A War Like No Other (51 page)
Read A War Like No Other Online
Authors: Owen Fiss
U.S. Court of Appeals for the Second Circuit,
23–24
,
41
,
44
,
45
,
119
,
181
,
183–85
,
186–89
,
233
,
263–85
U.S. Court of Appeals for the Third Circuit,
29–30
U.S. Court of Appeals for the Fourth Circuit,
4
,
15–19
,
43–44
,
114
,
189–90
U.S. Court of Appeals for the Sixth Circuit,
5
,
30
U.S. Court of Appeals for the Ninth Circuit,
31
,
119
,
191
,
194
U.S. Court of Appeals for the Eleventh Circuit,
36
U.S. Department of Defense,
16–17
,
22
,
41
,
47
,
114
,
152
,
160
,
311n11
affidavits filed to avoid evidentiary hearings,
106–7
establishment of military tribunals by,
155
leak of internal memoranda on torture,
174–78
military commissions and,
108
U.S. Department of Homeland Security,
160
U.S. Department of Justice,
160
FISA Amendments Act of 2008 and,
242–43
leak of internal memoranda on torture,
174
,
176–77
Office of Legal Counsel,
174
,
177
U.S. Department of State, designation and regulation of foreign terrorist organizations,
203–4
U.S. District Court for the Eastern District of Virginia,
24
U.S. District Court for the Southern District of New York,
44
,
45
,
101
,
120
,
162
U.S. House of Representatives,
230
See also
U.S. Congress
adoption of FISA,
227–28
authorization of Iraq War,
4
FISA Amendments Act of 2008 and,
242–43
Judiciary Committee,
230–31
passage of USA PATRIOT Act,
4
response to
Hamdan v. Rumsfeld
,
87–88
Select Committee on Intelligence,
171
See also
U.S. Congress
U.S. Supreme Court,
3
,
30–33
,
130
,
173
Al Odah v. United States
and,
30–31
Berger v. New York
and,
310n89
Bivens
decision and,
184–85
Boumediene v. Bush
and,
xii
,
4–5
,
70–71
,
116–17
,
121–22
,
165–67
,
278–79
,
283
,
311n11
Brandenburg v. Ohio
and,
208
,
209
,
217
Brown v. Mississippi
and,
169
Bush administration and,
xiii
,
33–36
,
37
,
104–17
congressional enactments and,
89–94
cosmopolitanism and,
74
Ex Parte Milligan
and,
125
Ex Parte Quirin
and,
125
FISA and,
122–23
,
135
,
233
,
234
,
238–39
freedom of speech and,
197–99
,
269
as guardian of the Constitution,
89–94
,
98
,
100
,
113
,
137
,
223–24
,
257–58
Hamdan v. Rumsfeld
and,
xii
,
xiii
,
81–90
,
93
,
95
,
97–98
Hamdi v. Rumsfeld
and,
xii
,
x
,
4–5
,
30–31
,
33–35
,
38
,
70–71
,
79–80
,
98
,
113–14
,
135
,
164–65
,
277–79
,
283–84
,
290n14
,
290n20
,
290n27
Holder v. Humanitarian Law Project
and,
xiv–xv
,
207–15
,
215–22
Katz v. United States
and,
234–35
,
237–39
,
245
,
249–51
Keith
case and,
236–39
,
245
,
249–50
Korematsu
case,
137
New York Times Co. v. Sullivan
and,
208
Olmstead v. United States
and,
254
overbreadth doctrine and,
256–57
policy of avoidance,
110–17
political question doctrine and,
283
proportionality and,
137–38
Rasul v. Bush
and,
34–35
,
38
,
52–68
,
78–79
,
86
,
89–90
,
95–96
In Re Yamashita
and,
125
Rumsfeld v. Padilla
and,
30–31
,
34–36
,
38
,
40–45
,
114–15
,
289n7
state secrets doctrine and,
189
substantive rationality and,
137–38
United States v. Jones
and,
253–54
United States v. Verdugo-Urquidez
and,
xvi
,
58–60
,
246–48
,
250
warrantless wiretapping and,
109
,
226
Verdugo-Urquidez, René Martín,
59–60
Vinson, Roger,
222–23
Volokh, Eugene,
198
War on Drugs,
58–59
War on Terror,
x
,
xiii
,
xv–xvii
,
3
,
12
,
24
,
29–31
,
33–35
,
37
,
76
,
104–17
,
118
,
125
,
262–63
declaration of,
227
rule of law and,
37–68
torture and,
172
warrantless wiretapping,
xv
,
112–13
,
200–201
,
222
,
226
,
250–53
,
273
Burger Court and,
226
Bush administration and,
122
,
227–31
citizens and,
273
congressional authorization of,
201
Fourth Amendment and,
243–58
noncitizens and,
273
Obama administration and,
122–23
,
231–33
See also
FISA Amendments Act of 2008
;
Foreign Intelligence Surveillance Act (FISA)
warrants,
x
,
xv
,
235–39
,
241–42
,
250–51
,
253–57
,
307–8n53
,
307n51
,
310n89
Warren Court,
61
,
74
,
108
,
234–35
,
236
Warsame, Ahmed Abdulkadir,
162
waterboarding,
105
,
118
,
171
,
175
,
176
,
194
Whitney v. California
,
98
wiretapping,
101
,
109
,
238–39
,
309n74
See also
warrantless wiretapping
Yemen,
260–61
,
263
,
264–65
,
272
,
285
Owen Fiss
is Sterling Professor Emeritus of Law at Yale University. He clerked for Thurgood Marshall when Marshall was a Court of Appeals judge and later for William J. Brennan Jr. on the U.S. Supreme Court. He is the author of many articles and books, including
Troubled Beginnings of the Modern State, Liberalism Divided,
and
The Irony of Free Speech.
He lives in Connecticut in the New Haven area.
Trevor Sutton
is a graduate of Stanford, Oxford, and Yale Law School. He 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 now lives in New York City and works on anticorruption matters for a global consulting firm.
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