A War Like No Other Read Online Free PDF Page B

essay discusses torture carried out by U.S. officials outside U.S. territory, or by foreigngovernments on behalf of the United States, to collect intelligence about foreign extremist organizations suspected of plotting terrorist attacks.
    Although the parallels between official torture in the counterterrorism context and its use in purely domestic contexts seem obvious, the judiciary has been reluctant to extend the prohibition of torture into the realm of national security. This wariness, documented in “Torture and Extraordinary Rendition,” is lamentable but not wholly unexpected. From as early as the Insular Cases, the federal courts have approached extraterritorial application of the Constitution with caution. But with respect to victims of torture committed outside the United States, the judiciary has avoided reaching even this question of extraterritorial reach, and has instead ruled against the victims on the basis of discretionary doctrines of abstention—specifically, an extension of the state secrets privilege, and a novel reading of the “special factors” exception to the availability of damages under a Bivens action. As the essay observes, both of these bases for dismissal are framed so broadly that they could easily “degenerate into a free-floating political question doctrine” barring review of any suit that touches on the political branches’ foreign affairs and war powers.
    This refusal on the part of the judiciary to adjudicate questions of fundamental rights through self-imposed procedural obstacles bears a striking resemblance to an earlier concern of Owen Fiss: the Burger and Rehnquist Courts’ paring back of the structural injunction, and with it the role of the federal courts in redressing civil rights violations, through judicially created rules of abstention. The Supreme Court’s retrenchment on injunctive relief in the final decades of the twentieth century was presented as exercises in humility and comity, but its effect was hardly modest: it served to marginalize the role of the judiciary in one of its areas of core competence. The same critique canbe leveled at the judicial hand washing discussed in “Torture and Extraordinary Rendition.” In Fiss’s view, torture, like racial segregation, is too grave an offense to constitutional values to entrust its prohibition to the political branches.
    On December 9, 2014, the nation was delivered a chilling reminder of the consequences of unquestioning deference to the executive’s national security policies. On that day, the Senate Select Committee on Intelligence publicly released a formerly classified report on the CIA’s interrogation and detention program under the Bush administration. The report described the deliberate and systematic use of physical and mental torture against suspected terrorists in U.S. custody, including waterboarding, prolonged placement in painful “stress positions,” and a practice known as “rectal feeding,” in which liquids are pumped into an individual’s large intestine via a tube inserted into the rectum. The Senate report was greeted with widespread outrage and may well lead to a tightening of the legislative and policy regimes prohibiting torture. But as Fiss makes clear in his essay, even robust oversight by Congress is no substitute for open and public trials and an independent, assertive judiciary willing to protect fundamental rights even in times of exigency. Whether the executive and Supreme Court will permit the judiciary to play such a vital role is, lamentably, very much an open question.

Prologue to Chapter 8
    Trevor Sutton
    Nearly all of the major legal controversies that arose out of the Bush and Obama administrations’ national security policies revolved around constitutional provisions that govern core functions of the criminal justice system, such as searches and seizures, executive detention, methods of interrogation, and procedural fairness in determinations affecting personal