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 As the work of war becomes an abstraction for most of us, the earlier hope for peace has been replaced by public celebrations of militarism.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.