Tuesday, October 27, 2015

Panel on Law and Ideology in the National Security State

At the American Society for Legal History meeting this weekend in Washington, DC, I am chairing a panel on Law and Ideology in the National Security State, which promises to be very interesting. The panel is below, and conference info is here.The panel is Friday, October 30, 10:45 am to 12:15 pm.

Chair: Mary Dudziak, Emory University Law School

Commentator: Christopher Capozzola, Massachusetts Institute of Technology


Aziz Rana, Law, Cornell Law School,
“The Philippines, World War I, and the New Creedal Constitution”

Anne M. Kornhauser, City College of New York, CUNY,
“German Émigré Intellectuals and the Struggle Over the Emerging National Security State”

Jeremy K. Kessler, Columbia Law School
“The Myth of the Strong American State: On the Cold War Draft and the Paradox of Anti- Communist Governance”

Sunday, May 10, 2015

Jeannette Rankin and the 1940 Election as a War Referendum

I am exploring the history of efforts to amend the constitution to include a requirement for a popular vote before entering a foreign war in one of my chapters in my current book project. One of the arguments I'll make -- previewed this Tuesday at Stanford, where I'm giving the David M. Kennedy Lecture on the United States and the World -- is that sometimes elections have served as war referenda. Here's a snippet, featuring Congressmember Jeannette Rankin of Montana.

The most important moments of democratic engagement over the war powers [for WWI and II] were the elections preceding the war declarations. The elections of 1916 and 1940 were, in essence, referenda on war. Since 1914, there had been efforts to amend the constitution to enable some sort of popular participation in decisions to go to war. But an important moment for the public to register their sentiment was already there: the power to elect not only the Commander in Chief, but also the members of Congress who would vote for or against war.

Nothing more strongly illustrates this point than the success of a Republican candidate in the 1940 election. Wendell Wilkie, the Republican presidential candidate, was defeated by Franklin D. Roosevelt, of course. But the State of Montana would send back to the House a candidate who had first captured the nation’s attention when, in April of 1917, she cast the first vote ever by a woman in Congress, a vote against the declaration of war with Germany.

Jeannette Rankin had been a suffrage organizer before she ran for political office for the first time in 1916. Her platform included preparedness for coastal defenses, as a way to avoid war. It was her widely publicized vote against war that shaped the course of her political life in later years. Unable to hold her seat in 1918, Rankin would be out of office -- until 1940.

In the interim, she worked for pacifist organizations and lobbied for constitutional reform of the war powers, believing that the people’s voice must be heard through a referendum before the nation went to war. In 1940, she challenged a weak incumbent, running an anti-war campaign. “By voting for me,” she said in a campaign speech, “you can express your opposition to sending your son to foreign lands to fight in a foreign war.”[i] The people of her district could vote against war by voting for Jeannette Rankin.

Elected by a comfortable margin, she predicted that, unlike the flurry of attention she received in 1917, “no one will pay attention to me this time,” since it was no longer unusual for a woman to serve in Congress.[ii]

Once in office, Rankin offered an amendment to the Lend-Lease bill to require specific congressional approval for the president to send American troops abroad. Twice in the spring of 1941, she introduced a resolution condemning any effort “to send the armed forces of the United States to fight in any place outside the Western Hemisphere or insular possessions of the United States.” These efforts were unsuccessful.[iii]

In December 1941, Congressmember Rankin heard the news about Pearl Harbor on the radio. She
was anguished as she made her way to the Capital on December 8. She listened along with her colleagues as Roosevelt spoke of “a day that will live in infamy,” and called for a declaration of war. The House and Senate then quickly took up the resolution that “the state of war between the United States and the Imperial Government of Japan which has been thrust upon the United States is hereby formally declared.”[iv] In the Senate, there was no debate, and a swift and unanimous vote.

