Monday, February 27, 2012

Wednesday, February 22, 2012

Public Radio Interview

KERA Radio (North Texas/Dallas Fort Worth), Thursday, February 23:
How are wars that never really end changing our concept of what “being at war” means? We’ll talk this hour with Mary L. Dudziak, the Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at the University of Southern California Law School. Her new book is “War Time: An Idea, Its History, Its Consequences” (Oxford University Press, 2012).
Listen here.

Monday, February 20, 2012

Bacevich on The War Formerly Known as the Global War on Terrorism

Andrew Bacevich,one of the most important and prolific critics of current American military policy, has a post today on the nature of the current war era at TomDispatch and HNN:
With the United States now well into the second decade of what the Pentagon has styled an “era of persistent conflict,” the war formerly known as the global war on terrorism (unofficial acronym WFKATGWOT) appears increasingly fragmented and diffuse. Without achieving victory, yet unwilling to acknowledge failure, the United States military has withdrawn from Iraq. It is trying to leave Afghanistan, where events seem equally unlikely to yield a happy outcome.

Elsewhere—in Pakistan, Libya, Yemen, and Somalia, for example—U.S. forces are busily opening up new fronts. Published reports that the United States is establishing “a constellation of secret drone bases” in or near the Horn of Africa and the Arabian Peninsula suggest that the scope of operations will only widen further. In a front-page story, the New York Times described plans for “thickening” the global presence of U.S. special operations forces. Rushed Navy plans to convert an aging amphibious landing ship into an “afloat forward staging base”—a mobile launch platform for either commando raids or minesweeping operations in the Persian Gulf—only reinforces the point. Yet as some fronts close down and others open up, the war’s narrative has become increasingly difficult to discern. How much farther until we reach the WFKATGWOT’s equivalent of Berlin? What exactly is the WFKATGWOT’s equivalent of Berlin? In fact, is there a storyline here at all?
Continue reading here.  Bacevich's newest book is an edited collection The Short American Century: A Postmortem.  Cross-posted at Balkinization.

Sunday, February 19, 2012

TODAY: Book Talk at Politics and Prose, Feb. 19

Moved to the top of the blog:

I'm speaking about War ∙ Time at Politics and Prose Bookstore in Washington, D.C., on Sunday, February 19, at 5:00 p.m.  Here are the details:

Mary Dudziak - War ∙ Time
Feb 19 2012, 5:00 pm
Politics and Prose
5015 Connecticut Ave NW
Washington, D.C.  20008United States


“Wartime” was once considered exceptional—an interruption to the norm that was peacetime. But as Dudziak, USC professor of law, history, and political science, observes in her thought-provoking study, the U.S. has been involved continuously in various overseas armed conflicts for the past century. Given this new, never-ending nature of war, what are the implications for law, politics, and culture?

All our in-store events are free and open to the public.  All event titles are 20% off for members during the month in which the author appears at the store.  Click here for directions. There is ample parking available in the lot behind the store and in the surrounding neighborhood.

More details are here.

Friday, February 17, 2012

How Presidential War Power is Made, or why rhetoric matters to war powers

Over at Lawfare, Benjamin Wittes found my op-ed in yesterday’s New York Times, on Obama’s double-take on the nature of our current war era, to be “perplexing.”  Let me say a few words that are unlikely to lead Wittes and me to agree on everything, but at least might help crystalize what the disagreement is about.  I should also say that I tend to agree with one of the underlying ideas at Lawfare, as I understand their project, and that Mark Tushnet has also made: “liberals” and “conservatives” are often talking past each other on questions of national security, and there is a need to reshift the conversation, and get beyond partisan and left/right divides.

The most essential point is methodological (and if you’re looking for the direct points about my op-ed/Wittes’ post, skip ahead a couple of paragraphs).  As legal scholars we tend to focus especially on law, of course.  Law and society scholars, including legal historians like me, study law by going beyond it – by studying law in a broader historical and cultural context.  Law exists as part of and in relation to society and culture, so that we can’t fully see law without understanding the way it is produced and understood – socially, politically, culturally.

