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Notes

In June 2004 the Bush administration tightened the travel restriction to Cuba, which restricted Cuban-American travel to Cuba by

allowing them to only visit their families once every three years

In 2009 Obama eased the Bush restriction and allowed Cuban-Americans to visit their families once a year

In 2011 Obama lifted restrictions further

- Purposeful travelallowed religious, education-related, and people-to-people contact were allowed- U.S. Airportsauthorized for airports to serve flights to and from Cuba- The changes are designed to make it easier to engage in educational, religious, and other

types of people-to-people travel and allow all Americans to send remittances to Cuba. The changes are similar to policy that was inplace from 1999 under the Clinton Administration through mid-2004 under the Bush Administration.

"Freedom of movement is the very essence of our free society. Once the right to travel is

curtailed, all other rights suffer. "

--Supreme Court Justice William O. Douglas, 1964

kim rachel andrew samuel


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Advantages


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1ac the advantage

The atrocity of travel restrictions to Cuba have only tightened since the Cold War- this preventsacademic freedom and is a direct violation of Constitutional RightsBrena and Marino 06 (Mariana and Soraya, Writers for Latin American Perspective journal, The Bush

Administration and Academic and Educational Exchange between Cuba and the United States, LatinAmerican Perspectives, Vol. 33, No. 5, [SG])The elimination of the "fully hosted" visitor category, which applied to U.S. citizens or residents who visited

Cubawithout incurring any personal expenses because these were covered either by the Cuban government, by a Cuban citizen, or by a citizen orinstitution belonging to a third country, is perhaps the most obvious sign that OFAC's new regulations are fundamentally

designed to limit contact between the two nations, breaching both the principles of academic freedom and

U.S. citizens' right to travel. This restriction belies the Bush administration's claim that its policy's ultimate intention is to limit the

amount of money that flows to the Cuban government.When the Reagan administration reinstated the travel prohibitionsthat had been eased during Jimmy Carter's presidential term, it argued before the Supreme Court that since"fully hosted" travel was permitted the proposed restrictions on travel to Cuba sought not to limit theconstitutional right to travel but to curb the amount of money received by Cuba, then allied to the formerUSSR.The court determined, in a 5-4 vote, that the regulations indeed served a national security interest in restricting Cuba from freely acquiringconvertible currency through particular services (Reagan vs. Wald; 468 US 22, 1984). The cold war weighed heavily upon the court'sdecision. Since then, however, the international situation has changed, and, according to a May 1998 report by

the Department of Defense itself, Cuba no longer constitutes a threat to the national security of the UnitedStates(U.S. Department of Defense, 1998). Consequently, the restrictions imposed on U.S. citizens who desire

to travel to Cuba are in fact civil rights violations according to the first and fifth amendments

of the U.S. Constitution .Certainly, the proscription of any kind of travel to Cuba, regardless of who spends the money, is altogetherquestionable. It is worth pointing out that, since 2000, it has seemed impossible to eliminate an authorized-traveler category such as "fully hosted"without congressional authorization. The Trade Sanctions Reform and Export Enhancement Act adopted in October 2000 authorized the directcommercial export of agricultural and food products to Cuban territory as long as the trade was licensed by the United States and payments were made inadvance, in cash, or through financing by an entity belonging to a third country. At the same time the 13 extant authorized-traveler categories werelegally codified. The inclusion of this clause was seen as a victory for rightist Cuban-American legislators, who proposed its insertion with the hope of

freezing the different traveler categories. This legislation eliminated the ability to create new legal traveler categories andmore flexible criteria for travel that could be subsumed under general licenses.When the 13 categories were legally codifiedit was assumed that the executive could neither add nor eliminate categories without Congress's authorization (Nethercutt, 2003).And yet, OFAC'sJune 2004 amendments have eliminated the "fully hosted" category. Licenses for U.S. junior high and high

school students to visit Cuba on educational programs have also been eliminated(Paragraph (a)(2)(vi) of the 31 CFR515.565). As has already been mentioned, the section allowing OFAC to issue specific licenses for travel that fell into thecategory people to-people exchange had been eliminated in March 2003. Pursuant to the June 2004 OFAC regulations, thegeneral license under Section 515.564(a), which authorizes U.S. professionals to travel to Cuba to conduct research (which need not focus on Cuba) hasnot been eliminated. "Professionals may travel to Cuba" under the general license as long as the research is not of a commercial character, constitutes afull-time program of activity and follows a full working schedule in Cuba, is likely to produce results that may be disseminated, and does not include

tourist activities. Such research does not include inquiry for personal satisfaction or pursuit of hobby research interests, etc., as its goal. However,participation in conferences organized by Cuban institutions is no longer considered a form of professionalresearch that can take place under a general license. The present limitations imposed on professional meeting and conferenceattendance reveal a deliberate desire to restrict the participation of U.S. scholars in Cuban-organized academic events, even if they are of an internationacharacter. Although the process can be complicated, it is possible for a U.S. professional who, for research purposes, wishes to attend one of these eventsto request a specific OFAC license, but there is a tendency toward denial of this kind of license.

The right to movement is a fundamental freedom that the travel restriction ignoresthe travel

restriction justifies tyranny and ending the freedom of movement all togetherCrumpacker, 5(Tom Crumpacker, lawyer, M.A. in Latin American studies at Georgetown University, "A

Constitutional Right to Travel to Cuba", 1/17/5, www.counterpunch.org/2005/01/15/a-constitutional-right-to-

travel-to-cuba/ //kdh)

Our government has been telling us that the reason it is prohibiting us from traveling to Cuba is to deny Cubans hard currency so that they will change

the way they have organized their society. If so, its the first time in our history weve been forced to give up one ofour fundamental liberties in order to implement a foreign policy objective.In the modern era ofnation-states, citizens in good standing have always enjoyed the basic freedom of travel.Most other freedomsdepend on it,at least to some extent.As nations began forming, the right to foreign travel was recognizedregardless of the kings opinion of,or policy toward, the destination nation. An exception was made for travel to nations at war with


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the home nation, because it endangered national security. Article 42 of Magna Carta, which the English lords required King John to sign on the field atRunnymede in 1215, provides (translated from Anglo-Saxon): "It shall be lawful to any person, for the future, to go out of our kingdom, and to return,safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of thekingdom: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war against us, and merchants also shall

be treated as said above." Bill of Rights. Magna Carta has been an important part of English law for almost eight centuries.When United Statesbecame a nation, English common law remained in effect here except insofar as it was changed by ourConstitution, statutes and case law. The First Amendmentto our Constitution (1791) provides that Congress shallmake no law abridging the freedom of speech, or of the press, or of the right of the people to peaceablyassemble. The right of assembly was construed broadly by our Supreme Court to include the right ofassociation it implies. The right of travel to nations at peace with us was so clear and obvious that our

government didnt try to restrict it until the time of the Cold War, when both socialist and capitalist governments beganpreventing their citizens from learning what things were like on the other side of the Iron Curtain. However, efforts to prevent our travelto socialist countries including Cuba were declared unconstitutional by our Supreme Court .Concurring in Aptheker v. State, 378 US 500 (1964), Justice Douglas stated as regards the First Amendment (citations omitted): "Free movement

by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it istherefore controlled in most countries in the interests of security.Freedom of movement, at home and abroad, isimportant for job and business opportunities for cultural, political, and social activities for all the commingling whichgregarious man enjoys. Those withthe right of free movement use it at times for mischievous purposes. But that istrue of many liberties we enjoy.We nevertheless place our faith in them, and against restraint, knowing that the risk of abusing liberty so as

to give rise to punishable conduct is part of the price we pay for this free society. Freedom of movement is kin to the right of assembly

and to the right of association . War may be the occasion for serious curtailment of liberty.Absent war, I see no way to keep acitizen from traveling within or without the country, unless there is power to detain him. This freedom of

movement is the very essence of our free society,setting us apart. Like the right of assembly and the right of association, itoften makes all other rights meaningful." The Fifth Amendment(1791) provides that no citizen shall bedeprived of his liberty without due process of law. In Kent v. Dulles, 357 US 111 (1958), the Court held that foreign

travel is necessarily implied as part of this "liberty," stating (citations omitted): "The right to travel is a part ofthe `liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendme nt. . .. Freedom of movement across frontiers in either direction, and inside frontiers as well,was a part of our heritage.Travel abroad, like travel within the country . . . may be as close to the heart of the individual as the choice of

what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values."We cant be deprived of ourFifth Amendment liberty of travel "without due process of law." Due process in this situation is not afforded unless, as suggestedin Magna Carta, the travel endangers national security. In Kent v. Dulles above, the Court indicated that restrictive legislation mustbe based on grave, immediate danger to the national security which is stated in explicit terms pursuant to the lawmaking function. The Court hasnever allowed a restriction of our travel where national security was not at such risk. Reagan currency restrictions. The

Trading With the Enemy Actof 1917 (TWEA) allows our presidentsafter declaring a national emergency to prohibit or restrictnot travel but "trade" with foreign nations, such trade being broadly defined as including any "money transactions." The TWEA has beenused as authority for our presidents without consulting Congress to impose embargoes and other tradesanctions on various nations in emergencies. In 1982 the Reagan Administration promulgated regulations, underauthority of TWEA, under which State Department licensed certain limited types of Cuba travel only, such asdiplomats, full time journalists, academic research, educational conferences, family visits. The spending of moneyinvolved in unlicensed travel was criminalized by Treasury Department regulations and enforced by Treasurys Office of Foreign Assets Control (OFAC).