In the House, a radio station, continuing to broadcast after the president’s speech, in violation of House rules, captured the scene. Because of Rankin’s role as a war dissenter, “all eyes were on her as majority leader John McCormack moved the question.” She “rose to object, but was quickly cut off.” Congressman Martin of Massachusetts held the floor, “yielding to isolationists ready to recant their isolationism.” Rankin again tried to speak, but Speaker Sam Rayburn ignored her. Spectators in the gallery called out for her to sit down. When word came through that the Senate had already voted, House members insisted on moving forward. “They’re calling to shut down any further debate,” the radio announcer said. “A most unusual procedure.”

Standing, her hand raised, Rankin tried once more, and attempted to raise a point of order. Rayburn slammed down the gavel and said, “The roll call cannot be interrupted.” The other 388 members of the House present that day voted yes. Rankin's no vote was met with a chorus of hisses and boos.[v]

Harsh words about “Japanese devils”[vi] could be heard that day, as could Representative Byron’s claim that she would be willing to sacrifice her sons for the war effort.[vii] The House violated its own rules in their effort to silence the one voice in their chamber wishing to question the rush to war.

It is easy for us to question Jeannette Rankin’s judgment, but she was fulfilling her campaign promise, she would later say, the pledge she had made to the mothers and fathers of Montana to keep their sons out of war. The vote came so quickly, as compared with World War I – at 1:10 pm Eastern time, less than 24 hours after the attack on Pearl Harbor. She thought that for something as momentous as war, they should wait until the facts were all in.[viii] There would be later occasions when Americans would wish that their members of Congress had taken the time to investigate. But on December 8, Rankin was widely vilified.

An avalanche of opprobrium fell down upon her immediately. She had to escape to a telephone
booth, and a police officer helped her get safely back to her office. Beneath a mountain hate mail, some, like Roger Baldwin, wrote to say that they admired her courage, and as the nation geared up for war, the writer Lillian Smith said: “that one little vote of yours stands out like a bright star in a dark night.”[ix]

I have more to say about how this fits into the politics of war, but this post is long enough! The short version is that the effort to silence Rankin shows that the events of Dec. 8 were better at mobilizing the country, and potentially at protecting seats in Congress for the former "isolationists", than as an example of interbranch deliberation and decision. The times of robust war politics were during the 1940 election campaign, and during the push and pull over neutrality legislation in the late 30s through 1941.

[i] Norma Smith, JR, 175-76. [Please excuse incomplete citations -- I thought they would be helpful nevertheless.]
[ii] Smith, JR, 177.
[iii] http://history.house.gov/People/Listing/R/RANKIN,-Jeannette-%28R000055%29/
[iv] Cong Rec 9520.
[v] http://history.house.gov/People/Listing/R/RANKIN,-Jeannette-%28R000055%29/
[vi] Walter Cronkite, NPR.
[vii] Cong Rec 9521.
[viii] Ted Carlton Harris, “Jeannette Rankin: Suffragist, First Woman Elected to Congress” (Ph.D. diss., University of Georgia, 1972), 295-96.
[ix] Lillian Smith to JR, December 13, 1941, quoted in Ted Carlton Harris, “Jeannette Rankin: Suffragist, First Woman Elected to Congress” (Ph.D. diss., University of Georgia, 1972), 297.

Cross posted from Balkinization.

Monday, April 6, 2015

“You didn’t see him lying so grotesque and pasty beside the gravel road in France”

The line in my title appeared in a note found in the pocket of journalist Ernie Pyle when he was killed by a sniper in Okinawa on April 18, 1945.  There was more that Americans would not see, including Pyle’s own body, neatly arranged and straightened, with folded hands. A photo quickly taken of Pyle was censored out of concern that it would hamper morale, since Pyle’s work was so closely followed and and he was so popular.

A post about Pyle, with the arresting quote, by Mark Stout was on War on the Rocks this morning, as I was on my way to Rutgers to discuss, in part, the censorship of war photographs this Tuesday. Censorship of even this peaceful image of a dead journalist is one part of the broader story about the distance of most Americans from the cost and consequences of war, even when it comes to still images, and even in the context of the massive mobilization of World War II.

