A War Like No Other

by Fiss, Owen

  The limitations of the Boumediene decision were also evident in the test Kennedy announced for determining when habeas would be available. He did not find, as he might have, that the writ must be available whenever or wherever a prisoner is held in a secure detention facility by an American official but rather made his decision turn on a multivariate test. According to Kennedy, the availability of the writ depended on (1) the citizenship of the prisoner, (2) the prisoner’s status, (3) the adequacy of the process through which his status was determined, (4) the nature of the site of apprehension, (5) the nature of the site of detention, and (6) the practical difficulties in resolving the prisoner’s claim of freedom.35 Of course, we have become accustomed in the law to multivariate tests, but usually, as with the famed Matthews v. Eldridge36 test, the various factors are meant to pursue or serve a single unifying principle. Some factors identified in Boumediene, by contrast, bore little relation to the separation-of-powers principle that was allegedly the foundation of the decision. As a result, no one could tell how the test might apply to other detention facilities abroad, such as the one maintained by the United States at the Bagram Air Field, an air force base in Afghanistan, which was also used to detain suspected terrorists and, at the time, held close to six hundred prisoners.

  The War on Terror, Continued

  On November 4, 2008, only months after the Boumediene decision, Barack Obama was elected president of the United States. There was reason to believe that Obama might repudiate many of the Bush policies that offended the Constitution: Obama had campaigned on a platform that promised change, and many understood that promise to reach Bush’s counterterrorism policies. Obama gave further credence to this hope when, in his inaugural address, he rejected the notion that the fight against terrorism required us to betray our ideals. For the most part, however, Obama has not been true to his promise. Although he withdrew the last combat troops from Iraq in August 2011 and is scheduled to end the U.S. military presence in Afghanistan by the end of 2015, and although he has been meticulous in avoiding the use of the phrase “War on Terror,” Obama has frequently declared that we are at war with al-Qaeda and the Taliban, and in the name of these wars has continued many of the unconstitutional policies of Bush.

  As his first piece of business, Obama issued an executive order banning torture.37 He thus reaffirmed the constitutional principle codified by McCain’s addition to the Detainee Treatment Act of 2005 and removed the doubt created by the statement Bush had made on signing that act. Obama also minimized the risk of torture by issuing orders that same day closing the secret prisons maintained abroad by the CIA—the so-called black sites38—and requiring the CIA to follow the Army Field Manual when interrogating suspects.39

  Yet Obama quickly brushed aside calls for criminal prosecutions and truth commissions to investigate the abusive interrogation practices of the previous administration. After a public outcry, his attorney general opened an investigation on a CIA interrogator accused of going beyond agency guidelines.40 The alleged crime was not waterboarding, which appears to have been authorized by higher officials—perhaps, if his memoir is to be believed, by Bush himself. Rather, the agent was accused of threatening a hooded and shackled prisoner with imminent death first by revving an electric drill near the prisoner’s head and then by cocking a semiautomatic handgun in the same position. The investigation of this rogue agent was opened in August 2009 and came to naught. For the most part, the president has insisted, even with as gross an offense as torture, that he is interested in the future, not the past, without understanding that how one treats the past partly determines what will happen in the future.41

  Obama can also be faulted for seeking to block any judicial inquiry into the practice of extraordinary rendition, even in cases in which it is alleged that the suspected terrorist in the custody of the United States was handed over to a foreign ally for interrogation under conditions of torture. In two notable instances, one in the Ninth Circuit and the other in the Second Circuit, the Obama administration sought to block judicial inquiries into renditions conducted by the Bush administration. These proceedings were brought by victims of rendition and were pending before appellate courts when Obama took office. In one, Obama’s lawyers relied on the state-secrets doctrine, transforming what was originally an evidentiary privilege into a de facto grant of immunity to the CIA.42 In the other, his lawyers claimed that any judicial inquiry into the practice of extraordinary rendition would compromise the executive’s authority over military and foreign affairs.43