In 1984 the Court in Regan v. Wald, 468 US 222 (a 5-4 opinion) upheld the constitutionality of these currencyrestrictions under TWEA as part of the Cuba trade embargo, deferring (as courts must) to States opinion that the Cold War was anongoing national emergency, Cuba had the military, political and economic support of the Soviet Union, and dueprocess was afforded because national security was at substantial risk. The majority opinion by Chief Justice Rehnquist (firstquoting Zemel v. Rusk which had been decided shortly after the Cuba missile crisis) stated (citations omitted): "That the restriction which is challengedin this case is supported by the weightiest considerations of national security is perhaps best pointed up by recalling that the Cuban missile crisis of

October 1962 preceded the filing of appellants complaint by less than two months. We see no reason to differentiate between the travel restrictionsimposed by the President in the present case and the passport restrictions imposed by the Secretary of State in Zemel. Both have the practical effect ofpreventing travel to Cuba by most American citizens, and both are justified by weighty concerns of foreign policy.In the opinion of the StateDepartment, Cuba, with the political, economic, and military backing of the Soviet Union, has provided widespread support for armed violence andterrorism in the Western Hemisphere. Cuba also maintains close to 40,000 troops in various countries in Africa and the Middle East.Given thetraditional deference to executive judgment, we think there is an adequate basis under the Due Process Clause of the Fifth Amendment to sustain thePresidents decision to curtail the flow of hard currency to Cuba currency that could then be used in support of Cuban adventurism by restricting

travel." By 1991 all these factors supposedly endangering our security were no longer in existence. The Cold Warhad ended in 1989. The Soviet Union had disappeared in 1991, along with its support of Cuba. Cuba"adventurism" in the hemisphere had ended at least by the early eighties. Cuban troops were removed from

Africa and the Middle East (if ever there) in the mid-eighties. Since then they have been sending physicians, health care

and literacy workers instead of soldiers. In 1994 and thereafter our Defense Department, after full review of all intelligence and full on-siteinvestigations of Cuban military equipment, manpower and facilities, has continually certified that Cuba poses no risk to our national security. Lack of


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enforcement or repeal. The restrictions should have been repealed when the Cold War ended, but Presidents Bush Iand Clinton lacked the political will to do it.They were left on the books during the 1990s without serious enforcement, primarily tofrighten Americans out of visiting Cuba. Very occasionally penalty notices were sent out for civil fines (maximum $50,000, usual $7,500). OFACaccepted "voluntary settlements" from a few unlicensed, frightened, unwary Cuba travelers, the rest of the notices (now over 1,000) were held "in

abeyance." The OFAC never took anyone to court because it feared a decision declaring the restrictionsunconstitutional. In 1996 and again in 2000 Congress codified the restrictions, necessitating that any future repeal be done by Congress ratherthan a president. Although President Bush II took an oath to protect and preserve the US Constitution, his administration, 15 years after the end of theCold War, is now claiming to enforce the restrictions despite Congresss votes each year to refuse budget requests for enforcement money (such beinglater annulled by "party leaders" in conference committees). Several cases apparently are now being prosecuted, but none have yet reached the first level,hearing before an in-house Treasury administrative judge. After such hearing it would take several years for a case to wend its way through the federal

court system (where the constitutional issues could be raised) up to the Supreme Court. Meanwhile, in Congress

every year in the past fouryears at least bills have been introduced(or pending) to repeal the restrictions.Based on the recent votes against enforcementmoney, a majority of at least 55% to 59% in both chambers would favor repeal. For some reason these majorities cant bringthe repeal issue to the floor for debate and vote. Its said that theparty leaders wont allow it, and its true that the party leaders act as agents of the

president, who has threatened a veto. But party doesnt seem important on this issue because many from both parties areon each side. When a majority in each chamber cant bring an issue to a vote, it leads one to wonder whetherour Congress is functioning. Consequences of failure to repeal. Laws and regulations which become unconstitutional by changing realitiesshould not be allowed to remain on the books for purposes other than enforcement. If a law is questionably unconstitutional, it should

be repealed or immediately brought to court to determine its validity. To do otherwise breeds public contempt for the law andencourages civil disobedience. The Reagan Cuba travel restrictions favor some groups of Americans, and some types of travel, over others. Apparently

our national politicians think they can gain funding or votes in this way. But the First and Fifth Amendments do not permit this.They grant the right of free association and travel to all US citizens equally. Nor does parsing our fundamentalfreedoms make sense. Some families are close, some arent. Some people travel for research, some for

relaxation, some to learn, some for curiosity. As a people we travel for hundreds of different reasons and thepoint of our basic liberties is to keep unnecessary governmental interference out of our private lives. Thatswhat freedom is. Before the Cuban Revolution the Cuban and American peoples had a long,friendly, mutually beneficial relationship. People passed freely between the countries, learned fromeach other, and became aware through personal experience of the realities of the other. Since the revolution wetwo peoples have been isolatedfrom each other due tosome ideological disputes between our governments which are notreality-based and are their creation, not ours. The unnecessary prohibition of our right to travel to and learnthe reality of Cuba is sad for us, because we are shut off from truth, friendship and many other benefits.Moreover, if our government can prevent us from visiting Cuba, why not also Mexico, theCaribbean, Canada, anywhere in the world it wants to apply pressure to a foreign government?The separation of Cuban family members is very sad for many of them. The effect of our governments blockadeon the Cuban people is a devastating and unmitigated tragedy. Many of us believe that this economic war could not continue if

Americans were allowed to visit Cuba freely. As Justice Douglas observed in Kent v. Dulles above, free citizens of a democracy are notobliged to accept government and media propaganda as their only information source . By direct contact with Cubanpeople our views on our governments policies would be enriched we could see that Cubans are our friends rather than enemiesthat they live and think much as we do, and they have organized their society democratically in the way they desire, which is their prerogative, not ours.Last year in Miami Mikhail Gorbachev said that the Berlin Wall came down in response to Ronald Reagans famous 1988 demand, "Mr. Gorbachev, teardown this wall!" Its now high time to tear down Mr. Reagans wall.

Cuban travel restrictions are inhumanethey justify an endless violation of freedom ofmovement

Wilkinson and Manuel, 5(Daniel Wilkinson, managing director of the Americas division at Human RightsWatch, expert on Latin America, authored reports on human rights issues in Brazil, Colombia, Cuba, Mexico,the United States, and Venezuela, graduate of Yale Law School, Anne Manuel, research director at Americas

Watch, "Families Torn Apart The High Cost of U.S. and Cuban Travel Restrictions", Human Rights Watch,

October 2005, Vol. 17, No. 5 (B), www.hrw.org/sites/default/files/reports/cuba1005.pdf //kdh)

IV. Freedom of Movement in International LawUnder international law, all Cubans have a right to leave andreturn to Cuba. The Universal Declaration of Human Rights (UDHR) establishes the principle that [e]veryone has the right toleave any country, including his own, and to return to his country.190 The International Covenant on Civil and PoliticalRights (ICCPR) similarly establishes that [e]veryone shall be free to leave any country, including his own ,191 and that[n]o one shall be arbitrarily deprived of the right to enter his own country.192 The right to return extends even to thoseCubans who have obtained citizenship in the United States or a third state, since the definition of own country in these provisions of the ICCPR is notlimited to country of nationality. According to the U.N. Human Rights Committee, it applies as well to an individual who, because of his or her special

ties to or claims in relation to a given country, cannot be considered to be a mere alien.193 The right to freedom of movement is abasic element of liberty. The freedom to leave one country for another allows individuals to escapepolitical systemsthat deny them other basic freedoms,thus serving as a right of last resort. The right to


