by Fiss, Owen
deportation program, 29–30
Derwish, Kamal, 273
Detainee Treatment Act of 2005, xii, 80–82, 89, 110–11, 113, 115, 118, 135, 178–79, 182–83, 184, 229
detention facilities. See Bagram Air Field detainees; Guantánamo Bay Naval Base, prison at; Guantánamo detainees)
detention policy, 12–15, 23–24, 33–35, 196
of Bush administration, 37–38, 46–47, 74–76, 105–6, 111–12, 272–73
enemy combatants and, 18–19
legality of, 38–68
of Obama administration, 161–67, 272–73, 310–11n8
U.S. Congress and, 76
Detroit Free Press v. Ashcroft, 5
dignity principle, 173, 180, 182, 188, 195
doctrine of enumerated powers, 61–62
domestic terrorist organizations, First Amendment and, 208
Douglas, William O., 236
Doumar, Robert J., 16–17
drone strikes, x, xv, 221, 260–61, 273–74
due process, 38, 98, 161, 173
citizens and, 3, 15–16, 23–24, 39–40, 113–14
enemy combatants and, 4, 45–52, 52–68, 284–85
Guantánamo detainees and, 77–89, 96, 278–79
military commissions and, 94
noncitizens and, 3, 13, 40, 53–68
targeted killing and, 267–70, 273–75, 280
U.S. Constitution and, 274–75, 276
Warren Court era and, 108
See also Due Process Clause
Due Process Clause, 77–89, 165, 169, 173, 261, 267–70, 273–74. See also due process
Dworkin, Ronald, 34, 290n14
Egypt, 105, 128, 180
Eighth Amendment, 63, 105, 111, 192
ban on “Cruel and Unusual Punishments,” 168–69
prohibition of torture in, 168–69, 172–73, 178, 180, 182–83, 188, 291n34
electronic communications, surveillance of, 101, 221–58
Ellis, T.S., III, 26–29
enemy combatants, 15, 20, 47
al-Qaeda as, 153, 155
burden of proof of innocence, 135
Bush administration and, 77
citizens as, 80, 106, 262–85
classification of, 67–68
constitutional rights of, 15–16, 18–20, 22–23, 52–68, 105–6
designation as, 47–50, 67–68, 78–80
detention of, 18–19
distinguishing from civilians, 136–37
due process and, 4, 45–68, 284–85
federal judiciary and, 4
habeas corpus and, 52–68, 77, 106, 111–12, 115–17, 165–67
imprisonment of, 33–35, 38–68, 148, 159–60
lawful vs. unlawful, 20–24 (see also unlawful enemy combatants)
legal status of, 18–20
military commissions and, 107–8
noncitizens as, 112
proof in support of designation as, 47–50, 67–68
Taliban as, 149–50, 153
targeted killing of, 262–85
See also unlawful enemy combatants
enumerated powers, doctrine of, 61–62
Espionage Act of 1917, 197
evidence
discovery and admission of, 161
rules of, 79–80, 84, 120
secret, 108, 157–58 (see also state secrets doctrine)
See also evidentiary hearings
evidentiary hearings, 18–20, 23, 33–34, 50, 52, 67–68, 79–80, 106–7, 113–14, 278, 284–85
evidentiary rules, military commissions and, 120
exclusionary rule, 157
executive branch, 3, 33–34, 67, 90
authority to carry out targeted killings, 281
deference to in times of war, 17–19, 75, 105–6, 134–35, 170–71, 177–78, 185, 192, 228–30
federal judiciary and, 4, 276–82
Hamdan v. Rumsfeld and, 86–87
intelligence gathering and, 221–22
legislative branch and, 90–91, 177–78
military commissions and, 96
oversight of, 4, 276–82
power of, 177–79, 228–30 (see also separation of powers)
prerogative of, 228–30, 285
prohibition of torture and, 177–78
responsibility to direct wars, 268–69
rule of law and, 177
targeted killing policy and, 268–85
unilateral exercises of power by, 257–58
war and, 17–19, 75, 105–6, 134–35, 170–71, 177–78, 185, 192, 228–30, 268–69
See also Bush administration; Obama administration
Ex Parte Milligan, xi, 125
