A War Like No Other
Page 35
U.S. Congress, 61–62, 76, 90–91, 101, 123–24, 156–57, 218, 242
adoption of FISA, 227–28
approval of Bush administration’s counterterrorism policies, 113
Authorization for the Use of Military Force (AUMF), 159–60
complicity in Bush’s War on Terror, 104–17, 258
criminalization of political advocacy by, 201–20
designation and regulation of foreign terrorist organizations, 202–4
Detainee Treatment Act of 2005 and, 80–81, 82, 110–11, 113, 115, 184–85
FISA Amendments Act of 2008 and, 113, 122–23, 234, 242–43
Foreign Intelligence Surveillance Act (FISA), 109
habeas corpus and, 247
Holder v. Humanitarian Law Project and, 205–6, 217
Katz v. United States and, 235–36
Keith case and, 236
Military Commissions Act of 2006 and, 70, 87–88, 112, 113, 115–16
military commissions and, 70, 85, 87–88, 112–13, 115–16
Obama’s first address to joint session of, 193
Omnibus Crime Control and Safe Streets Act and, 235–37
oversight of executive branch’s counterterrorism activities, 276–82
passage of USA PATRIOT Act, 12
as a political institution, 184–85
power of, 228–30, 267–68 (see also separation of powers)
Protect America Act of 2007 and, 113, 122
resolution authorizing military force against al-Qaeda, 267–68
response to Hamdan v. Rumsfeld, 87–88
Senate Select Committee on Intelligence report on CIA’s interrogation and detention program, 171
warrantless wiretapping and, 109, 112–13, 122–23, 234, 242–43
U.S. Constitution, 20, 87, 90–91, 130, 255, 282
Article I, 38, 77–78, 177–78, 230
Article II, 145, 228–30
Article III, 144, 186–87, 188, 259, 284–85
Article IV, 62
ban on “Cruel and Unusual Punishments,” 168–69
complicity of other branches in violating, 202
cosmopolitan view of, 60–63
declaration of war and, 267–68
doctrine of enumerated powers, 61–62
due process and, 274–75, 276
extraterritorial reach of, 170, 180, 183
federal judiciary’s responsibility to safeguard, xi–xii, xv–xvi, 12–17, 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
habeas statute, 53–56 (see also habeas corpus)
Preamble to, 218
principle of freedom and, 37–38, 42–45, 52, 77, 147
prohibition of torture in, 172–73, 178–80, 182–83, 186, 188, 195, 291n34
state secrets doctrine and, 190
Supreme Court as guardian of the, 89–94
torture as violation of, 105
treaties and, 266–67
See also Bill of Rights; separation of powers; specific amendments
U.S. Court of Appeals for the District of Columbia Circuit, 12–15, 17, 57, 81, 82, 88, 111, 115, 166, 203–4
U.S. Court of Appeals for the Second Circuit, 23–24, 41, 44, 45, 119, 181, 183–85, 186–89, 233, 263–85
U.S. Court of Appeals for the Third Circuit, 29–30
U.S. Court of Appeals for the Fourth Circuit, 4, 15–19, 43–44, 114, 189–90
U.S. Court of Appeals for the Sixth Circuit, 5, 30
U.S. Court of Appeals for the Ninth Circuit, 31, 119, 191, 194
U.S. Court of Appeals for the Eleventh Circuit, 36
U.S. Department of Defense, 16–17, 22, 41, 47, 114, 152, 160, 311n11
affidavits filed to avoid evidentiary hearings, 106–7
establishment of military tribunals by, 155
leak of internal memoranda on torture, 174–78
military commissions and, 108
U.S. Department of Homeland Security, 160
U.S. Department of Justice, 160
FISA Amendments Act of 2008 and, 242–43
leak of internal memoranda on torture, 174, 176–77
Office of Legal Counsel, 174, 177
U.S. Department of State, designation and regulation of foreign terrorist organizations, 203–4
U.S. District Court for the Eastern District of Virginia, 24
U.S. District Court for the Southern District of New York, 44, 45, 101, 120, 162
U.S. House of Representatives, 230
See also U.S. Congress
