A leading legal scholar for more than thirty years, Owen Fiss’s focus was civil procedure and equal protection. But when the War on Terror began to shroud legal proceedings in secrecy, he realized the bulwarks of procedure that shield the individual from the awesome power of the state were dissolving, perhaps irreparably, and that it was time for him to speak up.
The ten chapters in this volume cover the major legal battlefronts of the War on Terror from Guantánamo to drones, with a focus on the constitutional implications of those new tools. The underlying theme is Fiss’s concern for the offense done to the US Constitution by the administrative and legislative branches of government in the name of public safety and the refusal of the judiciary to hold the government accountable. A War Like No Other is an essential intellectual foundation for all concerned about constitutional rights and the law in a new age.
“Fiss is one of our most clear-eyed and hard-edged constitutional analysts, and this critique of the damage done to our constitutional heritage in the name of waging a war on terror is the most devastating I have seen.” —Stanley N. Katz, director of the Princeton University Center for Arts and Cultural Policy Studies
“An essential contribution from one of the country’s foremost legal scholars.” —Jonathan Hafetz, former senior attorney for the National Security project of the ACLU
“Thought-provoking.” —Publishers Weekly
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About the Author
Owen Fiss is Sterling Professor Emeritus of Law at Yale University. He clerked for Justice Thurgood Marshall and later for Justice William J. Brennan Jr. He is the author of many articles and books, including Troubled Beginnings of the Modern State, Liberalism Divided, and The Irony of Free Speech. He lives in New Haven, Connecticut. Trevor Sutton clerked for Judge Stephen Williams of the Court of Appeals for the District of Columbia and later served as a fellow in the Office of the Secretary of Defense. He currently works for the United Nations on issues of corruption. He lives in New York.
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IN THE SHADOW OF WAR
On 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.
Although everyone at the symposium was aware of these developments, they were not publicly discussed. Neither the war in Iraq nor that in Afghanistan, nor even the War on Terror, was the subject of any of the panels or formal presentations, perhaps because the issues they raised seemed far removed from my teaching or scholarship. Yet I felt the need to break this unwitting pact of silence and used — seized? — the opportunity given to me in closing remarks for that purpose. For me, the Iraq War was a gross violation of international law and put into bold relief the disregard for the law that has so marked the post–September 11 era.
International law is a fragile enterprise. Based part on custom, part on the consent given in treaties, and part on the actions and the processes of international organizations, the authoritative character of international law, as both a descriptive and a normative matter, is always in dispute. Yet the rules regarding the use of force seem clear. The Charter of the United Nations, adopted by the United States and thus binding on it as a treaty, prohibits the use of force with two exceptions, one for self-defense and the other when the Security Council determines that the use of force is needed to secure world peace. The Afghanistan war may have been consistent with the Charter, but this could not be said of the war that had just begun in Iraq.
Although the Security Council adopted a resolution condemning the September 11 attacks and in general terms affirmed the right of self- defense, it did not in so many words authorize the United States to invade Afghanistan either to overthrow the Taliban or to suppress al-Qaeda. The defense of the legality of the war had to be based on the right of self-defense. The United States determined that al-Qaeda was responsible for the attacks of September 11 and that the war against Afghanistan, then controlled by the Taliban, was justified because of the symbiotic relationship between the Taliban and al-Qaeda.
By permitting the use of force for self-defense, the Charter creates a measure of unilateralism. Power is vested in an individual nation-state to determine whether it has been attacked, who is responsible for the attack, and even whether the relation between a state and some terrorist organization, such as al-Qaeda, is such as to justify an armed attack against another state. Only the strong are truly able to enjoy the freedom to make these judgments and to decide whether to use armed force, instead of less violent and more targeted alternatives, in response to an aggressive attack.
Law requires impersonality in order that the applicability of norms not turn on the personal identity of the subject, but every system of law operates in a way that allows the rich and powerful greater enjoyment of protected rights than that experienced by the poor and weak. Consider, for example, the provisions of the Bill of Rights guaranteeing free speech or the assistance of counsel. We may seek to enhance the prerogatives of the poor or weak in order to minimize the difference in the experience of these rights, but such an endeavor is driven more by egalitarian concerns — everyone should enjoy the blessings of liberty — than by a belief that these reforms are required to turn the First or Sixth Amendment into law.
