Tuesday, November 11, 2014

On Veterans Day, Read about a Soldier

November 11, or Veterans Day, was once called Armistice Day, the official ending of World War I. Congress created the official national holiday in 1926, noting that "it is fitting that the recurring anniversary of this date should be commemorated with thanksgiving and prayer and exercises designed to perpetuate peace through good will and mutual understanding between nations." Peace would be fleeting, however, and the United States would have many more veterans to honor. Along the way, November 11 became a day to honor all veterans. In the 21st century, the holiday receives more notice than a few decades ago, even though fewer American families participate in war service. As the work of war becomes an abstraction for most of us, the earlier hope for peace has been replaced by public celebrations of militarism.

Soldiers perform labor that the nation desires, but that most Americans never contemplate doing themselves. Americans support war without engaging its costs, or even paying close attention to the work soldiers do. To mark Veterans Day, we can get beyond shallow accolades and actually read about it. My choice this November is the extraordinary memoir of Bruce Wright, "World War I as I Saw It: The Memoir of an African American Soldier," edited by his grandchildren and published in the Massachusetts Historical Review. (It is behind a paywall, but perhaps the $10 it may cost you on JSTOR can be your Veterans Day contribution to his memory.)

The work of war, at the ground level, involves death and dying. This experience was widely shared during the Civil War, as Drew Gilpin Faust has shown, but is attenuated in the long U.S. history of distant war. Here's a snippet of Wright's own experience:
Finally the day broke and everyone there welcomed the dawn of that first day in the Argonne forest and we got our very first look onto "No Mans Land" that we had heard & read so much about. Masses of barbed wire, skeletons of men, tin cans, rotted clothes and an awful smell greeted our eyes & noses....It was raining but not hard and some of us I guess would be almost tempted to pray for a quick death to end it all.... 
At 11 A.M. in Broad daylight the command came "Over Boys Over" and that first wave made up of colored boys, with bayonets fixed dashed through no mans land in a perfect formation: It was 3 or 4 minutes before the buglers sounded the call to start firing. The [Germans] leaped out of their 1st trench and started falling back, so after they abandoned that first trench we fell in it head first but no sooner had we got to our feet the word came like lightning. "Up Boys and at 'em." Then that was the [beginning] of the most fierce struggle that I ever was in.
The rest is here.

Thursday, August 21, 2014

War and Peace in Time and Space

My new paper War and Peace in Time and Space was inspired/provoked by the indomitable Yxta Maya Murray, who invited me to participate in a symposium on Law, Peace and Violence: Jurisprudence and the Possibilities of Peace at Seattle University Law School. Yxta's commitment to peace as something that does or can truly exist in the world helped me to see that, in my work on wartime, I was not taking peace seriously enough. This led me to revisit the question of what peace might be in a nation engaged in ongoing armed conflict. My answer to this puzzle is to turn to geography/spaciality. I will keep working on this in my next book, but here's my take so far.

This essay is a critical reflection on peace, written for a symposium issue on Law, Peace and Violence: Jurisprudence and the Possibilities of Peace. Peacetime and wartime are thought to be temporal concepts, alternating in history, but ongoing wartime seems to blot out any time that is truly free of war. In spite of this, peace is the felt experience of many Americans. We can understand why peace is thought to exist during ongoing war by turning to geographies of war and peace. The experience of American war is not only exported, but is also concentrated in particular American communities, especially locations of military bases. Memorialization of war death is one of the “spaces of the dead,” as Thomas Laquere calls it, separated from daily life. The persistence of war and the separation of killing, dying and the dead from the center of American life is an example of the way war and peace are spatial. War is also simultaneously infused into domestic life and segregated in the context of militarization. This has been on display in the crisis in Ferguson, Missouri in August 2014. One thing that makes Ferguson so dramatic is the diffusion of war materiel into domestic policing. It also matters deeply that the officers pointing the weapons are largely white, and the demonstrators are predominately largely African American, making clear the racial geography of militarized policing. In the end, this essay raises the question of whether peace should be sought or celebrated. Perhaps the space of peace during persistent conflict can only be a space of privilege.
My paper is on SSRN. It this topic sounds familiar, it's because I started thinking about it on this blog a while ago.

Tuesday, August 19, 2014

The Future as a Concept in National Security Law



I will follow up soon with a post on history and the crisis in Ferguson, Missouri.  Today I'm posting a new paper from a conference on The Future of National Security Law.  The topics of race and national security are intersecting before our eyes. But the paper takes up something more abstract:  the concept of "The Future."  Here's the abstract:

The Concept of the Future in National Security Law
With their focus on the future of national security law, the essays in this issue share a common premise: that the future matters to legal policy, and that law must take the future into account. But what is this future? And what conception of the future do national security lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social scientific work are rational predictions, he suggested.

If law is premised on ideas about something unknowable, something that can, at best, be a prediction, then it seems important to examine what those ideas, assumptions and predictions are. This essay examines future-thinking in prominent works related to national security, including the ideas that the future is peacetime, a long war, a “next attack,” and the future as a postwar. Drawing from scholarship on historical memory and conceptions of temporality, this essay argues that understandings of the future depend on more than the rational empirical predictions that Lasswell had in mind. The future is a cultural construct that depends in part on the way we remember the past. It does not exist apart from the politics and values that inform our perceptions. The future does not unfold on its own. We produce our future through both our acts and our imaginations. Culture matters deeply in this context, for the future we imagine is a well-spring of law.

