By Owen Fiss

ISBN-10: 162097097X

ISBN-13: 9781620970973

Owen Fiss has been a number one felony student for over 30 years, but sooner than 2001 it is going to have appeared not going for him to put in writing approximately nationwide safeguard and the legislation of battle; his concentration used to be civil strategy and equivalent safeguard. yet, while the warfare on Terror started to shroud felony court cases in secrecy, he realised that the bulwarks of strategy that safeguard the person from the notable strength of the country have been dissolving. A struggle Like No different can be an important highbrow origin for all curious about constitutional rights and the legislation in a brand new age.

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S. citizens as well as citizens) and because it required not that the prisoners be charged with a crime but only that the detention be authorized by Congress. 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.

When it came time to apply the four criteria of Section 2, Judge Ellis did not make his judgment on the basis of what Lindh or his unit or the militia of which he was a part did. Rather, he made a judgment about what the Taliban army did in its entirety, and then applied that judgment to everyone who fought for the Taliban, including Lindh. This blanket approach compounds Judge Ellis’s initial error—subjecting regular armed forces to the four criteria of Section 2—for it does not permit any distinction among the various units that comprise the fighting force of a nation at war.

A criminal prosecution would also fully reveal, beyond the numbing drumbeat of war, the gravity of what the government had in mind for these individuals—incarceration for a substantial period of time. The government insisted that those prisoners had no right even to apply for a writ of habeas corpus, or, put differently, no federal court had jurisdiction to grant the writ. Although the Supreme Court did not embrace all these audacious and somewhat startling demands for executive power, it failed to vindicate the principle of freedom.

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

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