U.S. Senate, 158, 230
adoption of FISA, 227–28
authorization of Iraq War, 4
FISA Amendments Act of 2008 and, 242–43
Judiciary Committee, 230–31
passage of USA PATRIOT Act, 4
response to Hamdan v. Rumsfeld, 87–88
Select Committee on Intelligence, 171
See also U.S. Congress
U.S. Supreme Court, 3, 30–33, 130, 173
Al Odah v. United States and, 30–31
Berger v. New York and, 310n89
Bivens decision and, 184–85
Boumediene v. Bush and, xii, 4–5, 70–71, 116–17, 121–22, 165–67, 278–79, 283, 311n11
Brandenburg v. Ohio and, 208, 209, 217
Brown v. Mississippi and, 169
Bush administration and, xiii, 33–36, 37, 104–17
congressional enactments and, 89–94
cosmopolitanism and, 74
Ex Parte Milligan and, 125
Ex Parte Quirin and, 125
FISA and, 122–23, 135, 233, 234, 238–39
freedom of speech and, 197–99, 269
function of, 76–77, 89–94
fundamental values and, 35, 137
as guardian of the Constitution, 89–94, 98, 100, 113, 137, 223–24, 257–58
Hamdan v. Rumsfeld and, xii, xiii, 81–90, 93, 95, 97–98
Hamdi v. Rumsfeld and, xii, x, 4–5, 30–31, 33–35, 38, 70–71, 79–80, 98, 113–14, 135, 164–65, 277–79, 283–84, 290n14, 290n20, 290n27
Holder v. Humanitarian Law Project and, xiv–xv, 207–15, 215–22
Katz v. United States and, 234–35, 237–39, 245, 249–51
Keith case and, 236–39, 245, 249–50
Korematsu case, 137
New York Times Co. v. Sullivan and, 208
Olmstead v. United States and, 254
overbreadth doctrine and, 256–57
policy of avoidance, 110–17
political question doctrine and, 283
proportionality and, 137–38
Rasul v. Bush and, 34–35, 38, 52–68, 78–79, 86, 89–90, 95–96
In Re Yamashita and, 125
Rumsfeld v. Padilla and, 30–31, 34–36, 38, 40–45, 114–15, 289n7
state secrets doctrine and, 189
substantive rationality and, 137–38
United States v. Jones and, 253–54
United States v. Verdugo-Urquidez and, xvi, 58–60, 246–48, 250
warrantless wiretapping and, 109, 226
Verdugo-Urquidez, René Martín, 59–60
Vietnam War, 197, 216, 236
Vinson, Roger, 222–23
Volokh, Eugene, 198
War on Drugs, 58–59
War on Terror, x, xiii, xv–xvii, 3, 12, 24, 29–31, 33–35, 37, 76, 104–17, 118, 125, 262–63
declaration of, 227
rule of law and, 37–68
torture and, 172
warrantless wiretapping, xv, 112–13, 200–201, 222, 226, 250–53, 273
Burger Court and, 226
Bush administration and, 122, 227–31
citizens and, 273
congressional authorization of, 201
Fourth Amendment and, 243–58
noncitizens and, 273
Obama administration and, 122–23, 231–33
See also FISA Amendments Act of 2008; Foreign Intelligence Surveillance Act (FISA)
warrants, x, xv, 235–39, 241–42, 250–51, 253–57, 307–8n53, 307n51, 310n89
Warren Court, 61, 74, 108, 234–35, 236
Warsame, Ahmed Abdulkadir, 162
waterboarding, 105, 118, 171, 175, 176, 194
Whitney v. California, 98
Wilkinson, J. Harvie, 17, 19–20
wiretapping, 101, 109, 238–39, 309n74
See also warrantless wiretapping
World War I, 197, 207
World War II, 108, 218, 219
Yemen, 260–61, 263, 264–65, 272, 285
Yoo, John, 174, 176, 177–78
Owen Fiss is Sterling Professor Emeritus of Law at Yale University. He clerked for Thurgood Marshall when Marshall was a Court of Appeals judge and later for William J. Brennan Jr. on the U.S. Supreme Court. 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 Connecticut in the New Haven area.
Trevor Sutton is a graduate of Stanford, Oxford, and Yale Law School. He served as a law clerk on the U.S. Court of Appeals for the District of Columbia Circuit and as a fellow in the Office of the Secretary of Defense. He now lives in New York City and works on anticorruption matters for a global consulting firm.
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