Like other legal problems, law related to war and security is a  law-and-society subject.  Many very smart war powers and national security law specialists have been drilling down on the complex legal issues related to the post-9/11 context, an effort that Lawfare contributes to.  But as with all legal issues, there is also a law-and-society component.  Although war powers and national security scholarship often draws upon historical examples, the scholarship does not tend to incorporate current important work by historians and others related to war and security.  So, in my view, the law-and-society aspect of legal war and security studies is underdeveloped.  Alongside of the current focus on national security law in American law schools, we need, essentially, law-and-society law & security.

How does that relate to my op-ed?  My piece is about Obama’s political rhetoric related to war, and I argue that he is trying to have it both ways.  As a political matter, he has focused on the wars in Iraq and Afghanistan.  His campaign promise was to bring these wars to an end.  Early in his administration he would say “we’re in two wars.”  But in 2010 he shifted, and gave a speech that said the nation is “at war with Al Qaeda.” 

This shift in political rhetoric enables the president to argue that he is filling his campaign promise of ending the wars that he was talking about when he got elected, but at the same time the new formulation maintains (politically) the basis for his war-related powers.

Now for the law-and-society point: presidential war powers are determined not only by legal authorities and constraints, to the extent they exist, and by capacities inherent in the executive branch.  As Scott Silliman put it in a national security law class at Duke last semester, the president “paints the scene.”  Important work by historians helps to fill in the way presidents essentially narrate wars for the American public (my formulation, not Silliman’s), helping to generate both political sentiment and also, most simply, the conception that something happening faraway is a “war” that the security of Americans at home hinges upon.  (This is not a post-9/11 problem, but was a critical Cold War issue, and also was important in earlier years.)  Political scientist Adam Berinsky helps us to see that what Americans “know” about overseas conflict does not derive directly from the conflict itself, but is filtered in the same way as public opinion on other matters: it is affected by elite discourse and partisan politics.

This is a long way of saying that presidential rhetoric on war and security is tremendously important and consequential.  I focused only on Obama’s flip: “Ending major conflicts in two countries helps him deliver on campaign promises. But his expansive definition of war leaves in place the executive power to detain without charges, and to exercise war powers in any region where Al Qaeda has a presence.”  But the ultimate problem goes beyond what looks like a political bait-and-switch.  By narrating war differently, Obama is “painting the scene” differently, in a way that will not determine the scope of his war-related powers down the road, including but not limited to detention.  Though not determinative, a president’s framing of a war era is a first and essential component of the generation and maintenance of presidential war powers.

I take up Wittes directly, and the ways we’re talking past each other, below the fold.

Wednesday, February 15, 2012

If we're ending a war, what war are we ending?

If the combat mission in Afghanistan ends next year, does that have an impact on the president's war powers?  I take this up in the New York Times:
THE defense secretary, Leon Panetta, recently announced that America hoped to end its combat mission in Afghanistan in 2013 as it did in Iraq last year.  Yet at Guantánamo Bay and elsewhere, the United States continues to hold enemy detainees “for the duration of hostilities.”   

Indeed, the “ending” of combat in Afghanistan and Iraq appears to have no consequences for the ending of detention. Because the end of a war is traditionally thought to be the moment when a president’s war powers begin to ebb, bringing combat to a close in Afghanistan and Iraq should lead to a reduction in executive power — including the legitimate basis for detaining the enemy. 

But there is a disconnect today between the wars that are ending and the “war” that is used to justify ongoing detention of prisoners.
Continue reading here.  Cross-posted at Balkinization.

Sunday, February 12, 2012

War Time Interview Podcast

You can listen to my conversation with Ian Masters at KPFK Radio right here.  Scroll forward.  Our discussion comes about 15 minutes into the hour, and continues for about 45 minutes.

