deaths of some unknown and unidentifiable set of terrorism victims. Free Speech (and Democracy) Consider the striking finding that press freedoms are positively correlated with greater transnational terrorism; nations with a free press are more likely to be targets of such terrorism.26 Correlation is not causation, but there are obvious mechanisms that might explain this, such as the ability of terrorists to exploit free media coverage to spread fear and dramatize their cause and the freedom of the press to reveal security secrets. According to the 9/11 Commission's report, "al Qaeda's senior leadership had stopped using a particular means of

communication almost immediately after a leak to the Washington Times." 27 The Bush administration says that the New York Times's leak of the National Security Agency's surveillance program has alerted terrorists that the United States is monitoring communications they may have believed were secure. And the British government believes that fundamentalist mullahs used sermons to recruit terrorists and encourage terrorism.28 More broadly still, democracies in general are more often subjected to suicide attacks29 and terrorism of all sorts, both domestic and transnational, while authoritarian regimes suffer much less from these harms.38 Of course, not every issue of security policy presents such a tradeoff. At certain levels or in certain domains, security and liberty can be complements as well as substitutes. Liberty cannot be enjoyed without security, and security is not worth enjoying without liberty. And, in some circumstances, it is possible that there are policies, other than the ones that government adopts, that would increase both security and liberty. In some situations, rational policymakers can increase security at no cost to liberty, or increase liberty at no cost to security. But it is plausible to assume that advanced liberal democracies rarely overlook such opportunities, as we discuss shortly. Only a very dysfunctional government would decline to adopt policies that draw political support from both proponents of increased security and proponents of increased liberty.

Privacy - Deontology

Privacy is Kantian — key to human dignityBuitelaar, 2014J. C. Professor, Tilburg Institute for Law, Technology, and Society, Tilburg University, Tilburg, The Netherlands "Privacy and Narrativity in the Internet Era." The Information Society 30.4 (2014): 266-281.

There are manifold definitions and views of privacy. A seminal starting point is that of Warren and Brandeis

(1890), namely, that privacy should be regarded as a general right to the immunity of the person. The right to privacy, as part of the more general right to the immunity of the person, is related to the right to one's personality. From this point of view it can be argued that the value of privacy is grounded in the principle of permitting and protecting an autonomous life (Kant 1996; Rössler 2001). The moral philosopher Kant was an early proponent of the view of the intrinsic value of human dignity (Kant

1996). Kant did, however, put a constraint on this view, namely, that humans owe themselves a duty of self-esteem but also a claim to and the duty to respect other humans. In Article 1 of the Universal Declaration of Human Rights, this Kantian principle of intrinsic human dignity is adopted, where

the declaration states that all human beings are born free and equal in dignity and rights. This inherent dignity accounts for the possession of inalienable human rights. These rights find their origin in the capacity of the human being to reflect and make choices. A. R. Miller combines these two concepts to explain the importance of informational self-determination for preservation of privacy: “the basic attribute of an effective right of privacy is the individual's ability to control the circulation of information relating to himself; a power that often is essential to maintaining social relationships

and personal freedom” (Miller 1971, 25). If the individual can no longer determine to what extent they reveal themselves to the outside world, privacy is robbed of its core value, which is the opportunity to freely decide for oneself. The intrinsic dignity of the individual, from the liberal point of

view at least, guarantees the autonomy to act freely and thus make the choices that allow a person to flourish and to develop their personality. This is also the principle of personal freedom enshrined in the German Constitution. Furthermore,

privacy provides the individual with a safe place, where they can decide for themselves which relations they enter into. I maintain that they can only do so if they can control who has access to them. When this situation exists, they have the assurance that they can control the patterns of behavior they want to adopt.

A2 Security First

Can’t trade privacy for security, rights are presumptively more important.Moore, 2011 Adam D. "Privacy, security, and government surveillance: WikiLeaks and the new accountability." Public Affairs Quarterly (2011): 141-156.A counterpart to the "just trust us" view is the "nothing to hide" argument.23 According to this argument we are to balance the potential for harm of data mining and the like with the security interests of detecting and preventing terrorist attacks. I suppose we could weaken this further by merely referencing "security interests," which would include, but not be limited to, "terrorist attacks."

The idea is that our security interests are almost always more weighty than the minimal costs of surveillance—privacy intrusions are a mere nuisance and are easily traded for increases in security. A formal version of the argument might go something like this: P1 When two fundamental interests conflict, we should adopt a balancing strategy, determine which interest is more compelling, and then sacrifice the lesser interest for the greater. If it is generally true that one sort of interest is more fundamental than another, then we are warranted in adopting specific policies that seek to trade the lesser interest for the greater interest. P2. In the conflict between privacy and security, it is almost always the case

that security interests are weightier than privacy interests. The privacy intrusions related to data mining or National Security Agency (NSA) surveillance are not as weighty as our security interests in stopping terrorism, and so on—these sorts of privacy intrusions are more of a nuisance than a harm. C3. So it follows that we should sacrifice privacy in these cases and perhaps adopt policies that allow privacy intrusions for security reasons. One could easily challenge Premise 2—there are numerous harms associated with allowing surveillance that are conveniently minimized

or forgotten by the "nothing to hide" crowd. Daniel Solove notes that "privacy is threatened not by singular egregious acts but by a slow series of small, relatively minor acts, which gradually begin to add

up."24 Solove also points out, as I have already highlighted, that giving governments too much power undermines the mission of providing for security—the government itself becomes the threat to security. The point was put nicely by John Locke: "This is to think, that Men are so foolish, that they take care to avoid what Mischiefs may be done them by Pole-Cats, or Foxes, but are content, nay think it Safety, to be devoured by Lions."25 It is also important to note the risk of mischief associated with criminals and terrorists compared to the kinds of mischief perpetrated by governments—even our

government. In cases where there is a lack of accountability provisions and independent oversight, governments may pose the greater security risk. Moreover, there is sensitive personal information that we each justifiably withhold from others, not because it points toward criminal activity, but because others simply have no right to access this information. Consider someone's sexual or medical history. Imagine someone visiting a library to learn about alternative lifestyles not accepted by the majority. Hiding one's curiosity about, for example, a gay lifestyle may be important in certain contexts. This is true of all sorts of personal information like religious preferences or political party affiliations. Consider a slight variation of a "nothing to hide" argument related to what might be called physical privacy. Suppose there was a way to complete body cavity searches without harming the target or being more than a mere nuisance. Perhaps we search the targets after they have passed out drunk. Would anyone find it plausible to maintain a "nothing to hide" view in this case? I think not—and the reason might be that we are more confident in upholding these rights and policies that protect these rights than we are of almost any cost-benefit analysis

related to security. Whether rights are viewed as strategic rules that guide us to the best consequences, as Mill would argue, or understood as deontic constraints on consequentialist sorts of reasoning, we are more confident in them than in almost any "social good" calculation. I am not saying that rights are absolute—they are just presumptively weighty. This line of argument is an attack on

the first premise of the "nothing to hide" position. Rights are resistant to straightforward cost-benefit or consequentialist sort of arguments. Here we are rejecting the view that privacy interests are the sorts of things that can be traded for security.

Security does not trump privacy.Moore, 2011 Adam D. "Privacy, security, and government surveillance: WikiLeaks and the new accountability." Public Affairs Quarterly (2011): 141-156.The "Nothing to Hide" Argument

According to what might be called the “security trumps” view, whenever privacy and security conflict, security wins—that is, security is more fundamental and valuable than privacy. First,

without arguments, it is not clear why a “security trumps” view should be adopted over a “privacy trumps” view. Privacy or

perhaps self-ownership seems at least as fundamental or intuitively weighty as security. Foreshadowing

things to come, it is not at all clear—at least in some cases—that privacy does not enhance security and vice versa. Suppose that rights afforded their holders specific sorts of powers. For example, Fred’s privacy rights generate in him a god-like power to completely control access to his body and to information about him. If we had such powers, we would also have increased security. Furthermore, if we had complete security in our bodies and property, including informational security, we would

have secured privacy as well. The tension between privacy and security arises because these values cannot be protected by individuals acting alone. Nevertheless, it is important to note that as these services are contracted out to other agents, like governments, we grant these parties power over us—power that may undermine security and privacy. Continuing with the “security trumps” argument, it would seem odd to maintain that any increase in security should be preferred to any increase in privacy or any decrease in privacy is to be preferred to any decrease in security. Such a view would sanction massive violations of privacy for mere incremental and perhaps momentary gains in security. Also, given that others will provide security and power is likely a necessary part of providing security, we

have strong prudential reasons to reject the “security trumps” view. If those who provide security were saints, then perhaps there would be little to worry about. The cases already presented are sufficient to show that we are not dealing with saints.\

Greatest Hits of Rights Cards

This is not a question of uniqueness – it is a linear disadvantage – infringements on liberty must be rejected at all costs or we forfeit to totalitarianism.Petro, Toledo Law Review, 1974 (Sylvester, Spring, page 480)

However, one may still insist, echoing Ernest Hemingway - "I believe in only one thing: liberty." And it is always well to bear in mind

David Hume's observation: "It is seldom that liberty of any kind is lost all at once." Thus, it is unacceptable to say that the invasion of one aspect of freedom is of no import because there have been invasions of so many other aspects. That road leads to chaos, tyranny, despotism, and the end of all human aspiration. Ask Solzhenitsyn. Ask Milovan Dijas. In sum, if one believed in freedom as a

supreme value and the proper ordering principle for any society aiming to maximize spiritual and material welfare, then every invasion of freedom must be emphatically identified and resisted with undying spirit.

