May 8, 2017
The NCFL tournament is an odd experience for most PF debaters, and I'm not just referring to the side/position lock. It's a huge tournament compressed in to a short time span and with the 1:1 judge to team ratio, the judging ends up far more lay than the other national tournaments. Last year, in the noisy curtained convention hall, I found myself the only judge flowing in most of my rounds, with decisions splitting between those who were technically superior on the flow and those who projected perceptual control of the arguments (and sometimes those aligned). Thus, this tournament and resolution offer a great excuse to contemplate debater's access to the most classified information in debate: how your judge thinks.
There isn't much to do to control the variability of the NCFL judging pool other than making sure you ask judges politely about their background before the round. And if you ask, be sure you work to adapt; ignoring a judge's requests or preferences, provided they are reasonable, will only earn you a judge's ire. Many times, even a very open-to-everything judge will react poorly if you blatantly write off one of the judges in the round. The act of asking, however, can be a tricky prospect at this, or any tournament, and something that debaters often do not realize is something that they can get really wrong.
It should go without saying that you should wait until everyone is present before asking; a newer judge may be more comfortable by an experienced just taking the lead on sharing preferences, and no judge wants to repeat themselves once the other team shows up. Remember also that you may have two very different judges, a detailed technical discussion with one may risk leaving the other feeling alienated before cases are even read. If you don’t ask clear questions about their preferences, you'll likely find yourself with varying answers along the lines of: “Just be clear and have a good debate.”
How you ask is important, and I'm not just talking about remembering a “please” or a “thank you” as part of the interaction. Try asking “Because this is nationals, we know there are a lot of regional differences that come up, would you be willing to let us to ask a couple of questions so we try to do our best to accommodate for them?” This qualification does a lot of work to open a conversation. If its a judge who doesn't like to answer locally, you've given a special reason for them to do so at NCFL. By staking it on regional differences, you use geography as a neutral reason for any differences there might be instead of invoking a conflict over “What PF is supposed to be!!!!” Emphasizing “try” as part of the request hopefully cushions the possibility that you may not choose to bend to all of their preferences or as a debater you might just fall into old habits mid-round.
Some commonly asked questions aren't always that effective to get the information you need. “Do you have a paradigm?” immediately interjects jargon into the discussion and may get only the vaguest of responses. Questions like “Do we need to extend terminal defense” risks the same, plus you don't know if you share a mutual understanding of offense and defense. Some of the more effective questions I've run across or my teams have used are similar to those found on paradigm questionnaires:
“To help us in organizing speeches, what type of notes do you keep?” This makes sure it's not judgmental and the onus is on you as debaters to communicate to the judge.
“In terms of speed, do you prefer if we're closer to doing a campaign speech or is it ok if we're more at the speed of pundits really going at it on CNN?” A set of choices that are relatable will give you a better idea than getting a response of “not too fast” or “I can handle speed.” It also means your opponents got a clearer explanation as well, increasing the risk that they garner ire for ignoring the judge.
“In order to win the round, should we keep arguing every part of our cases all the way into the final focus, or do you prefer that the teams just pick just one or two issues they think are the most important during the final focus?” Like the prior question, a set of choices make it easy to answer and then both sides are given the same information. If there's a third option, it's more likely you get an explanation. If you get a split answer between multiple judges, generally cover everything, and just highlight the ultimate #1 reason for voting for you in the final focus, keeping all judges happy.
Asking questions the right way (polite, professional, clear) before the round can go a long way setting you up as the perceptive leaders and give you knowledge you need to debate well. Doing the wrong thing can turn a judge against you before the round even starts and can give you little of the information you need to adapt.
The resolution selected by the NCFL sets up an interesting debate - “Resolved: US Law should make it illegal to publish classified information concerning the intelligence activities of the United States.” In large part, this is due to the resolution hiding the real debate under the cloak of a policy option when it is actually a constitutional rights debate.
The current conflict evoked by the resolution revolves most recently around two recent scenarios. First, during the lead up to the Iraq War, journalist Robert Novak revealed that Valerie Plame, wife of diplomat and Iraq War critic Joseph Wilson, was an undercover CIA agent. This revelation, made through a member of the Bush Administration, was seen as retribution for Wilson publicly contradicting the administration's claims related to allegations that Iraq was developing nuclear weapons. In this case, a friendly member of the press was used as a tool by the administration to selectively leak classified information to advance a political and policy agenda.