New on-air time today

My appearance on KPFK Radio has been moved up.  You can listen live from about 11:15 am Pacific Time on.

Saturday, February 11, 2012

On the radio...

You can listen in at KPFK Radio this Sunday at noon, Pacific Time.  The station is having a fund drive, and during the broadcast you can even make a pledge and get a copy of my book!

Thursday, February 9, 2012

Banks on "Shadow Wars"

William C. Banks, Syracuse University, has a short essay in the Journal of National Security Law and Policy on "Shadow Wars."  "In the post-9/11 environment," he writes,
the United States confronted the Taliban, al Qaeda, and associated terrorist and insurgent groups, where the conventional military force that quickly forced Iraq’s retreat from Kuwait and subdued the Milosevic regime in Kosovo in the 1990s was far less effective. Paramilitary campaigns waged by the CIA and contractors became an integral part of the counterterrorism response to these new enemies, and our military greatly expanded its own capabilities to collect intelligence and carry out clandestine operations. Over time, first in the Bush administration and now in an expanded and more aggressive strategy by the Obama administration, the United States has been conducting what The New York Times described as a “shadow war against Al Qaeda and its allies”:
In roughly a dozen countries – from the deserts of North Africa, to the mountains of Pakistan, to former Soviet republics crippled by ethnic and religious strife – the United States has significantly increased military and intelligence operations, pursuing the enemy using robotic drones and commando teams, paying contractors to spy and training local operatives to chase terrorists.
The essay introduces a special issue of the Journal (currently on the website's first page), guest edited by constitutional war powers scholar Louis Fisher.  Banks' compelling essay concludes by arguing that these covert actions "reach almost every corner of the globe," and call for scholarly attention.

Bookforum Review

Charles Homans, a New Republic writer, reviews War Time in the current issue of Bookforum.  Not accessible on-line unfortunately.  I'll link to a pdf soon.

Monday, February 6, 2012

How the Cold War Matters to the War Powers Debate

This is the second in a series of posts about my new book, War·Time: An Idea, Its History, Its Consequences, kicked off when Eric Posner so helpfully generated an on-line discussion.  He dismisses an argument about Cold War statebuilding because "it would be hard to exaggerate legal scholars’ obsession with the rise of executive power, going back at least to the Nixon administration, indeed to the New Deal."

The question of why the Cold War matters to an understanding of the war powers debate might, at first glance, seem obvious.  The most iconic case about presidential war power, Youngstown Sheet & Tube v. Sawyer (1952), is a product of the Cold War era, decided during the Korean War.  We might also think of the Cold War as one “wartime” among many in American history, so that we might compare this wartime to others when analyzing the role of the courts in reining in executive power.  It’s especially when this sort of argument is employed that the Cold War presents some difficulty.  The Cold War is ambiguous, on its own terms.  Was it really a “wartime” that we can compare with others, or was it something else?

The problem of just what the Cold War was was anticipated by George Orwell in 1945.  When reflecting on what the advent of nuclear weapons would bring, Orwell suggested that the world would be divided between two or three “monstrous super-states,” each with nuclear weapons, that would “divid[e] the world between them.” These monster states would not use the bomb against each other. Instead, they would be “unconquerable and in a permanent state of ‘cold war’” with their neighbors. The nuclear age would therefore bring “an end to large-scale wars at the cost of prolonging indefinitely ‘a peace that is no peace.’” The idea that the Cold War was neither wartime nor peacetime ultimately competed with a discourse of the end of peace itself – the idea that wartime had become a permanent feature of the world.

The nature of the Cold War was troublesome at its ending as well as its onset.  When an American soldier thought of as “the last Cold War casualty” was laid to rest on March 30, 1985 in Arlington National Cemetery, a controversy erupted about how he should be remembered.  Arthur Nicholson’s headstone reads: “Killed in East Germany, U.S. Military Liaison Mission.” The Veterans of Foreign Wars objected. “No mention is made of who killed him or why he was shot,” argued an editorial in the VFW Magazine. “This is reflective of how many Americans who preceded Nicholson in death during the Cold War are remembered.”  American veterans have lobbied for the creation of a Cold War medal, so that the Cold War would be memorialized as a wartime, but the bill has not been enacted.