Don’t evaluate the reactions of others to your ethical decision – that method of calculation invites the worst form of nihilism and ongoing atrocitiesAlan Gewirth, Professor Emeritus of Philosophy at the University of Chicago, PhD in philosophy from Columbia University, 1982, Human Rights: Essays on Justification and Application, p. 229-230None of the above distinctions, then, serves its intended purpose of defending the absolutist against the consequentialist. They do not show that the son's refusal to torture his mother to death does not violate the other persons' rights to life and that he is not morally responsible for their deaths. Nevertheless, the distinctions can be supplemented in a way that does serve to establish these conclusions. The required supplement is provided by the principle of the intervening action. According to this principle, when there is a causal connection between some person A's performing some action (or inaction) X and some other person C's incurring a certain harm Z, A's moral responsibility for Z is removed if, between X and Z, there intervenes some other action Y of some person B who knows the relevant circumstances of his action and who intends to produce Z or who produces Z through recklessness. The reason for this removal is that B's intervening action Y is the more direct or proximate cause of Z and, unlike A's action (or inaction), Y is the sufficient condition of Z as it actually occurs." An example of this principle may help to show its connection with the

absolutist thesis. Martin Luther King Jr. was repeatedly told that because he led demonstrations in

support of civil rights, he was morally responsible for the disorders, riots, and deaths that ensued and

that were shaking the American Republic to its foundations.” By the principle of the intervening action, however, it was King's opponents who were responsible because their intervention operated as the sufficient conditions of the riots and injuries. King might also have replied that the Republic would not be worth saving if the price that had to be paid was the violation of the civil rights of black Americans. As for the rights of the other Americans to peace and order, reply would be that these rights cannot justifiably be secured at the price of the rights of blacks. It follows from the principle of the intervening action

that it is not the son but rather the terrorists who are morally as well as causally responsible for the many deaths that do or may ensue on his refusal to torture his mother to death. The important point is not that he lets these persons die rat than kills them, or that he does not harm them but only fails to help the or that he intends their deaths only obliquely but not directly. The point is rather that it is only through the intervening lethal actions of the terror that his refusal eventuates in the many deaths. Since the moral responsibility is not the son's, it does not affect his moral duty not to torture his mother to death, so that her correlative right remains absolute.

Violations of liberty negate the value to existence.Raz, Philosopher, 1986(Joseph, The Morality of Freedom, page 307)

One way to test the thesis of the primacy of action reasons is to think of a person who is entirely passive and is continuously led, cleaned, and pumped full with hash, so that he is perpetually content, and wants nothing but to stay in the

same condition. It’s a familiar imaginary horror. How do we rank the success of such a life? It is not the worst life one can have. It is simply not a life at all. It lacks activity, it lacks goals. To the extent that one is tempted to judge it more

harshly than that and to regard it as a ‘negative life’ this is because of the wasted potentiality. It is a life which could have been and was not. We can isolate this feature by imagining that the human being concerned is

mentally and physically effected in a way which rules out the possibility of a life with any kind of meaningful pursuit in it. Now it is just not really a life at all. This does not preclude one from saying that it is better than human

life. It is simply sufficiently unlike human life in the respects that matter that we regard it as only a degenerate case of human life. But clearly not being alive can be better than that life.

Rights must come first or they will always be violated in the name of securityGeorge Kateb, Professor of Politics at Princeton University, 1992, The Inner Ocean: Individualism and Democratic Culture, p. 5All I wish to say now is that unless rights come first they are not rights. They will tend to be sacrificed to some purpose deemed higher than the equal dignity of every individual. There will be little if any concept of the integrity or inviolability of each individual. The group or the majority or the good or the sacred or the vague fixture will be preferred. The beneficiaries will be victimized along with the victims

because no one is being treated as a person who is irreplaceable and beyond value. To make rights anything but primary, even though in the name of human dignity, is to injure human dignity.

Utilitarian ethics sacrifice the individual at the altar of maximization of general utility making the grossest rights violations both inevitable and frequent Christopher H. Schroeder, Professor of Law, Duke University; Visiting Professor of Law, UCLA 1985-86,

1986, Columbia Law Review, Rights Against Risks, 86 Colum. L. Rev. 495The anxiety to preserve some fundamental place for the individual that cannot be overrun by larger social considerations underlies what H.L.A. Hart has aptly termed the

"distinctively modern criticism of utilitarianism," 58 the criticism that, despite its famous slogan, "everyone [is] to count for one," 59 utilitarianism ultimately denies each individual a primary place in its system of values. Various versions of utilitarianism evaluate actions by the consequences of those actions to maximize happiness, the net of pleasure over pain, or the satisfaction of desires. 60

Whatever the specific formulation, the goal of maximizing some measure of utility obscures and diminishes the status of each individual. It reduces the individual to a conduit, a reference point that registers the appropriate "utiles," but does not count for anything independent of his monitoring function. 61 It also produces moral requirements that can trample an individual, if necessary, to maximize utility, since once the net effects of a proposal on the maximand have been taken into account, the individual is expendable.

Counting pleasure and pain equally across individuals is a laudable proposal, but counting only pleasure and pain permits the grossest inequities among individuals and the [*509] trampling of the few in furtherance of the utility of the many. In sum, utilitarianism makes the status of any individual radically contingent. The individual's status will be preserved only so long as that status contributes to increasing total utility. Otherwise, the individual can be discarded .

The disads serve to destroy the rights of individuals – violating rights in the name of survival destroys the value to life Daniel Callahan, Institute of Society and Ethics, 1973, The Tyranny of Survival, p. 91-93The value of survival could not be so readily abused were it not for its evocative power. But abused it has been. In the name of survival, all manner of social and political evils have been committed against the rights of individuals, including the right to life. The purported threat of Communist domination has for over two decades fueled

the drive of militarists for ever-larger defense budgets, no matter what the cost to other social needs. During World War II, native Japanese-Americans were herded, without due process of law, to detention camps. This policy was later upheld by the Supreme Court in Korematsu v. United States (1944) in the general context that a threat

to national security can justify acts otherwise blatantly unjustifiable. The survival of the Aryan race was one of the official legitimations of Nazism. Under the banner of survival, the government of South Africa imposes a ruthless apartheid , heedless of the most elementary human rights. The Vietnamese war has seen one of the greatest of the many absurdities tolerated in the name of survival: the destruction of villages in order to save them. But it is not only in a political setting that survival has been evoked as a final and unarguable value. The main rationale B. F. Skinner offers in Beyond Freedom and Dignity for the controlled and conditioned society is the need for survival. For Jacques Monod, in Chance and Necessity, survival requires that we overthrow almost

every known religious, ethical and political system. In genetics, the survival of the gene pool has been put forward as sufficient grounds for a forceful prohibition of bearers of offensive genetic traits from marrying and bearing children. Some have even suggested that we do the cause of survival no good by our misguided medical efforts to find means by which those suffering from such common genetically based diseases as diabetes can live a normal life, and thus procreate even more diabetics. In the field of population and environment, one can do no better than to cite Paul Ehrlich, whose works have shown a high dedication to survival, and in its holy name a willingness to contemplate governmentally enforced abortions and a denial of food to surviving populations of nations which have not enacted population-control policies. For all these

reasons it is possible to counterpoise over against the need for survival a "tyranny of survival." There seems to be no imaginable evil which some group is not willing to inflict on another for sake of survival, no rights, liberties or dignities which it is not ready to suppress. It is easy, of course, to recognize the danger

when survival is falsely and manipulatively invoked. Dictators never talk about their aggressions, but only about the need to defend the fatherland to save it from destruction at the hands of its enemies. But my point goes deeper than that. It is directed even at a legitimate concern for survival, when that concern is allowed to reach an

intensity which would ignore, suppress or destroy other fundamental human rights and values. The potential tyranny survival as

value is that it is capable, if not treated sanely, of wiping out all other values. Survival can become an obsession and a disease, provoking a destructive singlemindedness that will stop at nothing. We come here to the fundamental moral dilemma. If, both biologically and psychologically, the need for survival is basic to man, and if survival is the precondition for any and all human achievements, and if no other rights make much sense without the premise of a right to life—then how will it be possible to honor and act upon the need for survival without, in the process, destroying everything

in human beings which makes them worthy of survival. To put it more strongly, if the price of survival is human degradation, then there is no moral reason why an effort should be made to ensure that survival. It would be the Pyrrhic victory to end all Pyrrhic victories.

Policymakers cannot take into account improbable worst case scenarios like the disads – worst case scenarios do not prove the undesirability of the planNicholas Rescher, Professor of Philosophy at the University of Pittsburgh, 1983, Risk: A Philosophical Introduction to the Theory of Risk Evaluation and Management, p. 50The "worst possible case fixation" is one of the most damaging modes of unrealism in deliberations about risk in real-life situations. Preoccupation about what might happen "if worst comes to worst" is counterproductive whenever we proceed without recognizing that, often as not,

these worst possible outcomes are wildly improbable (and sometimes do not deserve to be viewed as real possibilities at all). The crux in risk deliberations is not the issue of loss "if worst comes to worst" but the potential acceptability of this prospect within the wider framework of the risk situation, where we may well be prepared "to. take

our chances," considering the possible advantages that beckon along this route. The worst threat is certainly something to be borne in mind and taken into account, but it is emphatically not a satisfactory index of the overall seriousness or gravity of a situation of hazard.