Monday, August 4, 2014

Legal History as Foreign Relations History

I've just posted a new paper, Legal History as Foreign Relations History. Written for the new edition of a leading work on methodology in foreign relations history, I challenge the field's traditional skepticism about law's relevance to international affairs. Many grad students and newer scholars are incorporating the history of human rights and international law into their work, and my intent is to be helpful to those historians, and to build a bridge between fields.  Here's the abstract:

This paper is for a leading work on the methodologies of foreign relations history. Traditionally, diplomatic historians have been skeptical about law as a causal force in international relations, and have often ignored it. Challenging that assumption, this essay shows that law is already present in aspects of foreign relations history scholarship. Using human rights as an example, I explore the way periodization of legal histories is tied to assumptions and arguments about causality. I illustrate the way law has worked as a tool in international affairs, and the way law makes an indelible mark, or acts as a legitimizing force, affecting what historical actors imagine to be possible. Drawing from Robert Gordon’s influential work on the methodology of legal history, the essay shows the way law can help to constitute the social and political context within which international affairs are conducted. I argue that the presence of law and lawyers in the history of U.S. foreign relations is too central to be ignored.

For a scholar without legal training, taking up law-related topics can pose special challenges. This essay ends with a Legal History Survival Guide that includes advice about how to get started and how to avoid mistakes.

Tuesday, July 15, 2014

Legal History Survival Guide, pt 2: helpful sources for getting started on law and foreign relations history

In the Legal History Survival Guide at the end of my draft on Legal History as Diplomatic History, I'm listing sources with especially good bibliographies, bibliographic essays, sources cited in footnotes, etc.  Here's my current list:

Works with helpful bibliographies and bibliographic essays:
  • Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 (Cambridge: Cambridge University Press, 2009)
  • Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge: Cambridge University Press, 2002)
  • Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 2003)
  • Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press of Harvard University Press, 2010)
  • Stephen C. Neff, Justice Among Nations: A History of International Law (Cambridge, MA: Harvard University Press, 2014)
  • A.W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (New York: Oxford University Press, 2001)
Works with extensive and helpful citations in the notes:
  • George Athan Billias, American Constitutionalism Heard Round the World, 1776-1989: A Global Perspective (New York: New York University Press, 2009)
  • Stephen M. Griffin, Long Wars and the Constitution (Cambridge, MA: Harvard University Press, 2013)
  • Mariah Zeisberg, War Powers: The Politics of Constitutional Authority (Princeton: Princeton University Press, 2013)
Helpful reference sources:
  •  David L. Sloss, Michael D. Ramsey, and William S. Dodge, eds., International Law in the U.S. Supreme Court: Continuity and Change (Cambridge: Cambridge University Press 2011)
  • David P. Forsythe, ed., Encyclopedia of Human Rights, 5 vols. (New York: Oxford University Press, 2009)
Excellent overview of Foreign Relations Law:
  • Curtis A. Bradley, International Law in the U.S. Legal System (New York: Oxford University Press, 2013)
The best source for access to legal documents relating to law and diplomatic history:

Sunday, July 13, 2014

Crowdsourcing cite on the History of Foreign Relations Law as Administrative Law

In the essay I'm writing about legal history as diplomatic history, I have this short passage noting that a lot of the law pertaining to U.S. international affairs consists of federal regulations. Title 10 of the U.S. Code pertaining to the armed forces is just one aspect. But foreign relations law sources (at least that I've checked so far) don't cover administrative law, and my research is not turning up helpful works.  So I thought I should crowdsource my cites for this. Since my goal is to cite to sources that graduate students and other non-legal historians can start with in an effort to bring legal history into their work, can you recommend helpful works?  Here's the paragraph:
Battles over the Treaty of Versailles and the National Security Act of 1947 do more than showcase the way American political leaders fought over the direction of U.S. foreign policy. Statutes and treaties become the legal architecture of statebuilding. The National Security Act did more than ratify a vision of American national security.  It restructured the military and created new departments.  The resulting Department of Defense has grown to a sprawling bureaucracy with over 3.2 million employees, and drawing approximately 19% of the federal budget, though this number does not include veterans benefits. Although the statute itself, and subsequent amendments, create the basic organization of federal bureaucratic power, it also lays the basis for new forms of lawmaking. Much of the law of U.S. foreign relations since 1947 is administrative law generated by federal rulemaking. Because of this, the legal history of American foreign relations is not limited to treaties, statutes and court rulings. Administrative law is foreign relations law. Diving into this regulatory history would illuminate the legal side of the bureaucratic history of foreign relations.
Please post your ideas in the comments or email me. My readers will thank you!

Legal History Survival Guide, part 2: bibliographies on law in foreign relations history

For my essay on legal history as diplomatic history, which includes tips for the uninitiated, I have this list of good bibliographic sources. Can you add to it?
Researchers will find very helpful bibliographies and bibliographic essays in Martti Koskenniemi, The Gentle Civilizer of Nations; Paul Gordon Lauren, The Evolution of International Human Rights; Samuel Moyn, The Last Utopia; Stephen C. Neff, Justice Among Nations and A.W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention. See also extensive and helpful citations in the notes of George Athan Billias, American Constitutionalism Heard Round the World; Stephen M. Griffin, Long Wars and the Constitution; and Mariah Ziesberg, War Powers: The Politics of Constitutional Authority. International Law in the U.S. Supreme Court, edited by David L. Sloss, Michael D. Ramsey and William S. Dodge; and the five volume Encyclopedia of Human Rights, edited by David P. Forsythe, are also excellent references. The best source for access to legal documents relating to law and diplomatic history is The Avalon Project Documents in Law, History and Diplomacy, hosted by the Lillian Goldman Law Library at Yale Law School.

Friday, July 11, 2014

A legal history survival guide

For an essay on legal history as diplomatic history for the 3rd edition of Explaining the History of American Foreign Relations, I close with some tips about how a non-legal historian might venture into legal history. Here's my list. What am I missing?
Building legal history into your diplomatic history research may be important or essential. It can also be fraught with peril. Historians without legal training can make mistakes when unaware of the way different areas of law interconnect, or the way jurisdictional or procedural rules affect a case. But even complex areas of law can be mastered sufficiently.