The second situation involves Wikileaks and its publication of information from Edward Snowden and Chelsea Manning, a private contractor and military intelligence officer, respectively. Snowden fled the United States before he could be prosecuted for the leak, while Manning served a military sentence before Obama released her, commuting the remainder of an exceptionally lengthy sentence. Various politicians have called for the prosecution of Wikileaks founder Julian Assange for releasing the information, while the nature of Wikileaks, and its information-dump form of publication, have also contributed to what it means to “publish” information in the digital age.
Historically, the conflict between the government, particularly the executive branch, fulfilling its duty to protect the nation and the role of a free press goes back to the founding fathers. The Bill of Rights enshrined the principle declaring “Congress shall make no law... abridging the freedom of speech, or of the press.” This validated the role that small newspapers and pamphleteers played during the revolution as well as establishing that the press was a tool of the governed, not those who govern.
In more modern application, the conflict arises out of the Espionage Act of 1917, a law initially designed to protect military operations during World War I. In its earliest state the Espionage Act became famous for high profile prosecutions of pacifists opposed to the War and the draft. Most famously, the case Schenck v. US (1919) created an important brightline between publication/speech and action. Schenck was convicted of interfering with the war effort when he published fliers and distributed them encouraging draft resistance. A unanimous Supreme Court upheld the conviction, finding that expression that posed a “clear and present danger” of causing a crime to occur was not protected. An earlier case that session effectively resulted in allowing speech which called for the defeat of politicians supporting and administering the draft, when the government dropped the prosecution before the Court could make a decision. Schenck brought us one of the most famous legal analogies in US history, where Justice Holmes wrote “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic...” After a series of WWI draft cases, up through the early Cold War, the Espionage Act largely was used against individuals accused of spying against the US rather than go through a more onerous treason prosecution.
The 1960s and 1970s brought about a new set of changes helping set the stage for today. In Brandenburg v. Ohio the “clear and present danger” standard was replaced with “imminent lawless action.” This change meant the government had to meet a much higher standard when prosecuting those who leak information.
The case that strikes at the heart of the resolution is the “Pentagon Papers” case, or The New York Times, Co. v. United States (1971). Daniel Ellsberg, a former Defense Department employee, copied information related to clandestine operations during the early stages of the Vietnam War and provided the Papers to the New York Times and Washington Post for publication. The government sued to stop the publication of the leaked classified information. In a case lasting a lightening fast two weeks, the Supreme Court ruled 6-3 that the information could be published. The majority justices wrote a strong defense of publications' right to print information free from government interference once they had the information in-hand. The core of this thinking was a claimed need for government secrecy could keep information out of the public's hands on the executive's say so, depriving citizens of information and providing a certain means to censor negative press coverage. The dissenters, by contrast, largely lambasted the quickness of the decision, wishing for more deliberation and examination. They also hinted the Court should consider a potential balancing test to determine what classified information could be published once obtained and/or a chance for the government to review and petition the courts to keep dangerous information from being published.
It's worth keeping in mind that global intervention by the US has left the country in a near perpetual state of undeclared war since World War II. Despite not having a declared war, the executive has often used “time of war” as a reason for checking the press and other constitutional rights. This is likely a legacy of the Korematsu v. US (1944) case. In Korematsu the Court established the “strict scrutiny” test for constitutional rights cases, but still upheld the internment of Japanese-Americans because it was a time of war. As a result of our inclination for perpetual war, we've had a large security and intelligence gathering apparatus serving the national security and military needs of the nation. Because of the politicized nature of intervention, the desirability of information may largely depend on which side of an action you are on.
A final thought is that, by and large, leaking the classified information is generally going to be an illegal act committed by the person doing the leaking. While there are some whistle-blower protections, legally they are fairly weak with a near impossible to navigate bureaucracy (the Office of Special Counsel and Merit Systems Protection Board) offering protections. About 98% of all cases filed are denied by the MSPB and 98% of those denials are upheld by the Court of Appeals for the Federal Circuit. This lack of effective legal protections is worsened by the Supreme Court's Garcetti v. Ceballos (2006) decision, holding a government employee is not extended free speech protections when speaking pursuant to their official duties. Essentially, the construction of the law makes it the executive branch's responsibility to safeguard information, not the public's responsibility to respect the classified nature of the information.