In the domestic sphere, independent tribunals, backed by the power of the state, have the authority to determine whether an act of violence that is justified in the name of self-defense fully respects the bounds of that right. Such an institutional arrangement is lacking in the international sphere. This distinguishes the law of the nation-state from that of the world community, but it does not mean that the United Nations Charter and international conventions are not law. In the international context, law consists of the norms and principles that a nation-state is duty bound to respect and obey, and in the case of the Charter this duty arises from the solemn consent given to it by a nation-state. Those aggrieved by an alleged violation of the Charter may not be able to turn to an independent tribunal to determine whether those norms have been fully respected; nor can they rely on some world police to enforce a judgment of such a tribunal. But they can address the world community and demand that it make a judgment for itself and, if appropriate, impose on the party violating those norms whatever sanctions lie within the community's lawful grasp. Sometimes the only sanction may be shame. The responsibility devolves on each of us, as members of the world community, to make a disinterested judgment as to whether the norms of the Charter have been honored.
Understanding law in these terms, I venture to say that a strong — and, in my view, a convincing — case could be made for the legality of the war in Afghanistan. No such case, however, could be made for the war in Iraq. The invasion of Iraq was not precipitous. It was the product of a long and sustained buildup, and in the course of that buildup various defenses were offered on behalf of the use of force. None was persuasive. On occasion, the legality of the war was defended on the basis of a series of Security Council resolutions. The first, adopted in 1990, authorized the use of force against Iraq to eject it from Kuwait. The second, adopted in 1991, imposed a disarmament obligation on Iraq after it was in fact ejected from Kuwait and a cease-fire was instituted. The third — Resolution 1441, adopted in the fall of 2002 — declared that Iraq remained in material breach of its disarmament obligations. It also gave Iraq a "final opportunity" to comply with those obligations and warned Iraq of "serious consequences" if it did not comply.
Warning of "serious consequences" is not, however, the same as authorizing the use of military force against Iraq, either by the United States or by any other nation. It also seems far-fetched to assume that the determination in Resolution 1441 that Iraq was in material breach of the disarmament obligations imposed by the second resolution revived the authorization of force contained in the first resolution, since that resolution authorized the use of force only to eject Iraq from Kuwait. Bent on war, the United States sought yet another resolution to authorize the invasion of Iraq. Once it became clear that it would not obtain this authorization, the United States proceeded without Security Council approval and invaded Iraq.
Unlike the Afghanistan war, the invasion of Iraq could not be justified as falling within the right of self-defense granted in the Charter. There were no ties between Iraq and al-Qaeda. The Bush administration claimed that Iraq possessed weapons of mass destruction and that one day they might be turned upon the United States or other nations we are duty-bound to protect. However, the evidence supporting the claim that Iraq possessed weapons of mass destruction was thin. Even after the invasion, no such weapons have been found. Even if the evidence were otherwise, the concept of self-defense would have to be broadened to include a preemptive war. At the very least, such preemptive action requires that the feared Iraqi attack, against which the United States was purportedly defending itself, be imminent in order to qualify as an act of self- defense. Because no such claim could be made in the case of Iraq, the concept of self-defense would have to be stretched still further, beyond the breaking point — to sanction a preventive, as opposed to a preemptive, war.
The Bush administration also claimed — all the more so once no weapons of mass destruction were found — that it was intent on ending the tyranny of Saddam Hussein and thus bringing freedom and democracy to the Iraqi people. In support of this claim, reference has been made to the use of force by NATO in Kosovo in the spring of 1999, and the precedent that it set for what has been called humanitarian intervention. This use of force also lacked Security Council authorization. Because the Kosovo intervention violated the Charter and the system of law that it establishes, the status of that precedent as law remains uncertain. In any event, even if it were viewed as law, a crucial distinction must be made between military intervention designed to stop large-scale ongoing carnage or a genocide in progress — as in the case of Kosovo — and the use of force intended to topple a tyrant such as Saddam Hussein. Granted, Hussein, like most tyrants, came to power through brutal and violent means, but the death and destruction that war inevitably entails, followed by military occupation, can never be justified as a means of ending a tyranny such as Hussein's. Other less deadly and less destructive alternatives always exist. The war in Iraq may have been within the strategic or economic interests of the United States — that remains to be seen — but it signaled a contempt for the most elementary precepts of international law.
At the time of our meeting in Coral Gables, the Iraq War was so fresh and so immediate that no judgment could be made as to how that war would be conducted and what strains, if any, it would place on principles of law in the domestic realm. But the record already established by the Afghanistan war and, more generally, by the War on Terror was disturbing. The USA PATRIOT Act, proposed by the administration shortly after September 11, and immediately enacted by Congress, vastly increased the surveillance powers of the government. The administration also subjected many noncitizens, especially those of Middle Eastern origin, to relentless questioning. Some were arrested on the weakest of grounds and detained or deported.