Util Atrocities

Util allows for the worst atrocities in the name of the greater good. Weizman 11—professor of visual and spatial cultures @ Goldsmiths, University of London (Eyal, 2011, “The Least of All Possible Evils: Humanitarian Violence from Arendt to Gaza,” rmf)The theological origins of the lesser evil argument still cast a long shadow on the present. In fact the idiom has become so deeply ingrained, and is invoked in such a staggeringly diverse set of contexts – from individual situational ethics and international relations, to attempts to govern the economics of violence in the context of the ‘war on terror’ and the

efforts of human rights and humanitarian activists to manoeuvre through the paradoxes of aid – that it seems to have altogether taken the place previously reserved for the term ‘good’. Moreover, the very evocation of the ‘good’ seems to everywhere invoke the utopian tragedies of modernity, in which evil seemed lurking in a horrible manichaeistic inversion. If no hope is offered in the future, all that remains is to insure ourselves against the risks that it poses, to moderate and lessen the collateral effects of necessary acts, and tend to those who have suffered as a result. In relation to the ‘war on terror’, the terms of the lesser evil were most clearly and prominently articulated by former human rights scholar and leader of Canada’s Liberal Party Michael Ignatieff. In his book The Lesser Evil,

Ignatieff suggested that in ‘balancing liberty against security’ liberal states establish mechanisms to regulate the breach of some human rights and legal norms , and allow their security services to engage in forms of extrajuridical violence – which he saw as lesser evils – in order to fend off or minimize potential greater evils, such as terror attacks on civilians of western states. 11 If governments need to violate rights in a terrorist emergency, this should be done, he thought, only as an exception and according to a process of adversarial scrutiny. ‘Exceptions’, Ignatieff states, ‘do not destroy the rule but save it, provided that they are temporary,

publicly justified, and deployed as a last resort.’12 The lesser evil emerges here as a pragmatic compromise, a ‘tolerated sin’ that functions as the very justification for the notion of exception . State violence in this model takes part in a necro-economy in which various types of destructive measure are weighed in a utilitarian fashion , not only in relation to the damage they produce, but to the harm they purportedly prevent and even in relation to the more brutal measures they may help restrain. In this logic, the problem of contemporary state violence resembles indeed an all-too-human version of the mathematical minimum problem of the divine calculations previously mentioned, one tasked with determining the smallest level of violence necessary to avert the greatest harm. For the architects of contemporary war this balance is trapped between two poles: keeping violence at a low enough level to limit civilian suffering, and at a level high enough to bring a decisive end to the war and bring peace.13 More recent works by legal scholars and legal advisers to states and militaries have sought to extend the inherent elasticity of the system of legal exception proposed by Ignatieff into ways of rewriting

the laws of armed conflict themselves.14 Lesser evil arguments are now used to defend anything from targeted assassinations and mercy killings , house demolitions, deportation, torture,15 to the use of (sometimes) non-lethal chemical weapons , the use of human shields, and even ‘ the intentional targeting of some civilians if it could save more innocent lives than they cost. ’16 In one

of its more macabre moments it was suggested that the atomic bombings of Hiroshima might also be tolerated under the defence of the lesser evil. Faced with a humanitarian A-bomb, one might wonder what, in fact, might come under the definition of a greater evil. Perhaps it is time for the

differential accounting of the lesser evil to replace the mechanical bureaucy of the ‘banality of evil’ as

the idiom to describe the most extreme manifestations of violence . Indeed, it is through this use of the lesser evil that societies that see themselves as democratic can maintain regimes of occupation and neo-colonization. Beyond state agents, those practitioners of lesser evils, as this book claims, must also include the members of independent nongovernmental organizations that make up the ecology of contemporary war and crisis

zones. The lesser evil is the argument of the humanitarian agent that seeks military permission to provide medicines and aid in places where it is in fact the duty of the occupying military power

to do so, thus saving the military limited resources. The lesser evil is often the justification of the military officer who attempts to administer life (and death) in an ‘enlightened’ manner; it is sometimes,

too, the brief of the security contractor who introduces new and more efficient weapons and spatio-technological means of domination , and advertises them as ‘humanitarian technology’ . In

these cases the logic of the lesser evil opens up a thick political field of participation bringing together otherwise opposing fields of action, to the extent that it might obscure the fundamental moral differences between these various groups. But, even according to the terms of an economy of losses and

gains, the concept of the lesser evil risks becoming counterproductive: less brutal measures are also those that may be more easily naturalized , accepted and tolerated – and hence more frequently used, with the result that a greater evil may be reached cumulatively . Such observations amongst other paradoxes are unpacked in one of the most powerful challenges to ideas such as Ignatieff’s – Adi Ophir’s philosophical essay The Order of Evils. In this book Ophir developed an ethical system that is similarly not grounded in a search for the ‘good’ but rather in minimizing the harms that he refers to as ‘evils’. Ophir unpacks the systemic logic of an economy of violence – the possibility of a lesser means and the risk of more damage – but insists that questions of violence are forever unpredictable and will always escape the capacity to calculate them. Inherent in Ophir’s insistence on the necessity of calculating is, he posits, the impossibility of doing so. The demands of his ethics are grounded in this impossibility.17

Util = Ressentiment

Even if you win Util applies, its bad: It's a life negating herd mentality that subverts itself by threating survivalAnomaly ‘5 Jonny Anomaly faculty fellow at the Parr Center for Ethics and a visiting professor at the Duke/UNC program in Philosophy, Politics, and Economics.“Nietzsche’s Critique of Utilitarianism” The Journal of Nietzsche Studies, Issue 29, Spring 2005, pp. 1-15 Project MuseWhat does it mean to espouse the values of a herd animal? We have already¶ encountered some of the values Nietzsche associates

with slave morality—humility,¶ industriousness, pity, but in what sense are they “herd” values? If the fundamental ¶ goal of an animal within a herd is its own preservation, and if its own ¶ preservation depends upon the health of the herd of which it is a member, then,¶ Nietzsche supposes, the moral principles of that group will tend to reflect the kind ¶ of egalitarianism embodied in Bentham’s dictum, “Everybody counts for one, and ¶ nobody for more than one.”7 Nietzsche considers this the essence of herd mentality: ¶ “[I]t is the instinct of the herd that finds its formula in this rule—one is equal, ¶ one takes oneself for equal” (WP 925). According to Nietzsche, this egalitarian ¶ formula originates from the benefit

that comes from reciprocal cooperation among¶ equals in a group, but has been extended by Christian morality to apply to

all people— ¶ including unequals. Nietzsche thus construes the golden rule as a precept of¶ “prudence” or mutual advantage, observing that “John Stuart Mill believes in it”¶ as the basis of morality, but that he fails to grasp its prudential origin (WP

925).8¶ Nietzsche also portrays egalitarian values as myopic, dangerous, and potentially¶ self-subverting. This is because, Nietzsche thinks, the opposite of these ¶ values—pain, suffering, inequality; in short, “evil”—is equally indispensable for ¶ the survival and happiness of the very herd that seeks to eradicate it. Accordingly,¶ Nietzsche sharply criticizes Bentham’s hedonic calculus (which correlates happiness¶

maximization with pain minimization) as inconsistent with utilitarian¶ goals. In its place, Nietzsche stresses the necessity of physical suffering and intellectual ¶ struggle for the self-improvement of each and, by extension, the vitality ¶ and happiness of the group. He accordingly rebukes the proponent of any morality ¶ that makes the reduction of suffering its fundamental goal: “[I]f you experience ¶ suffering and displeasure as evil, worthy of annihilation and as a defect of ¶ existence, then it is

clear that besides your religion of pity you also harbor another¶ religion in your heart that is perhaps the mother of the religion

of pity: the religion ¶ of comfortableness” (GS 338). This religion—or, more specifically, morality—¶ of comfort

thwarts its own goals by attempting to eliminate all suffering ¶ (BGE 44).9 In a passage that anticipates what

we now call the “hedonic paradox,”¶ according to which pleasure is diminished when we pursue it directly,¶ Nietzsche ridicules those who, like Bentham, seek to maximize individual or ¶ collective happiness by minimizing pain: “[H]ow little you know of human happiness, ¶ you comfortable and benevolent people, for happiness and unhappiness ¶ are sisters and even twins that either grow up together or, as in your case, remain ¶ small together” (GS 338).10 He goes on to underline the idiosyncratic nature of¶ suffering and the simplemindedness of those who heedlessly strive to relieve thesuffering of others. “It never occurs to them,”

Nietzsche adds, “that . . . the path ¶ to one’s own heaven always leads through the voluptuousness of one’s own hell”¶ (GS 338).

Util Good

No D- Rule – Consequences 1 st

Weigh consequences — especially when responding to terrorism. Isaac 2 Jeffrey C. Isaac, James H. Rudy Professor of Political Science and Director of the Center for the Study of Democracy and Public Life at Indiana University-Bloomington, 2002 (“Ends, Means, and Politics,” Dissent, Volume 49, Issue 2, Spring, Available Online to Subscribing Institutions via EBSCOhost, p. 35-37)As writers such as Niccolo Machiavelli, Max Weber, Reinhold Niebuhr, and Hannah Arendt have taught, an unyielding concern with moral goodness undercuts political responsibility . The concern may be morally laudable,

reflecting a kind of personal integrity, but it suffers from three fatal flaws: (1) It fails to see that the purity of one’s intention does not ensure the achievement of what one intends . Abjuring violence or refusing to make common cause with morally compromised parties may seem like the right thing; but if such tactics entail impotence, then it is hard to view them as serving any moral good beyond the clean conscience of their supporters; (2) it fails to see that in a world of real violence and injustice , moral purity is not simply a form of powerlessness; it is often a form of complicity in injustice. [end page 35] This is why, from the standpoint of politics—as opposed to religion—pacifism is always a potentially immoral stand. In categorically repudiating violence, it refuses in principle to oppose certain violent injustices with any effect; and

(3) it fails to see that politics is as much about unintended consequences as it is about intentions; it is the effects of action, rather than the motives of action, that is most significant . Just as the alignment with “good” may engender impotence, it is often the pursuit of “good” that generates evil. This is the lesson of communism in the twentieth century: it is not enough that one’s goals be sincere or idealistic; it is equally important , always , to ask about the effects of pursuing these goals and to judge these effects in pragmatic and historically contextualized ways. Moral absolutism inhibits this judgment . It alienates those who are not true believers. It promotes arrogance . And it undermines political effectiveness .

