Tuesday, June 16, 2015

Owen Fiss Authors Book on Constitutional Law After 9/11

Owen Fiss, Sterling Professor Emeritus of Law at Yale Law School, surveys the major legal controversies surrounding U.S. counterterrorism policies post-9/11, from Guantánamo to drones, including Hamdi v. Rumsfled and Boumediene v. Bush in his new book, A War Like No Other: The Constitution in a Time of Terror (The New Press). With attention to the freedoms lost, Fiss's essays follow the evolution of U.S. law and jurisprudence over the past decade and make a case for the judiciary’s responsibility to defend basic rights.

Read an excerpt that was featured in the Yale Law Report.

In his foreword to the collection, editor Trevor Sutton ’10 provides legal and historical context for the issues Fiss addresses: "Freedom of speech and association; due process; habeas corpus; the Fourth Amendment warrant requirement; even the prohibitions on torture and extrajudicial killings—the law governing these constitutional principles looks vastly different in 2015 than it did in the summer of 2001."

The ten chapters in this volume cover the major legal battlefronts of the War on Terror, with a focus on the constitutional implications of those new tools. The underlying theme is Fiss’s concern for the offense done to the U.S. Constitution by the administrative and legislative branches of government in the name of public safety and the refusal of the judiciary to hold the government accountable.

“The need for the Court to defend the Constitution . . . is always great, but it is even greater in times of war, especially when the war is so amorphous and ill-defined and generates as much fear as a war against terrorism, where the enemy is invisible and threatens to strike at home,” writes Fiss. “In such a setting, I maintain, robust use of the judicial power—one that projects a clear, unqualified view of the requirements of the Constitution—will further, not diminish, public deliberation and thus democratic values.”

Owen Fiss clerked for Thurgood Marshall (when Marshall was a judge of the United States Court of Appeals for the Second Circuit) and later for Justice William J. Brennan, Jr. He also served in the Civil Rights Division of the Department of Justice. At Yale he teaches procedure, legal theory, and constitutional law. Professor Fiss also directs Yale Law School programs in Latin America and the Middle East.

Trevor Sutton is a graduate of Stanford, Oxford, and Yale Law School. He has served as a law clerk on the U.S. Court of Appeals for the District of Columbia Circuit and as a fellow in the Office of the Secretary of Defense. He is a fellow at the Center for American Progress and works on anti-corruption matters for a global consulting firm.