Saturday, November 9, 2013

Victims, truth, and power

Here's the thing: I don't think this resolution is necessarily about truth. In fact, I think it's more about power. We have the differential between victims rights and the rights of the accused. It's also about the power of the state versus the individual. The key thing for neg is this: valuing truth seeking through juridical means isn't inherently going to provide truth or liberate. The usage of legitimate channels only further reifies the juridical subject. On neg, the strongest argument may be that there are better ways to liberate ourselves. Fortunately, Zizek has got that covered:
We must challenge the structure of power itself, not look for it to legitimize us
Zizek, Slavoj (2011). “Good Manners in the Age of Wikileaks.” The London Review of Books 33.22 (20 January 2011). http://www.lrb.co.uk/v33/n02/slavoj-zizek/good-manners-in-the-age-of-wikileaks What WikiLeaks threatens is the formal functioning of power. The true targets here weren’t the dirty details and the individuals responsible for them; not those in power, in other words, so much as power itself, its structure. We shouldn’t forget that power comprises not only institutions and their rules, but also legitimate (‘normal’) ways of challenging it (an independent press, NGOs etc) – as the Indian academic Saroj Giri put it, WikiLeaks ‘challenged power by challenging the normal channels of challenging power and revealing the truth’.​ The aim of the WikiLeaks revelations was not just to embarrass those in power but to lead us to mobilise ourselves to bring about a different functioning of power that might reach beyond the limits of representative democracy. However, it is a mistake to assume that revealing the entirety of what has been secret will liberate us. The premise is wrong. Truth liberates, yes, but not this truth. Of course one cannot trust the façade, the official documents, but neither do we find truth in the gossip shared behind that façade. Appearance, the public face, is never a simple hypocrisy. E.L. Doctorow once remarked that appearances are all we have, so we should treat them with great care. We are often told that privacy is disappearing, that the most intimate secrets are open to public probing. But the reality is the opposite: what is effectively disappearing is public space, with its attendant dignity. Cases abound in our daily lives in which not telling all is the proper thing to do. In Baisers volés, Delphine Seyrig explains to her young lover the difference between politeness and tact: ‘Imagine you inadvertently enter a bathroom where a woman is standing naked under the shower. Politeness requires that you quickly close the door and say, “Pardon, Madame!”, whereas tact would be to quickly close the door and say: “Pardon, Monsieur!”’ It is only in the second case, by pretending not to have seen enough even to make out the sex of the person under the shower, that one displays true tact.
What's more important then the usage of legitimate avenues is the use of illegitimate avenues, as that directly questions the state's power. The power of the state here is huge as in the US we've seen historical shifts from the right's of victims to the prosecution of the state: 

The constitution represents a historic shift of power from victims to the executive branch for prosecution

Cassell, Paul G. and Steven Joffee. (2011) “THE CRIME VICTIM'S EXPANDING ROLE IN A SYSTEM OF PUBLIC PROSECUTION: A RESPONSE TO THE CRITICS OF THE CRIME VICTIMS' RIGHTS ACT.” The Northwestern University Colloquy (January 2011).

Historically speaking, crime victims have long played an important role in the criminal process. Levine's argument to the contrary begins by dismissing this country's practice of private prosecutions--that is, prosecutions brought by crime victims. 89 Levine relies heavily on Blackstone's influential Commentaries on English Law as support for the proposition that the colonists understood crimes to be solely public wrongs. 90 However, the victim-orientation of private prosecutions cannot be so quickly dismissed. Indeed, as Levine recognizes, Blackstone himself explained that "[i]n all cases . . . crime includes an injury" because "every public offense is also a private wrong, and [thus] . . . it affects the individual, and . . . likewise . . . the community." 91 Given this understanding, it is not surprising that early American criminal prosecutions were, as in England, 92 often brought by the victim--a private prosecutor--rather than by a government agency. 93

 [*178]  Levine acknowledges these facts, but still believes that the Constitution essentially transferred prosecuting discretion to the executive branch. 94 To our mind, this view pays insufficient attention to the fact that histories of the eighteenth century criminal justice system in the United States--including the period before, during, and after the framing of the Constitution--reveal that victims often directly prosecuted criminal cases. 95 Professor William McDonald has summarized the period: "Even after identification and arrest, the victim carried the burden of prosecution . . . [by] retain[ing] an attorney and pa[ying] to have the indictment written and the offender prosecuted." 96 Indeed, early Americans preferred a system of private prosecution because it avoided the tyranny of government prosecutors and the expense of public-funded prosecutions. 97 Thus, legal scholars report that private prosecutions were the dominant form of prosecution during the colonial period. 98
Overall, perhaps the best solution is the one that is non-juridical and desubjectivizes us.
If you have questions or want specific evidence post in the comments.

Attorney-Client Privilege Defined (Framework Card)

 In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.
Currently, in the US justice system, we value attorney-client privilege over truth seeking. This stems from different places historically and presently. I think this card does a good job of giving your framework three things: 1) establishing the trade-off between truth-seeking and attorney client privilege; 2) showing limits on attorney-client privilege; 3) establishing the purpose of the privilege. On aff, I would just run the part up until the conflict is established, so you can run good trade-off arguments. On neg, running the whole thing gives you good spikes for mitigating some of aff's offense. Here's the card:
Flynn, Lisa Borelli. “NOTE: CEO, CFO, COO ... Cube Dweller? Attorney-Client Privilege and Corporate Communication: Whose Communications Should Massachusetts Law Protect?” Suffolk University Law Review (2010).
 Attorney-client privilege allows a client to refuse to disclose - and prevents his attorney from disclosing - confidential communications the client made in seeking or obtaining legal advice. 24 While historically the policy-based thrust behind the privilege centered on the confidential relationship between attorney and client, the present-day concern focuses on promoting "full and frank communication between attorneys and clients," as stated by the Supreme Court in Upjohn. 25 A central criticism of the attorney-client privilege is that it allows attorneys to conceal information harmful to their clients' cases and frustrates the truth-seeking purpose of the legal process. 26 While this may be true, the value society places on the privilege may outweigh the harm resulting from suppression of evidence. 27 In order to balance these competing policies, it is  [*705]  generally accepted that privileges should be narrowly construed based on the circumstances surrounding the communication. 28
 Both federal and state courts recognize testimonial privilege law as an exception to the duty to disclose information relevant to a matter at hand. 29 State law governs privileges at the state level as well as in federal diversity cases, and federal common law governs in federal question cases. 30 The attorney-client privilege is as follows:
  [*706]
 (1) Where legal advice of any kind is sought, (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived." 31
 The lawyer's ethical responsibility to maintain confidences extends to potential clients and current clients, both during and after representation. 32
 An attorney may not disclose confidential information unless the client consents or waives the privilege, the law requires the attorney to disclose, or the attorney must disclose to prevent a crime or fraud. 33 If the privilege applies, it is absolute absent one of the aforementioned circumstances. 34 The client is the holder of this absolute privilege, not the attorney. 35 Thus, it is the client, as proponent of the privilege, who has the burden of demonstrating its application in a particular case. 36 This personal and individualized element of attorney-client privilege is what complicates its application to a fictional entity, such as a corporation. 37