Americans did not see the crumpled body in France, and did not see Pyle’s own body, because of a government policy to, in essence, curate the photographic record of the war to calibrate the emotional response of Americans to war. Initially bad news was suppressed, but by 1943, out of concern that Americans needed to rededicate themselves to the war effort, photo censorship was eased so that images of dead American soldiers could now be shown. But they were bloodless bodies, like this famous photograph, the first photo of dead WWII U.S. soldiers to appear in Life magazine. It was not until May 1945 that, as George Roeder put it, blood was spilled on the pages of Life for the first time, in this image.

I’ve argued in the past that the most important presidential war power is the power to narrate a context as a war, thereby enabling the popular mobilization for war that supports presidential war power. Censorship, or the curating of a pictoral record of war, increasing or decreasing the violence in the images, was used to maintain that mobilization. Censorship is a feature of all wars. In a distant war, without access to the site of battle or the dead themselves, the very sights (and sounds) of World War II were produced by the government for the homefront through both propaganda and censorship. In this way, power over culture helped maintain support for presidential power, not only for overseas deployments, but for the ongoing management of most

More of Ernie Pyle’s note is in Stout's post, here.

Cross-posted from Balkinization.

Sunday, February 22, 2015

Edward S. Corwin and the "Totality" of America's World War II

What makes a war “total”? And how is war’s totality experienced? Edward S. Corwin, in the opening of his influential 1947 book Total War and the Constitution, turns to Deuteronomy:
Of the cities of these people, which the Lord thy God doth give thee for an inheritance, thou shalt save alive nothing that breatheth: But thou shalt utterly destroy them…as the Lord thy God hath commanded thee.
The biblical reference enables Corwin to say that total war “is at least as old as recorded history.” He also finds in Deuteronomy a motive for total war. The Bible justified ruthlessness, “For…the Lord thy God hath chosen thee to be a special people unto himself, above all people that are upon the face of the earth.”

Total war, in this sense, went beyond domination, to elimination. Wars have been thought of as “total” when lacking genocidal objectives, however, at least for some participants. Ubiquity of violence is often a central aspect of war’s totality. The Oxford English Dictionary defines it as unrestricted war, especially “war in which civilians are perceived as combatants and therefore as legitimate targets.”

Totality takes a turn when applied to the United States. For Corwin, the totality that was relevant to American law was “functional totality,” which he defined as “the politically ordered participation in the war effort of all personal and social forces, the scientific, the mechanical, the commercial, the economic, the moral, the literary and artistic, and the psychological.” Total war was when “every human element” of a society was involved in the conflict. He draws examples from nations under siege. During the War of 1793 in France, the Committee of Public Safety ordered that “young men will go into battle; married men will forge arms and transport food; the women will make tents, garments, and help in the hospitals.” Even children and the elderly had orders.

In the examples Corwin draws upon, including the 1935 invasion of Ethiopia, a core experience of war’s totality was collective vulnerability to violence. Corwin doesn’t explain how totality could apply to a society distant from the fighting, like the United States in World War II (with the exception of Hawai’i). Instead, he assumes its application, as he turns to the consequences of total war for government power and individual rights.

Another logic is needed to explain an American totality in World War II: a focus on the totality of power, as compared with total vulnerability to violence. Corwin’s application of total war to the American experience suggests that totality is experienced by a collective, society as a whole, with every element in society touched in some way by war. The body that feels war’s totality is the collective, and each human body within that collective might feel only some aspect of war. Many World War II Americans felt the war’s violence directly; others felt it through their connections with loved ones deployed. For others, the impact was felt through income taxes and shortages at the grocery store. The extension of war’s impact beyond its core violence is what makes American war “total,” although this experience of war's totality cannot compare with the lived experience of World War II in Europe, Asia and North Africa.

