Say the word “war” and the rule of law often implodes, with courts frequently employing sophistry to avoid any interference with governmental conduct. To take an obvious example, during World War II the Roosevelt administration interned thousands of American citizens of Japanese descent solely on the basis of their ancestry, and the Supreme Court, in an opinion by Justice Hugo Black, upheld this patently unconstitutional confinement by simply repeating the mantra that, in time of war, total deference (unchecked and unbalanced) is due the military.
During the same war, the US troops fighting Nazi racism were, without judicial interference, segregated by color. Even the 1940 draft law, which stated that “in the selection and training of men under this Act,…there shall be no discrimination against any person on account of race or color,” was held by the Second Circuit Court of Appeals not to prohibit separate draft quotas for whites and blacks, since “the Army executives are to decide the Army’s needs.”
The so-called “war on terror” declared by President George W. Bush soon after September 11, 2001, has already lasted more than three times as long as American involvement in World War II, with no end in sight. By its shapeless and secretive nature, it tends to generate amorphous fears and shrouded responses that compromise our freedoms in ways we may only dimly recognize but that create troubling precedents for the future. And so far, the federal courts have done precious little to challenge these incursions.
One of the voices decrying this judicial failure is that of Owen Fiss, a very distinguished Yale law professor, who over the past dozen years has written one essay after another analyzing, or one might say exposing, the shallowness of the judicial response to executive excesses committed in the name of national security. That Fiss would undertake this task was by no means inevitable. Now in his late seventies, he had focused much of his academic career (which had made him one of the most-cited legal scholars in the country) on such subjects as civil procedure, freedom of speech, and equal protection of the law. But his palpable disagreement with the way federal courts were, in the name of an uncertain and shifting war, largely avoiding judicial scrutiny of everything from manifest torture to far-reaching surveillance led him, beginning in 2003, to write the ten essays now collected by his former student Trevor Sutton in A War Like No Other.
A few of the most prominent examples that Fiss discusses will illustrate his concern. First, there is the CIA’s use of torture following September 11. One may assume for the sake of argument that torture may sometimes be effective in extracting information that cannot be obtained by ordinary interrogation—although most studies suggest that its main effect is to force the victim to tell his torturer what he believes the torturer wants to hear. Indeed, historically, one of torture’s most prominent uses has been to coerce false confessions, as in the “show trials” of the Stalinist period.
In any case, torture, regardless of any perceived benefits, has been condemned from the earliest days of the American republic. Most scholars agree that it was revulsion at the English kings’ use of torture that led to enactment of the Fifth Amendment’s prohibition against compelled self-incrimination and also played a part in the enactment of the Eighth Amendment’s prohibition of cruel and unusual punishment. Evidence of Americans’ continuing abhorrence of torture can also be found in numerous current statutes: for example, torturing a victim before murdering him is one of the “aggravating factors” that, under current federal law, warrants the death penalty.
Most directly applicable, in 1988 the United States signed and in 1994 ratified the United Nations Convention Against Torture, which thereby became a binding part of our law. Article 1 of the convention defines torture to encompass, among other things, “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.” Article 2 requires each signatory state to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” (emphasis added). Article 2 also provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification of torture.”
Although the language in Article 2 italicized above might seem to permit a government agent operating abroad to make use of torture, in 1994, Congress, as part of the legislation implementing the convention, enacted section 2340A of the Federal Criminal Code, which, among other things, prohibits any US agent operating even “outside the United States” from inflicting torture on any person within his custody or physical control. Yet following September 11, CIA agents working abroad subjected suspected terrorists to waterboarding—a technique derived from the Spanish Inquisition in which water is forced into the nose and mouth of the subject so as to induce the perception of suffocating or drowning.
Waterboarding would thus clearly appear to be torture. Nonetheless, legal memoranda prepared by senior Justice Department officials shortly after September 11 purported to justify its use by arguing that the convention’s definition of torture covered only “the worst forms of cruel, inhuman, or degrading treatment or punishment,” and that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” As for mental suffering, it must, according to the memoranda, be of a kind that leads to psychological harm lasting “for months or even years” to constitute torture.