Yes - Consequentialism - surveillance

Privacy needs to be considered in a utilitarian framework to be properly evaluated—weigh it against our impactsSolove 2—Daniel Solove is an Associate Professor at George Washington University Law School and holds a J.D. from Yale Law School, he is one of the world’s leading expert in information privacy law and is well known for his academic work on privacy and for popular books on how privacy relates with information technology, he has written 9 books and more than 50 law review articles, 2002 (“Conceptualizing Privacy,” Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=313103, accessed on 7/17/15)Thus far, attempts to locate a common denominator for conceptualizing privacy have been unsatisfying. Conceptions that attempt to locate the core or essence of privacy wind up being too broad or too narrow. I am not arguing that we must always avoid referring to privacy in the abstract; sometimes it is easiest

and most efficient to do so. Rather, such abstract reference to privacy often fails to be useful when we need to conceptualize privacy to solve legal and policy problems. Therefore, it may be worthwhile to begin conceptualizing privacy in a different way. A bottom-up contextualized approach toward conceptualizing privacy will prove quite fruitful in today’s world of rapidly changing technology. Of course, in advocating a contextual analysis of privacy, the issue remains: At what level of generality should the contexts be defined? This is a difficult question, and I doubt there is a uniform level of generality that is preferable. This Article does not recommend that contexts be defined so narrowly as to pertain to only a few circumstances. It is often useful to define contexts of some breadth, so long as the generalization is not overly reductive or

distorting. All generalization is an imperfection. Focusing on particular contexts and practices is a way of carving up experience into digestible parts. The human mind simply cannot examine experience in its chaotic totality: it must bite off pieces to analyze. The way we conceptualize privacy in each context profoundly influences how we shape legal solutions to particular problems. We can evaluate the results of our conceptions by looking to how well they work in solving the problems. Although I critique attempts to locate an overarching conception of privacy, I am certainly not arguing against endeavors to conceptualize privacy. Conceptualizing privacy in particular contexts is an essential step in grappling with legal and policy problems. Thus, the issue of how we conceptualize privacy is of paramount importance for the Information Age, for we are beset with a number of complex privacy problems, causing great disruption to numerous important practices of high social value. With the method of philosophical inquiry I am recommending, we can better understand, and thus more effectively grapple with, these emerging problems.

The value of privacy depends on the context—don’t buy into their universal absolutes argumentsSolove 7—Daniel Solove, an Associate Professor at George Washington University Law School and holds a J.D. from Yale Law School, one of the world’s leading expert in information privacy law and is well known for his academic work on privacy and for popular books on how privacy relates with information technology, has written 9 books and more than 50 law review articles, 2007 (““I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy,” Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998565 , accessed on 7/17/15)Because privacy involves protecting against a plurality of different harms or problems, the value of privacy is different depending upon which particular problem or harm is being protected. Not all privacy problems are equal; some are more harmful than others. Therefore, we cannot ascribe an abstract value to privacy. Its value will differ substantially depending upon the kind of problem or harm we are safeguarding against. Thus, to understand privacy, we must conceptualize it and its value more pluralistically. Privacy is a set of protections against a related set of problems. These problems are not all related in the same way, but they resemble each other.

There is a social value in protecting against each problem, and that value differs depending upon the nature of each problem.

There should not be a universal ethical rule against surveillance, the context matters.Stoddart, 2014 Eric. School of Divinity, University of St Andrews "Challenging ‘Just Surveillance Theory’: A Response to Kevin Macnish’s ‘Just Surveillance? Towards a Normative Theory of Surveillance’." Surveillance & Society 12.1 (2014): 158-163.I am sorry to say that I find Macnish's aim of a normative ethics of surveillance to be an unnecessary goal. I could be persuaded that a radically revised model of practical reasoning based on the Just War Tradition might have saliency

for investigative strategies involving surveillance technologies. However, 'surveillance' is much too all-encompassing a term to be the subject of its own ethics. There can be no 'ethics of surveillance' but there may be norms appropriate for particular contexts of surveillance. This means examining specific domains in which surveillance is deployed, along with other strategies, to address concerns or challenges. For example, the ethics of surveillance in elderly care or the ethics of surveillance in education are valuable discussions to be had. My point is that it ought to be the ethics of elderly care that is foregrounded within which we would be seek to understand the ethical deployment of surveillance mechanisms.

Privacy is instrumental and never a moral absolute—its only valued through other endsSolove 2—Daniel Solove is an Associate Professor at George Washington University Law School and holds a J.D. from Yale Law School, he is one of the world’s leading expert in information privacy law and is well known for his academic work on privacy and for popular books on how privacy relates with information technology, he has written 9 books and more than 50 law review articles, 2002 (“Conceptualizing Privacy,” Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=313103, accessed on 7/17/15)However, along with other scholars,342 I contend that privacy has an instrumental value—namely, that it is valued as a means for achieving certain other ends that are valuable. As John Dewey observed, ends are not fixed, but are evolving targets, constantly subject to revision and change as the individual strives toward them.343 “Ends are foreseen consequences which arise in the course of activity and which are employed to give activity added

meaning and to direct its further course.”344 In contrast to many conceptions of privacy, which describe the value of privacy in the abstract, I contend that there is no overarching value of privacy. For example, theories of privacy have viewed the value of privacy in terms of furthering a number of different ends. Fried claims that privacy fosters love and friendship. Bloustein argues that privacy protects dignity and individuality. Boling and Inness claim that privacy is

necessary for intimate human relationships. According to Gavison, privacy is essential for autonomy and freedom. Indeed, there are a number of candidates for the value of privacy, as privacy fosters self-creation, independence,

autonomy, creativity, imagination, counter-culture, freedom of thought, and reputation. However, no one of these ends is furthered by all practices of privacy. The problem with discussing the value of privacy in the abstract is that privacy is a dimension of a wide variety of practices each having a different

value—and what privacy is differs in different contexts. My approach toward conceptualizing privacy does not

focus on the value of privacy generally. Rather, we must focus specifically on the value of privacy within particular practices.

Deontology Bad - Privacy

Deontological absolutes create bad conceptions of privacy. They destroy our ability to truly advance privacySolove 2—Daniel Solove is an Associate Professor at George Washington University Law School and holds a J.D. from Yale Law School, he is one of the world’s leading expert in information privacy law and is well known for his academic work on privacy and for popular books on how privacy relates with information technology, he has written 9 books and more than 50 law review articles, 2002 (“Conceptualizing Privacy,” Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=313103, accessed on 7/17/15)Why should scholars and judges adopt my approach to conceptualizing privacy? To deal with the myriad of problems involving privacy, scholars and judges will have to adopt multiple conceptions of privacy, or else the old conceptions will lead them astray in finding solutions. The Court’s 1928 decision in Olmstead v. United States345 epitomizes the need for flexibility in conceptualizing privacy. The Court held that the wiretapping of a person’s home telephone (done outside a person’s house) did not run afoul of the Fourth Amendment because it did not involve a trespass inside a person’s home.346 Justice Louis Brandeis vigorously dissented, chastising the Court for failing to adapt the Constitution to new problems: “[I]n the application of a Constitution, our contemplation cannot be only of what has been, but of what may be.”347 The Olmstead Court had clung to the outmoded view that the privacy protected by the Fourth Amendment was merely freedom from physical incursions. As a result, for nearly forty years, the Fourth Amendment failed to apply to wiretapping, one of the most significant threats to privacy in the twentieth century.348 Finally, in 1967, the Court swept away this view in Katz v. United States,349 holding that the Fourth Amendment did apply to wiretapping. These events underscore the wisdom of Brandeis’s observations in Olmstead—the landscape of privacy is constantly changing, for it is shaped by the rapid pace of technological

invention, and therefore, the law must maintain great flexibility in conceptualizing privacy problems. This flexibility is impeded by the use of an overarching conception of privacy. Trying to solve all privacy problems with a uniform and overarching conception of privacy is akin to using a hammer not

only to insert a nail into the wall but also to drill a hole. Much of the law of information privacy was shaped to deal with particular privacy problems in mind. The law has often failed to adapt to deal with the variety of privacy problems we are encountering today. Instead, the law has attempted to adhere to overarching conceptions of privacy that do not work for all privacy

problems. Not all privacy problems are the same, and different conceptions of privacy work best in different contexts. Instead of trying to fit new problems into old conceptions, we should seek to understand the special circumstances of a particular problem. What practices are being disrupted? In what ways does the disruption resemble or differ from other forms of disruption? How does this disruption affect society and social structure? These are some of the questions that should be asked when grappling with privacy problems. In the remainder of this section, I will discuss several examples that illustrate these points.

Security First

Security comes first—privacy is never absoluteHimma 7—Kenneth Himma, Associate Professor of Philosophy, Seattle Pacific University, holds JD and PhD and was formerly a Lecturer at the University of Washington in Department of Philosophy, the Information School, and the Law School, 2007 (“Privacy vs. Security: Why Privacy is Not an Absolute Value or Right,” Available online at http://ssrn.com/abstract=994458, accessed on 7/17/15)Although an account that enables us to determine when security and privacy come into conflict and when security trumps privacy

would be of great importance if I am correct about the general principle, my efforts in this essay will have to be limited to

showing that the various theories of legitimacy presuppose or entail that, other things being equal, security is, as a general matter, more important than privacy. Among the moral rights most people believe deserve legal protection, none is probably more poorly understood than privacy. What exactly privacy is, what interests it encompasses, and why it deserves legal protection, are three of the most contentious issues in theorizing about information ethics and legal theory. While there is certainly disagreement about the nature and importance of other moral rights deserving legal protection, like the right to property, the very concept of privacy is deeply contested. Some people believe that the various interests commonly characterized as privacy interests have some essential feature in common that constitutes them as privacy interests; others believe that there is no such feature and that the concept of privacy encompasses a variety of unrelated interests, some of which deserve legal protection

while others do not Notably, many people tend to converge on the idea that privacy rights, whatever they

ultimately encompass, are absolute in the sense that they may not legitimately be infringed for any reason. While the various iterations of the USA PATRIOT Act are surely flawed with respect to their particulars, there are many people who simply oppose, on principle, even a narrowly crafted attempt to combat terrorism that infringes minimally on privacy interests. There is no valid justification of any kind, on this absolutist conception, for infringing any of the interests falling within the scope of the moral right to privacy.

