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.

Crossposted from Balkinization.

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.

Cross-posted at Balkinization.

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.

Wartime or Peacetime at the Flight 93 Crash Site

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

Peacetime or wartime? Just Compensation Puzzles from the United Airlines Flight 93 Crash Site

Mateo Taussig-Rubbo, SUNY Buffalo Law School

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

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

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

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

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

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

Cross-posted from Balkinization.

The Erosion of War and Peace in International Law

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

International Law Beyond War and Peace

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

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

Teitel, Humanity's Law

The following are three illustrations of what has been happening.

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

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

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

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

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

Continue reading below the fold.

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

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

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

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

Goldsmith is right, unfortunately, that the president is arguing that war is coming to an end, while at the same time he continues it.  (A point also made here.)  He continues:

This new form of warfare needs a firmer political and legal foundation....Because secret surveillance and targeted strikes, rather than U.S. military detention, are central to the new warfare, there are no viable plaintiffs to test the government’s authorities in court. In short, executive-branch decisions since 2001 have led the nation to a new type of war against new enemies on a new battlefield without focused national debate, deliberate congressional approval or real judicial review.

Although Goldsmith is right that the character of war has changed, his solution is disappointingly conventional: “What the government needs is a new framework statute — akin to the National Security Act of 1947, or the series of intelligence reforms made after Watergate, or even the 2001 authorization of force — to define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the president’s actions.”  This is where I disagree.  Something more fundamental is in order.

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

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

In recent years, I’ve noted elsewhere,   

In Iraq and Afghanistan, war...spread across borders as American drones fired on targets in Pakistan and elsewhere.  Death and destruction were the province of soldiers and of peoples in faraway lands.  The experience of wartime for most Americans largely devolved to encounters between travelers and airport screeners, as the Transportation Security Administration adopted intrusive new practices.  At home, wartime had become a policy rather than a state of existence.

The only enduring limit on the use of force comes from an informed and engaged citizenry.  The most troubling aspect of an era of secret warfare is that its very “secret, nimbler” character makes it easier to ignore, and thereby harder for democratic limits to function.

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

Cross-posted from Balkinization.

How Peace became a Casualty of the Cold War

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

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

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

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

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

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

Continue reading below the break.

The Concept of Peace

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

UN Peacekeepers (Wikipedia creative commons photo)

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

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

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

On Mazower, Governing the World

My review essay on Mark Mazower, Governing the World:  The History of An Idea, begins with this:

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

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

The rest is in the new issue of Democracy:  A Journal of Ideas.

Cross-posted from Balkinization.

At the AALS: The Concept of Peace in Law, Culture and Society

If you are contemplating Peace on Earth this holiday season, you might be interested in a panel on the concept of peace at this year's AALS meeting.  With the recent suggestion that we have reached a "tipping point" in the war with al Qaeda, the question of what comes after war is more timely than ever.  Is peace the absence of violence?  Or instead is peace accomplished by force, as with militarized peacekeeping?  Is peace a transitional state?  Or is peace an anachronism in an era of endless conflict?  And how does law figure in?

An AALS Cross-cutting Panel on The Concept of Peace in Law, Culture and Society was organized by Matteo Taussig-Rubbo and me. It will be Saturday, January 5, from 3:30 to 5:15 pm in Fountain, Third Floor, Hilton New Orleans Riverside.

Here's the line-up and the panel description:
Moderator:  Mary L. Dudziak, Emory University School of Law

Speakers:
 
Petra Goedde, Temple University Department of History 

John N. Moore, University of Virginia School of Law 
Kim Lane Scheppele, Princeton University Mateo 
Taussig-Rubbo, University at Buffalo Law School 
Ruti G. Teitel, New York Law School 

Legal scholars often focus on the impact of war on law and democracy.  But what about war’s assumed opposite: “peace”?  The flip side of war, peace is a concept that is more often assumed than interrogated.  As military conflict seems to ebb and flow, lacking sharp breaks between wartime and peacetime, perhaps the concept of peace is an anachronism.  This interdisciplinary round-table will take up whether peace is a coherent concept, and the ways the idea of peace figures in domestic and international law. 

Serious study of the nature of war, peace and security is underway in other disciplines.  This panel seeks to illuminate the way perspectives from other fields can bring deeper critical inquiry to the legal study of war, peace and security.  Panelists will include scholars of international law and the law of armed conflict; legal scholars with expertise in history, anthropology, social science, and critical race theory; and a historian who studies peace. 

The panel will address:

• What is peace?

o   an idea?

o   an aspiration?

o   a material state of existence? 

• How does peace (its existence or nonexistence) affect domestic or international law?     

• If contemporary war is less bounded, has the legal and conceptual need for peace dissipated? 

Cross-posted from Balkinization.

Tipping the War on Terror

Jeh C. Johnson, General Counsel of the Defense Department, suggested this week that we may be reaching a “tipping point” in the war with Al Qaeda. 