Since, however, it is up to the judiciary to make the final determination of what a law means, one might have imagined that once the CIA’s waterboarding was made public, a court would then have decided whether or not it constituted torture under section 2340A. But this did not occur, in part because the government also took the position that the CIA’s waterboarding, as an instrument in the war on terror, was exempt from judicial review.
After some uncertainty, this exemption from judicial review of any decision to waterboard became the Bush administration’s position at the highest levels and was effectively reiterated in 2005, after Congress passed the Detainee Treatment Act, which, among other things, provided that “no person in the custody or under the effective control of the Department of Defense” shall be subjected to certain specified “technique[s] of interrogation” that included waterboarding. In addition to maintaining that the legislation did not apply to the CIA, President Bush, in signing the bill, asserted his power to interpret it “consistent with the constitutional limitations on judicial power”—a clear suggestion that his interpretations were exempt from judicial review. In effect he was saying, “if we decide to waterboard, no court can say us nay.”
As it happened, this supposed exemption was never put to the test as far as CIA waterboarding was concerned. Rather, the issue was resolved politically. Specifically, President Obama, soon after taking office in 2009, banned the use of waterboarding even by the CIA, and Congress effectively codified this order in 2015. (Donald Trump has however announced his support for waterboarding.) Despite rumors, moreover, there have been no verified reports of CIA waterboarding since 2003. So at the moment, at least, there is nothing for a court to decide when it comes to waterboarding by US agents.
Regretfully, however, President Obama’s ban on waterboarding did not put an end to US involvement in the use of torture as part of the war on terror. Instead, within the past decade the US has repeatedly made use of the device known as extraordinary rendition, by which suspected terrorists detained by the US are turned over to police authorities in other countries that regularly employ torture as an interrogation technique.
Fiss, who views this practice, along with waterboarding, as “one of the most egregious of all abuses associated with the War on Terror,” gives as an example the case of Maher Arar, a dual citizen of Canada and Syria, who was thought by US authorities to be a supporter of al-Qaeda. While returning to Canada from a vacation in Tunisia, Arar had to change planes at JFK in New York. He was immediately taken into custody by US agents, who held him for twelve days and then, after their interrogation apparently did not lead to the desired results, shipped him to Syria, where (he alleges) they knew he would be tortured—as he was.
The Second Circuit Court of Appeals, in a full court decision filed in late 2009, held, by a vote of 7–4, that these facts did not constitute a legitimate legal claim. Similarly, in a case involving five former detainees who alleged that the CIA arranged for them to be flown to other countries so that they could be interrogated by torture, the Ninth Circuit Court of Appeals held in 2010, by a vote of 6–5, that the detainees’ lawsuit was barred by prohibitions against exposing state secrets.
Although the split votes in these cases suggest that judicial opinion is not uniform about whether extraordinary rendition is beyond judicial scrutiny, for the time being it remains a device by which US officials can effectively use the torture techniques of other countries to interrogate those suspected of aiding the war on terror. The majority view of the judiciary is not to interfere.
If the judiciary’s response to extraordinary rendition is an example of its hands-off approach to dubious practices associated with the war on terror, a different kind of judicial response, which might be described as “words without deeds,” is presented by another of Fiss’s examples, namely, detention without trial of persons alleged to be enemy combatants.
Although this practice is chiefly associated in the public mind with the prison facility at Guantánamo Bay, Cuba, in fact it has more general application. The basic question is whether someone charged as an enemy combatant—traditionally defined as “an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict”—can, because of the unconventional nature of the war on terror, be indefinitely detained in US custody without receiving many of the rights guaranteed by the US Constitution or, if the person is considered a prisoner of war, by the Geneva Conventions. In theory, the answer may be no; but in practice, the answer appears to be yes.
