By Owen Fiss
Owen Fiss has been a number one felony pupil for over 30 years, but prior to 2001 it can have appeared not going for him to put in writing approximately nationwide defense and the legislation of battle; his concentration used to be civil approach and equivalent safeguard. yet, whilst the battle on Terror started to shroud criminal court cases in secrecy, he realised that the bulwarks of method that protect the person from the amazing strength of the nation have been dissolving. A warfare Like No different could be a necessary highbrow starting place for all eager about constitutional rights and the legislations in a brand new age.
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Extra resources for A War Like No Other: The Constitution in a Time of Terror
Not surprisingly, when the case returned to the trial level, two judges in the District Court for the District of Columbia, each presiding over different proceedings, read it differently. ”32 He further concluded that based on prior doctrine the prisoners had no underlying constitutional rights. This meant that although the prisoners had a statutory right to file a habeas petition—they had the right to file a piece of paper—the legal proceeding was of no practical import. On this interpretation, the prisoners in Guantánamo—nationals of Australia and Kuwait—would be given the same rights as Hamdi.
The Court must also be credited for grounding these rights in the Due Process Clause, unfortunately misunderstood by the Court as a requirement of procedural fairness, not as a substantive guarantee of liberty. In the third decision handed down on June 28, 2004, Rasul v. Bush, the Supreme Court also granted procedural rights to prisoners captured in the theater of war and accused of having fought for the Taliban, but these rights were even more limited than those recognized in Hamdi. Although the Rasul Court ruled that the prisoners had a right to file a habeas application in a federal district court and to require a response by the government, it did not specify what further rights—procedural or substantive—they had before that court.
16 A casual reader might think that the sentence was purely descriptive of Hamdi’s situation and that the right to counsel to which Justice O’Connor referred might be the right the government already allowed him as a discretionary matter. 17 I therefore assume that Justice O’Connor and the three other justices who joined her opinion intended to avoid a ruling on the right to counsel issue but that they added the crucial sentence at the very last moment to secure Justice Souter’s and Justice Ginsburg’s votes.
A War Like No Other: The Constitution in a Time of Terror by Owen Fiss