  In contrast to Bush, Obama has been reluctant to treat the United States as part of the battleground against al-Qaeda and the Taliban. Accordingly, he placed within the ambit of the criminal justice system two terrorist suspects who were seized in the United States on his watch. One was an American citizen attempting to detonate a bomb in Times Square44 and the other a citizen of Nigeria attempting to detonate a bomb on a Northwest Airlines flight as it was about to land in Detroit.45 Yet Obama invoked the war exception to the principle of freedom as the basis for continuing the imprisonment without trial of prisoners being held in Guantánamo and at the Bagram Air Field in Afghanistan. Bush had claimed this power as commander in chief. Anxious to avoid the unilateralism of Bush, Obama did not invoke his authority as commander in chief to justify this policy but relied instead on the statute passed by Congress immediately after 9/11, which did no more than authorize the president to use force in responding to the terrorist attacks on that day.

  Although on occasion Bush tried al-Qaeda suspects in civilian courts, he also claimed the authority to try some before military commissions and did so without announcing the criteria to govern the choice between tribunals. Obama has claimed the same authority. Obama made headlines when he first announced that he would try the alleged mastermind of 9/11, Khalid Sheikh Mohammed, in the Southern District Court of New York,46 but the controversy that erupted over this announcement should not blind us to the fact that Obama is prepared to try some of the Guantánamo prisoners before military commissions and, in fact, is now trying Khalid Sheikh Mohammed in that way. Unlike Bush, Obama announced criteria for governing the choice of tribunal, but these criteria were stated at such a high level of generality as to compromise their capacity to constrain that choice.

  As a senator, Obama voted against the Military Commissions Act of 2006, which not only barred habeas corpus but authorized the use of military commissions to try foreign nationals being held as unlawful enemy combatants.47 As president, Obama sponsored the Military Commissions Act of 2009.48 Admittedly, the principal purpose of this legislation was to strengthen the evidentiary rules governing military commissions. Under this statute, all coerced testimony was barred, the accused was given a reasonable opportunity to obtain evidence and witnesses, the government’s obligation to disclose exculpatory evidence was expanded, and the accused was given the right to examine any evidence offered at trial. Moreover, the political officer convening a military commission was prohibited from punishing members of the commission for any of their rulings.

  Still, the basic structural shortcoming of the commission—trial by military officers—persists. Indeed, the 2009 act, building on Bush’s initial executive order of November 2001 and the Military Commissions Act of 2006, represents a further institutionalization of military commissions as an irregular alternative the executive might choose—based on criteria we will never know—for the prosecution of unlawful—or now unprivileged—enemy combatants. Much like the 2006 act and Bush’s November 2001 executive order, the 2009 act defined the offenses that could be tried before a commission to include crimes, such as giving material aid to a belligerent, that could not properly be considered crimes under the laws of war.49 The irregular nature of these military commissions was underscored by a provision in the 2009 act, also present in the 2006 act and the 2001 executive order, confining them to the trial of foreign nationals.

  Obama has sought to follow through on his promise to close Guantánamo. In December 2
009, he announced his plan to transfer the remaining Guantánamo prisoners to a prison in Thomson, Illinois. This plan encountered congressional resistance and has not yet been implemented. It should be emphasized, however, that once Obama decided, as he did in May 2009, to continue the practice of using military commissions for the trial of some of the Guantánamo prisoners and to continue the policy of holding other Guantánamo prisoners for prolonged, indefinite detention without trial, the closing of Guantánamo has become a gesture of doubtful significance. Guantánamo became an object of public controversy and disapprobation not just because it was viewed as a site where prisoners were tortured but also because Bush had planned to use military commissions to try some of the prisoners being held there and to continue the imprisonment of others being held there without affording them a trial of any type.