Security Trumps Constitution

The counter-terror benefits of mass surveillance outweigh privacy and the Constitution.Posner 5 — Richard A. Posner, Senior Lecturer in Law at the University of Chicago, Judge on the United States Court of Appeals for the Seventh Circuit in Chicago, was named the most cited legal scholar of the 20th century by The Journal of Legal Studies, 2013 “Our Domestic Intelligence Crisis,” Washington Post, December 21st, http://www.washingtonpost.com/wp-dyn/content/article/2005/12/20/AR2005122001053.htmlThese programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism. The Defense Department is rushing to fill

those gaps, though there may be better ways. The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer. The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration's political enemies. That danger is more remote than at any previous

period of U.S. history. Because of increased political partisanship, advances in communications technology and more

numerous and competitive media, American government has become a sieve. No secrets concerning matters that would interest the public can be kept for long. And the public would be far more interested to learn that public officials were using private information about American citizens for base political ends than to learn that we have

been rough with terrorist suspects – a matter that was quickly exposed despite efforts at concealment. The Foreign Intelligence

Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able

Danger. The goal of national security intelligence is to prevent a terrorist attack, not just punish the attacker after it occurs, and the information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.The Pentagon's rush to fill gaps in domestic intelligence reflects the disarray in this vital yet neglected area of national security. The principal domestic intelligence agency is the FBI, but it is primarily a criminal investigation agency that has been struggling, so far with limited success, to transform itself. It is having trouble keeping its eye on the ball; an FBI official is quoted as having told the Senate that environmental and animal rights militants pose the biggest terrorist threats in the United States. If only

that were so. Most other nations, such as Britain, Canada, France, Germany and Israel, many with longer histories of fighting

terrorism than the United States, have a domestic intelligence agency that is separate from its national police force, its counterpart to the FBI. We do not. We also have no official with sole and comprehensive responsibility for domestic intelligence. It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives.We must do better. The terrorist menace, far from

receding, grows every day. This is not only because al Qaeda likes to space its attacks, often by many

years, but also because weapons of mass destruction are becoming ever more accessible to terrorist groups and individuals.

Security Balance Good

The current balance between security and privacy is perfectKaren J. Greenberg, [ the executive director of the Center on Law and Security], APRIL 12, 2007 Karen J. Greenberg, Jeff Grossman, Sybil Perez, Joe Ortega, Jim Diggins, Wendy Bedenbaugh, [SECRECY AND GOVERNMENT: America Faces the Future PRIVACY IN THE AGE OF NATIONAL SECURITY] Pgs. 74-75People often talk about the threats to our privacy under the Patriot Act and other Bush administration programs, but the actual notion of what privacy is – whether we have a right to it, why we think we have a right to it, and whether we even want it – seems to be somewhat up for grabs. The issue brings together the government, the corporate sector, the medical sector, and many diverse specialties that we do not usually combine in the same conversation. I see today’s discussion as the beginning of a longterm dialogue about these ideas, which hopefully will come into focus as we talk about them. Privacy is a generational issue, and the way in which policymakers and commentators address it today may be irrelevant sooner than we think. My mother will not use her credit card at the supermarket because she does not want people to know what groceries she buys. That is her notion of privacy. One of my brothers will not go through the E-ZPass lane at the tollbooth because he does not like the idea of anybody knowing where he has been or where he is going. My daughter and her friends, however, post photos and trade notes on Facebook. They are an open book to one

another and they do not care. They have a very different conception of what privacy should be. I think that the idea of protecting privacy, as we understand it, is already outdated. Over time, we should begin to understand a new concept of privacy that is very much within us. Prof. Burt Neuborne: We are going to ask difficult and theoretical questions about the nature of privacy and how it evolved as an idea. In thinking about the future, this panel will also discuss the notion of what privacy will look like in the technologically explosive world of the 21st century, why we should

care, and what parameters should be imposed upon it. Valerie Caproni: Given my position as general counsel for the FBI, I suspect that few people will be surprised when I say that the primacy of privacy has not been sacrificed to the demands of national security or law enforcement. I do think that the topic needs to be discussed and that there must be public debate about it. I recognize that many of the panelists today feel that the accretion of power in the executive branch has endangered privacy and that we seem to have an endless desire to collect information on citizens. Nevertheless, it is my strong belief that the FBI is striking the correct balance between privacy and security (I do not have sufficiently in-depth knowledge to talk about other federal agencies). Too often, the debate is phrased in terms of an either/or proposition: you can either respect privacy or have national security, but not both. I reject that notion. The question is one of balance. From the Bureau’s perspective, the notion of balancing security and privacy is nothing new. Benjamin Franklin said, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” I think we respect the notion of a middle ground. For all of our almost 100 years of existence, the FBI has been in the business of balancing national security and civil liberties. We view privacy as one element of civil liberties. There have admittedly been times in our history when we did not do a good job of balancing those equities. The abuses of the 1960s and ’70s that led to the Church Committee in the Senate and the Pike Committee in the House are prime examples of the balance being askew, but things have changed since those days. The agents now working at the Bureau were children in the days of the counterintelligence programs known as “COINTELPRO.” Those programs are not a part of any current agent’s history.

Secret surveillance programs are necessary Michael Sheehan was appointed a deputy assistant secretary of state in the Bureau of

International Organizations . Secrecy and Government: America Faces the Future. April 12, 2007So there are different levels of secrecy; the secrecies involved in discrete acts and the secrecies involved in entire state actions. But to get back to what we are concerned with today, we are talking

about issues involv- ing counterterrorism and some of the programs involved. I think that most people would agree that the

government needs to keep certain secrets. The issues really revolve around pro- grams, not

secrets – secret programs . Three of them have been mentioned here today: the NSA wiretap program, which

President Bush initiat- ed after September 11th; the national security letter program that has been internally investigat- ed by the FBI; and the NYPD programs looking at some of the actions prior to the Republican National Convention

here in New York City. In my view, each one of these programs was jus- tif ied in itself and was generally well-needed. But each of them probably suf- fered a little from not get- ting the proper legislative action and oversight to prevent abuse. The NSA wiretap program, which we wrote about here at the Center on Law and Security, was in my view well-warranted, and the presi- dent should have gotten the proper authority from the Congress. And he would have gotten it. I believe that if he had partnered with the Congress to give them aggressive oversight, he would have gotten that also. I believe that both sides of the aisle would have been able to pro- vide constructive oversight of that program, and it would have worked much better. Perhaps the program would not have

been in the jeopardy that it is in right now, although it still is going on. You do not hear a lot of squawking from the Democratically-controlled Congress because they recognize its value. Now, with proper over- sight, I think they are a little bit more comfort- able with it.

Greatest Hits Util Cards

Utilitarianism is the only moral framework and alternatives are contradictoryNye, 86 (Joseph S. 1986; Phd Political Science Harvard. University; Served as Assistant Secretary of Defense for International Security Affairs; “Nuclear Ethics” pg. 18-19)The significance and the limits of the two broad traditions can be captured by contemplating a hypothetical case.34 Imagine that

you are visiting a Central American country and you happen upon a village square where an army captain is about to order his men to shoot two peasants lined up against a wall. When you ask the reason, you are told someone in this village shot at the captain's men last night. When you object to the killing of possibly innocent people, you are told that civil wars do not permit moral niceties. Just to prove the point that we all have dirty hands in such situations, the captain hands you a

rifle and tells you that if you will shoot one peasant, he will free the other. Otherwise both die. He warns

you not to try any tricks because his men have their guns trained on you. Will you shoot one person with the consequences of saving one, or will you allow both to die but preserve your moral integrity by refusing to play his dirty game? The point of the story is to show the value and limits of both traditions. Integrity is clearly an important value, and many of us would refuse to shoot. But at what point does the principle of not taking an innocent life collapse before the consequentialist burden? Would it matter if there were twenty or 1,000 peasants to be saved? What if killing or torturing one innocent person could save a city of 10 million persons from a terrorists' nuclear device? At some point does not integrity become the ultimate egoism of fastidious self-righteousness in which the purity of the self is more important

than the lives of countless others? Is it not better to follow a consequentialist approach, admit remorse or regret over the immoral means, but justify the action by the consequences? Do absolutist approaches to integrity become self-contradictory in a world of nuclear weapons? "Do what is right though the world should perish" was a difficult principle even when Kant expounded it in the eighteenth century, and there is some evidence that he did not mean it to be taken

literally even then. Now that it may be literally possible in the nuclear age, it seems more than ever to be self-contradictory.35 Absolutist ethics bear a heavier burden of proof in the nuclear age than ever before.

The impossibility to attain knowledge of every outcome or abuse leaves utilitarianism as the only option for most rational decision-makingGoodin 95 – Professor of Philosophy at the Research School of the Social Sciences at the Australian National University (Robert E., Cambridge University Press, “Utilitarianism As a Public Philosophy” pg 63)My larger argument turns on the proposition that there is something special about the situation of public officials that makes utilitarianism more plausible for them (or, more precisely, makes them adopt a form of utilitarianism that we would find more acceptable) than private individuals. Before proceeding with that larger argument, I must

therefore say what it is that is so special about public officials and their situations that makes it both more necessary and more desirable for them to adopt a more credible form of utilitarianism. Consider,

first the argument from necessity. Public officials are obliged to make their choices under uncertainty, and uncertainty of a very special sort at that. All choices-public and private alike- are made under some degree of uncertainty, of course.