The pro team is largely placed in the position to argue pragmatism over idealism. Leaks of classified information can lead to all sorts of alleged harms. Details of sensitive technology could be lost, jeopardizing our military's technical advantage. Troop movements put soldiers in harm's way. Spies who are exposed risk the collapse of information gathering networks and the ability to recruit informants and allies. Embarrassing disclosures of internal discussions could jeopardize relations with other nations. Revealed military and law enforcement techniques would allow criminals or enemies to change tactics to avoid monitoring/tracking. These criticisms all fall in line with the concerns that the Manning and Snowden Wikileaks dumps brought to light.
A pro team would be wise to look to the Plame case as an alternative reason to consider making publication a criminal act. The use of selective leaking to a friend in the press (versus a Third Estate member who seeks their role as a check on the government) can be a very strategic way for an administration to exert political control. This type of leaking also occurred during the McCarthy Era, where leaked information of possible communist connections could destroy livelihoods. While a slightly imperfect analogy, the 2016 election provides a somewhat similar example of how leaked information could change the nation's course. When it appeared that there were possibly “new” emails related to Clinton's time at the State Department, a centerpiece of Trump's campaign against her, the FBI Director penned a letter to congress disclosing the details of an ongoing investigation. He did so despite counsel that such conduct may be against department policy. At the same time, the CIA and NSA were tracking contacts between Russian nationals and members of the Trump campaign team. A disclosure of that information could have had a devastating impact on the Trump campaign. There are very real concerns about a friendly press publishing selective information when the victim of the leak is prohibited from or unable to access the information needed to defend themselves, and when political and policy decisions are being made, and possibly irreversible actions are being taken.
The con team is more bound to the ideals of the First Amendment than policy harms. Certainly the ideals element comes with harms attached, but they are more theoretical or based on good government principles. This makes the weighing against “soldiers killed in the field” trickier (though not impossible). Because of this, the con may want to push for a framework level argument that the only way the pro world comes to be is not only Congress passing a law making publication illegal, but also the Court overturning or distinguishing the Pentagon Papers case. Including the courts in the discussion also gives the con a bit of an out against having to argue for extreme disclosure cases, arguing that Schenck (via Brandenburg) would still penalize publication that creates a real imminent threat.
The con could also soften their position with a counter-planny argument by looking to the dissents in the Pentagon Papers case where Justices contemplate there should be some responsibility for a publisher to notify the government to review the information, and if imminent harm due to disclosures is possible, the government could seek an injunction. This would prevent the need to criminalize publication in general, but also have an sanction in the form of being in contempt of court. If you are hesitant about the counter-plan accusation, emphasize that the pro is offering a law that is contrary to existing Constitutional law. This means they must justify any impacts stemming from the Court court making the change, or, in the alternative, they have to defend that the new law the pro is arguing as constitutional. (This is a first speaker c-x opportunity: make them clarify whether they contend that the court will make the change, given you a free link to the harms of taking away already established rights, or claim the law is constitutional, allowing you to shift the debate to a yes or no answer to that exact question). If they choose the constitutional route, think back to what you might have learned in Sept/Oct, that laws impairing a fundamental right are subject to heightened or strict scrutiny; basically (without another whole essay) the pro has a burden to show that there is not a less restrictive way (less rights violated) to meet the goal (security). Thus you are not running a counter-plan but are just holding the pro to their responsibility to defend the action defined in the resolution.
In terms of the idealistic benefits of the status quo, the concurring opinions in the Pentagon Papers cases can just about write a good government/people's freedom case. Looking at the more recent scenarios; both Snowden and Manning revealed behavior that a good majority of Americans have issues with (even if many disapproved of the leaking). It's hard to expect the government to do better or hold officials accountable at the ballot box if you don't know their conduct. Similarly, public knowledge gained by the Pentagon Papers massively fueled the Vietnam protests to new levels, placing both domestic and foreign pressure on the US for its conduct of the war. Concerns of selective leaking may give a reason for limits, but put on the balancing hat and argue you outweigh, and/or champion the idea of the status quo that the leaker, not publisher is the criminal.