A War Like No Other (2 page)
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Authors: Owen Fiss
“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 constitutional 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.
Despite their concerned tone, the message of all these essays is fundamentally one of hope. Through the example of Aharon Barak, Fiss remains committed to the belief that a well-functioning democracy can defeat even the most dangerous of foreign threats without compromising its most cherished values. Fiss, like Barak, is steadfast in his belief that the challenges intrinsic to the fight against terrorism should never cause us to lose sight of the principles that make us great.
A WAR LIKE NO OTHER
Prologue to Chapter 1
Trevor Sutton
The federal judiciary’s response to the Bush administration’s prosecution of the War on Terror was one of the most closely watched and hotly debated topics in American public life of the previous decade. Today, after extensive litigation in federal courts, including several major Supreme Court decisions concerning the president’s power to conduct war and defend the nation, a consensus of sorts has developed around a few basic—albeit vague—principles: the executive cannot act with unfettered discretion in seeking to eliminate terrorist threats; some constitutional rights operate outside the territorial United States; citizens and noncitizens alike should be afforded some measure of due process in determining their legal status under the laws of war.
It is tempting to view this hard-won consensus as self-evident and inevitable—that is, to conclude in hindsight that under no circumstances was the Supreme Court going to allow the executive to do whatever it wanted in the name of national security. But when the initial essay in this book, “In the Shadow of War,” first appeared in 2003, less than two years after the September 11
attacks, the major legal battles of the Bush years had barely begun, and their outcome was far from obvious. Although the nation later soured on the Bush administration’s handling of the Iraq War, in 2003 political opposition to the president’s policies was feckless, where it existed at all. The Senate, with a Republican majority, had authorized the Iraq War with a vote of 98–2. It had passed the USA PATRIOT Act by similar margins a year and a half earlier. The war in Afghanistan remained popular, and the president himself enjoyed approval ratings north of 70 percent in some polls.
“In the Shadow of War” reflects the anxiety and uncertainty felt by many in the legal community during the early years of the Bush administration. The essay was originally delivered at a symposium at the University of Miami, shortly after the start of the Iraq War, at a time when the federal judiciary was only beginning to grapple with the basic dilemmas posed by the administration’s treatment of enemy combatants. On fundamental questions—for example, what sort of due process is required in order to classify someone as an unlawful enemy combatant? what is the legal status of Guantánamo? what is the extraterritorial reach of the writ of habeas?—judges appeared prepared to defer to the Bush administration’s sweeping claims that the exigencies of war trumped the judiciary’s historical responsibility to police executive action.
Yet if it was not obvious in 2003 that the pendulum would swing back toward judicial oversight of the president’s wartime powers, nor was it obvious that the pendulum would stop where it did—further in the direction of civil liberties than the Fourth Circuit’s decision in
Hamdi v. Rumsfeld,
discussed in the essay, but short of where many, including Owen Fiss, would have hoped. In
Hamdi
and
Boumediene v. Bush,
the Supreme Court made clear that it was not giving President Bush a “blank check,” to borrow Justice O’Connor’s famous phrase, but it did
leave a very high balance in the executive’s account. By contrast, even in the heated months leading up to the invasion of Iraq, some American jurists were prepared to give a more full-throated defense of the Bill of Rights than that offered by the
Hamdi
and
Boumediene
Courts. Of particular note, in the 2003 case
Detroit Free Press v. Ashcroft,
the Sixth Circuit rejected as unconstitutional a directive ordering the closure of all immigration proceedings deemed of “special interest” to the fight against terrorism. With unusually sweeping language, the Sixth Circuit sternly admonished the Bush administration for seeking “to uproot people’s lives, outside the public eye, behind closed doors,” adding, “Democracies die behind closed doors.”
As bombs dropped on Baghdad, there was hope in some quarters that the Supreme Court would proceed from principles similar to those expressed in the
Detroit Free Press
decision in assessing the lawfulness of the administration’s counterterrorism policies. As the remaining chapters in this book will illustrate, such optimism was not rewarded.
O
n March 21–22, 2003, a symposium was held in Florida on my work. The symposium was sponsored by the University of Miami and was organized by Professor Irwin Stotzky, a true friend and an organizational wizard. He decided to hold the meetings not in the law school itself but nearby at the Biltmore Hotel in Coral Gables. The Biltmore is a magnificent hotel built in the 1920s and partakes of the elegance of that era. It is a National Historic Landmark, set among grounds and courtyards lush with palm trees and crowned by a bell tower that is a replica of the famed Giralda of Seville.
The glamour of the setting added to the joyousness of the occasion. It also introduced an element of unreality to what we were doing. For two full days we were ensconced in the beauty of the Biltmore, talking about issues of great importance to me and, presumably, to the academics present—school desegregation, free speech, civil procedure, and the history of the Supreme Court. Reason reigned supreme, lightened by the camaraderie among the participants and the presence of my family. The world, however, was in a very different place. It was dark and
tragic. On Wednesday, March 19, only two days before, the United States had invaded Iraq.
The war was on our minds. One of the panelists, Aharon Barak, was unable to travel to Coral Gables from Israel because of the outbreak of the war. His absence was a constant reminder of the events occurring in Iraq. Moreover, all of us carried within ourselves the tragic losses of September 11 and knew full well the significance of the ongoing War on Terror. We were also mindful of the war in Afghanistan. It had begun in October 2001, shortly after the terrorist attacks on the World Trade Center and the Pentagon, and though the Taliban had already been ousted and the Northern Alliance had assumed power, sporadic fighting continued, as did the search for the leadership of al-Qaeda.