  The notoriety of Guantánamo had also arisen because Bush insisted that it lay beyond the reach of habeas corpus. It had become something of a legal black hole.50 The Boumediene decision, in June 2008, relieved Obama of the need to take a position on the availability of the writ of habeas corpus to the Guantánamo prisoners—the Supreme Court rejected Bush’s position—but Obama has tried to limit the scope of that ruling, and in so doing further denied the act of closing Guantánamo of much of its meaning. Obama’s lawyers argued in open court that the Boumediene decision should be confined to Guantánamo alone and that the prison at Bagram—to which terrorism suspects from the four corners of the earth had been brought—was beyond the reach of the Constitution.

  The district court rejected the stark position of Obama. It applied the Boumediene criteria to Bagram and found that habeas is available to those prisoners who were not Afghan citizens.51 However, the court of appeals, also applying the Boumediene criteria, reversed this decision and denied habeas to any of the Bagram prisoners.52 Three years later, following further proceedings in the district court on remand, the court of appeals reaffirmed its position.53 Such protracted litigation is not at all surprising, given the multivariate test Justice Kennedy laid down in Boumediene, but what is remarkable and disturbing is that Obama denied that habeas is available for the prisoners of Bagram, just as Bush had for the Guantánamo prisoners.

  Finally, account must be taken of Obama’s position on the warrantless wiretaps that began during the Bush era. Bush claimed the authority to institute such surveillance as an incident of his power as commander in chief and insisted that, as such, he was free to disregard the obligation to obtain a warrant imposed by FISA. Obama did not claim such executive prerogatives, nor was there any reason for him to do so. In the Protect America Act of 2007, Congress authorized the president to engage in such eavesdropping, and this authorization was extended in the FISA Amendments Act of 2008. As a senator, Obama voted against the 2007 act. He fought the grant of immunity to the carriers eventually contained in the 2008 act, but in the end he voted for the measure. Upon assuming office, Attorney General Eric Holder indicated that he would vigorously defend the 2008 act’s constitutionality. In 2013 Holder obtained a ruling from the Supreme Court that denied standing to probable victims of the surveillance and, in so doing, effectively insulated the statute from judicial review.54

  The Creation of a New Normal

  Although the differences between Bush and Obama must be noted and acknowledged, the essential truth is one of continuity. Obama has sought to block judicial inquiries into extraordinary rendition. Obama has continued the policy of imprisonment without trial. Obama has sought to deny the writ of habeas corpus to the prisoners now being held in Bagram. Obama has continued to use military commissions to try terrorist suspects. And Obama has continued the policy of warrantless wiretaps. Obama sometimes announced these policies with reluctance, which was never Bush’s style, but in the end Obama overcame this reluctance and chose to sacrifice principle.

  The reasons for Obama’s perpetuation of Bush’s policies are hard to fathom. Maybe Obama learned things about the nature of the terrorist threat that he did not know before. Maybe Obama compromised on these issues of principle in order to gain support for a number of his domestic policies—health care or economic recovery. Or maybe Obama has been unable to resist the momentum achieved by the Bush policies once they were, for the most part, endorsed by Congress and condoned by the Supreme Court. We do not know and we are likely never to know. Our concern should be, however, not with the reasons for Obama’s actions but rather with the consequences of his action, which are unmistakable and troubling.

  In the immediate wake of 9/11 and the beginning of the War on Terror, many of the abuses of the Constitution that I have identified were seen as aberrations, perhaps unilateral excesses of Bush and his close circle of advisers. Soon these practices received the endorsement of Congress and often the acquiescence of the Supreme Court. Now they have been endorsed by the new president, a lawyer who professes to be dedicated to the Constitution and the highest ideals of the nation. As a result, the transgressions of the Bush era, rather than being denounced as unworthy of our Constitution, have been institutionalized. They have become the official policies of our government and are routinely defended as constitutional. The transgressions we suffer today will inevitably determine what is permissible in the future. They have shaped our understanding of what is acceptable, and may well serve as precedents for a less reluctant president.

  Continued in this way, unconstitutional policies initiated by Bush have taken on a life of their own and have become durable features of our legal order. As such, they betray the proudest ideals of the nation, undermine one of the pillars of our self-understanding, and deny us—all of us, including Obama—the right to speak of the example of America as we once did—as a beacon for all the world.