Ex Parte Quirin, xi, 125, 290n20
extrajudicial killings, x, 262–85
extraordinary rendition, xiv, 105, 118–19, 123, 135, 169–70, 193–94, 302n39
definition of, 179
interrogation and, 179–80
to Syria, 181–82, 183
See also targeted killing
federal judiciary, 3–4, 12–13, 16, 17, 19
constitutional rights and, 160–61, 170 (see also specific rights)
FISA Amendments Act of 2008 and, 242–43
jurisdiction of, 19–20
marginalization of role of, 170–71
prerogative of, 285
responsibility to safeguard the Constitution, xi–xii, xv–xvi, 12–13, 16–17, 19, 29–30, 50, 68, 71, 76–77, 89–94, 98, 100, 113, 137, 170–71, 178, 192, 223–24, 257–58, 261, 275–76
retrenchment on injunctive relief, 170–71
role in ending torture, 169–70
Federal Register, 203
Federal Rules of Civil Procedure, Rule 54(c), 187
Fifth Amendment, 38, 63, 105, 111, 147, 192
Due Process Clause of, 41, 48, 52, 74, 81, 84, 132, 165, 173, 267–70, 273–75
prohibition of torture in, 178, 180, 182, 183, 188, 291n34
First Amendment, 51, 197–99, 256–57, 269
democracy and, 210–11
domestic terrorist organizations and, 208
Holder v. Humanitarian Law Project and, 202–20
political advocacy and, 207–15
FISA Amendments Act of 2008, 113, 122–23, 135, 222–23, 231–39, 240–44, 247–50, 252, 256–58, 273, 309n74
Fiss, Owen, x, xi, 4, 6, 35, 70, 100, 125, 143–44, 170–71, 223, 261
The Law As It Could Be, 126–27
Fleischer, Ari, 101–2
Foreign Intelligence Surveillance Act (FISA), xv, 112–13, 122, 135, 201, 222–24
adoption of in 1978, 227–28
Bush administration and, 227–31
dual structure for wiretapping and, 238–39
probable cause and, 307n52
USA PATRIOT Act and, 240
U.S. Congress and, 109
U.S. Supreme Court and, 238–39
warrantless wiretapping and, 229–31, 249–51, 255–58, 305–6n11, 305n6
Foreign Intelligence Surveillance Court, xv, 222, 228, 230–31, 240–41, 245–46, 248–49
foreign terrorist organizations, xiv–xv, 202–20
Fort Hood, killings at, 264
Fourteenth Amendment
Due Process Clause of, 169
prohibition of torture in, 291n34
Fourth Amendment, 59–64, 74–75, 108–9, 132, 201, 247–48, 258
extraordinary crimes and the problem of overbreadth and, 253–58
FISA Amendments Act of 2008, 243–44
privacy and, 253–54
probable cause, 244–50
“special needs” exception and, 250–53
United States v. Verdugo-Urquidez and, 63–66
warrant requirement and, x, xv, 226, 234, 237, 239, 243–58, 307–8n53, 307n51
Fourth Geneva Convention, 20, 21, 26, 29, 86
Article 3, 84–85, 86
Article 4, 288n22
Article 75 of Protocol 1, 85
Protocol 1, 85
requirement of huma
ne treatment in, 176
United States’ refusal to ratify, 85
freedom of speech, x, xiv–xv, xvii, 207, 256–57, 269
curtailed at times of war, 196–99, 201–20
Holder v. Humanitarian Law Project and, 207–15
U.S. Supreme Court, 197–99, 207–15
Gaza, 129
Geneva Conventions, 84, 88, 96
Article 3, 86, 88
imprisonment without trial and, 148–53
See also specific conventions
Ginsburg, Ruth Bader
Hamdan v. Rumsfeld and, 86, 96–97
Hamdi v. Rumsfeld and, 46, 48, 80, 278
Holder v. Humanitarian Law Project and, 216
as minimalist, 69
on probable cause, 307–8n53
on probable cause, 244
Rasul v. Bush and, 95, 96–97
United States v. Jones and, 255
Giuliani, Rudolph, 198
globalization, 63
Global Positioning System (GPS), 254–55
Goldsmith, Jack, 311–12n18
Gonzales, Alberto, 228–29, 230–31
government action, substantive rationality and, 137–38
grant of authority, FISA Amendments Act of 2008, 243–44