But in the nature of things, private individuals will usually have more complete information on the peculiarities of their own circumstances and on the ramifications that alternative possible choices might have for them. Public officials, in contrast, at relatively poorly informed as to the effects that their choices will have on individuals, one by one. What they typically do know are generalities: averages and aggregates. They know what will happen most often to most people as a result of their various possible choices. But that is all. That is enough to allow public policy makers to use the utilitarian calculus – if they want to use it at all – to choose general rules of conduct. Knowing aggregates and averages, they can proceed to calculate the utility payoffs from adopting each alternative possible general rule. But

they cannot be sure what the payoff will be to any given individual or on any particular occasion.

Their knowledge of generalities, aggregates and averages is just not sufficiently fine-grained for that.

Utilitarianism is the only way to access morality. Sacrifice in the name of preserving rights destroys any hope of future generations attaining other values. Nye, 86 (Joseph S. 1986; Phd Political Science Harvard. University; Served as Assistant Secretary of Defense for International Security Affairs; “Nuclear Ethics” pg. 45-46)Is there any end that could justify a nuclear war that threatens the survival of the species ? Is not

all-out nuclear war just as self contradictory in the real world as pacifism is accused of being? Some people argue that "we are required to undergo gross injustice that will break many souls sooner than ourselves be the authors of mass murder."73 Still others say that "when a person makes survival the highest value, he has declared that

there is nothing he will not betray. But for a civilization to sacrifice itself makes no sense since there are not survivors to give meaning to the sacrifical [sic] act. In that case, survival may be worth betrayal." Is it possible to avoid the "moral calamity of a policy like unilateral disarmament that forces us to choose between being dead or red (while increasing the chances of both )"? 74 How one

judges the issue of ends can be affected by how one poses the questions. If one asks "what is worth a billion lives (or the

survival of the species)," it is natural to resist contemplating a positive answer. But suppose one asks, "is it possible to imagine any threat to our civilization and values that would justify raising the threat to a billion lives from one in ten thousand to one in a thousand for a specific period?" Then there are several plausible answers, including a democratic way of life and cherished freedoms that give meaning to life beyond mere survival.

When we pursue several values simultaneously, we face the fact that they often conflict and that we face difficult tradeoffs. If we make one value absolute in priority, we are likely to get that value and little else. Survival is a necessary condition for the enjoyment of other values, but that does not make it sufficient . Logical priority does not make it an absolute value. Few people act as though survival

were an absolute value in their personal lives, or they would never enter an automobile. We can give survival of the species a very high priority without giving it the paralyzing status of an absolute value. Some degree of risk is unavoidable if individuals or societies are to avoid paralysis and enhance the quality of life beyond mere survival. The degree of that risk is a justifiable topic of both prudential and moral reasoning.

The aff is moral evasion: consequentialism is imperativeKai Nielsen, Professor of Philosophy, University of Calgary, 1993, Absolutism and Its Consequentialist Critics, ed. Joram Graf Haber, p. 170-2 Forget the levity of the example and consider the case of the innocent fat man. If there really is no other way of unsticking our fat man and if plainly, without blasting him out, everyone in the cave will drown, then, innocent or not, he should be blasted out. This indeed overrides the principle that the innocent should never be deliberately killed, but it does not reveal a callousness toward life, for the people involved are caught in a desperate situation in which, if such extreme action is not taken, many lives will be lost and far greater misery will obtain. Moreover, the people who do such a horrible thing or acquiesce in the doing of it are not likely to be rendered more callous about human

life and human suffering as a result. Its occurrence will haunt them for the rest of their lives and is as likely as not

to make them more rather than less morally sensitive. It is not even correct to say that such a desperate act shows a lack of respect for persons. We are not treating the fat man merely as a means. The fat man’s person-his interests and rights are not ignored. Killing him is something which is undertaken

with the great est reluctance. It is only when it is quite certain that there is no other way to save the lives of the others that such a violent course of action is justifiably undertaken. Alan Donagan, arguing rather as Anscombe argues, maintains that “to use any innocent man ill for the sake of some public good is directly to degrade him to being a mere means” and to do this is of course to violate a principle essential to morality, that is, that human beings should never merely be treated as means but should be treated as ends in themselves (as persons worthy of respect).” But, as my above remarks show, it need not be the case, and in the above situation it is not the case, that in killing such an

innocent man we are treating him merely as a means. The action is universalizable, all alternative actions which would save his life are duly considered, the blasting out is done only as a last and desperate resort with the minimum of harshness and indifference to his suffering and the like. It indeed sounds ironical to talk this way, given what is done to him. But if such a terrible situation were to arise, there would always be more or less humane ways of going about one’s grim task. And in acting in the more humane ways toward the fat man, as we do what we must do and would have done to ourselves were the roles reversed, we show a respect for his person. In so treating the fat man-not just to further the public good but to prevent the certain death of a whole group of people (that is to prevent an even greater evil than his being killed in this way)-the claims of justice are not overriden either, for each individual involved, if he is reasonably correct, should realize that if he were so stuck rather than the fat man, he should in such situations be blasted out.

Thus, there is no question of being unfair. Surely we must choose between evils here, but is there anything more reasonable, more morally appropriate, than choosing the lesser evil when doing or allowing some evil cannot be avoided? That is, where there is no avoiding both and where our actions can determine whether a greater or lesser evil obtains, should we not plainly always opt for the lesser evil? And is it not obviously a greater evil that all those other innocent people should suffer and die

than that the fat man should suffer and die? Blowing up the fat man is indeed monstrous. But letting him remain stuck while the whole group drowns is still more monstrous. The consequentialist is on strong moral ground here, and, if his reflective moral convictions do not square either with certain unrehearsed or with certain reflective particular moral convictions of human beings, so much the worse for such commonsense moral convictions. One could even usefully and relevantly adapt herethough for a quite different purpose-an argument of Donagan’s. Consequentialism of the kind I have been arguing for provides so persuasive “a theoretical basis for common morality that when it contradicts some moral intuition, it is natural to suspect that intuition, not theory, is corrupt.” Given the comprehensiveness, plausibility, and overall rationality of consequentialism, it is not unreasonable to override even a deeply felt moral conviction if it does not square with such a theory, though, if it made no sense or overrode the bulk of or even a

great many of our considered moral convictions, that would be another matter indeed. Anticonsequentialists often

point to the inhumanity of people who will sanction such killing of the innocent, but cannot the compliment be returned by speaking of the even greater inhumanity , conjoined with evasiveness, of those who will allow even more death and far greater misery and then excuse themselves on the ground that they did not intend the death and misery but merely forbore to prevent it? In such

a context, such reasoning and such forbearing to prevent seems to me to constitute a moral evasion . I say it is evasive because rather than steeling himself to do what in normal circumstances would be a horrible and vile act but

in this circumstance is a harsh moral necessity, he [it] allows, when he has the power to prevent it, a situation which is still many times worse. He tries to keep his ‘moral purity’ and [to] avoid ‘dirty hands’ at the price of utter moral failure and what Kierkegaard called ‘double-mindedness.’ It is understandable that people should act in this morally evasive way but this does not make it right.

In a nuclear world, you have to weigh consequencesSissela Bok, Professor of Philosophy at Brandeis, 1988, Applied Ethics and Ethical Theory, edited by David Rosenthal and Fudlou Shehadi, p. 202-3The same argument can be made for Kant’s other formulations of the Categorical Imperative: “So act as to use humanity, both in your own person and in the person of every other, always at the same time as an end, never simply as a means”; and “So act

as if you were always through actions a law-making member in a universal Kingdom of Ends.” No one with a concern for humanity could consistently will to risk eliminating humanity in the person of himself and every other or to

risk the death of all members in a universal Kingdom of Ends for the sake of justice. To risk their collective death for the

sake of following one’s conscience would be, as Rawls said, “irrational, crazy.” And to say that one did not intend such a catastrophe, but that one merely failed to stop other persons from bringing it about would be beside the point when the end of the world was at stake. For although it is true that we cannot be held responsible for most of the wrongs that others commit , the Latin maxim presents a case where we

would have to take such a responsibility seriously—perhaps to the point of deceiving, bribing, even killing an innocent person, in order that the world not perish.

