A War Like No Other: The Constitution in a Time of Terror by Owen Fiss

By Owen Fiss

Owen Fiss has been a number one felony student for over 30 years, but prior to 2001 it is going to have appeared not going for him to jot down approximately nationwide safeguard and the legislation of conflict; his concentration was once civil process and equivalent defense. yet, while the struggle on Terror started to shroud felony lawsuits in secrecy, he realised that the bulwarks of strategy that guard the person from the striking energy of the country have been dissolving. A conflict Like No different might be a necessary highbrow origin for all all for constitutional rights and the legislations in a brand new age.

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When it came time to apply the four criteria of Section 2, Judge Ellis did not make his judgment on the basis of what Lindh or his unit or the militia of which he was a part did. Rather, he made a judgment about what the Taliban army did in its entirety, and then applied that judgment to everyone who fought for the Taliban, including Lindh. This blanket approach compounds Judge Ellis’s initial error—subjecting regular armed forces to the four criteria of Section 2—for it does not permit any distinction among the various units that comprise the fighting force of a nation at war.

In an opinion by Chief Justice William Rehnquist, the Supreme Court held that under the relevant statute the habeas application should have been filed in South Carolina, not New York, and that the proper defendant was not the secretary of defense but, rather, the commander of the Charleston brig. Padilla remained imprisoned, and his lawyer was required to begin the habeas proceeding once again. Although this might indeed be true, Rehnquist did not explain why the Court could not create yet another exception.

Military authorities in Iraq at the Abu Ghraib facility—fully disclosed to the world only weeks before the Supreme Court’s decision in Rasul—could make no constitutional claims against the United States. In the months following this disclosure, Congress and the president apologized to the victims of torture at Abu Ghraib. The line officers immediately responsible for the torture have been disciplined. Although it was no part of the business of the Supreme Court in Rasul to address the abuses in Abu Ghraib—the Court left the law where it found it—those events throw into bold relief the limitations of what the Rasul Court did in fact decide.

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