Here are some guidelines to help you bring law into your project without making mistakes:
  • Audit a law school class in your subject area. Do all the reading and participate in class discussion.
  • To develop an overview of an area of law, find a well-regarded treatise.
  • Ask a legal historians to be on your dissertation committee.
  • Attend meetings of the American Society for Legal History.
  • Present your work in law settings, including at ASLH  and Law and Society Association meetings. Find opportunities for legal scholars to read your work and comment on it.
  • Attend legal history workshops and programs in your area. Some law schools have legal history workshop series. They will be delighted to have you.
  • Take advantage of legal history programs for graduate students and others hosted by ASLH and others.
  • Read the Legal History Blog, where new scholarship is discussed and opportunities are often announced.

Tuesday, June 17, 2014

From a "Republic of Suffering" to an Empire?

In This Republic of Suffering: Death and the American Civil War, Drew Gilpin Faust powerfully explored the impact of death and dying on the United States. During the Civil War, she wrote, the “work of death” was the nation’s “most fundamental and enduring undertaking.” Proximity to the dead, dying and injured transformed the United States, creating “a veritable ‘republic of suffering’ in the words [of] Frederick Law Olmsted.” War deaths have moved to the sidelines of American life in the 21st century. If shared experience with death helped constitute American identity in the Civil War, how is American identity now, in part, constituted through its absence? I have a short reflection on this on the OUP Blog today.

Sunday, May 18, 2014

Dead People and the War Powers

If I was teaching a research seminar on the history of war powers this coming year, my focus would be on dead people. Death is, of course, and intentional product of war. It is produced with both purposefulness and regret. In history, and in contemporary law and politics, it has been important to divide dead people into categories. The categories have tremendous meaning. The most important categories are dead enemy soldiers, dead American soldiers (for the US), dead noncombatants (sometimes called “collateral damage”); and there are also dead soldiers of allies, dead contractors, journalists, and others. The law of armed conflict/IHL is structured around the idea that certain deaths (the enemy) should be produced in a way that minimizes other deaths (the people we might call collaterals). The manner of the production of death also has important meaning. Although the endpoint can be the same (a person has died), the military honors conferred on a soldier can vary depending on how the person’s death was produced: by hostile fire, by “friendly fire,” by accident, by suicide.

That this all matters is apparent in the literature about how deaths are reported (or not), the history of censorship of casualty information, including images, and the way death in war is narrated and is commemorated. The production of death, especially the identity of the prospective dead, has figured powerfully in debates in Congress about impending military action, like the Tonkin Gulf Resolution. And, at least arguably, the availability of death affects the relationship between the broader public and war. Think of the heart wrenching stories of spouses and parents waiting for a letter home from their soldier in World War II. Does the email from a contractor under fire have less resonance because that danger is in exchange for pay? Will there be no touching documentaries about messages home from drone operators, since they often go home at the end of their shifts?

The most important recent work on war and dead people is of course Drew Gilpin Faust, This Republic of Suffering: Death and the AmericanCivil War. “The work of death was Civil War America’s most fundamental and enduring undertaking,” Faust writes. Her work sets up a question for the 20th century and after about the relationship between death and American war politics at a time when most people are protected from the sort of “republic of suffering” broadly experienced during the Civil War.

I will be writing rather than teaching next year, and am trying to puzzle through the particular role that death and dead people will play in my 20th century war powers narrative. An effective narrative strategy in a history book is to use a historical character as the conduit of the narrative and the argument. Rather than having ideas float in space across a chapter, the ideas are often effectively developed by having historical characters live through them across time. A chapter on declared wars, for example, can feature someone like Congressmember Jeannette Rankin who voted “no” on both WWI and WWII, and then, both times, was voted out of office. Her story can illustrate a broader theme: the way Congressmembers figured in the relationship between the electorate and presidents during earlier wars. It is harder to think through the way dead people can be active narrative characters. Usually, as with Pat Tillman, the management of a death by others is the narrative, or the pre-death story is a focus and is thought to inform the meaning of the person’s death.

It may be that dead people themselves can’t be my narrative characters since what matters – the death – is essentially a moment of crossing over from narrative character to memory. Policies and practices related to death have a narrative, and there is a great literature on commemoration. But dead people (across categories) are so important that I wish I could keep them in as active characters rather than as memories. At any rate, if I was working this through with a seminar, here’s what would be on the reading list What sort of works am I missing?
And perhaps: Andrew Bacevich, Breach of Trust: How AmericansFailed Their Soldiers and Their Country; Nick Turse, Kill Anything That Moves: The Real American Warin Vietnam; and the recent literature on contemporary wounded survivors of war. 

Cross-posted from Balkinization.

Friday, January 31, 2014

War and Peace in Time and Space


In a few different talks this semester, I plan to build on the ideas in my last book, and finally take up a question I did not previously have a good answer to.  The book, War Time: An Idea, Its History, Its Consequences, critically analyzes the way the concept of “wartime” works in law and public policy.  It focuses on war and temporality, arguing that the ideas about war and time that are implicit in law and policy (e.g. that wartime and peacetime are distinct, and follow each other in sequence) are in tension with the history of U.S. military engagement, which has been persistent, not episodic. 

When I gave talks about the project, I was often asked about whether space mattered – essentially whether I should consider time and space together.  I would answer that yes, space/geography is important to American war in part because U.S. military action takes place outside U.S. territory, and, relying on Catherine Lutz’s work, some domestic communities, especially communities with military bases, experience directly domestic costs of war, while other areas are not directly affected.  But time and space did not come together in the work itself.  I figured that the topic of war and time was important enough to be the singular focus of the book.