Guantánamo Bay Naval Station, prison at, x, 12–15, 21, 30, 34–35, 38, 53, 56, 70–73, 155–56, 221
constitutional rights of prisoners held in, 73–75
Court of Appeals and, 88–89
extraterritoriality of, 13–14
habeas corpus and, 121–22
interrogation techniques allowed at, 175–76
jurisdiction of, 31
legal status of, 4
Obama’s executive order to close, 156, 193
Obama’s promise to close, 99, 121–22, 143, 259
opening of, 89–90
prisoners in, 73, 76
territoriality of, 20, 54–58, 66–67, 88–89, 183
U.S. sovereignty over, 14, 20, 183
Guantánamo detainees, 119, 155–56
Bush administration and, 77–89
civilian courts and, 156
congressional opposition to transfer of, 156–57
constitutional rights of, 76, 77–89, 92, 93, 107, 182–83, 278–79 (see also specific rights)
due process and, 77–89, 96, 278–79
habeas corpus and, 80–81, 89–90, 95–97, 107, 114–17, 121–22, 156, 166, 182–83, 247, 278–79, 311n11
hunger strike by, 143, 144–45
imprisonment without trial and, 143–44, 162–63
interrogation of, 174–76
legal status of, 77–89
military commissions and, 108, 121, 156
obligation to repatriate, 151
as unlawful enemy combatants, 175–76
See also Guantánamo Bay Naval Station, prison at
habeas corpus, x, 4, 12–15, 18–20, 22–24, 33, 35, 38–68, 45–52, 77, 166–67, 293n20
Bagram Air Field detainees and, 122, 123, 166
citizens and, 15–16, 39–44, 106–7, 113–14
constitutional basis of, 77–78
denial of, 110
enemy combatants and, 52–68, 77, 106, 111–12, 115–17, 122, 165–67
evidentiary hearings and, 106
federal judiciary and, 160–61
Guantánamo detainees and, 80–81, 89–90, 95, 96, 97, 107, 114–16, 121–22, 156, 166, 182–83, 278–79, 311n11
Hamdan v. Rumsfeld and, 81–82
imprisonment without trial and, 165–67
Military Commissions Act of 2006 and, 111–12, 120
military necessity to prevent exercise of, 66–67
noncitizens and, 12–15, 40, 53–68, 70–71, 78, 107, 122, 165–66
Padilla and, 41–44
statutory basis of, 77–78
Suspension Clause, 166
suspension of, 77–78, 88, 147, 165–66
unlawful enemy combatants and, 115–17, 122
U.S. Congress and, 247
Hamas, 129, 132, 204
Hamdan, Salim Ahmed, 81
Hamdan v. Rumsfeld, xi, 71
Alito and, 96
Breyer and, 86, 90, 93, 96–97
Court of Appeals and, 88
executive branch and, 86–87
Ginsburg and, 86, 96–97
habeas corpus and, 81–82
Kennedy and, 85–86, 96
minimalism and, 82–83, 86
Souter and, 96–97
Stevens and, xiii, 82–89, 96
U.S. Congress and, 87–88
U.S. Senate and, 87–88
U.S. Supreme Court and, xii, xiii, 81–89, 90, 93, 95, 97, 98
Hamdi, Yaser Esam, 15–17, 18–20, 21, 38, 39–40, 67–68, 279, 290n14
constitutional rights of, 45–52
due process and, 45–52
father of, 15, 47, 49
release to Saudi Arabia, 290n27
Hamdi v. Rumsfeld, x–xii, xv, 4–5, 15–21, 29, 30–31, 33–35, 38, 70, 71, 79–80, 98, 113–14, 135, 164–65, 277–79, 283–84, 290n14, 290n20, 290n27
Breyer and, 278
Ginsburg and, 80, 278
Kennedy and, 278
O’Connor and, 79–80, 113–14, 135, 164–65, 278–79, 290n14, 290n20
Rehnquist and, 279
Scalia and, 278–79
Souter and, 80, 278
Stevens and, 278–79
Thomas and, 278
Harlan, John, 65, 234
Haynes, William, 174–75
Hezbollah, 129, 132, 204
Holder, Eric, 122–23, 158–59, 193, 194, 232, 275–78, 282
principle of distinction and, 270
proportionality rule and, 270, 274–75
speech at Northwestern Law School, 270, 274–77, 281, 283
on targeted killing of U.S. citizens, 274–78
Holder v. Humanitarian Law Project, xiv–xv, 201–22
Breyer and, 216–18
First Amendment and, 202–20
free speech tradition and, 207–15