Indeed, when most of the prisoners who were held at Guantánamo were first sent there, they were kept incommunicado, and their very identities were kept secret. Having neither lawyers nor ways of communicating with the outside world, these prisoners had no ability to assert even the most basic rights. Eventually, however, a number of judges (myself included) ordered the release of the identities of the persons imprisoned at Guantánamo, and this in turn led to actions being taken on their behalf, such as, for example, by their relatives.
Ultimately, the US Supreme Court, in several decisions handed down between 2004 and 2008, extended to these detainees the right to petition for a writ of habeas corpus seeking their release. But although these decisions were hailed at the time as a great victory for the rule of law, in fact they have proven to be something of a hollow reed, as Fiss more or less predicted in one of his essays written at the time and included in this volume. Specifically, the lower courts, most especially the D.C. Circuit Court of Appeals, have rejected, sometimes without even considering the merits, virtually all the attempts by the Guantánamo detainees to win their release, and the Supreme Court has refused to review any of these decisions.
Furthermore, despite the original aims of the Obama administration to close down Guantánamo and release most of its prisoners who could not be tried in federal court—aims that Congress has repeatedly endeavored to thwart—there remain at Guantánamo even now several dozen so-called “forever prisoners” who have never been adjudged guilty of any misconduct by any court established under Article III of the Constitution, let alone a jury.
Of course, if these detainees are viewed as prisoners of war, they should, under the Geneva Conventions, be released at the conclusion of active hostilities. But given the vague, expanding way in which the war on terror has come to be viewed, the conclusion of active hostilities may never arrive. Moreover, since the detainees are not clearly identified as actors for a state, they well may not qualify as prisoners of war. Thus, regardless of what ultimately happens to the remaining prisoners, the failure of the Supreme Court to give practical effect to its declared right of Guantánamo detainees to bring habeas petitions sets the stage for the United States to maintain in the future a prison for hundreds, even thousands of detainees who are neither to be tried by any neutral court nor to be released—but who will just remain in prison indefinitely. There is no parallel in our history for such endless, unscrutinized detention.
The examples of government overreaching and judicial timidity on which this essay has so far focused—torture and indefinite detention—have mostly involved events abroad and/or the treatment of noncitizens. But the untoward effects of combating the war on terror have struck closer to home, as illustrated by another of Fiss’s examples: restrictions on free speech.
When I went to law school in the late 1960s, the accepted wisdom was that freedom of speech was so central to the effective functioning of our democracy that any limitation was forbidden except for speech that created a “clear and present danger,” or, as the Supreme Court later put it, speech that incited “imminent lawless action.” Even war or the threat or effects of war did not justify prohibiting American citizens from staunchly stating their views. Accordingly, the Alien and Sedition Acts passed by an early Congress when war with France was feared, the so-called “Palmer Raids” conducted against supposed anarchists in the aftermath of World War I, and the outlawing of the Communist Party during the cold war were all viewed in hindsight as violations of the First Amendment that should never be repeated.
But such examples illustrate how fragile the First Amendment can be in a time of peril. And in the 2010 Supreme Court case of Holder v. Humanitarian Law Project, the Court came perilously close to upholding the power of the government to criminalize any speech that could be construed as supporting a terrorist organization. The relevant statute, section 2339B of the Federal Criminal Code, makes it a federal crime to knowingly provide material support to any entity designated by the secretary of state as a “foreign terrorist organization.” The term “material support” is defined to include, among other things, providing a “service” to the organization. Fear has been expressed that this could be read to include speaking in favor of the organization or praising any of its activities, even activities that are benign.
Because of this fear, US supporters of two groups that had been designated by the secretary of state as terrorist organizations—a pro-Kurdish group in Turkey and a pro-Tamil group in Sri Lanka—sought a “declaratory judgment” (a kind of advance ruling) that they could not be prosecuted under the statute for speaking out on behalf of certain nonviolent activities of these organizations.
