speculation—the reach of due process on the battlefield; the limits on executive detention outside the formal territory of the United States—were now being litigated in federal courts.
For Fiss, it was natural that the judiciary’s duty to embody and apply public reason in the domestic context, a responsibility Fiss has argued for over the past forty years, could extend to the national security sphere. In vital respects, the legal issues raised by the War on Terror are about process—process not only in the conventional sense of rules that govern legal and administrative proceedings but also in the more profound sense of the bulwarks that stand between the individual and the awesome power of the state. Behind the major national security cases of the post–September 11 era— Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush —was the question of what role, if any, the judiciary should have in mediating the relationship between the Bush administration and those suspected of plotting or facilitating terrorism. Nested within this question was another inquiry, one that would continue to trouble courts into the Obamapresidency: When does the judiciary’s responsibility to defend fundamental rights take precedence over the executive’s expertise in national security and foreign relations?
In Fiss’s view, the major victories in the legal battle over the fight against terrorism were pyrrhic. The Supreme Court’s decisions in Hamdi, Hamdan, and Boumediene, along with the Detainee Treatment Act of 2005, gave as much to the executive branch as they took away, and left many vital questions unanswered—for example, whether the use of military commissions to try detainees off the battlefield violated constitutional due process. These deficiencies have been compounded by the actions of the lower courts, which have handed the government victory after victory in suits alleging torture, warrantless surveillance, and extrajudicial killings. To an even greater degree than in the era of the Burger and Rehnquist Courts, the actions of the judiciary in the post–September 11 era have fallen short of “the law as it could be,” to borrow the title of Fiss’s 2003 book.
Each of the chapters in this book is preceded by a short comment in which I identify the political and historical context of the essay that is the source of the chapter. The essays in Part I are meant to be read in sequence. They reflect Fiss’s evolving appraisal of the legal implications of the United States’ fight against terrorism and his dismay that the figure who seemed best poised to repudiate the policies of the Bush era, Barack Obama, ultimately acted to perpetuate them.
“In the Shadow of War,” the first essay of the volume, is an adaptation of a speech delivered at the University of Miami on the eve of the Iraq War. It captures the anxiety and uncertainty felt by many in the legal community during the early years of the Bush administration, when it seemed as if the judiciary might grant the government virtually limitless power to prosecute its War on Terror. But the essay also documents an unusual moment in time, when it seemed possible to imagine a vindicationof fundamental rights more sweeping than that which the Supreme Court ultimately delivered.
“The War on Terror and the Rule of Law” and “The Perils of Minimalism” both take as their subject the adequacy of the Supreme Court’s response to the Bush administration’s counterterrorism policies. Instead of heralding these decisions as vindications of constitutional rights, as many did, Fiss assesses them with a more critical eye. He examines how these decisions fell well short of their potential by failing to address or reach a consensus over crucial constitutional questions and by putting undue focus on technical issues at the expense of constitutional rights. As “The Perils of Minimalism” in particular argues, the consequences of these modest rulings can be
For Fiss, it was natural that the judiciary’s duty to embody and apply public reason in the domestic context, a responsibility Fiss has argued for over the past forty years, could extend to the national security sphere. In vital respects, the legal issues raised by the War on Terror are about process—process not only in the conventional sense of rules that govern legal and administrative proceedings but also in the more profound sense of the bulwarks that stand between the individual and the awesome power of the state. Behind the major national security cases of the post–September 11 era— Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush —was the question of what role, if any, the judiciary should have in mediating the relationship between the Bush administration and those suspected of plotting or facilitating terrorism. Nested within this question was another inquiry, one that would continue to trouble courts into the Obamapresidency: When does the judiciary’s responsibility to defend fundamental rights take precedence over the executive’s expertise in national security and foreign relations?
In Fiss’s view, the major victories in the legal battle over the fight against terrorism were pyrrhic. The Supreme Court’s decisions in Hamdi, Hamdan, and Boumediene, along with the Detainee Treatment Act of 2005, gave as much to the executive branch as they took away, and left many vital questions unanswered—for example, whether the use of military commissions to try detainees off the battlefield violated constitutional due process. These deficiencies have been compounded by the actions of the lower courts, which have handed the government victory after victory in suits alleging torture, warrantless surveillance, and extrajudicial killings. To an even greater degree than in the era of the Burger and Rehnquist Courts, the actions of the judiciary in the post–September 11 era have fallen short of “the law as it could be,” to borrow the title of Fiss’s 2003 book.
Each of the chapters in this book is preceded by a short comment in which I identify the political and historical context of the essay that is the source of the chapter. The essays in Part I are meant to be read in sequence. They reflect Fiss’s evolving appraisal of the legal implications of the United States’ fight against terrorism and his dismay that the figure who seemed best poised to repudiate the policies of the Bush era, Barack Obama, ultimately acted to perpetuate them.
“In the Shadow of War,” the first essay of the volume, is an adaptation of a speech delivered at the University of Miami on the eve of the Iraq War. It captures the anxiety and uncertainty felt by many in the legal community during the early years of the Bush administration, when it seemed as if the judiciary might grant the government virtually limitless power to prosecute its War on Terror. But the essay also documents an unusual moment in time, when it seemed possible to imagine a vindicationof fundamental rights more sweeping than that which the Supreme Court ultimately delivered.
“The War on Terror and the Rule of Law” and “The Perils of Minimalism” both take as their subject the adequacy of the Supreme Court’s response to the Bush administration’s counterterrorism policies. Instead of heralding these decisions as vindications of constitutional rights, as many did, Fiss assesses them with a more critical eye. He examines how these decisions fell well short of their potential by failing to address or reach a consensus over crucial constitutional questions and by putting undue focus on technical issues at the expense of constitutional rights. As “The Perils of Minimalism” in particular argues, the consequences of these modest rulings can be
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