FOREWORD
Trevor Sutton
S eptember 11, 2001: a day that changed everything. This has been a common mantra of government agencies and the media in assessing the effects of the terrorist attacks on the World Trade Center and the Pentagon. Some have described the attacks as changing the way the United States assesses and responds to threats to its national security. Others have gone further to suggest that the attacks changed the relationship between the United States and the world in a more general sense.
More than a decade after September 11, such views may seem overblown. The past two presidential elections—to say nothing of congressional midterm and state races—were perceived to have turned more on differences in the candidates’ domestic policy agendas than matters of national security or foreign policy. Moreover, the winding down of the wars in Iraq and Afghanistan, the death of Osama bin Laden, the Obama administration’s declaration of a “pivot” or “rebalance” toward Asia, and the challenge posed by an expansionist Russia all suggest a return to a more traditional national security strategy, one in which the threats posed by international terrorist organizations such as al-Qaeda—and more recently ISIS—are no longer the primary drivers of American foreign policy.
There is one area, however, where the legacy of September 11 has proven unusually enduring: the law. While the threat of terrorism may no longer dominate debate in Congress or command daily headlines as regulary as it once did, the legislative enactments and judicial decisions passed in response to the counterterrorism policies of the Bush and Obama administrations continue to cast a long shadow over many areas of the law, including constitutional jurisprudence. Freedom of speech and association; due process; habeas corpus; the Fourth Amendment warrant requirement; even the prohibitions on torture and extrajudicial killings—the law governing these constitutional principles looks vastly different in 2015 than it did in the summer of 2001.
The essays in this volume chronicle the reactions of one scholar, Professor Owen Fiss of the Yale Law School, to the counterterrorism practices of the Bush and Obama years. The volume begins in 2003—in the early days of the Iraq War, before the Supreme Court’s decisions in Hamdi v. Rumsfeld, and before Barack Obama or John Roberts had risen to national prominence. From this point of embarkation, Fiss surveys and assesses the major legal controversies of the following decade, from Guantánamo to drones, with a particular focus on the constitutional dimensions of the disputes. Linking all the essays is Fiss’s sustained concern for the offense done to the Constitution by the political branches in the name of public safety, and the refusal of the judiciary to hold those branches accountable. As Fiss observes, practices that at first seemed like temporary excesses of the Bush administration have become entrenched legal doctrines perpetuated by President Obama and enshrined in judicial opinions. How these constitutional aberrations outlasted the political climate that created them constitutes the central narrative of this volume.
In some respects, this is an unlikely book. Before 2003, Fiss, a scholar of equal protection, civil procedure, and free speech, had not published on topics relating to national security or the laws of war. That he would write ten essays relating to the fight against international terrorism over the next decade was not to be expected.
Fiss was not alone in embarking on a new project of legal analysis after September 11. The legal questions raised by the Bush administration’s response to the attacks were terra incognita for nearly all legal academics and jurists. Cases that were obscure for all but law-of-war specialists— Ex Parte Milligan, Ex Parte Quirin, In Re Yamashita, Johnson v. Eisentrager —suddenly assumed burning importance, and questions that seemed like academic
Trevor Sutton
S eptember 11, 2001: a day that changed everything. This has been a common mantra of government agencies and the media in assessing the effects of the terrorist attacks on the World Trade Center and the Pentagon. Some have described the attacks as changing the way the United States assesses and responds to threats to its national security. Others have gone further to suggest that the attacks changed the relationship between the United States and the world in a more general sense.
More than a decade after September 11, such views may seem overblown. The past two presidential elections—to say nothing of congressional midterm and state races—were perceived to have turned more on differences in the candidates’ domestic policy agendas than matters of national security or foreign policy. Moreover, the winding down of the wars in Iraq and Afghanistan, the death of Osama bin Laden, the Obama administration’s declaration of a “pivot” or “rebalance” toward Asia, and the challenge posed by an expansionist Russia all suggest a return to a more traditional national security strategy, one in which the threats posed by international terrorist organizations such as al-Qaeda—and more recently ISIS—are no longer the primary drivers of American foreign policy.
There is one area, however, where the legacy of September 11 has proven unusually enduring: the law. While the threat of terrorism may no longer dominate debate in Congress or command daily headlines as regulary as it once did, the legislative enactments and judicial decisions passed in response to the counterterrorism policies of the Bush and Obama administrations continue to cast a long shadow over many areas of the law, including constitutional jurisprudence. Freedom of speech and association; due process; habeas corpus; the Fourth Amendment warrant requirement; even the prohibitions on torture and extrajudicial killings—the law governing these constitutional principles looks vastly different in 2015 than it did in the summer of 2001.
The essays in this volume chronicle the reactions of one scholar, Professor Owen Fiss of the Yale Law School, to the counterterrorism practices of the Bush and Obama years. The volume begins in 2003—in the early days of the Iraq War, before the Supreme Court’s decisions in Hamdi v. Rumsfeld, and before Barack Obama or John Roberts had risen to national prominence. From this point of embarkation, Fiss surveys and assesses the major legal controversies of the following decade, from Guantánamo to drones, with a particular focus on the constitutional dimensions of the disputes. Linking all the essays is Fiss’s sustained concern for the offense done to the Constitution by the political branches in the name of public safety, and the refusal of the judiciary to hold those branches accountable. As Fiss observes, practices that at first seemed like temporary excesses of the Bush administration have become entrenched legal doctrines perpetuated by President Obama and enshrined in judicial opinions. How these constitutional aberrations outlasted the political climate that created them constitutes the central narrative of this volume.
In some respects, this is an unlikely book. Before 2003, Fiss, a scholar of equal protection, civil procedure, and free speech, had not published on topics relating to national security or the laws of war. That he would write ten essays relating to the fight against international terrorism over the next decade was not to be expected.
Fiss was not alone in embarking on a new project of legal analysis after September 11. The legal questions raised by the Bush administration’s response to the attacks were terra incognita for nearly all legal academics and jurists. Cases that were obscure for all but law-of-war specialists— Ex Parte Milligan, Ex Parte Quirin, In Re Yamashita, Johnson v. Eisentrager —suddenly assumed burning importance, and questions that seemed like academic
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