The Supreme Court might have granted the plaintiffs’ application by simply construing the statute not to include speech. Instead, in a 6–3 decision written by Chief Justice Roberts, the Supreme Court in Holder v. Humanitarian Law Project took the position that, while the statute could not criminalize speech independently initiated by the US supporters of these organizations, it could reach advocacy “performed in coordination with, or at the direction of” the terrorist organization, since such speech would constitute a “service” to the organization. It would not matter, moreover, that the speech only advocated the peaceful activities of the organizations in question, since even such advocacy would help the organization in its overall activities, including acts of terrorism.
Fiss, an expert in First Amendment law, is highly critical of both the reasoning and the result in Holder v. Humanitarian Law Project, declaring that it “alter[s] the very architecture of the doctrinal edifice that has long protected freedom of speech” and that, as a result, “the ban on political advocacy that the Court sustained will, I fear, soon become a permanent feature of ordinary life in America.”
But even from the more narrow perspective of a district judge, it seems to me that the distinction between “independent” free speech on behalf of an organization and speech “coordinated” with the organization is highly questionable. Would the tens of thousands of Irish-American citizens who in the 1980s supported the overall aims, if not the more extreme tactics, of Sinn Féin have been liable for criminal prosecution under this statute if they had expressed their favorable views of its goals in response to a Sinn Féin request to “show your support”?
Or, to give another kind of example, would someone who believed that a given organization had been wrongly designated by the secretary of state as a terrorist organization be subject to criminal prosecution if, with the organization’s approval, he placed an ad in The New York Times setting out the reasons why the secretary got it wrong?
What comes out most strongly in the chief justice’s opinion is the implicit premise that the war on terror justifies this serious chilling of free speech. Thus, for example, the chief justice writes that “the Government’s interest in combating terrorism is an urgent objective of the highest order.” Quite aside from the fact that, under the standard of “clear and present danger,” it is difficult to see the urgency of any US interest in combating Kurdish and Tamil insurgency, Chief Justice Roberts’s statement is, in effect, a thinly disguised suggestion that advocacy on behalf of any disfavored organization labeled by the secretary as terrorist is subject to censorship—a view that would have fully justified the British pre-Revolutionary censorship that gave rise to the First Amendment.
Fortunately, the blank check of censorship authorized by the aforementioned Supreme Court decision has for the most part not yet been cashed by the Department of Justice. There have been only a couple of prosecutions under section 2339B for speech activities, and those involved direct incitements to violence. But who knows what a future administration might do?
Fiss’s discussion of the ways in which the war on terror has tended to impede our freedoms is by no means limited to the examples discussed above. His ten cogent essays cover everything from unfettered surveillance to secret watch lists to drone assassination—the common theme being that, in the absence of more effective judicial scrutiny, the government will always use the excuse of war to take authoritarian measures that no other excuse could hope to justify. Such measures might well be open to serious question even against the background of a conventional war. But the unique features of the war on terror—its uncertain legal status, its shifting, nonstate adversaries, its untraditional methods, its unclear goals, and its highly indefinite duration—all combine to make it difficult for the courts to intervene, even when they sense (as the Supreme Court did in its habeas decisions during the Bush administration) that the courts may be the branch of government best situated to place meaningful limits on the wide-ranging government activities supposedly justified by this strange war.
It is true that, even in the case of more traditional wars, US courts have been loath to intervene, both because of a reluctance to second-guess the commander in chief in a time of peril and because of a fear that curtailing the weapons of war could lead to defeat. What good is freedom, the thought goes, if it enables your enemy to make you his slave?
But quite aside from the fact that the war on terror is not that kind of war (threatening imminent invasion or mass destruction) and that the kind of measures we are here considering are not military decisions, we must always remember exactly what we are fighting for. The war on terror, for all its uncertainties, is in some respects a war of values: the monstrous methods of al-Qaeda, ISIS, and others are but a reflection of their authoritarian values and extremist ideologies. They hate us, not just because we are rich, but because we are, on the whole, free, liberal in thought, and humane in feelings. It would be ironic, and tragic, if in seeking to safeguard our security so as to preserve our values, we undercut, for now and for the future, the very values that make us so proud to be Americans.