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return to ones own country similarly guards against government repression by barring the state from exilingdisfavored groups or individuals. The right to return also serves to strengthen the right to leave a country, in the case of non-nationals, as itensures them that they will have a place to go. In the case of parents and children residing in different countries, the right to leave and return is further

protected by the Convention on the Rights of the Child (CRC), which proscribes the forced separation of families. The Convention establishesa childs right to maintain on a regular basis, save in exceptional circumstances[,] personal relations and directcontacts with both parents.194 Toward that end, the Convention requires States Parties to respect the right of the child and his or her parentsto leave any country, including their own, and to enter their own country.195 The Convention also requires States Parties torespond to applications fortravel for the purpose of family reunification in a positive, humane and expeditious manner.196 And the UDHR and the ICCPR recognize a moregeneral right to family unity, providing that: The family is the natural and fundamental group unit of society and is entitled to protection by society and

the State.197 International law allows States to restrict the right to freedom of movement, but only under limited

circumstances. Both the ICCPR and the Convention on the Rightsof the Childbar states from restricting the right toleave any country, except when the given restrictions are prescribed by law, are necessary to protect nationalsecurity, public order, public health or morals or the rights and freedoms of others, and are consistent with the otherrights recognized in those same treaties.198 The obligation to respect the right to return to ones own country is even more stringent. While the ICCPRspecifically states that individuals should not be arbitrarily deprived of this right, the U.N. Human Rights Committee has concluded that there are fewif any, circumstances in which deprivation of the right to enter ones own country could be reasonable.199 The Convention on the Rights of the Child,meanwhile, allows for no restrictions on the right to enter ones home country for the purpose of family reunification. Cubas practice of denying exit orentrance visas to its citizens undermines its citizens right to leave and return as established in the Universal Declarationof Human Rights, as well astheir right to family unity. Cubas international obligation to respect the Universal Declaration stems from the fact that the UDHR is widely recognized ascustomary international law, constituting a basic yardstick by which to measure any countrys human rights performance. Although Cuba is not a partyto the ICCPR, it has ratified the Convention on the Rights of the Child. In doing so, Cuba assumed responsibility for complying with the treatysprovisions and for incorporating them into Cuban domestic legislation. Consequently, its denial of travel visas and entrance visas to parents and childrenseeking family reunification constitutes a breach of its treaty obligation. In addition, its failure to respond in a timely fashion to parents and childrenseeing either entry or exit visas also contravenes its obligations under the CRC. Nor is Cubas denial of exit visas justified in the case of doctors, though itmay serve a legitimate public health objective.200 It is easy to imagine other, less coercive ways to encourage doctors to practice medicine for severalyears in Cuba prior to emigrating (such as providing economic incentives or establishing a residency requirement for medical students to obtain theirdegrees). It is highly unlikely, moreover, that making an exception for doctors seeking reunification with their children abroad would have a significant

impact on public health in Cuba. U.S. restrictions on family-related travel also impair family unity and undermine theright of Cubans and Cuban Americans to return to their own country.201 Like Cuba, the United States is bound to

respect the principles enshrined in the Universal Declaration. And unlike Cuba, the United States has ratified theICCPR and therefore has an obligation to pursue policies that promote th-e rights that the Covenant recognizes.Yet,because the U.S. has failed to recognize that its travel restrictions infringe upon rights, not simply privileges,successive U.S. administrations have felt free to tighten or loosen restrictions as a matter of political discretionThe current restrictions, by allowing family-related travel only once every three years, and allowing no humanitarian exceptions,severely limit the ability of hundreds of thousands of Cubans and Cuban-Americans to exercise their right toreturn to their home country.202 The U.N. Human Rights Committee, as noted above, has established that there are few, if any,circumstances in which the limiting this right would be acceptable. Given the proven ineffectivess of the embargo policy, and the profound hardshipcaused by the family-related travel restrictions, there can be little doubt that the Bush administrations justification for its travel policy would not meetthe Committees high standard. V. Conclusion In December 1999, at the height of the controversy surrounding Elian Gonzlez, the six-year-old prevented

by his Miami relatives from returning to his father in Cuba, President Fidel Castrostood before a group of school children who had been protestingoutside the U.S. Interests Section in Havana and declared: The policy pursued by the Revolution is that anyone who wants to leave ourcountry and go somewhere else can do so if they are given permission to enter the other country. Our country doesnot prevent any family from emigrating, because the construction of a revolutionary and just society in socialism is a

voluntary and free decision.203 It was a sound rationale for a sound policy. But, as this report has shown, it was pure fiction. Cuba routinelydenies its citizens the right to leave their country. It also prevents many from returning. The result is the forced separation of families. Given thehardship that this separation can cause, Cubas true travel policy provides the government a powerful tool for punishing defectors and silencing critics.And it offers stark evidence that Castros brand of socialism is, for large numbers of Cubans, neither voluntary nor based on free decision. The Bushadministration, meanwhile, has committed itself to promoting a free Cuba. Yet it insists on doing so through an embargo policy that has alreadyaccumulated a four-decade track record of failure. Rather than seek a new, more effective approach to advancing democracy on the island, theadministration has reinforced a fundamentally inhumane feature of the old one. In the name of promoting freedom in Cuba, the United States hasundermined a basic freedom of hundreds of thousands of Cuban Americans. And, in so doing, it has inflicted profoundand in some cases irreparable

harm on countless Cuban families. The challenge of constructing a more open and just societyin Cuba is an urgent one. Thesolution, however, cannot be based on the disregard for the rights of individuals or the welfare of families.It is time

for both the Cuban and the U.S. governments to end their inhumane travel policies.

Anti-Cuban sentiment did not die after the cold war- additional travel restrictions have beenborn through the War on Terror as a justification to further cut off America from the CastroregimeLutjens 06(Sheryl, Professor of Womens Studies at Cal State University San Marcos, National Security, theState, and the Politics of U.S.-Cuba Educational Exchange, Latin American Perspectives, Vol. 33, No. 5, [SG])

Economic sanctions programs and the control of exports became a central part of the war on

terror . Homeland security initiatives have thus affected the U.S. Treasury Department and its Office of Foreign Assets Control (OFAC). The

economic sanctions programs at the heart of OFAC's work and U.S. Cuba policy have their legal basis in the


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Trading with the Enemy Act of 1917, the International Emergency Economic Powers Act of 1977, and otherspecific statutes.The U.S.A. Patriot Act augmented the executive's authority in the area of economic sanctions,and financial crimes (money laundering and "terrorist financing") are the focus of more than 20 lawenforcement and regulatory agencies.In March 2004 Treasury announced the creation of the Office of Terrorism and FinancialIntelligence (TFI), composed of the Office of Intelligence and Analysis (OIA), and the Office of Terrorist Financing and Financial Crimes (TFFC). TheTFFC supervises OFAC, and the reorganization passed oversight of OFAC and its implementation of Cubapolicy to Juan Carlos Zarate, assistant secretary of TFFC and one of many high-level officials of Cuban origin

who are committed to the Bush administration's anti-Castro policy.As its director, Richard Newcomb, explained in 2004, with10 divisions, 10 offices (including Miami, Mexico City, and Bogot?), 144 employees, and 27 programs, OFAC"blends regulatory, national security, lawenforcement and intelligence into a single entity with many mandates but a single focus: effectively implementing economic sanctionsprograms against foreign adversaries when imposed by the president or the Congress"(Newcomb, 2004). Licensing andcompliance are principal functions of OFAC's management of country specific sanctions programs. "OFAC's licensing authority serves to 'fine tune' orcarve out exceptions to the broad prohibitions imposed under sanctions programs, ensuring that those transactions consistent with U.S. policy are permitted, either by general or specific license" (Newcomb, 2004). Newcomb argued that the Compliance Division of OFAC added a "unique dimension tothe war against terrorists and against other sanctions targets." Change has occurred within the OFAC bureaucracy. On October 1, 2004, Newcomb,director for 17 years, was replaced by Robert Werner. In February 2006 Werner moved to head the Financial Crimes Enforcement Network (where hehad previously served as chief of staff), and Barbara Hammerle became acting director of OFAC. The more proximate cause of significant change inOFAC in the early Bush administration, however, was the establishment in 2000 of the Judicial Review Commission on Foreign Assets Control by theSenate Select Committee on Intelligence. The $100-million investigation centered on the Foreign Narcotics Kingpin Designation Act, prompted byconcerns with the functioning of sanctions programs. A 1,900 page report recommended reforms, emphasizing "transparency," due process, andaccountability. Offering numerous examples, the report judged that OFAC made "its share of mistakes" (Judicial Review Commission, 2001: 25).