Most disturbing of all, the administration decided to treat prisoners of the war against al-Qaeda and Afghanistan in ways that challenge the authority — indeed, the responsibility — of the judiciary to safeguard the Constitution. These practices touch on themes central to my work and central to all the papers in the symposium, and, more significantly, threaten one of the most cherished and elementary tenets of our legal system. The administration adopted a detention policy that puts the rule of law into question, and, much to my astonishment, in a number of key cases, this policy has been endorsed by the judiciary.
Habeas corpus is the historic means by which prisoners contest the constitutionality of their imprisonment. When the prisoner is being held by the United States government, the habeas writ must be sought in a federal court. On March 11, only ten days before we convened in Coral Gables, a unanimous panel of the Court of Appeals for the District of Columbia Circuit declared in Al Odah v. United States that no federal court could entertain the writ on behalf of a group of prisoners from the war in Afghanistan who were held by the United States at Guantánamo Bay Naval Station. The court denied them any opportunity whatsoever to contest the legality of their imprisonment by the United States.
All of these prisoners were captured by or turned over to the United States forces. Most were seized in Afghanistan, some in Pakistan. With the possible exception of one, who played no role in the court's reasoning, the prisoners all denied that they were soldiers of the Taliban or al-Qaeda, or that they committed any violent acts against the United States. They claimed that they were present in the region either for personal reasons (for example, to visit relatives or arrange a marriage) or to provide humanitarian aid. They insisted that they were improperly seized, sometimes in a sweep of a village, sometimes by bounty seekers, who then turned them over to the Northern Alliance or to the United States. The Court of Appeals assumed, as it must when considering objections to jurisdiction, that these factual claims were true. Thus, although all were aliens — the prisoners were nationals of either Australia, Britain, or Kuwait, all allies of the United States in the war in Afghanistan — the court assumed that none was a combatant or even an enemy alien (a citizen of a nation with which the United States is at war).
The Court of Appeals viewed litigation challenging the constitutional validity of detention as a privilege, and limited the exercise of the privilege by aliens to those imprisoned within the territorial limits of the United States. It also ruled that Guantánamo was not within those limits. I find it odd to view litigation of this sort as a privilege. More is at stake than the liberty of the individual seeking the habeas writ. The United States is a government constituted by law, and a habeas corpus proceeding is a way of making certain that the government is acting within the limits of the law. Habeas serves a public, not just a private, function. Accordingly, access to a court capable of granting the writ should not be viewed as a privilege belonging to some individual or class of individuals but rather as a means of enabling the judiciary to perform a solemn duty: ensuring that the government is acting within the terms of the Constitution.
The circuit court also erred when it ruled that Guantánamo was not within the territorial limits of the United States. The limits of the United States extend to the territories over which it exercises sovereignty, and surely the United States exercises practical, if not formal, sovereignty over the territory on the island of Cuba occupied by the Guantánamo Bay Naval Station. Sovereignty means supreme dominion, and that is precisely what the United States has in Guantánamo. As a purely formal matter, the United States was given possession of the territory in a 1903 lease (modified in 1934), but it is a lease without a term.
In support of its decision, the Court of Appeals drew an analogy between aliens in Guantánamo and those held in some foreign country. It noted that habeas proceedings in a federal court could not be commenced on behalf of an alien who might be held by agents of the United States in a foreign country because the Bill of Rights affords no protection to such persons. It then concluded that the same rule should apply to aliens held at Guantánamo. Because I view the Constitution more as a constraint on the government than as a scheme that distributes benefits to certain privileged categories of persons, I question the premise upon which the analogy rests. But even accepting that premise, the Court of Appeals erred in overlooking a crucial distinction between the prisoners in Guantánamo and those held by United States agents in, for example, France or Mexico. The alien held by the United States in a foreign country may seek relief in the courts of that country and may invoke its laws or even those of the United States to contest the validity of his detention. To what courts might the prisoners in Guantánamo turn if not to those of the United States?
Al Odah denied aliens held in Guantánamo the right ever to make their case — that they were not soldiers but humanitarian workers or were in the region for purely personal reasons and thus were being held illegally—in the only court that might have jurisdiction to hear that claim. Al Odah created what an English jurist has called a "legal black hole." The court's position, I suspect, was not derived from a proper regard for the notion of sovereignty but rather sprang from a fear of interfering with the executive in the conduct of the war in Afghanistan or, for that matter, any war. A similar dynamic led the Court of Appeals for the Fourth Circuit in Hamdi v. Rumsfeld, decided only two months before, on January 8, 2003, to shield the government from having to explain and justify its detention of another prisoner seized in the course of the war in Afghanistan. This time, however, the prisoner — Yaser Esam Hamdi — was an American citizen who was held not in Guantánamo but in Norfolk, Virginia.(Continues…)
Excerpted from "A War Like No Other"
Copyright © 2015 Owen Fiss and Trevor Sutton.
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Table of 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,