Read e-book online A War Like No Other: The Constitution in a Time of Terror PDF

By Owen Fiss

Owen Fiss has been a number one criminal student for over 30 years, but earlier than 2001 it's going to have appeared not going for him to write down approximately nationwide defense and the legislation of battle; his concentration was once civil method and equivalent defense. yet, while the battle on Terror started to shroud felony lawsuits in secrecy, he realised that the bulwarks of strategy that guard the person from the amazing energy of the nation have been dissolving. A conflict Like No different should be an important highbrow starting place for all concerned with constitutional rights and the legislations in a brand new age.

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Example text

But the responsibility is on the court to determine whether, in fact, the combatants fall into those sections. It is precisely this inquiry that Judge Ellis failed to undertake. When it came time to apply the four criteria of Section 2, Judge Ellis did not make his judgment on the basis of what Lindh or his unit or the militia of which he was a part did. Rather, he made a judgment about what the Taliban army did in its entirety, and then applied that judgment to everyone who fought for the Taliban, including Lindh.

The evidence that Judge Ellis marshaled in support of his conclusion about the Taliban also seems questionable. This last conclusion does not seem entirely plausible, but putting that concern to one side, the case for classifying the entire Taliban army as consisting of unlawful combatants because they lacked uniforms or a command structure still seems strained. As used by the United States, the unlawful-combatant designation gives the nation holding the prisoner vast, almost boundless power over him, and it would seem odd that such power can derive simply from the fact that the Taliban lacked uniforms or an appropriate command and control system.

Dept. of Soc. Servs. 25 Although I disagree with the result in that case—appointed counsel need not be provided to an indigent person whose parental rights are to be terminated—I acknowledge the applicability of the formula. Similarly, I would say that if all that were involved in Hamdi’s case were a personal liberty, the Matthews v. Eldridge formula would be applicable, and from that perspective a hearing before a military tribunal might suffice, once again assuming that the tribunal possessed the requisite impartiality.

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