But I am occasionally asked to say something about peace, and that has finally helped me with how to think about war’s times and spaces together.  The most helpful provocation was an invitation from Yxta Murray of Loyola Law School to speak at a symposium on Law, Peace, and Violence: Jurisprudence and the Possibilities of Peace, at Seattle University School of Law in March. My difficulty: what to say about “peacetime” when I think there is, essentially, no such thing.  Yxta’s generative call for papers seemed to require more than a suggestion that peacetime is an anachronism – in part because peace is such a fervent hope, and peacefulness has been an important political strategy for social movements.

The answer, which I am still working out and which may not be fully satisfactory for Yxta’s conference, was to turn to scholarship on spatiality. When I began working on temporality, I found my way to a tremendously interesting literature on the history and culture of time.  The same is true of space, with developing new work in critical geography. This is helping me to see that my initial thoughts about wartime and space were too simplistic.  And many law-related works that take space or place into account are similarly limited.  When space or place are invoked, sometimes that just means focusing on the local, or perhaps being comparative.  In this way of thinking, there is an implicit normative space, which is the nation.  All else is a departure. But this is, ultimately, not very interesting or helpful.

I started by returning to Stephen Kern, The Culture of Time and Space, and looking carefully at his chapters on spatiality, and to Mary Favret’s focus on war and distance.  And I am finding my way into critical geography.  The argument for the peace conference is falling into place: that peace is not a time in the United States, it is a geography.  The geography of peace is driven in part by social class.  Those engaged in the work of American war (soldiers, reservists, military contractors, their families and communities) have a direct experience of “wartime,” while the rest of us can go about our daily lives minimally affected by American military engagement.  Whether it is wartime and peacetime within the United States depends upon who you are and where you live. There are consequences of this for the politics of war, and for political checks on presidential war power – but this will await another paper.  For now, thinking about peace as a geography can be a way of thinking about time and space as different yet intersecting dimensions of the culture and experience of American war.

My first take on this will be a lecture at the Robert S. Strauss Center at the University of Texas next week.  The abstract is below.
In law, history and public policy, we conventionally divide the past into wartimes and peacetimes.  Peacetime is thought to be normal time, and wartime is exceptional.  Harsh wartime policies are tolerable in part because they are temporary. In the long war-era of the 21st century, these temporal assumptions have been remarkably persistent, with President Obama and others suggesting that we will at some point return to peacetime.  This lecture will begin with a critique of wartime as a temporal concept, drawing upon my recent book War Time: An Idea, Its History, Its Consequences.  If war’s time limits have eroded, what has become of “peacetime”? Going beyond the wartime critique, I will argue that for the United States “peace” is not a time, but is a spacial concept.  It is because peace is experienced geographically, rather than temporally, that much of the U.S. population can experience peace, while war’s violence is the province of its soldiers and of those who reside in the places of its export.
Take two will be in Seattle, and take three will be at a symposium on The Future of National Security Law at Pepperdine. Then I hope to take the spatial analysis in a different direction, focusing more on a global community of the surveilled that is produced by contemporary security practices for a symposium at Yale’s Center for Historical Enquiry and the Social Sciences. This blog was a helpful place for me to work out the War Time ideas, so I hope you will indulge this new project.  Comments are open -- with thanks in advance for your reading suggestions!

Cross-posted from Balkinization.

Thursday, January 30, 2014

Urban Sprawl + Lack of Public Transit + 2 Inches of Snow = Atlanta Shutdown

There’s no better time than a weather-related shutdown to get back to blogging.  Apologies for my silence, which comes in part from my discovery that there really is a scholarly use of Twitter, allowing for both reading and writing across smaller platforms.

As I am writing, the City of Atlanta is in a “civil emergency” as the city and the state of Georgia work to clear abandoned cars from icy roadways, and as temperatures finally climb above freezing to do the de-icing that the region lacks the tools to accomplish.  For the rest of the country, this has been hilarious.

 But Rebecca Burns has a smart piece in Politico that allows us to see a broader, and more general, lesson: The Day We Lost Atlanta: How 2 lousy inches of snow paralyzed a metro area of 6 million. “What happened in Atlanta this week is not a matter of Southerners blindsided by unpredictable weather,” she writes.
More than any event I've witnessed in two decades of living in and writing about this city, this snowstorm underscores the horrible history of suburban sprawl in the United States and the bad political decisions that drive it. It tells us something not just about what's wrong with one city in America today but what can happen when disaster strikes many places across the country.
Burns makes an argument that you will remember from the post-Katrina commentary: this was not a natural disaster, but “this fiasco is manmade from start to finish.”  The essay also reminds us of Randolph Bourne’s argument that it is in war that citizens see the state, and at other times “the State reduced to a shadowy emblem.” For New Orleans after Katrina and in Atlanta today, weather stands in for Bourne’s focus on World War I, as weather provides the occasion for residents to confront in a direct and sometimes dire way the consequences of their government’s aid or its neglect.

How could Atlanta’s weather crisis be manmade?  Burns makes four points. 

First, “Atlanta” is not a city but a region, and governance is diffused by the division of the metro area into many different counties.  Georgia has more counties than any state except Texas. In the 1960s and 70s a combination of flight to the suburbs and new Atlanta migrants setting outside the formal city boundaries left the city as “the commercial district to which people commute.” This is why, when snow began to fall and schools and offices closed, one million vehicles headed for the freeways at the same time.

Burns’s remaining points are about transportation: the focus on making room for automobiles, including the bulldozing of urban neighborhoods; the way balkanized government impeded development of a regional public transit system; and voters’ rejection of a public transit referendum in 2012.