In his analysis of individual rights in this generative work, Corwin suggests that “the requirements of total war” are incompatible with fundamental American constitutional principles. But perhaps there is something more important in Corwin that we might look for elsewhere in the history of American thought. Perhaps Corwin provides a window on the way American war could be seen as present, personal, and “total,” even though the shooting, killing and dying were thousands of miles away.

I am thinking this through for an upcoming plenary at a Duke conference on violence, and for a lecture as part of a Rutgers symposium on totality, so comments and suggestions are most welcome.

 Cross-posted from Balkinization.

Saturday, February 21, 2015

Civil Rights History, Foreign Affairs, and Contemporary Public Diplomacy

It seems like a good time to reflect on the policy implications of scholarship on the relationship between civil rights and U.S. foreign relations. President Obama has recently emphasized that protecting human rights matters to the fight against terrorism. And the Council on Foreign Relations in DC will soon hold an event on the International Implications of the Civil Rights Movement. The event is not open, and discussion may go in a different direction, but below are a few points I hope to have a chance to get across.

The history of the intersection of civil rights and Cold War era U.S. foreign relations is copiously documented here and here. It took a while for American diplomats and political leaders to grasp the extent of the problem and how to address it. Here’s how they got it wrong, and then right – at least for U.S. public diplomacy:

In the late 1940s, as the U.S. hoped to encourage a newly independent India to ally with the United States, but encountered persistent criticism of U.S. racial segregation and discrimination, American diplomats in India initially made things worse. They dismissed the problem and analogized American racism to the Indian caste system, suggesting that all nations have racial problems. If not exacerbating the U.S. image problem, this at least delayed addressing a critical issue during an important moment in US/Indian diplomacy.

Because the United States argued that American democracy was a model for the world (in the context of a Cold War battle for hearts and minds with the Soviets), the U.S. encountered global criticism for not living up to its own ideals. The more the U.S. emphasized the values of democracy – at the same time that there was global news coverage of American civil rights abuses – the more the U.S. was criticized as hypocritical, and the benefits American democracy were questioned. It took a very long time for American leaders to understand that they couldn’t talk about rights for other nations without protecting rights at home.

Important steps forward – Brown v. Board of Education, sending in the troops in Little Rock, and the Civil Rights Act of 1964 – along with careful management of the global story in U.S. public diplomacy, helped turn this around. By 1964, American diplomats could report that peoples in other nations had come to believe that the American government was on the side of civil rights, rather than being part of the problem. The unfortunate part of the story is that formal legal change, effectively marketed, could accomplish this. Continuing inequality, if below the radar of global news coverage, did not hold the world’s attention.

One obvious takeaway from this history is that a call for global human rights cannot be effective, and could be counter-productive, without meaningful progress toward human rights at home. There has been global coverage of the protests in Ferguson, Missouri, reminiscent of the international interest in American civil rights in the 1950s and 60s. And there has been a devastating hearts and minds problem stemming from abuses at Abu Ghraib, revelations of U.S. torture, and the continuing scar of Guantanamo. If President Obama believes that promoting human rights is important to the fight against terrorism, this history shows that there is only one effective way to begin: by starting at home.

Cross-posted from Balkinization.

Monday, February 9, 2015

Distant War and the Politics of Catastrophe

My earlier musing on this blog are finally turning into a book that puts war death into the history of the war powers. More particularly, I am taking as my point of departure Drew Gilpin Faust, This Republic of Suffering: Death and the American Civil War. During the Civil War, an intimacy with death and dying, and a close experience of war’s brutal after effects, would transform the United States, Faust argues, creating “a veritable ‘republic of suffering’ in the words [of] Frederick Law Olmsted.” If the experience of war death was somehow constitutive of the republic itself during the Civil War, I have been puzzling over how American identity and politics might be affected or even constituted by its comparative absence.