OFAC's response to the Judicial Commission's report resulted in more detailed rules and strongerenforcement, both clearly demonstrated in the Cuba sanctions program.Legislation in the 1990s had already established newstatutory mandates guiding agency work in the 2000s. The 1992 Cuban Democracy Act, for example, added civil penalty

authority for violations of the sanctions and required the creation of an administrative hearing process,including the right to prehearing discovery.Though the hearing process was developed in 1997 and 1998, including judicial review afterthe final decision, no hearings were held; between 1992 and 2002 some 450 cases remained pending (Shepard, 2003). By 2003, OFAC had publishedguide lines for categories of licensed travel and for enforcement procedures. Newcomb's written statement to a House of Representatives Subcommittee

in 2003 explained that in addition to improving "the transparency, consistency, and efficiency of our administrative process," OFAC had takensteps to "implement current foreign policy initiatives" (Newcomb, 2003). In a 2004 appearance before Congress, Newcombrecounted other measures. OFAC had become more efficient in responding to inquiries and applications, had secured the services of four administrativelaw judges to hear cases, and had created and maintained a web site with approximately 1.3 million monthly hits and some 1,000 documents (including96 program brochures, guidelines and licensing information, and more than 200 legal documents) (Newcomb, 2004). "Interpretive rulings arepublished, extending the benefit of what had previously been private guidance," he said, and "OFAC, wherever possible, has issued its regulations in theFederal Register as interim final rules allowing for public comments." He reported that OFAC's Licensing Division had responded to more than 25,000applications for specific licenses, while from 1993 to 2004 the Civil Penalties Division had collected nearly $30 million for violations and processed some

8,000 "matters." In May 2004, strong criticism of OFAC's priorities followed a report that Treasury had only fouremployees tracking Bin Laden and Hussein's money and more than five times that number working on the

Cuba embargo.Between 1994 and 2004, OFAC had opened 93 enforcement investigations related to terrorism,collecting $9,425 in fines, while investigating 10,683 cases on the Cuban embargo and collecting more than $8million in fines(San Martin, 2004). In 2004 the second-largest civil penalty was $168,000 for the export of children's vaccines to Cuba by aEuropean subsidiary of a U.S. corporation ("US fines," 2004). Despite increases in staff and purported improvements in transparency, the editor ofCorporate Crime Reporter commented that OFAC was a "maddeningly opaque agency long known for being reflexively suspicious of any individual orcompany seeking its guidance" (Ivanovich, 2006). Critics continued to question OFAC's priorities and the implementation of Cuba policy. Both theCuban Liberty and Democratic Solidarity Act of 1996 and the Trade Sanctions Reform and Export Enhancement Act of 2000 that exempted agriculturaland medical exports to embargoed countries restrict executive branch discretion with regard to travel-related and monetary transactions to, from, and

within Cuba. Nevertheless, OFAC has pursued a bold reinterpretation of the categories of licensed travel andtransactions, including the elimination of several categories of general license.Questions of transparency are not resolvedby OFAC's call for public comments on sweeping changes in the regulations; there is no evidence that comments have been heeded or even read. Nor is it

clear that congressional intent has been respected as the Bush administration has pursued changes in Cuba policy.A closer look at educationalexchanges reveals significant tensions in both the making and the implementation of policy toward Cuba.Presidential intentions and the actions of the executive branch, including the procedurally improper stripping

of an amendment to defund the enforcement of the embargo that passed both houses of Congress in July 2003,appear to be crucial in the rapid closing of the spaces for relations with Cuba that were created

in the 1990s and early 2000s. The business elements of U.S.-Cuba relations are, with some difficulty, being maintained.4Yet the

specific actions restricting travel and the two-way flow of ideas and people have little justification as part of the

war on terror, and they are seldom explained in terms other than the long-lived anti-Castro script. The

script is sometimes menacing, as when Rep. Lincoln Diaz-Balart (R-FL) called publicly in March 2004 for theassassination of Fidel Castro(Smith, 2004). (As part of the global war on terror, Bush did in fact rescind Gerald Ford's executive orderprohibiting political assassinations.) The inclusion of Cuba on a list of countries in which intervention might be needed and the naming of a dedicatedplanning officer for Cuba in the newly created State Department Office of the Coordinator for Reconstruction and Stabilization may also be read asmenacing (Bachelet, 2006b).


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The ignorance of human dignity is a politics of disposability that leaves entire populations opento eradication- this ignorance of liberty has become politicized, and will ultimately be the deathof politicsGiroux 10 (Henry, Professor of English and Cultural Studies at McMaster University, previous professors atBU, Miami U, and Penn State Memories of Hope in the Age of Disposability, published 9/28/2010,http://archive.truthout.org/memories-hope-age-disposability63631 [SG])

The new culture of cruelty combines with the arrogance of the rich as morally bankrupt politicians such as Mike Huckabee tell his fellow Republicanextremists that the provision in Obama's health care bill that requires insurance companies to cover people with pre-existing conditions should berepealed because people who have these conditions are like houses that have already burned down. The metaphor is apt in a country that no longer has alanguage for compassion, justice and social responsibility. Huckabee at least is honest about one thing. He makes clear that the right-wing fringe leadingthe Republican Party is on a death march and has no trouble endorsing policies in which millions of people - in this case those afflicted by illness - can

simply "dig their own graves and lie down in them."(7) The politics of disposability ruthlessly puts money and profits ahead ofhuman needs. Under the rubric of austerity, the new barbarians such as Huckabee now advocate eugenicistpolicies in which people who are considered weak, sick, disabled or suffering from debilitating healthconditions are targeted to be weeded out, removed from the body politic and social safety nets that any decentsociety puts into place to ensure that everyone, but especially the most disadvantaged, can access decent healthcare and lead a life with dignity. Consequently, politics loses its democratic character along with any sense ofresponsibility and becomes part of a machinery of violence that mimics the fascistic policies of pastauthoritarian political parties that eagerly attempted to purify their societies by getting rid of those human

beings considered weak and inferior and whom they ultimately viewed as human waste. I don't think it is anexaggeration to say that a lunatic fringe of a major political party is shamelessly mimicking and nourishing the barbaric roots of one of the most evilperiods in human history. By arguing that individuals with pre-existing health conditions are like burned-down houses who do not deserve healthinsurance, Huckabee puts into place those forces and ideologies that allow the country to move closer to the end point of such logic by suggesting that

such disposable populations do not deserve to live at all.Welcome to the new era of disposability in which market-drivenvalues peddle policies that promote massive amounts of human suffering and death for millions of humanbeings.Programs to help the elderly, middle aged and young people overcome poverty, get decent jobs, obtain access to health insurance and decenthealth care and exercise their dignity and rights as American citizens are denounced in the name of austerity measures that only apply to those who are

not rich and powerful.(8)At the same time, the new disposability discourse expunges any sense of

responsibilityfrom both the body politic and the ever-expanding armies of well-paid, anti-public

intellectuals and politicians who fill the air waves with poisonous lies, stupidity and ignorance, all in the nameof so-called "common sense" and a pathological notion of freedom stripped of any concern for the lives andmisfortunes of others. In the age of disposability, the dream of getting ahead has been replaced with, for many

people, the struggle to simply stay alive. The logic of disposability and mean-spirited cruelty that now come outof the mouths of zombie-like politicians are more fitting for the authoritarian regimes that emerged in Russiaand Germany in the 1930s rather than for any society that calls itself a democracy.A politics of uncertainty, insecurity,deregulation and fear now circulates throughout the country as those marginalized by class and color become bearers of unwanted memories, subject tostate-sanctioned acts of violence and rough justice. Poor minority youth, immigrants and other disposable populations now become the flash point that

collapses moral and political taxonomies in the face of a growing punishing state. Instead of becoming the last option, violence andpunishment have become the standard response to confronting the problems of the poor, disadvantaged and

jobless.As Judith Butler points out, those considered "other" and disposable are viewed as "neither alive

nor dead, but interminable spectral human beings no longer regarded as human .(9) Thinking aboutvisions of the good society is now considered a waste of time. As Zygmunt Bauman points out, too many young people and adultsare now pushed andpulled to seek and find individual solutions to socially created problems and implement those solutions individually using individual skills and resources

