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  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.

  pagescm

  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.F572015

  344.7305'32517—dc23

  2014050102

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  To

  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

  September 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.

  “Law Is Everywhere” completes the sequence by proffering a counterexample to those who claim that there is no satisfying way to balance fundamental rights against public safety. The essay celebrates the career of Aharon Barak, Israel’s most famous legal mind and a former president of its Supreme Court. Fiss examines several of Barak’s most powerful opinions—in particular a decision affirming the legality of the targeted killing of suspected terrorists but placing limits on its use—to illustrate how basic principles of fairness and humanity can flourish in even the most dire security environments.

  In Part II, Fiss deepens his inquiry by addressing specific practices and policies implemented during the war against terrorism. “Imprisonment Without Trial” discusses one of the most hotly debated issues of the post–9/11 era: prolonged detention of alleged terrorists without charging them with a crime or placing them on trial. The essay continues many of the themes explored in the first half of the book, in particular the failure of the Obama administration to firmly repudiate the practices of the Bush administration that threatened what Fiss calls “the principle of freedom.”

  “Torture and Extraordinary Rendition” looks at the practice of extraordinary rendition, under which individuals suspected of terrorist affiliations are kidnapped and handed over to foreign governments for torture-based interrogation. Although many believe this practice has stopped under Obama, his administration has nonetheless chosen to defend the practice in federal court, to great success. In Fiss’s view, the lower courts’ assent to the government’s position—effected through various doctrines of abstention—represents an abdication of the essential duty of the judiciary to hold the political branches accountable to the Constitution.

  “Criminalizing Political Advocacy” focuses on a single case, Humanitarian Law Project v. Holder, in which the justices decided by a 6–3 vote to uphold a statute criminalizing political advocacy for foreign organizations that the secretary of state had designated as supporters of terrorism. For Fiss, the decision represents a break with the strong tradition rooted in the landmark 1969 case Brandenburg v. Ohio that seeks to protect political advocacy. The decision illustrates the corrosive effect of the specter of terrorism on constitutional liberties, even those that are relatively remote from the day-to-day prosecution of the War on Terror.

  “Warrantless Wiretapping” was published before Edward Snowden’s revelations of widespread NSA surveillance, yet the essay remains relevant for those seeking to understand how the current scandal came to pass. The essay traces how Bush’s and Obama’s counterterrorism policies led to the enlargement of the surveillance state in a way that made the more recent NSA scandal all but inevitable. In particular, Fiss notes that two components of the 2008 amendments to the Foreign Intelligence Surveillance Act—the enabling of blanket authorizations for electronic surveillance and the elimination of the FISA judge’s authority to scrutinize the factual basis for a warrant application—permitted a pattern of conduct that violated the Fourth Amendment rights of millions of people.

  The final piece, “The Targeted Killing of Alleged Terrorists,” is the only essay in this volume that has not been previously published in some form. It examines the judiciary’s refusal to judge a controversial counterterrorism policy, one that the Obama administration has expanded far beyond anything contemplated by President Bush: the use of drones to kill alleged extremists. In Fiss’s view, this policy puts in jeopardy values even greater than those vindicated in Hamdi and Boumediene: the constitutional guarantee against execution without trial. In this sense, the essay is a coda to the disappointment expressed in “Aberrations No More.”

  These ten essays take up disparate topics, but they share a number of key themes. The most important of these is the centrality of constitutional norms to all of Fiss’s arguments. While many of the legal controversies discussed in the book involve the meaning of statutes and international conventions (particularly those that seek to regulate the conduct of the executive during wartime), for Fiss these instruments embody and are backstopped by the rights and privileges found in the Constitution itself. No statute or treaty can abrogate the constitutional principles that Fiss identifies in the essays, such as the principle of freedom or the prohibition of torture.

  The essays are also emphatic in their insistence that the judiciary hold the political branches accountable to the Constitution despite the extraordinary circumstances of the war against terrorism. The framework set out by Fiss recognizes the constitutional authority of the government to conduct war, but it also accepts that the Constitution places limits on the way that war may be waged. In Fiss’s view, there is one Constitution in war as well as in peace.

  Further, the constitutiona
l limits placed on the government in prosecuting the War on Terror are not necessarily those applicable to more conventional wars. Fiss recognizes that the campaign to defeat al-Qaeda and its allies is a war, but he also cautions that it is an unusual war, one that has no clear temporal or geographic limitations. Thus, the prerogatives of belligerents in a traditional war, such as the right to hold enemy combatants until the termination of hostilities or place them on trial before military commissions, must be adjusted to fit the circumstances of a war that may continue indefinitely.

  The constitutional norms propounded in these essays are understood by Fiss to be binding on United States officials wherever they act and against whomever they act—even if those acts occur outside the United States and affect only noncitizens. Although these norms may have different meanings in different settings, they are applicable everywhere. This vision of the Constitution shares much with that expressed by Justice Brennan in his dissent in the 1990 case United States v. Verdugo-Urquidez, which is examined in several of the essays.

  The essays are also unified by a rejection of the tenets of a school of jurisprudence known as “minimalism,” which has become increasingly popular in legal circles. Fiss makes his case against minimalism most strongly in “The Perils of Minimalism,” where he objects to the limited nature of the Supreme Court’s ruling on the use of military commissions to try suspected terrorists. Yet the essence of his critique—namely, that a preoccupation with technical distinctions at the expense of fundamental values can prolong and legitimate unconstitutional practices—is of more general application. For example, it guides Fiss’s opposition to the judicial response to claims of targeted killings and extraordinary rendition filed against U.S. officials.

  Finally, although the legal dimensions of the War on Terror are often perceived as affecting only those accused or suspected of terrorist activities, in Fiss’s view the character of American society itself is also at stake. As Fiss observes repeatedly in “Criminalizing Political Advocacy” and “Warrantless Wiretapping,” an analysis of the war’s effects on freedom of speech and the right to privacy, when the Constitution is degraded in the name of public safety, the rights of all those subject to the authority of the United States government are at risk.