Initially, I thought that all the important action in the story happens after World War II, and especially after Vietnam, when three developments isolate most Americans from the direct experience of war: the absence of a draft, the rise in military contracting, and changes in war technologies. But I’ve come to understand that the entire 20th century requires rethinking as a century of distant war.

There was deep and broad-based engagement of Americans in the two world wars, but geographic distance mattered to the politics of war declaration and authorization. In essence, distant war required a politics of catastrophe, in which presidents made decisions, and then waited for a disaster of sufficient proportions to generate political support to get strong backing from Congress for what had already been decided. Catastrophe didn’t generate a decision for armed conflict, but instead facilitated political mobilization.

This easily fits the Spanish American War, with a war declaration coming on the heels of public uproar over the sinking of the battleship Maine in Havana harbor, mistakenly attributed to the Spanish. And the World War II chapter of my War Time book illustrates the way this fits WWII (though I don’t develop this argument in that book). What was surprising to me was how well it fits World War I.

The important story comes before Woodrow Wilson sought a formal war declaration, in his failed effort to get an “armed neutrality” bill through Congress (which failed not due to the policy but due to Wilson’s political missteps). The bill would have enabled Wilson to arm merchant ships that would, in certain areas, fire upon German U-boats without warning, and would have certainly launched the U.S. into the war. Amid continuing reports of sunken ships and American deaths, Wilson had announced that an “overt act” by Germany would move the United States closer to war. Wilson, his close advisers, and the press then contemplated whether particular sinkings were the “overt act” he had in mind. Ultimately the “overt act” was the sinking of the Laconia, with only three American deaths. Wilson used the incident to build political momentum. Biographer Arthur Link wrote that  “Wilson’s decision to capitalize on the incident was apparently part of his strategy for focusing public pressure on Congress.” Others were puzzled, since many more were killed in previous incidents that had not been the magic “overt act.” This illustrates an important role of catastrophe in war politics. The terrible event doesn’t always lead to a new policy. Instead, a catastrophe is needed for political reasons: to generate support for a decision already made. And catastrophe itself is defined by politics, not by the event itself. Public opinion scholar David Berinsky has written that “the facts of war do not speak for themselves.” Neither do the facts of catastrophe.

I am continuing to work this out. In the meantime, if you are in the SF Bay Area and want to see how it all turns out, my David M. Kennedy Lecture on the United States and the World, May 12 at Stanford, will be on The Politics of Distant War: 1917, 1941, 1964. You can RSVP here. I'll give a similar lecture at the University of Washington on May 21.

Cross-posted from Balkinization.

Sunday, January 18, 2015

Eric Holder in American History

Attorney General Eric Holder's statement on Friday that the administration would likely file an Amicus Brief in the same-sex marriage cases is an example of why I told New York Magazine that Holder is a member of the cabinet likely to be regarded by historians as consequential 20 years from now. Holder said that the government "will urge the Supreme Court to make marriage equality a reality for all Americans.  It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans—no matter who they are, where they come from, or whom they love." When historians look back, the rapid progress on marriage equality will be a striking feature of the early 21st century, and Holder's actions will not be forgotten.

Development of the secret law of surveillance and targeted killing, and the prosecution of whistle-blowers, will not be forgotten either. In LGBTQ rights and security matters, it will be the enduring impact of legal change that will make Holder stand out as more consequential in the future than he may have seemed to be during the administration itself.

Among the 53 historians included in the piece on how historians will look back on the Obama Administration, Joyce Appleby and Charles Kesler agreed with me. Annette Gordon-Reed included Valerie Jarrett alongside Holder in importance. Crystal Feimster, Matthew Lassiter, and Robert Williams listed both Holder and Hillary Clinton. Many others pointed to Jarrett, Clinton or John Kerry. Others noted were: Timothy Geitner, John Brennan, Kathy Ruemmler, Nancy Pelosi, Susan Rice, Elizabeth Warren and Larry Summers. Lots of people included in the article skipped this question.

Cross-posted from Balkinization.

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.


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.