“Terror” and Everybody’s Rights

That is the title of an excellent review by Judge Rakoff of “A War Like No Other: The Constitution in a Time of Terror.” The takeaway:

“Fiss’s discussion of the ways in which the war on terror has tended to impede our freedoms is by no means limited to the examples discussed above. His ten cogent essays cover everything from unfettered surveillance to secret watch lists to drone assassination—the common theme being that, in the absence of more effective judicial scrutiny, the government will always use the excuse of war to take authoritarian measures that no other excuse could hope to justify. Such measures might well be open to serious question even against the background of a conventional war. But the unique features of the war on terror—its uncertain legal status, its shifting, nonstate adversaries, its untraditional methods, its unclear goals, and its highly indefinite duration—all combine to make it difficult for the courts to intervene, even when they sense (as the Supreme Court did in its habeas decisions during the Bush administration) that the courts may be the branch of government best situated to place meaningful limits on the wide-ranging government activities supposedly justified by this strange war.

It is true that, even in the case of more traditional wars, US courts have been loath to intervene, both because of a reluctance to second-guess the commander in chief in a time of peril and because of a fear that curtailing the weapons of war could lead to defeat. What good is freedom, the thought goes, if it enables your enemy to make you his slave?

But quite aside from the fact that the war on terror is not that kind of war (threatening imminent invasion or mass destruction) and that the kind of measures we are here considering are not military decisions, we must always remember exactly what we are fighting for. The war on terror, for all its uncertainties, is in some respects a war of values: the monstrous methods of al-Qaeda, ISIS, and others are but a reflection of their authoritarian values and extremist ideologies. They hate us, not just because we are rich, but because we are, on the whole, free, liberal in thought, and humane in feelings. It would be ironic, and tragic, if in seeking to safeguard our security so as to preserve our values, we undercut, for now and for the future, the very values that make us so proud to be Americans.”

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