“I do believe that on the present course, there will come a tipping point — a tipping point at which so many of the leaders and operatives of Al Qaeda and its affiliates have been killed or captured and the group is no longer able to attempt or launch a strategic attack against the United States, such that Al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.”

Some legal scholars have reacted by treating this tipping point as if it were an ending to war.   Under the conventional formulation of wartimes and their impacts, the tipping/ending would be the moment when the imagined pendulum begins to swing in a new direction – away from wartime and the prioritization of security over rights.  Peacetime, and the normal rule of law, would then return.  Echoing this idea, Johnson remarked:  "'War' must be regarded as a finite, extraordinary and unnatural state of affairs....Peace must be regarded as the norm toward which the human race continually strives."

If the tipping point is going to do this work, altering the very state of the world away from war/wartime, we should stop and think about what tipping is, or what it means.

Johnson may have in mind the definition of “tipping point” as “the prevalence of a social phenomenon sufficient to set in motion a process of rapid change; the moment when such a change begins to occur.” (Oxford English Dictionary) Prominent examples of this usage are in the American civil rights literature about “white flight,” but this usage appears across fields.  In his book Tipping Point, Malcolm Gladwell applies it to technology: “For the next three years, businesses slowly and steadily bought more and more faxes, until, in 1987, enough people had faxes that it made sense for everyone to get a fax. Nineteen eighty-seven was the fax machine Tipping Point.”

There are other meanings of tipping, such as bestowing gratuities, like tipping a cab driver, or giving private information, like passing on a tip at the racetrack.  To tip is also to upset something, as in tipping over a glass and spilling a drink.  And of course, having too much to drink can make you “tipsie.”  In this way tip, or tipping, or tipping point seems a conventional, even frivolous concept.  By itself, perhaps it does little work for us.

But the original meaning of “tipping,” according to the OED, is “The action of furnishing or fitting with a tip.”  The tip of a spear, as it were.  Sharpening the point of a spear involves burnishing its ending.  This makes the weapon sharper, and more precise.

This helps us to understand the War on Terror tipping in the context of the Obama Administration’s effort to develop rules for targeted killings, thereby legitimating and perpetuating the personalization of warfare.  We are not tipping from war to peace, if peace is understood as the absence of warfare.  Instead, we are sharpening the weapon.  This enables warfare to be more precise, more targeted, more secret, more isolated from public awareness and accountability.  In this way tipping the war on terror may not bring about an ending, but instead facilitate an ongoing war.

Cross-posted from Balkinization.

Our "Peacetime" Election

In Foreign Policy today:

The 2012 election has certainly not felt like a contest carried out in a nation at war. Though 68,000 U.S. troops remain in Afghanistan and the 2,000th American was recently killed in the decade-long conflict, President Barack Obama has largely relegated his promises of winding down the war to an afterthought in his stump speech. His rival, Mitt Romney, barely mentions the war at all. The U.S military pulled out of Iraq at the end of 2011, but that has gotten far less play in the campaign than the killing of Osama bin Laden. And neither candidate discusses how or when the open-ended U.S. war on terror might finally come to an end...

The absence of wartime from the political scene enables the sort of election campaign we've had this year. Volunteer members of the armed forces continue to fight overseas, but the election turns on the economy. With the voters disengaged from American military policy, their representatives in Congress lack the incentive to act as a check on the war powers.

It turns out, then, that peacetime in American politics doesn't lead to peacetime policies. It enables American presidents of both parties to engage in a war without end. 

The rest is here.

For Memorial Day: Toni Morrison's Home

On Memorial Day we are encouraged to remember those who have given their lives for the country through their military service.  Toni Morrison's new novel Home follows one soldier's homecoming.  It is a sobering mediation on the limits of our ability to understand.  My take appears today on the Oxford University Press blog.  I can't fully cross-post, but here's the beginning:

Toni Morrison’s new novel Home about a Korean War veteran’s struggles after the war might seem perfectly suited to an impending cultural turn. The close of the U.S. combat mission in Iraq and an anticipated draw-down of American troops in Afghanistan, might signal the end of a war era and a renewed focus on what we now call the homeland. Perhaps we can turn to Morrison’s beautiful and brief narrative to understand the journeys of our generation’s soldiers as they, like Frank Money (the protagonist), try to find their way home.

The message of this novel is sobering. Whatever home might be for Frank, it is not a place where war is absent, as he brings Korea along with him as he travels. If peace is thought of as an absence of war, it is a state that Morrison’s character is unable to experience. War memories, psychological injury, and loss have become a part of him, so that his wartime and peacetime selves have become one. His army jacket and dog tags are outward signs of an inner melding. Home for this soldier/citizen cannot be a place apart. And so a central theme in the novel is the kind of space home can be for a broken veteran like Frank.

