Law is everywhere.

• Author: Fiss, Owen
• Position: Testimonial

TRIBUTE

The phrase "War on Terror" has no discrete legal content. It was politically inspired and used by the administration of George W. Bush to mobilize American society, much like the "War on Drugs" or the "War on Poverty." Yet the declaration of the "War on Terror" marks the beginning of a unique phase in American law that began on September 11, 200l, and continues to this day. Living through this period has made the lessons of Aharon Barak all the more urgent.

Aharon Barak was born in Lithuania in 1936. He was one of the few who miraculously survived the slaughter of Jews in that country during the Second World War--together with his mother, he hid in the walls of a neighbor's house. Barak moved to Israel after the war, became a professor of law at Hebrew University in 1968, and later served as Dean of the Law Faculty. From 1975 to 1978 he was the Attorney General of Israel, and in that capacity helped shape the Camp David peace accord between Egypt and Israel. Barak was appointed to the Israeli Supreme Court in 1978, became the president of the court in 1995, and retired from the court in September 2006. His rulings, particularly those involving issues of national security, have been heralded throughout the world and teach an important lesson--which we in the United States have yet to learn--on how to be faithful to the rule of law in the face of a terrorist threat.

I.

Although the War on Terror is not itself a war, during the six years since it began, the United States has launched three wars. One is in Iraq. Terrorism was not the basis of our decision to invade, but if anything, terrorism has become a consequence of the war and the occupation that inevitably followed. When the United States invaded Iraq in March 2003, the administration had no evidence that Saddam Hussein sponsored the terrorist attacks of September 11, 2001, nor has any been discovered since.

The second war--the invasion of Afghanistan in October 2001--had a direct and immediate connection to the events of September 11. The administration determined that al Qaeda was responsible for the attacks on that day, and furthermore that the Taliban regime then in control of Afghanistan had a special--indeed symbiotic--relationship with al Qaeda. Al Qaeda had helped bring the regime to power, and in return the Taliban had harbored and protected al Qaeda. When the Taliban refused to capture or turn over al Qaeda's leaders, the United States invaded the country.

The third war--the war against al Qaeda itself--is the most difficult for many of us to accept as a war, largely because al Qaeda is not a nation with discrete geographic boundaries. It is an international organization that operates in secret, but much like an enemy nation, has the declared aim of killing Americans en masse, regardless of where they are found--Kenya, Tanzania, New York, Washington, Kabul, or Baghdad. The purpose of these killings is not clear--the stated justifications have ranged from the presence of U.S. military bases in Saudi Arabia, to support for Israel, to the debased nature of American civilization. But it was not necessary to identify a clear purpose behind al Qaeda's actions or determine that it wishes to overthrow the government in order to treat it as belligerent.

One week after the September 11 attacks, Congress passed a resolution authorizing the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." (1) It was this resolution that authorized the invasion of Afghanistan. That war has not eliminated the determination or ability of al Qaeda to attack Americans, at home or abroad, and as a result, the United States remains very much at war with al Qaeda. Indeed, it is this war against al Qaeda, more than the invasion and occupation of Iraq and the continuing American presence in Afghanistan, that gives continuing vitality to the War on Terror. The administration has insisted that the war against al Qaeda is a war that must be fought wherever al Qaeda might be found, including the American homeland, and as a result the prosecution of this war has posed the sharpest challenge to America's commitment to the rule of law.

In speaking of the rule of law, I am referring to the law of the Constitution, not the larger body of law that I call code. Code consists of the edicts, rules, and regulations issued by government officials and agencies to serve the purposes of the state. Sometimes these edicts instruct public officials on how to discharge the duties of their offices. Elsewhere (for example, in the Internal Revenue Code), these edicts are addressed to citizens in general. War often requires adjustments in these codes or calls for the enactment of new codes that help the state respond to the enemy.

In times of war, the threat is more to the Constitution than to code. As the embodiment of the public morality of the nation, the Constitution is not limited to the words appearing in the document written in 1787 or in the twenty-seven amendments formally adopted over the last 220 years. It includes principles, such as the separation of powers or the right to travel from state to state, that are inferred from the overall structure of the Constitution. It also extends to certain enactments of Congress that further expound the values found in the text of the Framers. The Civil Rights Act of 1964, for example, has given the nation a fuller expression of "equal protection of the laws." (2) Understood in this broader sense, the Constitution is laden with a special normative value that derives from the role it plays in defining our national identity--what it means to be American--and in articulating the governing principles of our society.

War places great stress on society. It calls for major readjustments in government and in ordinary life. Often people are called on to make enormous sacrifices. In order to respond to these needs, code is often changed. The executive promulgates new regulations, and Congress enacts statutes to meet the exigencies of the war. The governing assumption of American society is that these war measures will be undertaken within the terms of the Constitution--that the allocation of powers among the branches set forth in the Constitution will be respected and basic liberties will be honored. Ours is a Constitution for times of war as well as times of peace.

The last six years have confounded this assumption and rendered the example of Justice Barak especially compelling. He has honored the special security needs of Israel while being adamant in protecting Israel's democratic character. The contrast with the American experience is stark, even when a principle as sacrosanct as the prohibition against torture is at stake. The war against terrorism seems to have absolved the current administration from any sense of limits.

Under a program called extraordinary rendition, persons suspected of having al Qaeda ties have been abducted by American officials and then transferred in secret to countries that routinely engage in torture as part of their interrogation techniques. In delivering a person to a country where he will likely be tortured, our government is as culpable as it would be had it engaged in torture itself. Suits brought in the United States by some of these victims were summarily dismissed by the lower federal courts. The judges thought that any inquiry into the merits of the allegations would compromise the President's direction of foreign affairs and military operations, and thus would be inconsistent with the deference that is his due. (3)

Internal memoranda of the administration, leaked after the disclosures of the abuse of prisoners in Abu Ghraib in Iraq, reveal a similar disregard for the prohibition against torture. These memoranda narrow the definition of torture in order to broaden the range of techniques that interrogators could use against prisoners who might possess information about al Qaeda. An August 2002 Department of Justice memorandum said that the infliction of physical pain amounted to torture only when it was "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." (4) A separate Department of Defense memorandum, issued only months later, established guidelines for interrogations at the Guantanamo Bay Naval Station. It suggested that two practices until then universally understood as torture--the use of scenarios designed to convince detainees that death is imminent, and use of a wet towel and dripping water to induce fear of suffocation ("water-boarding")--though forbidden "as a matter of policy ... at this time," nonetheless "may be legally available." (5)

These internal memoranda not only sought to lessen the force of the prohibition against torture by broadening the range of permitted conduct, but went further and implied that the prohibition did not apply whatsoever to the President's pursuit of al Qaeda. The August 2002 Department of Justice memorandum treated the prohibition against torture as nothing more than code and therefore denied that it bound the President in his capacity as Commander in Chief. Although in December 2004 the Department of Justice publicly released a memorandum repudiating the strained definition of torture announced in its 2002 memorandum, the 2004 memorandum did not disavow the earlier assertion that the President had the power to authorize torture. Rather, the memorandum said it was "unnecessary" to address the issue because the President had--subsequent to the disclosures of Abu Ghraib and the release of the earlier memorandum--issued a directive that U.S. personnel not engage in torture. (6)

In the Detainee Treatment Act of 2005, Congress codified the constitutional ban on torture. (7) The President fiercely resisted that measure, and although he eventually signed...