This ideology proclaims the futility(indeed, counterproductivity) of solidarity: of joining forces and subordinatingindividual actions to a "common cause."It derides the principle of communal responsibility for the well-being of its members, decrying itas a recipe for a debilitating "nanny state" and warning against care for the other leading to an abhorrent and detestable "dependency."(10)Tea Partycandidates express anger over government programs, but say nothing about a government that provides tax breaks for the rich, allows politicians to bebought off by powerful lobbyists, contracts out government functions to private industries and guts almost every major public sphere necessary forsustaining an increasingly faltering democracy. Tea Party members are outraged, but their anger is really directed at the New Deal, the social state andall those others whom they believe do not qualify as "real" Americans.(11)At the same time the American public is awash in a craven and vacuous mediamachine that routinely tells us that people are angry, but offers no analysis capable of treating such anger as symptomatic of an economic system thatcreates massive inequalities, rewards the ultra rich and powerful and punishes everybody else. Bob Herbert has recently argued that the rich andpowerful are indifferent to poor people and, of course, he is right, but only partly so.(12) In actuality, it is much worse. Today's young people and otherscaught in webs of poverty and despair face not only the indifference of the rich and powerful, but also the scorn of the very people charged with

preserving, protecting and defending their rights.We now live in a country in which the government allows entire

populations and groups to be perceived and treated as disposable, reduced to fodder for the

neoliberal waste management industries created by a market-driven society in which gross inequalities andmassive human suffering are its most obvious byproducts.(13) The anger among the American people is more than justified by the
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suffering many people are now experiencing, but an understanding of such anger is stifled largely by right-wing organizations and rich corporate zombie

who want to preserve the nefarious conditions that produced such anger in the first place. The result is an egregious politics ofdisconnection,not to mention a fraudulent campaign of lies and innuendos funded by shadowy, ultra right billionaires such as the Kochbrothers,(14)the loss of historical memory amply supported in dominant media such as Fox News and a massively funded depoliticizing culturalapparatus, all of which help to pave the way for the new barbarism and its increasing registers of cruelty, inequality, punishment and authoritarianism.

This is a politics that dare not speak its name - a politics wedded to inequity, exclusion and disposability andbeholden to what Richard Hofstadter once called the "paranoid style in American politics."(15) Driven largely by ahandful of right-wing billionaires such as Rupert Murdoch, David and Charles Koch and Sal Russo, this is a stealth politics masquerading as a grassrootsmovement. Determined to maintain corporate power and the benefits it accrues for the few as a result of vast network of political, social and economicinequalities it reproduces among the many, this is a politics wedded at the hip to an irrational mode of capitalism that undermines any vestige ofdemocracy. At the heart of the new barbarian politics is the drive for unchecked amounts of power and profits in spite of the fact that this brand of take-

no-prisoners politics is largely responsible for both the economic recession and producing a society that is increasing becoming politically dysfunctionaland ethically unhinged. It is a fringe politics whose funding sources hide in the shadows careful not to disclose the identities of the right-wing billionairefanatics eager to finance ultra-conservative groups such as the Tea Party movement. While some Republicans seem embarrassed by the fact that the likesof Glenn Beck, Rush Limbaugh and Sarah Palin have taken over their party, most of its members still seem willing to embrace wholeheartedly the politicof inequality, exclusion and disposability that lies at the heart of an organized death-march aimed at destroying every public sphere essential to a vibrantdemocratic state.

We must reform institutions that commit Human rights violations. This is the ultimateexpression of freedomSimmons 99(William Paul, Professor of Political Science at ASU, The Third: Levinas' theoretical move froman-archical ethics to the realm of justice and politics, Philosophy & Social Criticism November 1, 1999 vol.25 no. 6, http://theology.co.kr/wwwb/data/levinas/1-levinas.pdf [SG])

Vigilance against violence in the state is essential. Institutions need to be constantly checked by the ethicalrelationship with the Other.In order for everything to run along smoothly and freely, it is absolutely necessary to affirm the infiniteresponsibility of each, for each, before each... As I see it, subjective protest is not received favourably on the pretext that its egoism is sacred, but because

the I alone can perceive the secret tears of the Other which are caused by the functioning albeit reasonable of the hierarchy. The state must beconstantly reminded of its inherent violence.Levinas finds just such a self-critical state in the modern liberal state. The liberalstate always asks itself whether its own justice really is justice.What qualities does the liberal state possess that make it self-critical? First, there is the freedom of the press, the freedom to criticize the government, to speak out againstinjustice.You know the prophets of the bible; they come and say to the king that his method of dispensing justice is wrong. The prophet doesnt dothis in a clandestine way: he comes before the king and he tells him. In the liberal state, its the press, the poets, the writers who fulfill this role. Second,

in the liberal state, the leader is not above the people, but is chosen from among the people. A ruler who is in anethical relationship, sees humanity through the Others eyes.Against the Platonic formulation that the best ruler is the one who isbest in control of himself, Levinas argues that the best ruler is the one who is in an ethical relationship with the Other. The State, in accordance with its

pure essence, is possible only if the divine word enters into it; the prince is educated in this knowledge. However, for Levinas, the most importantcomponent of the liberal state is its call for a permanent revolution. TheLevinasian liberal state is always trying toimprove itself, trying to be more just.It is a rebellion that begins where the other society is satisfied to leave off, a rebellion againstinjustice that begins once order begins.Although no state can be purely ethical, the liberal state at least strives for ethics.Such a state is the desideratum if politics cannot be ethical. There is no politics for accomplishing the moral,

but there are certainly some politics which are further from it or closer to it.For example, Ive mentioned Stalinism to you.Ive told you that justice is always a justice which desires a better justice. This is the way that I will characterize the liberal state. The liberal state is a state

which holds justice as the absolutely desirable end and hence as a perfection. Concretely, the liberal state has always admitted alongside the written law human rights as a parallel institution.It continues to preach that within its justice there are alwaysimprovements to be made in human rights. Human rights are the reminder that there is no justice yet. And consequently, I

believe that it is absolutely obvious that the liberal state is more moral than the fascist state, and closer to themorally ideal state

Freedom of movement is an expression of individual rights and autonomy- preventing thisright is a direct violation of freedom and creates the conditions for tyranny within governmentstructures

Woods 96 (Jeanne, Professor of Law at University of Loyola New Orleans, Travel that Talks: Toward First Amendment Protectionfor Freedom of Movement, George Washington Law Review, Vol. 65, No. 301, 1996, Accessed via Nexus, [SG])

Free movement by the citizen is... dangerous to a tyrant ... and it is therefore controlled ... in the interests ofsecurity.' Although international freedom of movement has long been regarded as a right that Americans takefor granted, modem U.S. history reflects a sharp ambivalence when the right of Americans to travel abroadfreely conflicts with some government objective. Official pronouncements, such as a statement in a recentreport to the United Nations, affirm that "the right to travel-both domestically and internationally-isconstitutionally protected."' Yet in practice this principle is repeatedly undermined in the name of foreign
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policy and national security. Nation of Islam Minister Louis Farrakhan's controversial "world friendship tour,"which sparked cries of denunciation from many circles and government threats of investigation andprosecution, provides a recent example. In Congress condemning Farrakhan's trip to Libya, Iran, and Iraq, andfurther condemning the public criticisms of U.S. foreign policy that Farrakhan made while abroad. Theresolution also called on President Clinton to launch an investigation to determine whether any U.S. laws were

broken in the course of the tour. In hearings held by a subcommittee of the United States House ofRepresentatives, opponents of Farrakhan's tour warned of the need to protect the nation from the "ideological"danger from countries such as Iran and Libya. Statements made at these hearings were reminiscent of debatesat the height of McCarthyism; one need only substitute the term "terrorist threat" for "communist menace" to

evoke that specter. Although many may legitimately disagree with Mr. Farrakhan's choice of destinations or thepolitical views he expressed, the vigorous public furor makes it necessary to reaffirm what should be axiomatic:Farrakhan's rights to travel and to criticize the government while abroad are fundamental rights guaranteed bythe First and Fifth Amendments to the United States Constitution. This essay does not endorse any of Mr.Farrakhan's views. Rather, it emphasizes that threats to prosecute Mr. Farrakhan or to revoke his passport forhis travel or speech abroad raise troubling constitutional issues." [T]he establishment of a right of freeexpression... constrains the decision-making process in the direction of free expression.' The politicalphilosophy of democratic constitutionalism presupposes the belief that the individual possesses certaininherent, inviolable rights against which the state may not transgress.' Under the social contract theory of the

state, the preservation of rights essential to individual autonomy is a precondition to the

surrender of sovereigntyto the political majority. These individual "moral rights" were brought into U.S.

