A War Like No Other Read Online Free PDF Page A

with this vision, under Barak’s influence the Supreme Court revolutionized traditional Israeli standing doctrine to eliminate the “particularized” or “personal” injury prong so familiar to students of American civil procedure. According to a series of decisions penned by Barak over the course of the 1980s and 1990s, a plaintiff in an Israeli court needed to show only that a violation of the law has occurred, and that the plaintiff’s suit for redress is in the public interest.
    “Law Is Everywhere” first appeared in the Yale Law Journal in 2007 as a tribute to Aharon Barak on his retirement. The essay was not the product of distant admiration. Fiss and Barak have been intellectual companions and personal friends for many decades, and some have said that the legal philosophy captured in Fiss’s The Law As It Could Be is the one that best approximatesBarak’s ideas about the role of law in society. This shared vision is all the more extraordinary when one considers that Barak did not have the luxury of advocacy without consequence; his lofty political perches required him to have the courage of his convictions. Such courage is all the more remarkable in a country like Israel, where the threat of political violence is far more pervasive and acute than in the United States, and where under certain circumstances the legislature can overrule a decision of the Supreme Court if it feels the Court has overstepped its bounds.

Prologue to Chapter 6
    Trevor Sutton
    “I don’t want these individuals to die,” President Obama said at an emotional press conference held in April 2013, following media reports of a hunger strike by more than one hundred prisoners held at the detention facility in Guantánamo Bay, Cuba. “I am going to go back at this,” he promised, alluding to his unfulfilled 2008 campaign pledge to close the prison and end the practices that made it infamous. “I am going to get my team to review everything that is currently being done in Guantánamo,” he continued, adding: “I am going to reengage with Congress to try and make the case that [Guantánamo] is not in the best interests of the American people.”
    It is possible to take the president’s emotion at face value and still deem him primarily responsible for what is occurring at Guantánamo. This, in fact, is the view expressed by Owen Fiss in this chapter, “Imprisonment Without Trial,” which describes how and why President Obama perpetuated one of the most controversial of the Bush administration’s counterterrorism policies: prolonged, indefinite detention without trial of anytype. The essay, which first appeared in an abbreviated form in Slate and later in full in the Tulsa Law Review, revisits many of the themes and events discussed in previous essays, but brings to them a new theoretical rigor through an elaboration of what Fiss has called the principle of freedom. In Fiss’s view, this principle, which represents the collective operation of several constitutional provisions, overrides the various statutory and practical arguments in favor of prolonging the imprisonment without trial of foreign nationals held at Guantánamo.
    Two applications of the principle of freedom discussed in the essay deserve special mention. The first is the incompatibility between the principle and what Fiss calls the “bifurcated exclusionary rule,” under which tainted evidence may be used as the basis for perpetual incarceration but not for a criminal trial. The second is the principle’s requirement that incarceration be conditioned on a criminal trial presided over by an independent judge. In Fiss’s view, oversight of executive action determining that the prisoner remains a threat to the United States—even if this oversight is conducted by an Article III judge—does not satisfy this requirement.
    These two applications are noteworthy because they illustrate the perils of administrative solutions to constitutional wrongs. This is the central