Her most important generalizable insight is that forms of governance affect outcomes.  We tend to think that smaller units allow for deeper citizen participation, but Burns shows that it can lead to peril. “There was no coordination around school closings, because there are more than two-dozen city and county school systems in ‘Atlanta,’” she explains.
There was little coordination between highway clearance and service to city streets because "Atlanta" is comprised of dozens of municipalities connected by state and federal highway systems....  If Atlanta, the region, wants to get serious about public safety, its mayors, county officials, and state officials will need to start practicing regionalism instead of paying lip service to it. And whether threatened by a dangerous pandemic, a major catastrophe, or just two inches of snow, we need to have ways to get around-and out of-the city other than by car.
Read the full essay hereCross-posted from Balkinization.

Friday, October 18, 2013

What 20th Century Wars Did Soldiers Get Medals For?

For another way to think about war, I turned to U.S. military campaign service medals.  The reason I used this as a database is that they are authorized by Congress.  And not every kind of conflict counts for a medal.  For example, veterans' groups have lobbied for a Cold War medal, but that legislation has not passed.  So this is, in essence, a U.S. government database of military service in conflicts that the United States has participated in. 
My information about medals came from John E. Strandberg and Roger James Bender, "The Call of Duty": Military Awards and Decorations of the United States of America, 2nd. ed.

20th Century Wartimes?

When U.S. histories talk about war, sometimes these are the 20th century wars they talk about. These wars are important, of course.  But they are not the only wars that mattered.

Wartime/Peacetime

For my discussion on Saturday at Fire Dog Lake, I thought I would upload a few figures from my book, which can help illustrate some of my arguments.  This one represents traditional thinking about wartime and peacetime -- the idea that they are different from each other, and history progresses by moving from one kind of time to another.


A consequence of this way of thinking is that wartime is, by definition, temporary.  Beginning a wartime involves starting something that, by definition, comes to an end.

Thursday, October 17, 2013

War Time discussion Saturday at Fire Dog Lake Book Salon

If you are looking for a post-shutdown change of scene, please join me online on Saturday at the Fire Dog Lake Book Salon for a discussion of my book War Time: An Idea, Its History, Its Consequences.  The discussion is hosted by Leah Bolger of Veterans for Peace.  It will be from 5 to 7 pm Eastern Time.

If you'd like to join the discussion, you can register ahead of time at Fire Dog Lake.  The discussion will be on the main page.

Wednesday, April 10, 2013

When does war end?

David Levine begins a review of War Time by reflecting on the murky boundaries of war during his deployment in Iraq.  He writes in the Michigan Law Review that

while there was a reasonably clear beginning point for the exercise of these [war] powers—found in an Authorization for the Use of Military Force (“AUMF”) rather than a formal declaration of war—from the vantage point of June 2006, it was unclear whether or when this authority would cease. There was no enemy that could surrender or sign a peace treaty, or give some other sign that “war” had ended; the forces that the United States was fighting—variously, Sunni tribesmen, Shia militias, and foreign extremists—had changed significantly since the 2003 invasion and would even change during my yearlong deployment. Although, as an officer in the U.S. military, it was very clear for me when I was at war and when I was not, the temporal bounds of this “wartime” were actually quite murky for the U.S. government. That murkiness increased significantly when considering not only the war in Iraq but also the “Global War on Terror” writ large.
Levine takes up the implications for executive power, focusing on detention powers and the use of force in Libya.

Kenneth Anderson’s review has also just appeared in the Texas Law Review.

Thursday, March 21, 2013

Obama White Paper Relied on Nixon Falsification


My op-ed in the current New York Times:
ON March 17, 1969, President Richard M. Nixon began a secret bombing campaign in Cambodia, sending B-52 bombers over the border from South Vietnam. This episode, largely buried in history, resurfaced recently in an unexpected place: the Obama administration’s “white paper” justifying targeted killings of Americans suspected of involvement in terrorism.

President Obama is reportedly considering moving control of the drone program from the Central Intelligence Agency to the Defense Department, as questions about the program’s legality continue to be asked. But this shift would do nothing to confer legitimacy to the drone strikes. The legitimacy problem comes from the secrecy itself — not which entity secretly does the killing. Secrecy has been used to hide presidential overreach — as the Cambodia example shows.

On Page 4 of the unclassified 16-page “white paper,” Justice Department lawyers tried to refute the argument that international law does not support extending armed conflict outside a battlefield. They cited as historical authority a speech given May 28, 1970, by John R. Stevenson, then the top lawyer for the State Department, following the United States’ invasion of Cambodia.

Since 1965, “the territory of Cambodia has been used by North Vietnam as a base of military operations,” he told the New York City Bar Association. “It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia. However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia.”

In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier. (It is not clear whether Mr. Stevenson knew this.) So the Obama administration’s lawyers have cited a statement that was patently false.
The rest is here.

Saturday, March 9, 2013

White Paper Withheld to Avoid Political Backlash


The Boston Globe reported that the president withheld a widely sought white paper “fearing it would only intensify congressional criticism, government sources say.”

This story appeared on April 4, 1973, and it referred to a White Paper laying out the legal basis for President Richard Nixon’s decision to bomb Cambodia after U.S. troops were removed from Vietnam. Barack Obama obviously isn’t Richard Nixon, but his reluctance to disclose the legal basis for targeted killings attempts to do something that Nixon also attempted: to cloak decisions about war in government secrecy, undermining political checks on the use of military force.

Nixon’s White Paper was written by the State Department’s deputy legal advisor after questions were raised about the legal authority for bombing Cambodia. It was described as contending that military action in Cambodia was “simply part of the ending of the general Indochina war. “Therefore, it argues, Mr. Nixon has the constitutional right as commander-in-chief of the armed forces to continue the bombing.” Although there was disagreement about the rationale in the State Department, Secretary of State William P. Rogers was said to have approved the White Paper, and sent it to the White House, where it remained, apparently in the hope that the controversy over Cambodia would go away.

