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Authors: Owen Fiss

A War Like No Other

A WAR LIKE NO OTHER

ALSO BY OWEN FISS

The Law As It Could Be

A Way Out: America’s Ghettos and the Legacy of Racism

A Community of Equals

The Irony of Free Speech

Liberalism Divided

The Oliver Wendell Holmes Devise History of the Supreme Court: Troubled Beginnings of the Modern State, 1888–1910

The Civil Rights Injunction

© 2015 by Owen Fiss and Trevor Sutton

All rights reserved.

No part of this book may be reproduced, in any form, without written permission from the publisher.

Requests for permission to reproduce selections from this book should be mailed to: Permissions Department, The New Press, 120 Wall Street, 31st floor, New York, NY 10005.

Published in the United States by The New Press, New York, 2015

Distributed by Perseus Distribution

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Fiss, Owen M., author.

A war like no other: the constitution in a time of terror / Owen Fiss, Trevor Sutton.

pages
      
cm

Includes bibliographical references and index.

ISBN 978-1-62097-098-0 (e-book)
      
1. Terrorism—Prevention—Law and legislation—United States.
      
2. United States. Constitution.
      
3. Civil rights—United States.
      
4. War on Terror, 2001–2009.
      
I. Sutton, Trevor, editor.
      
II. Title.

KF9430.F57
      
2015

344.7305'32517—dc23

2014050102

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Composition by dix!

This book was set in Fournier MT

Printed in the United States of America

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Aharon Barak

Always an Inspiration

CONTENTS

Foreword
by Trevor Sutton

Part I: An Unfolding Perspective

Chapter 1: In the Shadow of War

Chapter 2: The War on Terror and the Rule of Law

Chapter 3: The Perils of Minimalism

Chapter 4: Aberrations No More

Chapter 5: Law Is Everywhere

Part II: The New Normal

Chapter 6: Imprisonment Without Trial

Chapter 7: Torture and Extraordinary Rendition

Chapter 8: Criminalizing Political Advocacy

Chapter 9: Warrantless Wiretapping

Chapter 10: The Targeted Killing of Alleged Terrorists

Notes

Index

FOREWORD

Trevor Sutton

S
eptember 11, 2001: a day that changed everything. This has been a common mantra of government agencies and the media in assessing the effects of the terrorist attacks on the World Trade Center and the Pentagon. Some have described the attacks as changing the way the United States assesses and responds to threats to its national security. Others have gone further to suggest that the attacks changed the relationship between the United States and the world in a more general sense.

More than a decade after September 11, such views may seem overblown. The past two presidential elections—to say nothing of congressional midterm and state races—were perceived to have turned more on differences in the candidates’ domestic policy agendas than matters of national security or foreign policy. Moreover, the winding down of the wars in Iraq and Afghanistan, the death of Osama bin Laden, the Obama administration’s declaration of a “pivot” or “rebalance” toward Asia, and the challenge posed by an expansionist Russia all suggest a return to a more traditional national security strategy, one in which the threats posed by international terrorist organizations such as al-Qaeda—and more recently ISIS—are no longer the primary drivers of American foreign policy.

There is one area, however, where the legacy of September 11 has proven unusually enduring: the law. While the threat of terrorism may no longer dominate debate in Congress or command daily headlines as regulary as it once did, the legislative enactments and judicial decisions passed in response to the counterterrorism policies of the Bush and Obama administrations continue to cast a long shadow over many areas of the law, including constitutional jurisprudence. Freedom of speech and association; due process; habeas corpus; the Fourth Amendment warrant requirement; even the prohibitions on torture and extrajudicial killings—the law governing these constitutional principles looks vastly different in 2015 than it did in the summer of 2001.

The essays in this volume chronicle the reactions of one scholar, Professor Owen Fiss of the Yale Law School, to the counterterrorism practices of the Bush and Obama years. The volume begins in 2003—in the early days of the Iraq War, before the Supreme Court’s decisions in
Hamdi v. Rumsfeld,
and before Barack Obama or John Roberts had risen to national prominence. From this point of embarkation, Fiss surveys and assesses the major legal controversies of the following decade, from Guantánamo to drones, with a particular focus on the constitutional dimensions of the disputes. Linking all the essays is Fiss’s sustained concern for the offense done to the Constitution by the political branches in the name of public safety, and the refusal of the judiciary to hold those branches accountable. As Fiss observes, practices that at first seemed like temporary excesses of the Bush administration have become entrenched legal doctrines perpetuated by President Obama and enshrined in judicial opinions. How these constitutional aberrations outlasted the political climate that created them constitutes the central narrative of this volume.

