A WAR LIKE NO OTHER

Fiss (Emeritus, Law/Yale Univ. The Law As It Could Be, 2003, etc.) returns with a scholarly and cautionary collection of essays focusing on what he views as the post-9/11 debasements of key provisions of the Constitution.

The author, who has published often about the importance of our constitutional freedoms (The Irony of Free Speech, 1996, etc.), pulls no punches in these trenchant pieces, some of which are edited versions of speeches. Because they deal with related topics (the loss of protections), they often revisit the same ground and/or individuals: Guantánamo, court cases, politicians, and administration figures such as Dick Cheney and Eric Holder. Examining the issues of habeas corpus for terror suspects, extraordinary rendition, warrantless surveillance, and targeted killing of terror suspects (via drone or otherwise), the author continually lands on the side of more rather than less freedom. Although he recognizes the dangers of the new era of stateless terror, he firmly argues that it is better to protect our freedoms of speech, privacy, and due process than to surrender them—as we have been doing since the 9/11 attacks with the subsequent statutes (the Patriot Act et al.) and court rulings that empower the government to investigate us with relative impunity. Although Fiss places principal blame on President George W. Bush, he does not exonerate President Barack Obama; the author repeatedly chides our current president for his failures to follow through on a number of his campaign promises about constitutional protections. Although the author seeks balance—see, for example, his strong final piece about targeted killings—he believes that our judges, legislators, and elected executives should err on the side of freedom, not restriction.

In these extremely relevant pieces, Fiss once again emerges as a fierce defender of freedom.