Extinction First

Extinction outweighs—any action we can take to stop it is worth it. Sandberg et al 08 (Anders Samberg, James Martin Research Fellow @ Oxford University, Milan M. Ćirković, Senior research associate @ the Astronomical Observatory of Belgrade, Jason G. Matheny, PhD candidate in Health Policy and Management at Johns Hopkins Bloomberg School of Public Health, 2008, Bulletin of the Atomic Scientists, “How can we reduce the risk of human extinction?,” http://thebulletin.org/how-can-we-reduce-risk-human-extinction, rmf)

Humanity could be extinguished as early as this century by succumbing to natural hazards, such as an extinction-level asteroid or comet impact, supervolcanic eruption, global methane-hydrate release, or nearby supernova or gamma-ray burst. (Perhaps the most probable of these hazards, supervolcanism, was discovered only in the last 25 years, suggesting that other natural hazards may remain unrecognized.) Fortunately the probability of any one of these events killing off our species is very low--less than one in 100 million per year, given what we know about their past frequency. But as improbable as these events are, measures to reduce their probability can still be worthwhile. For instance, investments in asteroid detection and deflection technologies cost less, per life saved, than most investments in medicine. While an extinction-level asteroid impact is very unlikely, its improbability is outweighed by its potential death toll. The risks from anthropogenic hazards appear at present larger than those from natural ones. Although great progress has been made in reducing the number of nuclear weapons in the world, humanity is still threatened by the possibility of a global thermonuclear war and a resulting nuclear winter. We may face even greater risks from emerging technologies. Advances in synthetic biology might make it possible to engineer pathogens capable of extinction-level pandemics. The knowledge, equipment, and materials needed to engineer pathogens are more accessible than those needed to build nuclear weapons. And unlike other weapons, pathogens are self-replicating, allowing a small arsenal to become exponentially destructive. Pathogens have been implicated in the extinctions of many wild species . Although most pandemics "fade out" by reducing the density of susceptible populations, pathogens with wide host ranges in multiple species can reach even isolated individuals . The intentional or unintentional release of engineered pathogens with high transmissibility, latency, and lethality might be capable of causing human extinction. While such an event seems unlikely today, the likelihood may increase as biotechnologies continue to improve at a rate rivaling Moore's Law. Farther out in time are technologies that remain theoretical but might be developed this century. Molecular nanotechnology could allow the creation of self-replicating machines capable of destroying the ecosystem. And advances in neuroscience and computation might enable improvements in cognition that accelerate the invention of new weapons. A survey at the Oxford conference found that concerns about human extinction were dominated by fears that new technologies would be misused. These emerging threats are especially challenging as they could become dangerous more quickly than past technologies, outpacing society's ability to control them. As H.G. Wells noted, "Human history becomes more and more a race between education and catastrophe." Such remote risks may seem academic in a world plagued by immediate problems, such as global poverty, HIV, and climate change. But as intimidating as these problems are, they do not threaten human existence. In discussing the risk of nuclear winter, Carl Sagan emphasized the astronomical toll of human extinction: A nuclear war imperils all of our descendants, for as long as there will be humans. Even if the population remains static, with an

average lifetime of the order of 100 years, over a typical time period for the biological evolution of a successful species (roughly ten million years), we are talking about some 500 trillion people yet to come. By this criterion, the stakes are one million times greater for extinction than for the more modest nuclear wars that kill "only" hundreds of millions of people. There are many other possible measures of the potential loss--including culture and science, the evolutionary history of the planet, and the significance of the lives of all of our ancestors who contributed to the future of their descendants. Extinction is the undoing of the human enterprise. There is a discontinuity between risks that threaten 10 percent or even 99 percent of humanity and those that threaten 100 percent. For disasters killing less than all humanity, there is a good chance that the species could recover. If we value future human generations, then reducing extinction risks should dominate our considerations. Fortunately, most measures to reduce these risks also improve global security against a range of lesser catastrophes, and thus deserve support regardless of how much one worries about extinction. These measures include: Removing nuclear weapons from hair-trigger alert and further reducing their numbers; Placing safeguards on gene synthesis equipment to prevent synthesis of select pathogens; Improving our ability to respond to infectious diseases, including rapid disease surveillance, diagnosis, and control, as well as accelerated drug development; Funding research on asteroid detection and deflection, "hot spot" eruptions, methane hydrate deposits, and other catastrophic natural hazards; Monitoring developments in key disruptive technologies, such as nanotechnology and computational neuroscience, and developing international policies to reduce the risk of catastrophic accidents.

Prioritize even a 1% risk of extinction—the value of the lives saved is massive and outweighs. Bostrom 13—philosophy @ University of Oxford (Nick, 2013, Global Policy, Volume 4, Issue 1, “Existential Risk Prevention as Global Priority,” http://www.existential-risk.org/concept.pdf, rmf)Holding probability constant, risks become more serious as we move toward the upper-right region of Figure 2. For any fixed probability, existential risks are thus more serious than other risk categories. But just how much more serious might not be intuitively obvious. One might think we could get a grip on how bad an existential catastrophe would be by considering some of the worst historical disasters we can think of—such as the two world wars, the Spanish flu pandemic, or the Holocaust—and then imagining something just a bit worse. Yet if we look at global population statistics over time, we find that these horrible events of the past century fail to register (Figure 3). But even this reflection fails to bring out the seriousness of existential risk. What makes existential catastrophes especially bad is not that they would show up robustly on a plot like the one in Figure 3, causing a precipitous drop in world population or average quality of life. Instead, their significance lies primarily in the fact that they would destroy the future. The philosopher Derek Parfit made a similar point with the following thought experiment: I believe that if we destroy mankind, as we now can, this outcome will be much worse than most people think. Compare three outcomes: 1. Peace. 2. A nuclear war that kills 99 per cent of the world’s existing population. 3. A nuclear war that kills 100 per cent. 2 would be worse than 1, and 3 would be worse than 2. Which is the greater of these two differences? Most people believe that the greater difference is between 1 and 2. I believe that the difference between 2 and 3 is very much greater. The Earth will remain habitable for at least another billion years. Civilisation began only a few thousand years ago. If we do not destroy mankind, these few thousand years may be only a tiny fraction of the whole of civilised human history. The

difference between 2 and 3 may thus be the difference between this tiny fraction and all of the rest of this history. If we compare this possible history to a day, what has occurred so far is only a fraction of a second (Parfit, 1984, pp. 453–454). To calculate the loss associated with an existential catastrophe, we must consider how much value would come to exist in its absence. It turns out that the ultimate potential for Earth-originating intelligent life is literally astronomical. One gets a large number even if one confines one’s consideration to the potential for biological human beings living on Earth. If we suppose with Parfit that our planet will remain habitable for at least another billion years, and we assume that at least one billion people could live on it sustainably, then the potential exist for at least 10 16 human lives of normal duration. These lives could also be considerably better than the average contemporary human life, which is so often marred by disease, poverty, injustice, and various biological limitations that could be partly overcome through continuing technological and moral progress. However, the relevant figure is not how many people could live on Earth but how many descendants we could have in total. One lower bound of the number of biological human life-years in the future accessible universe (based on current cosmological estimates) is 10 34 years .7 Another estimate, which assumes that future minds will be mainly implemented in computational hardware instead of biological neuronal wetware, produces a lower bound of 1054 human-brain-emulation subjective life-years (or 1071 basic computational operations) (Bostrom, 2003).8 If we make the less conservative assumption that future civilisations could eventually press close to the absolute bounds of known physics (using some as yet unimagined technology), we get radically higher estimates of the amount of computation and memory storage that is achievable and thus of the number of years of subjective experience that could be realised.9 Even if we use the most conservative of these estimates, which entirely ignores the possibility of space colonisation and software minds, we find that the expected loss of an existential catastrophe is greater than the value of 10 16 human lives. This implies that the expected value of reducing existential risk by a mere one millionth of one percentage point is at least a hundred times the value of a million human lives. The more technologically comprehensive estimate of 1054 humanbrain-emulation subjective life-years (or 1052 lives of ordinary length) makes the same point even more starkly. Even if we give this allegedly lower bound on the cumulative output potential of a technologically mature civilisation a mere 1 per cent chance of being correct, we find that the expected value of reducing existential risk by a mere one billionth of one billionth of one percentage point is worth a hundred billion times as much as a billion human lives. One might consequently argue that even the tiniest reduction of existential risk has an expected value greater than that of the definite provision of any ‘ordinary’ good, such as the direct benefit of saving 1 billion lives. And, further, that the absolute value of the indirect effect of saving 1 billion lives on the total cumulative amount of existential risk—positive or negative—is almost certainly larger than the positive value of the direct benefit of such an action.10

Util good—best and most moral decision calculus. Bostrom 02—philosophy @ University of Oxford (Nick, 2002, “Existential Risks Analyzing Human Extinction Scenarios and Related Hazards,” http://www.nickbostrom.com/existential/risks.html, rmf)Previous sections have argued that the combined probability of the existential risks is very substantial . Although there is still a fairly broad range of differing estimates that responsible thinkers could make, it is nonetheless arguable that

because the negative utility of an existential disaster is so enormous, the objective of reducing existential risks should be a dominant consideration when acting out of concern for humankind as a whole . It may be useful to adopt the following rule of thumb for moral action;

we can call it Maxipok: Maximize the probability of an okay outcome, where an “okay outcome” is any outcome that avoids existential disaster. At best, this is a rule of thumb, a prima facie

suggestion, rather than a principle of absolute validity, since there clearly are other moral objectives than preventing terminal global disaster. Its usefulness consists in helping us to get our priorities straight. Moral action is always at risk to diffuse its efficacy on feel-good projects[24] rather on serious work that has the best chance of fixing the worst ills. The cleft between the feel-good projects

and what really has the greatest potential for good is likely to be especially great in regard to existential risk. Since the goal is somewhat abstract and since existential risks don’t currently cause suffering in any living creature[25], there is less of a feel-good dividend to be derived from efforts that seek to reduce them. This suggests an offshoot moral project, namely to reshape the popular moral perception so as to give more credit and social approbation to those who devote their time and resources to benefiting humankind via global safety compared to other

philanthropies. Maxipok, a kind of satisficing rule, is different from Maximin (“Choose the action that has the best worst-case outcome.”)[26]. Since we cannot completely eliminate existential risks (at any moment we could be sent into the dustbin of cosmic history by the advancing front of a vacuum phase transition triggered in a remote galaxy a

billion years ago) using maximin in the present context has the consequence that we should choose the act that has the greatest benefits under the assumption of impending extinction. In other words,

maximin implies that we should all start partying as if there were no tomorrow. While that option is indisputably attractive, it seems best to acknowledge that there just might

