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By Owen Fiss

Owen Fiss has been a number one criminal student for over 30 years, but prior to 2001 it is going to have appeared not likely for him to write down approximately nationwide defense and the legislation of struggle; his concentration used to be civil approach and equivalent defense. yet, whilst the conflict on Terror started to shroud criminal lawsuits in secrecy, he realised that the bulwarks of method that safeguard the person from the notable energy of the country have been dissolving. A struggle Like No different might be a vital highbrow starting place for all taken with constitutional rights and the legislation in a brand new age.

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Additional resources for A War Like No Other: The Constitution in a Time of Terror

Sample text

But for liberties of the first type—liberties guaranteed by the Constitution itself—the individual is entitled to a hearing before a federal court on his or her claim. 26 He is entitled to something more than fair procedure. Although the Court did not require a hearing before a federal court and thus did not honor the principle of freedom, it at least granted the prisoner some rights—an evidentiary hearing on the government’s contention that he was an enemy combatant and access to counsel for such a hearing.

31 He understood himself and the magnitude of his achievement, and in so doing provided a lesson for us all. The most significant of the three cases—and the one to which Lewis devoted most of his column—was the Court’s ruling in Hamdi v. ” Not all were convinced that Hamdi was a watershed, however. ” Yet even Dworkin could not help but optimistically declare that principles underlying the Hamdi decision could lead to “a much more powerful conclusion than the Court itself drew”: that beyond a certain point the government must choose between subjecting a detainee to a criminal trial and holding him as an enemy combatant.

This charge had been supported by an affidavit from the same official in the Department of Defense (Michael Mobbs) who gave the affidavit in Padilla, although Hamdi’s father, who had brought this habeas petition on his son’s behalf, denied this allegation and said that his son went to Afghanistan in August 2001 to do relief work. ”15 Accordingly, she allowed the government to support its charge that a prisoner is an enemy combatant by submitting an affidavit based on records maintained by the military of battlefield detainees.

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