Free A War Like No Other by Owen Fiss Page B

inadvertently momentous, as with Justice Stevens’s opinion for the Court in Hamdan, which, by failing to condemn the use of military tribunals as running afoul of due process, implicitly endorsed them as constitutionally sound.
    “Aberrations No More” reflects a turning point in Fiss’s thinking and expresses a profound disappointment. The essay evaluates the ways in which President Obama has failed to live up to the promise of his campaign to make a clean break with the national security policies of his predecessor. In his refusal to prosecute those who facilitated torture during the Bush administration, his endorsement of military commissions, and his perpetuation of the practice of imprisonment without trial, Obama transformed what could have been a lamentable but isolated chapter in American history into an enduring debasement of the Constitution.
    “Law Is Everywhere” completes the sequence by proffering a counterexample to those who claim that there is no satisfying way to balance fundamental rights against public safety. The essay celebrates the career of Aharon Barak, Israel’s most famous legal mind and a former president of its Supreme Court.Fiss examines several of Barak’s most powerful opinions—in particular a decision affirming the legality of the targeted killing of suspected terrorists but placing limits on its use—to illustrate how basic principles of fairness and humanity can flourish in even the most dire security environments.
    In Part II, Fiss deepens his inquiry by addressing specific practices and policies implemented during the war against terrorism. “Imprisonment Without Trial” discusses one of the most hotly debated issues of the post–9/11 era: prolonged detention of alleged terrorists without charging them with a crime or placing them on trial. The essay continues many of the themes explored in the first half of the book, in particular the failure of the Obama administration to firmly repudiate the practices of the Bush administration that threatened what Fiss calls “the principle of freedom.”
    “Torture and Extraordinary Rendition” looks at the practice of extraordinary rendition, under which individuals suspected of terrorist affiliations are kidnapped and handed over to foreign governments for torture-based interrogation. Although many believe this practice has stopped under Obama, his administration has nonetheless chosen to defend the practice in federal court, to great success. In Fiss’s view, the lower courts’ assent to the government’s position—effected through various doctrines of abstention—represents an abdication of the essential duty of the judiciary to hold the political branches accountable to the Constitution.
    “Criminalizing Political Advocacy” focuses on a single case, Humanitarian Law Project v. Holder, in which the justices decided by a 6–3 vote to uphold a statute criminalizing political advocacy for foreign organizations that the secretary of state had designated as supporters of terrorism. For Fiss, the decision represents a break with the strong tradition rooted in the landmark 1969 case Brandenburg v. Ohio that seeks to protectpolitical advocacy. The decision illustrates the corrosive effect of the specter of terrorism on constitutional liberties, even those that are relatively remote from the day-to-day prosecution of the War on Terror.
    “Warrantless Wiretapping” was published before Edward Snowden’s revelations of widespread NSA surveillance, yet the essay remains relevant for those seeking to understand how the current scandal came to pass. The essay traces how Bush’s and Obama’s counterterrorism policies led to the enlargement of the surveillance state in a way that made the more recent NSA scandal all but inevitable. In particular, Fiss notes that two components of the 2008 amendments to the Foreign Intelligence Surveillance Act—the enabling of blanket authorizations for electronic surveillance and the elimination