law through the adoption of a written Constitution, specifically in the Bill of Rights and the Reconstructionamendments. Freedom of movement is one such moral right, a value deeply ingrained in Anglo-Americanhistory. This right finds its constitutional source in the normative values of freedom of speech and conscienceembodied in the First Amendment. Freedom of movement, like freedom of speech, promotes the values ofindividual self-realization and self-determination.' The right to freedom of expression also has been groundedin the normative principle of self-government.' John Stuart Mill, a firm advocate of the argument fromindividual autonomy, viewed free speech as essential to the quest for "truth" in public affairs. AlexanderMeiklejohn's theory of free speech emphasizes the place of the individual within the collective self-governing

body, noting that "[tihe welfare of the community requires that those who decide issues shall understandthem."' The dialogical theory of rights enlarges the self-government hypothesis, similarly stressing the role ofindividual speech and inquiry in the collective decisionmaking process. This approach builds on an underlyingpremise of the First Amendment: that expression has special value in the context of dialogue. The theoryemphasizes the concept of free speech as enabling rational decisionmaking, and advances the principle of opendiscussion as key to the "ability to entertain alternatives, to take a fresh point of view." Paul Chevignydemonstrates that dialogue is a philosophical and psychological human need, the absence of which renders itimpossible for the individual and society to "understand meanings and solve problems." The right to freedomof association is also inherent in the theory of dialogue rights. Through this freedom, expression and inquiryare often realized or manifested, and dialogue is facilitated and enhanced. Finally, freedom of speech is aprerequisite to social and political change. Advocacy-for change or for the status quo-is one of the mostimportant functions of free speech in our society. The historical context in which the expressive rights werechampioned and achieved-the struggle against the feudal monarchy-fully supports the protected position of the

right to advocacy. It is the premise of this Essay that freedom of movement, as an aspect of freedom of

expression, association, and inquiry, promotes the normative values of constitutional

democracy: individual autonomyand self-determination, self-realization, truth-seeking, understanding,

problem-solving, self-government, and social change. This Essay also posits that the scientific andtechnological advances that have transformed modern society have altered fundamentally the social andcultural context in which speech is understood and defined. Today, "[a]ny adequate conception of freedom ofspeech must ... draw upon several strands of theory in order to protect a rich variety of expressional modes.'Concurring in Aptheker v. Secretary of State, a Cold War era right to travel case, Justice Douglas emphasized:[F]reedom of movement is the very essence of our free society, setting us apart. Like the right of assembly andthe right of association, it often makes all other rights meaningful-knowing, studying, arguing, exploring,

conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer.

Thus, freedom of movement, specifically in the context of international travel, should be


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moral viewpoint. One aim of this viewpoint is the transcendence of the "one's own/others" dichotomy, hard asthis may be. Impartiality in an interconnected world implies a cosmopolitan outlook. Thus, the principle atissue-only speak out on those issues where one's voice is likely to have a noticeable effect-must be rejected onmoral grounds. It may be necessary, of course, to choose those ways of speaking out that are most likely to beproductive, since the goal is not to attain some empty psychologicai and moral purity. Thus, one should,perhaps, write to those legislators, newspapers, and organizations which are most likely to listen and which canhelp publicize one's cause. There is no point in sending letters or articles to The National Review about EastTimor or El Salvador and then expressing outrage when this material is not printed. As I have argued, however,the need for intelligence in one's efforts must not collapse into the need to limit one's focus to parochial

matters.

Divorcing governmental policies from ethics cedes political control to technicism. Thismagnifies violence on a global scale and makes extinction desirable.Fasching1993(Darrell J., Professor of Religious Studies at University of South Florida, The Ethical Challengeof Auschwitz and Hiroshima, Pp. 232-233)

These technological barbarians, says Neuhaus, "are composed of the most sophisticated and educated elites ofour society, .. . those who in principle refuse to recognize a normative ethic or the reality of public virtue."51 Ina technological civilization public issues tend to be reduced to political issues and political issues to technicalissues. Instead of public policy we get Disneyland, a world held together by technical and bureaucraticprocedures that so skillfully pander to our hidden desires and private fantasies that, in our distraction, we

scarcely notice the disappearance of either our common political life or our common public life. In a worldwhere all important decisions are deferred to those with the proper technical expertise, neither political norpublic decisions are possible. Nowhere is this more apparent than in the conduct of nuclear policy. For, asRichard Falk has pointed out, the history of nuclear policy from the Manhattan Project until the present has

been cloaked in a technicality and secrecy that is antidemocratic and undermines the democratic procedures ofsociety. This antidemocratic political strategy is given legitimacy by an appeal to being in a permanent state of(cold) war. 52 The rhetoric of war legitimizes the necessity for realism. And realism requires secrecy "in thenational interest," lest our enemies (who are viewed as the embodiment of evil) acquire our technicalknowledge. Hence it is not realistic to expect to conduct nuclear policy through normal democratic processes.Realism under conditions of war requires that we exempt our policies from both the political and ethical-questioning so essential to democratic process to do what we must do to survive. As Robert Lifton's workindicates, these are the ideal conditions for the emergence of demonic doubling that renders MADness logical,

convincing us that preparation for total annihilation is the only thing that makes the future possible (i.e.,"slaying to make alive"). The only way to be in charge of our destiny, we are told, is to place our unquestioningtrust in the very technology that is threatening to annihilate us, even as the only way to protect democracy re-quires that we subvert it. The modern secular world of technopolis has been an experiment in substitutingtechnical knowledge for public narrative and technical bureaucratic procedures for public ritual. Auschwitz andHiroshima represent the triumph of the technical and the bureaucratic, of the demonic and inhuman overhuman self-transcendence and compassion for the stranger. In the last chapter I argued that the appropriateresponse to the demonic is an ethic of human rights sustained by a global ecology of those holy communities

whose narrative traditions focus on welcoming the stranger. The antidote to bureaucraticcompartmentalization is an ethic that requires us to assume responsibility for our multiple selves (i.e., ourdouble) even as it requires us to recognize the primacy of human dignity and human rights, especially those ofthe stranger, as an absolute limit to which all sacred orders must be subordinated.

Constant questioning overtakes normative modes of existence by allowing us to questionsociety and ourselves. This allows us achieve limitless insight and reshape the material worldthrough language.Fasching, 1993(Darrell J., Professor of Religious Studies at University of South Florida, The Ethical Challenge of Auschwitzand Hiroshima, Pp. 216-218)

The dimension of transcendence is revealed through our experiences of doubt and the questions that followfrom them. Such experiences guide the unfolding dynamic of intentional (i.e., questioning) consciousness. Itis the seductive power of the questions, our unending questioning, that drives us beyond each finite horizonand on to the next, on a path of successively higher viewpoints, until we have asked the question of theultimate horizon of meaning and value for every experiencethe religious question that opens us to the