But as the controversy continued, “delay in disclosure now is based on White House realization of the inherent weaknesses in trying to build a constitutional case for the bombing.” The administration had tested the waters, informally discussing the draft with a few members of the Senate, but “they tore the arguments apart and told the Administration people the draft would not help in offsetting any moves to prohibit legislatively continued US military acts in Cambodia.”

Whatever happened to Nixon’s Cambodia White Paper is unclear from the sources I’ve seen so far, but it was not publicly released in 1973.

Presidents use secrecy for many reasons, some legitimate, and some illegitimate. In this case, Nixon’s State Department crafted a legal rationale, but then found that its release would only fuel congressional criticism, heightening interest in limiting Nixon’s power to use military force. Deep-sixing the legal argument was part of an effort to insulate decisions about the use of force from political reaction and political restraint.

Nixon, of course, had many other problems by 1973. He would resign from office the next year amidst the Watergate scandal and impeachment. An impeachment charge proposed but not passed related to Nixon and Cambodia, particularly his effort to keep the 1969-70 bombing of Cambodia from Congress and the American people.

There is a long, if sometimes less sordid, history of secrecy for this sort of reason: to keep Congress and the American people from undermining the president’s autonomy. If President Obama is not, in this sense, Nixonian, the best way to show it would be to make public the OLC memos detailing the legal rationale for targeted killing.

The article quoted is: Associated Press, “US reportedly withholds bombing-rationale report,” Boston Globe, April 4, 1973, p. 12. Thanks to Mary Beth Chappell of the Emory University Law Library for assisting with my research on Nixon and Cambodia.

Cross-posted from Balkinization.

Saturday, February 9, 2013

Wartime or Peacetime at the Flight 93 Crash Site

From the AALS Panel on The Concept of Peace in Law, Culture and Society

Peacetime or wartime? Just Compensation Puzzles from the United Airlines Flight 93 Crash Site
Mateo Taussig-Rubbo, SUNY Buffalo Law School

United Airlines Flight 93 —one of the four airplanes hijacked on 9/11—crashed into a vacant parcel of land in rural Pennsylvania, killing all on board. For many, including family members of those killed in the attack and the Park Service that now manages the national memorial at the site, the former strip mine was transformed into ‘sacred’ ground. In 2009, unable to settle on a price with the landowner, the government took the property through eminent domain.

Focusing on the ongoing effort in United States of America v. 275.81 Acres of Land to determine the amount of compensation due the owner under the Fifth Amendment, I tell the story of this piece of property (in an article just posted to SSRN). Even if the attack increased the monetary value of the site fifty-fold, as the landowner’s stigma appraiser contends, it seems to me that the government should not have to pay that enhanced amount. While just compensation is typically understood to mean market value at the time of taking, the Supreme Court has repeatedly stated that just compensation is grounded in equity. Unlike other windfalls, there are equitable reasons, I argue, why this increase should not accrue to the landowner.

An encounter with Mary Dudziak’s work suggests that the dispute around the economic value of the Flight 93 site expresses an uncertainty about whether the context is one of wartime or peacetime. Judging by the pre-trial motions in the Western District of PA, the attorneys are applying the usual formula: market value at the time of taking, and thus any 9/11-related enhancement is included. The dispute has come down to whether the appraisals demonstrate the 9/11enhancement with sufficient certainty. In other words, the legal analysis is business-as-usual, and all the creativity has gone into the debunking of the expert’s appraisals (which, it must be admitted, do make fascinating reading). Should we call this a “peacetime” approach?

The market value at the time of taking is limited by the scope of the project rule, according to which the effects of the government’s own action should be excluded from the measure of compensation. And there are wartime takings cases that extend the scope of project rule to war, since the enhanced value created during wartime could itself be said to be due to the government project of war. But these cases don’t seem to be of much help in the Flight 93 context.

The enhanced value—if we assume it is due to the attacks and the resulting public interest in visiting the site of a national tragedy—is hardly a government project. Flight 93 is not a “wartime” case like Cors where the Court found the government did not have to pay for the increase in the price of tug-boats due to war. On the other hand, it seems odd that there is not some other way to take into account the “war” context if we assume that the enhanced value does come—in an admittedly more complex and symbolic way than in Cors—from the attacks and acts of war.

It seems that neither peacetime nor wartime will quite do the job—not an unsurprising lesson in the annals of 9/11-ology. My suggestion is to return to explicit considerations of equity. The usual formula—of market value at the time of taking and the scope of the project rule—should be seen as derivative of the injunction to provide just compensation. Now, not all will agree on what equity requires—I contend that it requires excluding the 9/11-related enhancement since the landowner never really “owned” the enhanced value. Many of the interested parties call the land “sacred”—which captures the sense that the new value created in the attack does not and perhaps should not belong to anyone. For those who disagree with my position, at least we might have a more upfront debate about the burdens (on the taxpayer and the landowner) of war and the memorialization of war, a debate akin to what Mary calls war politics. Otherwise, the danger is that we will get caught in the intricacies of competing appraisals, without stepping back and asking exactly what should be included or excluded from the appraisal.

Cross-posted from Balkinization.

Wednesday, February 6, 2013

The Erosion of War and Peace in International Law


International Law Beyond War and Peace

RutiTeitel, Straus Fellow, NYU Law School (2012-2013); Ernst C. Stiefel Prof of Comparative Law, NY Law School

In general, in international law, the distinction between the state of war and the state of peace is becoming less relevant, or at least less determinative of the applicable legal norms. This produces new challenges of interpretation and new trade offs in the relation between law and politics.

Teitel, Humanity's Law
The following are three illustrations of what has been happening.

1. First is the question of when does international criminal justice come into the picture?  At Nuremberg, international criminal responsibility was conceived as fundamentally part of ius post bellum, something that occurs at the end of hostilities.  In a way, it took the place of the kind of collective punishment that became questionable in the wake of the Versaille Treaty.

