February 22, 2017

A War Like No Other: The Constitution in a Time of Terror by Owen Fiss

By Owen Fiss

Owen Fiss has been a number one criminal pupil for over 30 years, but ahead of 2001 it'll have appeared not likely for him to write down approximately nationwide safety and the legislation of battle; his concentration was once civil method and equivalent safety. yet, while the struggle on Terror started to shroud criminal court cases in secrecy, he realised that the bulwarks of approach that guard the person from the striking energy of the country have been dissolving. A warfare Like No different can be an important highbrow origin for all eager about constitutional rights and the legislations in a brand new age.

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About the Author
Rajiv Chandrasekaran is a senior correspondent and affiliate editor on the Washington put up, the place he has labored on account that 1994. He has pronounced from greater than 3 dozen nations and has served because the newspaper’s bureau leader in Baghdad, Cairo, and Southeast Asia. he's the writer of Imperial lifestyles within the Emerald urban: inside of Iraq’s eco-friendly quarter, a finalist for the nationwide publication Award and one of many ny Times’s 10 top Books of 2007. He lives in Washington, D. C.

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Extra resources for A War Like No Other: The Constitution in a Time of Terror

Example text

The attorney general feared that the access of the press or public might alert terrorists to the investigative tactics of the government or betray the precise knowledge that the government possessed. In this context, acknowledging a right of access as a qualified right would allow the government to make a showing before the presiding judge in the deportation proceeding that special circumstances—including national security concerns—warranted closure. The presiding judge might, of course, agree with the government, but even if he or she did, the judge would be assuming responsibility for the closure.

As such, the law appears more concerned with unilateral action by the executive than vindicating the principle of freedom. Although Padilla, much like the Japanese who were interned, was taken prisoner in the United States, Hamdi was seized in Afghanistan, which, at the time of his capture (October 2001), was a zone of active combat. Yet Justice Sandra Day O’Connor, writing for herself and three other Justices (William Rehnquist, Anthony Kennedy, and Stephen Breyer), held in Hamdi that even assuming that the 1971 act applied to American citizens captured on the battlefield, the specific requirement of the act—that the detention be authorized by statute—was satisfied.

Her error was to ignore the distinction between two types of liberties: those that are guaranteed by the Constitution itself—as, for example, by the First Amendment or by what I have called the principle of freedom—and those liberties that people enjoy in society but which are not constitutionally protected (one type of liberty can be called a constitutional liberty, the other a personal or social liberty). Eldridge formula to determine what procedures should be applied to deprive a person of such a personal liberty, as in Lassiter v.

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