Extinction 1st – pre-requisite to formation of valueWapner ‘3 Paul, Associate professor and director of the Global Environmental Policy Program at American University, DISSENT, Winter, http://www.dissentmgazine.org/menutest/artiles/wi03/wapner.htmThe third response to eco-criticism would require critics to acknowledge the ways in which they themselves silence nature and then

to respect the sheer otherness of the nonhuman world. Postmodernism prides itself on criticizing the urge toward mastery that characterizes modernity. But isn't mastery exactly what postmodernism is exerting as it captures the nonhuman world within its own conceptual domain? Doesn't postmodern

cultural criticism deepen the modernist urge toward mastery by eliminating the ontological weight of the nonhuman world? What else could it mean to assert that there is no such thing as nature? I have already suggested the postmodernist response: yes, recognizing the social construction of "nature" does deny the self-expression of the nonhuman world, hut how would we know what such self-expression means? Indeed, nature doesn't speak; rather, some person always speaks on nature's behalf, and whatever that person says is, as we all know, a social construction. All attempts to listen to nature are social

constructions-except one. Even the most radical postmodernist must acknowledge the distinction between physical existence and non-existence. As I have said, postmodernists accept that there is a physical substratum to the phenomenal world even if they argue about the different meanings wc ascribe to it. This acknowledgment of physical existence is

crucial. We can't ascribe meaning to that which doesn't appear What doesn't exist can manifest no character. Put differently, yes, the postmodernist should rightly worry about interpreting nature's expressions. And all of us

should be wary of those who claim to speak on nature's behalf (including environmentalists who do that). But we need not doubt the simple idea that a prerequisite of expression is existence. This in turn suggests that preserving the nonhuman world-in all its diverse embodiments-must be seen by eco-critics as a fundamental good. Eco-critics must be supporters, in some fashion, of environmental preservation.

Elevating Human extinction to a real possibility encourages a new social ethic to solve conflicts and create meaning to life.Epstein and Zhao 9 [Richard J. Epstein and Y. Zhao, Laboratory of Computational Oncology,Department of Medicine,University of Hong Kong, Professorial Block, Queen Mary Hospital, Hong Kong. “The Threat That Dare Not Speak Its Name: Human Extinction”. Perspectives in Biology and Medicine, volume 52, number 1 (winter 2009):116–25. Project Muse.-

Final ends for all species are the same, but the journeys will be different. If we cannot influence the end of our species, can we influence the journey? To do so—even in a small way—would be a crowning achievement for human evolution and give new

meaning to the term civilization. Only by elevating the topic of human extinction to the level of serious professional discourse can we begin to prepare ourselves for the challenges that lie ahead. The difficulty of the required transition should not be underestimated. This is depicted in Table 3 as a painful multistep progression from the 20th-century philosophical norm of Ego-Think—defined therein as a short-term state of mind valuing individual material self-interest above all other considerations—to Eco-Think, in which humans come to adopt a broader Gaia-like outlook on themselves as

but one part of an infinitely larger reality. Making this change must involve communicating the non-sensationalist message to all global citizens that “things are serious” and “we are in this together”—or, in blunter language, that the road to extinction and its related agonies does indeed lie ahead. Consistent with this prospect, the risks of human extinction—and the cost-benefit of attempting to reduce these risks—

have been quantified in a recent sobering analysis (Matheny 2007). Once complacency has been shaken off and a sense of collective purpose created, the battle against self-seeking anthropocentric human instincts will have only just begun. It is often said that human beings suffer from the ability to appreciate their own mortality—an existential agony that has

given rise to the great religions— but in the present age of religious decline, we must begin to bear the added burden of anticipating the demise of our species. Indeed, as argued here, there are compelling reasons for encouraging this

collective mind-shift. For in the best of all possible worlds, the realization that our species has long-term survival criteria distinct from our short-term tribal priorities could spark a new social ethic to upgrade what we now all too often dismiss as “human nature” (Tudge 1989).

Consequentialism Good

Moral absolutism creates tunnel vision and error replication – focus on consequences is a pre-requisite to ethical decisionmakingIsaac ‘2 (Jeffrey C. Isaac, professor of political science at Indiana-Bloomington, director of the Center for the Study of Democracy and Public Life, PhD from Yale, Spring 2002, Dissent Magazine, Vol. 49, Iss. 2, “Ends, Means, and Politics,” p. ProquestAs writers such as Niccolo Machiavelli, Max Weber, Reinhold Niebuhr, and Hannah Arendt have taught, an unyielding concern with moral goodness undercuts political responsibility. The concern may be morally laudable, reflecting a kind of personal integrity, but it suffers from three fatal flaws: (1) It fails to see that the purity of one’s intention does not ensure the achievement of what one intends. Abjuring violence or refusing to make common cause with morally compromised parties may seem like the right thing; but if such tactics entail impotence, then it is hard to view them as serving any moral good beyond the clean conscience of their supporters; (2) it fails to see that in a world of real violence and injustice, moral purity is not simply a form of powerlessness; it is often a form of complicity in injustice. This is why, from the standpoint of politics--as opposed to religion--pacifism is always a potentially immoral stand. In categorically repudiating violence, it refuses in principle to oppose certain

violent injustices with any effect; and (3) it fails to see that politics is as much about unintended consequences as it is about intentions; it is the effects of action, rather than the motives of action, that is most significant. Just as the alignment with “good” may engender impotence, it is often the pursuit of “good” that generates evil. This is the lesson of communism in the twentieth century: it is not enough that one’s goals be sincere or idealistic; it is equally important, always, to ask about the effects of pursuing these goals and to judge these effects in pragmatic and historically contextualized ways. Moral absolutism inhibits this judgment. It alienates those who are not true believers. It promotes arrogance. And it undermines political effectiveness.

Impact Framing/Defense of Ethics

Our aff is the perfect middle ground – we use public institutions to remove collective threats to individual human well-being and flourishing – that balances individual and collective concerns, and avoids both uncritical individualism and technocratic rational planningBird 99(Colin Bird, Assistant Professor in the Department of Government and Foreign Affairs at the University of Virginia, The Myth of Liberal Individualism, pgs. 209-211)

There are signs that the kind of expressivist theory I have been sketching is once again taking root. Joseph Raz’s perfectionism is a case in point. Although he still describes himself as a liberal, Raz’s recent writings present a view containing many of the essential features of the expressivist conception. For example, he shows little interest in any form of utilitarianism. He treats individual well-being as instantiated in the process of human activity: ‘the core idea,’ he says, ‘is controlling one’s conduct, being in charge’. For Raz, human beings have the capacity to engage ‘wholeheartedly’ in the ‘successful pursuit’ of ‘valuable activities’. I take him to be claiming that public agency consists in ensuring that the institutions and practices of society which the public agent oversees and participates in are only justifiable to the extent that they allow or enable individuals to exercise that capacity. Moreover, Raz explicitly connects this claim about well-being with claims about duties to ourselves, duties which he says arise independently of our will. Raz writes, “all who can should meet the conditions which entitle them to self-respect. They should respect their own capacity for rational agency, and should endeavour to exercise it responsibly … those who are responsible agents and are therefore entitled to respect themselves should do so … A person’s well-being is the successful pursuit of worthwhile goals. Self-respect is earned by the endeavour to live a life of such pursuits. Self-respect, therefore, is a condition of individual well-being. Only those who deservedly respect themselves can have a successful life. Failing to respect oneself, or to be entitled to such respect, is perhaps the most fundamental way of failing in one’s life.” Finally, although Raz has been called a ‘communitarian liberal’, it is clear that he sees principles of the kind mentioned in the above passage as valuable independently of their contribution to the preservation of particular communities or culturally valued practices: ‘No one should be denied access to valuable options on the ground that to allow access would lead to the transformation or the disappearance of a much-cherished existing form of a valuable activity or relationship.’ Here Raz implies that his view suggests a strong, agent-relative side-constraint against any form of activity which deprives an individual of the opportunities he needs for the successful exercise of the capacities necessary for his well- being. This is a restriction which would presumably trump claims of utility, efficiency and community. It is not my intention to signal agreement with Raz’s views about specific political issues, nor with his account of what well-being consists in; there is, happily, plenty to dispute in the details of his argument, and a detailed (sympathetic) critique of his proposals seems to me to be already overdue. Rather, the main point is that Raz’s recent work seems to me to suggest rather eloquently how the expressivist view might be brought out from under the long shadow that ‘liberal individualism’ has cast over recent debates in political theory. For Raz, the point of politics is not just to service individuals’ values, nor indeed to uphold the values of a community or social identity blindly, but to fight for individuals’ capacity for well-being against the many threats – social, economic, ideological and political – which it faces. We may well disagree with

his account of well-being, and of the human capacities that are central to it. But we can do so while agreeing that the main aim of public agency should be to identify and remedy major social threats to the legitimate and proper exercise of individuals’ own capacities. And we can at the same time consider the possibility that the ideology of service liberalism, and the technocratic conception of public agency it has sponsored, might be just such a threat. If that expressivist project were to be taken seriously, some leading elements of contemporary philosophical ‘liberalism’ might eventually evolve into the kind of critical social theory of which liberals have sometimes been deeply suspicious. Such a theory would be free of the scruples about the public evaluation and correction of self-regarding faults; it would be a theory that dropped the idea of neutrality and abjured a static, technocratic consequentialism; it would be a theory that brought the dynamic processes of human development and interaction into the foreground as matters of common, public attention; it would be prepared to consider the possibility that an exclusive focus on non-interference could be inimical to, not supportive of, self-development; and it could do all of these things without any point having to invoke problematic claims about the social construction of one’s moral identity. Such a theory would certainly contain many elements to which one might apply the label ‘liberal’. But because it would provide a vantage-point from which we could both celebrate the undeniable achievements of liberal civilization and identify some of its most serious shortcomings, such a theory would merely tend to confirm the obsolescence of that label and of the ideal towards which it gestures. For ideals and their labels become obsolete, not merely when they fall out of fashion or are deemed passé, but because they no longer discriminate between success and failure, or between fulfillment and betrayal.