Lets start with a baseline- critiques and counterplans are arguments that originated in policy debate. As such, if you deploy a policy argument in LD it logically makes sense that you are bound to debate that issue by the parameters established in policy debate. If you want to make your own new argument form that is fine and dandy, don’t label it a policy name then. As such, this discussion will proceed by pointing out some errors commonly made by LDers this year when reading and responding to policy style arguments in LD.
1. A counterplan- a counterplan can traditionally compete in one of two ways
A. Mutual exclusivity- this means the CP and the plan cannot occur at the same time- day/night for example. You can’t build missile defense and not build missile defense. Similarly you can’t grant and not grant protections at the same time.
B. Net benefits- this means it is , from a util perspective, better to do the CP alone. The two actions are not mutually exclusive, but doing them together links to a net benefit disad and thus is not the best available idea.
In most cases the international court CP does not meet either of these standards of competition. It sets up a separate process, and the net benefit is that process is good. Affirmatives that authorize the use of article 3 courts do not FORCE anyone to go to an article 3 court. It is an option they can waive or accept. As an analogy lets look at federal and state law. The federal government has in some cases the option to prosecute a criminal at the federal level, if they chose to do this the states have no real recourse. The federal and state judicial systems are not mutually exclusive inherently, the federal government must exercise an option. Similarly, US and international courts are not mutually exclusive unless the US refuses to use international courts. There is nothing inherent in the resolution that means the aff has to defend this refusal. This can easily be illustrated by imagining what the world would be like if both courts existed. When a terror suspect was arrested someone in the US would have to decide where to send them. The existence of due process protections does not MANDATE article 3, it just means we can’t try them in the US without article 3.
The international court does not comepete via net benefits because the offense is not a disad to the plan, it is a net benefit to the CP. Think of it this way, we are arguing about where to eat dinner. I say we should go to taco bell and you say we should go to burger king. If you say the following “Taco bell uses dog food, eating it will make you sick” that is a disadvantage- eating at taco bell causes something bad. Since any permutation would include eating at taco bell it would always link to this disad. If you said “only burger king has milkshakes” that is a net benefit to burger king- it is a reason going there is good, not a reason the plan is bad. So a permutation that said “lets go to taco bell AND burger king” would prove that the Burger King CP didnt compete because you get still get a milkshake. You need the disad- sickness- to make that cp competitive via net benefits.
Most arguments for the international court are reasons the court is god- includes voices, is more legit etc. These are not disads to the plan, and thus do not prove the CP is competitive. A disad like elections WOULD make the international court CP competitive because it links to the creation of due process protections not to actually trying them in the US.
A good way to explain this on the affirmative would be to say due process protections are LIMITS on state action- they say what the USFG can and can’t do. So due process says “can’t use military commission” not “Must use article 3”.
2. Kritiks- People make a lot of weird permutations vs critiques. There are basically 2 ways we can categorize critiques for this discussion- ones that link to the aff “action” (the plan or the resolutional action, in this case granting protections) and critiques that link to the affs “representations”- the words and metaphors you use to explain why you should vote aff. Critiques of the plan operate much like counterplans- The USFG is bad, so lets have anarchy. You can evaluate that using the same criteria explained above. Critiques that don’t link to the plan (or don’t exclusively link to the plan) become dicier. Take terror talk. Many affs read a soft power advantage that says giving rights helps fight the war on terror. In response to the terror talk K they make arguments like ” permute, do the plan and criticize terror discourse”. But the critique doesn’t compete with the plan by design- so using the plan in a permutation this way doesn’t make very much sense. So against these critiques the permutation needs to explain why employing multiple forms of representations is desireable. Lets take a simple example, the climate change K.
The AC says, we should do X to avoid global warming which causes extinction
The NC Says “using apocalyptic climate rhetoric causes nihilism/passivity which makes environmental problems worse”
The neg isn’t saying “dont do X” they are saying “don’t talk about climate that way”
A permutation would need to explain why talking about climate BOTH as an apocalyptic scenario and whatever the neg encourages (perhaps a sustainability framing)together would be desirable.