  Prologue to Chapter 5

  Trevor Sutton

  Many of the legal issues addressed in these essays were matters of genuine first impression for American jurists—and indeed for the majority of American lawyers and legal academics, including Owen Fiss. It is true that the United States’ long history of armed conflict contains episodes that informed the judiciary’s assessment of the Bush administration’s War on Terror. Nevertheless, none of the seminal Supreme Court decisions relating to the executive’s wartime actions, such as Ex Parte Milligan, Ex Parte Quirin, and In Re Yamashita, supplied a clear precedent to resolve the central questions examined by the Supreme Court in its review of the Bush administration’s counterterrorism policies; nor have they provided an easy answer for the controversial counterterror programs of the Obama administration, such as the targeted killing of American citizens affiliated with overseas terrorist groups.

  But such questions were not novel to the entire world. One country in particular, Israel, has for much of its modern history struggled to balance its need for security with its belief in human rights, civil liberties, and the fundamental dignity of the individual. In Israel, perhaps to a greater degree than in any other nation, the judiciary is routinely asked to adjudicate between these powerful considerations. As in the United States, on especially sensitive or intractable issues, Israel’s Supreme Court often has final—or at least a very influential—say.

  That Israel’s Supreme Court has come to occupy a pivotal role in the country’s public life and served as a beacon to many courts throughout the world owes much to the country’s most famous jurist, Aharon Barak. This chapter, “Law Is Everywhere,” discusses some of Barak’s seminal decisions weighing security against fundamental rights. These decisions are an important part of Barak’s legacy, but they are only one part. Even before he became president of the Supreme Court, Barak made major contributions to Israeli jurisprudence. The title “Law Is Everywhere” is meant to capture Barak’s universalist vision of the reach of legal norms, and echoes Barak’s famous assertion that “the world is filled with law,” a belief that received its fullest treatment in Barak’s 2008 book, The Judge in a Democracy. Consistent with this vision, under Barak’s influence the Supreme Court revolutionized traditional Israeli standin
g doctrine to eliminate the “particularized” or “personal” injury prong so familiar to students of American civil procedure. According to a series of decisions penned by Barak over the course of the 1980s and 1990s, a plaintiff in an Israeli court needed to show only that a violation of the law has occurred, and that the plaintiff’s suit for redress is in the public interest.

  “Law Is Everywhere” first appeared in the Yale Law Journal in 2007 as a tribute to Aharon Barak on his retirement. The essay was not the product of distant admiration. Fiss and Barak have been intellectual companions and personal friends for many decades, and some have said that the legal philosophy captured in Fiss’s The Law As It Could Be is the one that best approximates Barak’s ideas about the role of law in society. This shared vision is all the more extraordinary when one considers that Barak did not have the luxury of advocacy without consequence; his lofty political perches required him to have the courage of his convictions. Such courage is all the more remarkable in a country like Israel, where the threat of political violence is far more pervasive and acute than in the United States, and where under certain circumstances the legislature can overrule a decision of the Supreme Court if it feels the Court has overstepped its bounds.

  Chapter 5

  LAW IS EVERYWHERE

  Aharon Barak was born in Lithuania in 1936. He was one of the few who miraculously survived the slaughter of Jews in that country during the Second World War—he and his mother hid in the walls of a neighbor’s house, while his father was able to continue laboring in the ghetto. Barak moved to Israel with both his parents after the war, became a professor of law at Hebrew University in 1968, and later served as dean of the law faculty. From 1975 to 1978 he was the attorney general of Israel. In 1978, Barak was appointed to the Israeli Supreme Court and then received special dispensation from the Court to serve as a legal adviser to Prime Minister Menachem Begin at the Camp David peace talks with Egypt that occurred in September of that year. Barak became president of the Israeli Supreme Court in 1995, and he retired from that Court on his seventieth birthday, in September 2006.