Today international criminal justice has a transformed functionality, coming into play during conflict, before the peace, and even ex ante (the case of Libya, where referrals to the ICC preceded military intervention in the conflict); indeed it is used as means of regulating conflict itself. We don't need to know whether conflict has ended.

This began with the Balkans war where the International Criminal Tribunal for the former Yugoslavia (ICTY) was created during the conflict by the Security Council and where its jurisdiction to create a tribunal was its peacemaking powers under the UN Charter chapter 7, and where the very stated aim of the law is to regulate the conflict and to restore the peace. Since then this has been reiterated in the ICC Statute.

The introduction of international criminal law during conflict raises the peace versus justice dilemma. What if the prospect of criminal justice intensifies the conflict or makes peace negotiations more difficult (e.g. Quaddaffi in Libya?)? The flip side is the politicization of law, where criminal prosecutions or the threat of them is used to achieve specific strategic political objectives such as may well have been the case vis avis Milosevic’s indictment at the time of the Dayton negotiations.

The second illustration is that it is now rather well established that international human rights law does not apply only in peacetime.

Continue reading below the fold.

Tuesday, February 5, 2013

Why the legal issues in the White Paper are not the most important issues, and how Jack Goldsmith gets it right

The leak of a White Paper on targeting killings is getting the expected attention from law bloggers and others, with much commentary focused on whether the legal analysis is correct – for example the definition of “imminence.”  The precise legal analysis is a distraction from more compelling issues, which are taken up by Jack Goldsmith in a Washington Post op-ed.  I often disagree with Goldsmith, but this time I find myself in agreement.  In part.   

Goldsmith begins:  “A decade of war is now ending,” President Obama proclaimed in his second inaugural address. But war is not ending, it is changing — and has been for years.  Obama has cut back on heavy-footprint, conventional-force war in two countries. At the same time, he has presided over the rise of a secret, nimbler war defined by covert action, Special Forces, drone surveillance and targeting, cyberattacks and other stealthy means deployed in many countries.”

The character of ongoing war, largely off the American political radar screen, has been the focus of scholarly attention across fields.  Ongoing secret war is an extension of ongoing small wars – justified for many years by the Cold War-era national security policy that American safety at home could only be protected by the projection of American military force around the world (NSC 68). 

Goldsmith is right, unfortunately, that the president is arguing that war is coming to an end, while at the same time he continues it.  (A point also made here.)  He continues:
This new form of warfare needs a firmer political and legal foundation....Because secret surveillance and targeted strikes, rather than U.S. military detention, are central to the new warfare, there are no viable plaintiffs to test the government’s authorities in court. In short, executive-branch decisions since 2001 have led the nation to a new type of war against new enemies on a new battlefield without focused national debate, deliberate congressional approval or real judicial review.
Although Goldsmith is right that the character of war has changed, his solution is disappointingly conventional: “What the government needs is a new framework statute — akin to the National Security Act of 1947, or the series of intelligence reforms made after Watergate, or even the 2001 authorization of force — to define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the president’s actions.”  This is where I disagree.  Something more fundamental is in order.

The nation most needs robust political engagement with American military policy, something we have not had in a sustained way since the war in Vietnam.  Americans debated the war in Vietnam, and ultimately countless numbers took to the streets.  Congress fiercely debated war appropriations.  Elections were affected, as candidates gained or lost in the polls based on their position on Vietnam.

Deep public engagement with Vietnam was tied in large part to the fact that the costs of war came home to American families because of the draft.  In the years since, the all-volunteer armed forces are one factor among others to isolate many Americans from war.  (The other most important issues are privatization/contracting, and changes in war technologies.)  A 2011 Pew Research Center report found that "A smaller share of Americans currently serve in the U.S. Armed Forces than at any time since the peace-time era between World Wars I and II."  The data reveals  "a large generation gap,"with "more than three-quarters (77%) of adults ages 50 and older...[having] an immediate family member –a spouse, parent, sibling or child – who had served in the military."  In contrast, for people under 50, "57% of those ages 30-49 say they have an immediate family member who served. And among those ages 18-29, the share is only one-third."

In recent years, I’ve noted elsewhere,   
In Iraq and Afghanistan, war...spread across borders as American drones fired on targets in Pakistan and elsewhere.  Death and destruction were the province of soldiers and of peoples in faraway lands.  The experience of wartime for most Americans largely devolved to encounters between travelers and airport screeners, as the Transportation Security Administration adopted intrusive new practices.  At home, wartime had become a policy rather than a state of existence.
The only enduring limit on the use of force comes from an informed and engaged citizenry.  The most troubling aspect of an era of secret warfare is that its very “secret, nimbler” character makes it easier to ignore, and thereby harder for democratic limits to function.

More essential than a new framework statute, we need a form of war politics.  An essential but inadequate step is transparency, so that Americans have the capacity to know what their nation is doing.  More difficult but more essential, we must find a way to care about the nation’s most fearsome power, which is now exercised without our even noticing.  Whether the American people can become engaged again without a draft or forces on the ground is something I can’t answer.  But finding a path toward political engagement is more important now that, for Americans, the experience of war has become so easy, and so forgettable.