In some respects, this is an unlikely book. Before 2003, Fiss, a scholar of equal protection, civil procedure, and free speech, had not published on topics relating to national security or the laws of war. That he would write ten essays relating to the fight against international terrorism over the next decade was not to be expected.

Fiss was not alone in embarking on a new project of legal analysis after September 11. The legal questions raised by the Bush administration’s response to the attacks were terra incognita for nearly all legal academics and jurists. Cases that were obscure for all but law-of-war specialists—
Ex Parte Milligan, Ex Parte Quirin, In Re Yamashita, Johnson v. Eisentrager
—suddenly assumed burning importance, and questions that seemed like academic speculation—the reach of due process on the battlefield; the limits on executive detention outside the formal territory of the United States—were now being litigated in federal courts.

For Fiss, it was natural that the judiciary’s duty to embody and apply public reason in the domestic context, a responsibility Fiss has argued for over the past forty years, could extend to the national security sphere. In vital respects, the legal issues raised by the War on Terror are about process—process not only in the conventional sense of rules that govern legal and administrative proceedings but also in the more profound sense of the bulwarks that stand between the individual and the awesome power of the state. Behind the major national security cases of the post–September 11 era—
Hamdi v. Rumsfeld, Hamdan v. Rumsfeld,
and
Boumediene v. Bush
—was the question of what role, if any, the judiciary should have in mediating the relationship between the Bush administration and those suspected of plotting or facilitating terrorism. Nested within this question was another inquiry, one that would continue to trouble courts into the Obama
presidency: When does the judiciary’s responsibility to defend fundamental rights take precedence over the executive’s expertise in national security and foreign relations?

In Fiss’s view, the major victories in the legal battle over the fight against terrorism were pyrrhic. The Supreme Court’s decisions in
Hamdi, Hamdan,
and
Boumediene,
along with the Detainee Treatment Act of 2005, gave as much to the executive branch as they took away, and left many vital questions unanswered—for example, whether the use of military commissions to try detainees off the battlefield violated constitutional due process. These deficiencies have been compounded by the actions of the lower courts, which have handed the government victory after victory in suits alleging torture, warrantless surveillance, and extrajudicial killings. To an even greater degree than in the era of the Burger and Rehnquist Courts, the actions of the judiciary in the post–September 11 era have fallen short of “the law as it could be,” to borrow the title of Fiss’s 2003 book.

Each of the chapters in this book is preceded by a short comment in which I identify the political and historical context of the essay that is the source of the chapter. The essays in Part I are meant to be read in sequence. They reflect Fiss’s evolving appraisal of the legal implications of the United States’ fight against terrorism and his dismay that the figure who seemed best poised to repudiate the policies of the Bush era, Barack Obama, ultimately acted to perpetuate them.

“In the Shadow of War,” the first essay of the volume, is an adaptation of a speech delivered at the University of Miami on the eve of the Iraq War. It captures the anxiety and uncertainty felt by many in the legal community during the early years of the Bush administration, when it seemed as if the judiciary might grant the government virtually limitless power to prosecute its War on Terror. But the essay also documents an unusual moment in time, when it seemed possible to imagine a vindication
of fundamental rights more sweeping than that which the Supreme Court ultimately delivered.

“The War on Terror and the Rule of Law” and “The Perils of Minimalism” both take as their subject the adequacy of the Supreme Court’s response to the Bush administration’s counterterrorism policies. Instead of heralding these decisions as vindications of constitutional rights, as many did, Fiss assesses them with a more critical eye. He examines how these decisions fell well short of their potential by failing to address or reach a consensus over crucial constitutional questions and by putting undue focus on technical issues at the expense of constitutional rights. As “The Perils of Minimalism” in particular argues, the consequences of these modest rulings can be inadvertently momentous, as with Justice Stevens’s opinion for the Court in
Hamdan,
which, by failing to condemn the use of military tribunals as running afoul of due process, implicitly endorsed them as constitutionally sound.

“Aberrations No More” reflects a turning point in Fiss’s thinking and expresses a profound disappointment. The essay evaluates the ways in which President Obama has failed to live up to the promise of his campaign to make a clean break with the national security policies of his predecessor. In his refusal to prosecute those who facilitated torture during the Bush administration, his endorsement of military commissions, and his perpetuation of the practice of imprisonment without trial, Obama transformed what could have been a lamentable but isolated chapter in American history into an enduring debasement of the Constitution.

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