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infinite. Our unending questions reveal the fundamental ontological and eschatological openness of ourfinitude to the infinite. Death may stop us from questioning but not because there are no more questions.This openness is the foundation of the utopian capacity of the human, of the unrelenting need to transcendthe given horizon of experience and realize new worlds. "It is," says Lonergan, "what Paul Tillich nameda being grasped by ultimate concern."2This is Tillich's theonomous dimension present in every humanactivity that keeps the finite open to the infinite and self-transcendence. In the first and second stages ofcontrol over linguistic differentiation, meaning was thought of as normative, given (either mythically ormetaphysically) with the sacred and fixed horizon of the natural order that subsumed culture. But in thethird stage, culture is differentiated from nature and viewed empirically and descriptively rather than

normatively. In this stage meanings are understood as expressions of human consciousness tied to thecontinually receding temporal (or eschatological) horizon of human sociohistorical existence. In thisthird stage, Lonergan suggests, it is possible for us to become aware that there is an invariant set ofoperations that belong to the experience of knowing. The intentionality of consciousness oriented by asurrender to the questions and pursued toward the horizon opened by specific questions, operatesdynamically, moving from experience(attending to the data) to insight(understanding the data) to

judgment (raising all the relevant objections in order to determine whether the insight is an error) todecision (appropriating the insight as a guide to further action). There is a spontaneous dynamic of self-transcendence in such a process of inquiry. Once we have experienced the data brought into focus by ourquestions, we then experience an inner need or demand to understand what we have experienced. Wesearch for an intelligible pattern. And once we have an insight, that moment of "aha!" when we think wehave discovered such a pattern, we immediately find ourselves faced with an inner demand to raise all the

relevant objections we can think of that would show us to be mistaken. But if all such objections can be met,then the moral quality of the noetic act comes to light, for if all relevant objections are met, the judgment "itis so" becomes inescapable. The subject has no choice but to make such an assent or fall into self-deceptionor self-contradiction. And of course, to make that assent if al l relevant objections are not overcome

would be equally self -deceptive. Lonergan's phenomenological analysis of the quest of the questioningself reveals that, at least for finite minds, truth must be viewed as an eschatological process, continuallyopen to the future, rather than a final point of arrival. Authentic understanding in every realm is guided byan open-ended process of truthfulness. Every question leading to an insight opens up yet further questions,

which come to us as we seek to imagine the various possible oversights that would prove to us we are inerror. The questions themselves suggest techniques to test the validity of the insights we come to. The over-coming of all objections to the insight, ending in assent, leads us to "virtually unconditioned" truthsnot"absolute truths," but finite truths that are contextually true and will suggest to us yet further questions that

will leads us beyond our present horizon of understanding toward the promise of ever recedinghorizons. Thus the process of inquiry is continuous and eschatologically open-ended. And yet it is notan arbitrary, for it is guided by the passion for insight and the ethical quality of the questioning process. Inthe third stage of differentiated meaning, then, truth is not so much a fixed quantity as a self-authenticatingprocess leading to yet further insights. Given the sociohistorical self-consciousness of the moderntechnological self, when theories do emerge from meta-methodical questioning in this stage, they no longerfunction as descriptions of reality, as if knowing were "taking a look," but rather as heuristic notions. Weexpect from them, not so much pictures of reality as procedures for arriving at virtually unconditionedtruths. By virtually unconditioned truths we mean affirmations that have met the test of all relevantobjections and whose confirmation leads us on to yet further fruitful questions.

Finally, Affirmation of political hope is necessary to reinvigorate democracy. Democracy hasbecome disposable in the status quo, parallel with political violence. To educate and advocatefor liberty is to evoke the political power of resistance.Giroux, 2010Professor of English and Cultural Studies at McMaster University, previous professors at BU,Miami U, and Penn State (Henry, Memoriesof Hope in the Age of Disposability, published 9/28/2010,accessed online 7/2, http://archive.truthout.org/memories-hope-age-disposability63631)//BZ

The working-class neighborhood of my youth never gave up on democracy as an ideal in spite of how much itmight have failed us. As an ideal, it offered the promise of a better future; it mobilized us to organizecollectively in order to fight against injustice; and it cast an intense light on those who traded in corruption,unbridled power and greed. Politics was laid bare in a community that expected more of itself and its citizens asit tapped into the promise of a democratic society. But like many individuals and groups today, democracy is


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now also viewed as disposable, considered redundant, a dangerous remnant of another age. And yet, like thememories of my youth, there is something to be found in those allegedly outdated ideals that may provide theonly hope we have for recognizing the anti-democratic politics, power relations and reactionary ideologiesespoused by the new barbarians. Democracy as both an ideal and a reality is now under siege in a militarizedculture of fear and forgetting. The importance of moral witnessing has been replaced by a culture of instantgratification and unmediated anger, just as forgetting has become an active rather than passive process, whatthe philosopher Slavoj Zizek calls a kind of "fetishist disavowal: 'I know, but I don't want to know that I know,so I don't know.'"(16) The lights are going out in America; and the threat comes not from alleged irresponsiblegovernment spending, a growing deficit or the specter of a renewed democratic social state. On the contrary, it

comes from the dark forces of an economic Darwinism and its newly energized armies of right-wing financialsharks, shout till-you-drop mobs, reactionary ideologues, powerful, right-wing media conglomerates andcorporate-sponsored politicians who sincerely hope, if not yet entirely believe, that the age of democratizationhas come to an end and the time for a new and cruel politics of disposability and human waste management isat hand. We are living through a period in American history in which politics has not only been commodifiedand depoliticized, but the civic courage of intellectuals, students, labor unions and working people has recededfrom the public realm. Maybe it is time to reclaim a history not too far removed from my own youthfulmemories of when democracy as an ideal was worth struggling over, when public goods were more importantthan consumer durables, when the common good outweighed private privileges and when the critical notionthat a society can never be just enough was the real measure of civic identity and political health. Maybe it'stime to reclaim the spirit of a diverse and powerful social movement willing to organize, speak out, educate andfight for the promise of a democracy that would do justice to the dreams of a generation of young people

waiting for adults to prove the courage of their democratic convictions.


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1ac framing/solvency

Only viewing freedom through a lens that prioritizes liberty, equality, and human dignity isable to prevent political domination. When one of these goes ignored, exclusion is allowed totake placeBaer 09(Susanne, Professor of Law at the University of Michigan, Dignity Liberty, Equality: A Fundamental Rights Triangle ofConstitutionalism, the University of Toronto Law Journal, Vol. 59, No. 4 (Fall, 2009), JSTORE [SG])

Most constitutions contain guarantees of liberties and equality, and some explicitly recognize human dignity aswell. However, not only is it controversial what these rights mean on their own, it is even less clear how theyare related, or, as I will argue, such relation is framed in a fashion that does not do justice to all three rightsinvolved. In this article I propose that all three rights need to be framed in a triangle, rather than as a pyramidor as conflicting interests on a collision course. The triangle, I argue, is an adequate concept to capture whatdignity, liberty, and equality stand for, since it prevents us from overstating any one of these rights in isolation.Thus, I also argue that each right profits from being seen in light of the other two.Thus, equalityrights, and particularly but not exclusively equality rights relating to gender, should be conceived of asinherently linked to the two other rights - liberty and respect for human dignity - yet should not be replaced byeither. In turn, liberty, and particularly the liberty of self-determination in contracting with others, should beconceived of as inherently linked with, rather than clashing with, equality and dignity alike. Last but not least, aright to dignity, distinct from an abstract principle of recognition or a narrowly defined list of atrocities and

different from an understanding of dignity as acquired honour, may be best understood as inherently linked toboth liberty and equality, and thus as a fundamental human right to respect or to equal recognition. In theabsence of such a triangulated linkage between fundamental rights, we tend to construct either/or dilemmas orto approach each problem as if only one isolated right were at stake, rather than addressing the complexity ofthe problems that judges, lawyers, and legal institutions are called upon to solve these days. I argue that

without the triangle, either equality or freedom trumps dignity or it is an abstract (yet often paternalistic) or avery narrow notion of dignity that reigns. Instead, we could address concerns about equal conditions offreedom based on the recognition of diverse ways to live one's life, and we could address liberty's relation todignity - in short, address equality, liberty, and dignity - in a systematic and more holistic way. In theabsence of a coherent concept of the relationships among our fundamental rights, dignity,liberty, and equality tend to be looked at in isolation , and they are interpreted in unsatisfying ways.Equality is then either substantive equality taken too far, running the risk of imposing particular 'egalitarian'

results, or formal and symmetrical equality, which does not undo systemic injustice but upholds it as'difference' or 'dissimilarity.' Dignity, then, tends to be either an abstract principle, often called 'value,' whichopens the door for particularistic paternalism, or to be narrowly defined as a right against excesses only, whichdoes establish a threshold - but one that only rare cases ever meet. Liberty may be treated in a rather atomistic,property-like fashion, trumping other rights; this is part of the problem in the us legacy of Lochner, whichprevents us from taking a systematic look at problems of 'precarization,' as new phenomena of material andsociocultural poverty or exclusion tend to be called in Europe. Isolated from one another, none of thefundamental rights is thus able to do justice to the challenges that constitutional and human rights are,I

believe, meant to address. In times of growing aware- ness of systemic inequalities and exclusion, onechallenge is the recurring use of a simple and symmetrical equality standard to destroy fine measures ofaffirmative action or accommodation, measures that are derived from, and are much better understood as,more elaborate schemes of fundamental rights, meant to ensure respect for the individual and to avoiddiscriminatory exercises in groupism. Another challenge is the abuse of economic power in the name of liberty

to the detriment of all, an issue that, interestingly, has returned to political agendas in the wake of the globaleconomic crisis. And yet another challenge is the recurrence of torture, or, more precisely, the prominentattempts to justify it - not only in police and military settings but also in so-called private circumstances, as in

what tend to be called 'new forms of slavery. I thus propose here an alternative conception of a triangulatedinterpretation of fundamental rights. It has many implications, on the philosophical and doctrinal as well as onthe political and practical levels. With respect to each of the three rights, the concept of the triangle suggestsspecific interpretations, some of which have already been subject to controversies across legal contexts. Forexample, I agree with those who frame gender equality as a substantive right, with a strong commitment to theelimination of gender and other subordination or hierarchy. This right to equality moves against genderedhierarchies in traditions as well as religions, in customary morality as well as in politics, just as it opposes moreor less enlightened variations on formal equal treatment and challenges the construction of seemingly relevant