Monday, February 4, 2013

How Peace became a Casualty of the Cold War

From the AALS Panel on The Concept of Peace in Law, Culture and Society:

The Concept of Peace During the Cold War
Petra Goedde, Department of History,Temple University

In 1967, Dial Press published what looked like a report commissioned by the US government on the “possibility and desirability of peace.” In the foreword, Leonard C. Lewin explained how a co-author of the report, who insisted on anonymity, asked him to publish it. The report determined that social stability in the United States rested on the so-called “war system, ” in which all basic political, economic, and social functions of American society were built on the assumption of being at war or preparing for war. Therefore, the report advised, a general state of peace was thoroughly undesirable for the United States, since it would produce widespread social instability and economic hardship. After outlining the non-military functions of the war system in stabilizing domestic society, the report went on to suggest ways in which these essential functions could be replicated in the event of general peace. Those included massive spending on education, health, and space to replicate the “waste” economy of the war system. It also suggested creating alternative “enemies” to ensure continued political stability(remember the “war on poverty” “ war on drugs?”). It also included a more outlandish proposal to re-introduce a modern form of slavery in order to replicate the social regulatory function of military service. The published book became a bestseller while speculation ran high whether this was an authentic report as the foreword claimed, or a well-placed hoax. A New York Times book review speculated (correctly) that it was a hoax, but many, especially those working in government, continued to believe in the report’s authenticity. Even after Lewin publicly announced in 1972, that he had made it all up, some die-hard politicos refused to believe it.

Even though the report was a fabrication, several aspects about it should give us reason to take it seriously. The first is the fact that so many political officials believed it to be authentic. The second is the report’s basic premise that instead of war being the conduct of diplomacy by other means (as postulated by Clausewitz), peace was now to be seen as the continuation of war by other means. Both reveal the warped nature of thinking about peace and war in America at the time. For much of the early cold war official government rhetoric on the subject of peace mirrored eerily the findings in the report. That rhetoric included the following: the best assurance for peace was a well-prepared military apparatus; peace could be accomplished only through strength; and peace advocacy represented a threat to national security. Ideas of war and peace were turned upside down.

Several historians have already revealed the prevalence of war in American domestic social and economic politics during the cold war. They have talked about the emergence of the garrison state (Michael Hogan), and explored the militarization of American society (Michael Sherry). More recently Mary Dudziak investigated the changing meaning of wartime in American history. Once thought of as a “time” of exception, over the course of the last half-century it was increasingly regarded as the norm with serious legal and political implications. Together these scholars made clear that for much of the cold war, Americans lived in a perpetual state of war preparedness. The nation’s social, economic, and political activities were geared toward the conduct of war and not the pursuit of peace.

And yet, despite the prevalence of a wartime sentiment in American society and culture, the rhetoric of peace was ubiquitous particularly in the 1950s and 60s. This rhetoric did not come only from those in opposition to the cold war arms build-up. It also pervaded much of the political discourse within the United States and the diplomatic exchanges between the principal cold war adversaries. Moreover, this rhetoric was not exclusively aspirational. Both sides maintained that war preparedness was an essential aspect of their peace policy. The concept of peace became an essential political tool in the conflict between East and West.

Continue reading below the break.

Saturday, February 2, 2013

The Concept of Peace

Legal scholars often write about law and war, including war’s impact on constitutional rights and powers.  But what about war’s assumed opposite: peace?  If war is exceptional – a rupture of normal time, as Jeh Johnson, then General Counsel of the Defense Department, suggested in a recent speech -- then peace is thought to be our normal time.  Peace seems to do a lot of work in American law and politics, since the arrival of peace (or the process of war’s ending and the transition to peace) is assumed to bring about a recalibration of the exceptional legal regime that war requires.   

UN Peacekeepers (Wikipedia creative commons photo)
But what is peace, and how does it work in contemporary law and politics?  Are there two sharp categories (war/peace), so that peace is the absence of military conflict, turning off the spigot of the war powers?  Or is peace, sometimes enforced by soldiers carrying arms and wearing blue UN Peacekeeping helmets, a form of military conflict?  Is peace a tactic or a rhetoric in a world of ongoing conflict?  Or is peace and idealized imaged state, a goal of human striving, that, like the concept of heaven, simply cannot exist in the material world?

An imaginative and interdisciplinary group of scholars took up these questions on an AALS panel in January on The Concept of Peace in Law, Culture and Society.  In a series of posts over the next week or two, I’ll share with you summaries or snippets from their presentations. The roundtable, organized by Matteo Taussig-Rubbo and me, included a historian of peace, Petra Goedde, Temple University Department of History; founder of the U.S. Institute of Peace, John N. Moore, University of Virginia School of Law; and interdisciplinary legal scholars Kim Lane Scheppele, Princeton University; Mateo Taussig-Rubbo, University at Buffalo Law School and Ruti G. Teitel, New York Law School(and me as Moderator).

Although not set up as a panel on my book on the concept of wartime, some speakers took the book as their starting point. Posts on the concept of wartime appeared on this blog. For more, see war reporter Peter Maass's take in The Nation.  More reviews and commentary are here.

Monday, January 7, 2013

On Mazower, Governing the World

My review essay on Mark Mazower, Governing the World:  The History of An Idea, begins with this:
Will there be “but one heart to the globe?” asks Walt Whitman in a poem that provides an epigraph in Mark Mazower’s new book, Governing the World: The History of an Idea. At the center of this expansive work is the question of how Americans and Europeans have imagined the world, its peoples, and its nations. Is there but one global identity, as Whitman surmises? Are the world’s peoples the focus of global politics, or should nations be privileged in international affairs? Do values and culture, or degrees of civilization, set nations apart? These questions inform global affairs over time. This history matters, Mazower argues, as “we find ourselves… in a hierarchical world in which some states are more sovereign than others.”

Power also matters: For Mazower, dominant nations come to play a role in defining the world. He embeds his narrative in the development of familiar institutions, such as the United Nations, and is especially compelling when he reveals lesser-known stories like the development of common units of measurement, presided over by social scientists in the West. This ambitious and largely convincing account falls short, however, when the author turns to contemporary matters. Disappointed that international law does not adequately constrain American war efforts, he misses an important turn in modern conflict: the way that law itself has been reimagined as a weapon of war.
The rest is in the new issue of Democracy:  A Journal of Ideas.

Cross-posted from Balkinization.