Arthur Nicholson’s body came to rest in a shifting terrain. Even as he bled to death in a field in East Germany, the historical category of his military service—the Cold War—was beginning to collapse. The nature of this death and its consequences (was it a murder, as Vice President George Bush claimed?  or was he a soldier killed in battle?)  depended on whether it fit into a period that we call wartime.  He was a liminal figure in an ambiguous era, and his death seemed to trigger a need to stabilize the categories.

The ambiguities of the Cold War era, so much a part of its experience, get lost when it is simply assumed to be a “wartime” in a way that allows for a comparison with other American wartimes.  The argument that wartime affects law and politics is an argument that a geopolitical event affects law and politics.  To better understand the nature of the geopolitical event, we might then turn to the scholarship about geopolitics, for example scholarship in the history of U.S. international relations.  But when we do, any easy analogy begins to fall apart, for we find a disconnect between the diplomatic history literature and legal scholarship about nature of the Cold War and its impact.

There are at least two sorts of difficulties presented by the disconnect between diplomatic history accounts of the Cold War and the way the Cold War tends to work as a category for legal scholars. 
The rest is below the fold.

Sunday, February 5, 2012

What Eric Posner Misses About War Time

Eric Posner has spent much of the last decade criticizing the liberal legal response to post-9/11 government policies. In his review of my new book, he sticks to the script. But this leads him to miss a critical point: the book does not reinforce post-9/11 liberal thought but instead criticizes it.

What’s at stake here is the way the very concept of “wartime” works in contemporary American law and politics. Just in the past week, Defense Secretary Leon Panetta announced that the United States hopes to end its combat mission in Afghanistan in 2013. Meanwhile, at Guantanamo and elsewhere, the United States holds enemy combatants “for the duration of hostilities.” The “endings” of combat in Afghanistan and Iraq appear to have no consequences for the ending of detention. This illustrates a difficulty: there is a disconnect between the wars the United States is ending (Iraq and Afghanistan), and the war that has justified detention (the war on terror). President Obama generally has not employed the Bush Administration’s idea of a “war on terror,” but the war on terror continues to serve as the basis for detention.

This particular disconnect helps to uncover a more enduring problem of the misfit between the way war is conceptualized and the military conflicts the nation engages in. In War Time, I argue that this is not a new phenomenon. It has been of great importance at least since the Cold War. Uncovering the disconnect could enable more transparent decision-making – whether it be liberal-leaning or conservative.

Posner gets distracted by the usual right/left argument about war and civil liberties, and he reads the book as taking a position on the left side of that debate. I will address why this is a misreading in a later post (my argument is more about the scholarship on civil liberties, identifying a conceptual problem on both the left and the right), but right now let me take up what the book is actually doing.

A reader looking for conventional liberal complaints about post-9/11 government policy might be puzzled, as Posner is, about the reason the book spends so much time talking about time itself. The book is not a traditional historical narrative, but a work of critical historiography and intellectual history. It is short because it focuses on just one thing: the way ideas about time are part of the way we think about war, as captured in the very term “wartime.”

That temporal thinking is built into the way war is conceptualized goes back to at least Hobbes: “War consisteth not in battle only, or the act of fighting; but in a tract of time, wherein the will to contend by battle is sufficiently known; and therefore the notion of time is to be considered in the nature of war.” “Wartime” itself, on its own terms, is a temporal concept. The purpose of my first chapter is simply to point this out. I turn to Durkheim and others to explain that we tend to think of time as a natural phenomenon, yet ideas about time are a cultural feature. Our wartime thinking is therefore not determined by the nature of time itself, or the nature of war. Like other kinds of time, it has its origins in social life.

The rest is below the fold.