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sex or other naturalized differences. Even beyond this, such a notion of equality challenges policies andpractices derived from notions of particular dignity interests, often employed to 'protect' women and, thoughless often, particular men. I thus argue that such perceptions need to be carefully scrutinized, and that atriangle helps us to do this in a consistent way. As another example, I urge that we resist the siren call ofdignity, which offers a tempting instance of seemingly global consensus - a unifying common ground - but

which also invites rather problematic notions of what it means to be dignified, or noble, in the arena offundamental rights. Instead I propose a particular linkage of the three rights that helps to orient legal analysisso as to ensure that dignity does not turn into a black box to hide prejudice or to allow cultural stereotyping.Thus dignity ensures respect for all individuals, equality serves to address systemic injustice,

and liberty safeguards freedom of choice under equal conditions. Such a link between dignity,liberty, and equality should, I hope, ensure a more refined way of addressing injustice as part of legal reasoningin all directions

Framing freedom through a single understanding of constitutionalism is the only way toprevent domination from particular actorsBaer 09(Susanne, Professor of Law at the University of Michigan, Dignity Liberty, Equality: A Fundamental Rights Triangle ofConstitutionalism, the University of Toronto Law Journal, Vol. 59, No. 4 (Fall, 2009), JSTORE [SG])

Most constitutions around the world, and in human-rights documents both at the level of the United Nationsand at the regional level in Europe, Africa, Asia, and the Americas, contain guarantees of the right to liberty as

well as the right to equality. Some documents also contain an explicit guarantee of the right to dignity.However, these fundamental rights are grounded in rather different understandings of constitutionalism, andof the injustices they may be meant to address, just as they are positioned differently toward one another. Thisdisparity may best be illustrated in a brief account of developments in equality jurisprudence. Courts,lawmakers, and scholars did and do conceptualize the rights in question in very different ways, and only someaddress the social conflicts that fundamental rights should be able to solve (or, more precisely, to addressconvincingly), and for which we need elaborate doctrinal schemes to prevent losses on the way there. It isthrough equality law that we can observe worrying tendencies in the struggle with gender inequality, both inthe world of social relations and in the world of law. Socially, gender relations may be subject to morefundamental, far-reaching, and rapid change than any other social phenomenon, in that changed or challengedconcepts of masculinities and femininities, as well as, in some contexts, more radical trans- gender politics,seem to have quite a heavy impact on every aspect of life everywhere. Legally, laws against discrimination andgendered violence develop or change as fast as laws on human reproduction and family relations, or onmarriage and relationships, all with severe consequences for individuals across the globe and not necessarily to

the benefit of those historically disadvantaged in relation to sex and gender. When we look at the socialinequalities of the world, particularly in relation to women, we find that gaps are widening, as attested bystudies on gender pay gaps as well as by the gender safety gap documented in recent UN data on violenceagainst women. In addition, data become more complicated, inequalities more complex, and remedies moredifficult to design when we understand inequalities as multidimensional - not reducing anything to a sex,ethnicity, or disability inequality alone but understanding the situation as an inequality shaped byinterdependent inequalities, in specific contexts and with specific effects. In some sense, equality issues arereturning to the forefront. In some contexts, race is also thought of as class, gender is also related to age, and soon. Equality politics and equality law move from a focus on identities and assumed or attributed personalcharacteristics toward a recognition of systemic inequalities, like precarization, a new concept of a classic - thatis, class. On a global scale and in national, regional, and local settings, fundamental rights of dignity, liberty,and equality are not a reality for all to enjoy; often, and for many, they remain at the level of promises. Even

more disturbing, those rights are sometimes interpreted as an instrument to silence or reject particular equalitydemands, as in some arguments levelled against certain kinds of affirmative action. Despite the fact that timeobviously does not suffice to end systemic inequalities, affirmative action is still often constructed as anexception to the rule of equal treatment, rather than as one way to turn equality into a reality of equalopportunities. Similarly, poverty is a global threat not only to individuals but also to communities and societies

Yet fundamental rights tend to address economic disparities less often and less radically than in 1789, when theFrench Revolution was fought for, among other interests, bread, on the same principles that in art of the UNDeclaration of Human Rights (as well as some regional treaties) seek to prohibit distinctions based on'property.' For example, recent EU equality law does not list 'class' as a ground for discrimination, yet itaddresses solidarity, which in fact consists of equal access to socio- economic resources. However, it is widelyaccepted that discriminatory policies may be acceptable if non-discrimination is costly or decreases profit.Some constitutional or human-rights provisions on equality may have not been meant by their founding


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authors to address such issues. Yet it is nonetheless worrying, in light of widespread social disparities, if afundamental right to equality is not implied in these contexts. Similarly, a withdrawal on equality rights isparticularly devastating in the area of gender equality, given the gains that have been made and thefoundational nature of gender as an equality concern. In the history of equality rights, it took effort to movefrom symmetrical and formalistic assessments of sex difference to asymmetrical and substantial standards forgender equality. For a long time, legislatures and governments, courts and scholars refused to recognize the

very foundations of a meaningful concept of equality, not only for men and for women but, eventually, for allindividuals harmed by being put into hegemonic sexualized gender boxes. Just as genocide and systemicinjustice had been seen as consistent with a formalistic approach to equality, particularly in anti-Semitic and

racist regimes, sex discrimination has been, and sometimes still is, seen as a legitimate distinction. This is whyanti- racists, feminists, and others committed to social justice for a long time faced skepticism and evenrejection when they advanced the argument that the right to equality was really a substantive right not to bediscriminated against, a right against exclusion from opportunities to lead a self- determined life on the basis ofequal freedom In light of such lessons, quality as a right against discrimination must mean more than formalequality; it must carry a meaning of anti-subordination as a right against hierarchy or dominance. So today,modern legal systems promise that all deserve and shall enjoy fundamental rights, yet the current state ofaffairs sees many effectively excluded from such protection. It is thus worrying that after many years oftheorizing, doctrinal work, and litigation efforts, after many progressive instances of constitution making andso many inspiring decisions from constitutional courts and human-rights bodies around the world* we stillhear voices in political and academic circles, in courts and in other law-making bodies, equivocating in theircommitment to substantive equality or to explicit recognition of equality for people who have been

subordinated in the past. Even the Supreme Court of Canada, often perceived as a trailblazer on issues ofsubstantive equality, is, as some read decisions in the late 1990s and the early twenty-first century,20

becoming more equivocal in this area. Also, there seem to be calls for judicial as well as legislative restraint onany further extension or development of rights.

Only the affirmatives investigation of the way that freedom has been denied can reinvigoratean ethic that views equality through a lens of dignity and liberty- thats necessary to solvepolitical violenceBaer 09(Susanne, Professor of Law at the University of Michigan, Dignity Liberty, Equality: A Fundamental Rights Triangle ofConstitutionalism, the University of Toronto Law Journal, Vol. 59, No. 4 (Fall, 2009), JSTORE [SG])

In legal scholarship, there have always been prominent voices that reject a concept of equality directed againstsubordination, and whether this amounts to a threat to social justice depends on the status of scholarship in

legal cultures. Today, however, we see an ambivalence about the application of substantive equality rights evenin rather progressive courts and circles. In particular, as noted above, there is a certain fondness for dignityamong constitutional justices and scholars that, I argue, has contributed to this ambivalence, with the Lawdecision by the Supreme Court of Canada as a case in point. One explanation for this fondness may be that inour p

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