Ginsburg and, 216
Kagan and, 218
Roberts and, 198, 204–7, 209–19
Sotomayor and, 216
Stevens and, 215–16
U.S. Congress and, 205–6, 217
Holmes, Oliver Wendell, 207
Hoover, Herbert, 169
human dignity, 130–33, 138–39
See also dignity principle
humanitarian intervention, 11
human rights tradition, 130, 133
Hussein, Saddam, 11, 21, 31
immigration proceedings, 5
immunity, state secrets doctrine and, 189–90
imprisonment, 20, 37–38
after acquittal, 158–59
of citizens, 163–64
constitutionality of, 12–15
indefinite, 106, 148, 154, 156–59, 290n14
legality of, 12–15
of noncitizens, 163–64
Obama’s detention policy, 159–67
oversight system, 159–61
principle of freedom and, 163
rule of law and, 163
of unlawful enemy combatants, 158–60
without trial, xiii, xiv, 110, 119, 123, 143–44, 146–67, 272–73, 310–11n8
See also habeas corpus
In Re Yamashita, xi, 125
Insular Cases, 170
intelligence gathering, 221–22, 227–58, 233–39, 305–6n11
See also FISA Amendments Act of 2008; Foreign Intelligence Surveillance Act (FISA);
wiretapping
international law, 7–8, 22
authoritative character of, 7–8
Iraq War and, 31
vs. law of the nation-state, 9
torture and, 169, 172
interrogation, 21–22, 105, 110, 116, 118, 157
Army Field Manual and, 118, 175, 193
by CIA, 176
coercion and, 108
defined as torture, 176
enhanced, 176, 259
extraordinary rendition and, 179–80
Guantánamo detainees and, 174–76
in Israel, 131–32
torture and, 168–69, 172–76
Iraq
disarmament obligations after Persian Gulf War, 10
invasion of, 5, 7–8, 10–11
Persian Gulf War and, 10
UNSC resolutions against, 10
See also Iraq War
Iraq War, x, 4, 5, 7, 21, 58, 67, 105
Charter of the United Nations and, 8, 10–11
international law and, 31
legality of, 8, 9–10
troop withdrawal from Iraq, 117
Israel, xiii–xiv, 125–26
constitutional law in, 130
cosmopolitanism and, 73–74
interrogation in, 131–32
jurisprudence in, 126, 133
legislature of (Knesset), 130–31
military in, 132–34, 261
national security in, 136
parliamentary system of, 130–31, 135
principle of legislative supremacy in, 130–31
prohibition of torture in, 131–32
security fence in, 133, 138
Supreme Court of, xiii–xiv, 126, 128, 265, 281–82, 283
targeted killing and, 133
terrorism and, 128–39
Jacoby, Lowell E., 23, 40
Japanese Americans, internment during World War II, 45, 137, 164
The Judge in a Democracy (Barak), 126
judicial minimalism. See minimalism
Kagan, Elena, 215
Holder v. Humanitarian Law Project and, 218
United States v. Jones and, 255
Kalven, Harry, 207
Katz v. United States, 234–39, 241, 244–45, 249–51, 254–55
Keith case, 236–39, 241, 244–45, 249–50, 255
Kennedy, Anthony, 71, 74–75, 307–8n53
Boumediene v. Bush and, 116–17, 122, 166, 247, 279, 311n11
Hamdan v. Rumsfeld and, 85–86, 96
Hamdi v. Rumsfeld and, 46–48, 278
as minimalist, 69
Rasul v. Bush and, 66–67, 95
United States v. Verdugo-Urquidez and, 64–67, 246–47, 250
killing
of enemy combatants, 273–74
as integral part of war, 262
targeted, 260, 262–85
Korematsu case, 137
Kosovo, humanitarian intervention in, 11
Ku Klux Klan, 208
Kurdistan Workers Party (PKK), 202, 204–5, 209, 212–13, 214, 217, 219–20
Kurds, 203–4, 213–14, 217
Lassiter v. Dept. of Soc. Servs. of Durham County, 51
The Law As It Could Be (Fiss), 126–27
lawful combatants
categories of, 26–27
status of, 20–24, 26–29
Lindh, John Walker, case, 24–29, 107, 149–50, 164
Madison, James, 218
Marshall, Thurgood, 32, 64, 236
material witnesses, 38