 Continue reading here.

Moyn on Endless War

Sam Moyn begins a thoughtful review of War Time on Lawfare not with the book but with the Jack Goldsmith's appearance on The Daily Show.  Discussing Goldsmith’s new book Power and Constraint, Jon Stewart raised the concern that the president “has extraordinary powers in an endless war.”  Goldsmith agreed that he does.  “But Stewart failed to challenge Goldsmith's premise of ‘endless war,’” Moyn writes.

Some vigorously insist that the Authorization for Use of Military Force Against Terrorists offers clear boundaries to our war, at least as to who the enemy is.  But it is not as obvious that it imposes serious chronological (or for that matter geographical) limits. Goldsmith, far from using "endless war" as a throwaway line, incorporates it in the title of his book's preface. The main value of Dudziak's War Time is that comes much closer to mounting the challenge to interminable hostilities.

The project of my book is first and foremost to problematize the way wartime is understood, and to illustrate that, like other forms of temporal thinking, our understanding of wartime is a product of culture, and not a stable “fact” in the world.  The contemporary consequences of this conceptual problem is captured by Moyn:

legal scholars, liberal and conservative, have mainly spent their time since 9/11 continuing, and indeed amplifying, the Cold War mistake of thinking within the culturally constructed frame of a chronologically bounded understanding of war.  Insistence on this frame, and failure to see its constructed qualities, prompts an obsession with "civil liberties in wartime." But the "civil liberties in wartime" argument depends upon a social construction of "wartime" that in fact fit World War I and II much better than either the Cold War or today's "endless war" in the first place.

But Moyn asks: “I wonder, however, if the civil libertarian strategy came about because of ill-fitting conceptual categories or, instead, a failure to challenge geopolitical realities. Was the error of our time conceding a wartime frame, or conceding an open-ended struggle on which to impose it?”  Moyn presses both me and my critics to address the problem of ongoing warfare more directly.  In response to Goldsmith’s claim that our system has worked post-9/11, Moyn suggests that perhaps “the system crashed in the Cold War; it is to our great and lasting moral discredit that matters were never put right after it.”  Seeking deeper engagement of the moral problem of ongoing war, Moyn suggests that “one might take the repeated ceremonial endings [of combat] Dudziak singles out, for example, to imply widespread nostalgia for the very chronological confinement to war Americans long ago gave up.”

From my perspective, Moyn accomplishes three crucial things in this review.  First, he highlights a crucial transformative moment in American politics, and urges that we study it more deeply.  Although there has been on-going U.S. military engagement since at least the Civil War, it was during the Cold War, in the context of shifts in the U.S. role in geopolitics and the domestic political reaction, that American political leaders argued that American military power projected around the world was the only way to keep the nation safe.  This put the nation on a trajectory that we have not stepped back from, and that others have argued has become entrenched in American political culture.  From that point on the infrastructure of endless war was created.  And from that point on, politicians might argue against particular uses of force by presidents, while at the same time supporting continued military build-up if it brought jobs and resources to their districts. 

Second, Moyn insists that the morality of endless war be placed more clearly on the table.  Moyn himself illuminates the importance of critically exploring both morality and its uses as a political rhetoric in his own fine work.

Third, and especially helpful from my perspective, he places people who don’t usually speak to each other, and their ideas, in conversation in an important way.  The liberal/conservative back-and-forth about war, rights and presidential power has become predictable and even tiresome, so that it fails to illuminate underlying cultural, political and global dynamics that produce the conceptual environment within which our leading conservative and liberal scholars argue with each other.  It will help us to get beyond that impasse, I believe, by turning more seriously to other disciplines where war is treated not as a stable fact in the world, but as a complex and changing phenomenon requiring the tools of political scientists, anthropologists, historians and others to more fully understand.

Cross-posted on Balkinization.

A Military-Civilian Disconnect? on Cleveland Public Radio, May 24

I'll participate in a discussion of  A Military-Civilian Disconnect?  on The Sound of Ideas, Cleveland Public Radio, Thursday, May 24, from 9-10 a.m.

America is still at war. You might not know that as people go about their workdays, shop at the big box retailer and spend weekends catching a ball game. A small, professional military is deployed in Afghanistan. Their families live it. For most civilians, though, it's a distant concern - out of sight, out of mind. As we approach Memorial Day, let's talk on the Sound of Ideas about the growing disconnect between those who serve and the rest of us. Thursday at 9:00 a.m.

You can listen live here.  If you'd like to call in or email a question, the program contact info is here.

Review in The Nation

"What should we make of wartime that has the appearance of peacetime?" asks Peter Maas, author of Love Thy Neighbor: A Story of War, in a review of War Time in The Nation.  Maas reported on the war in Iraq.  He found the carnage there to be "almost the least shocking experience of my journeys between war in the Mideast and my home in New York City."  In the United States, 

while Americans killed and got killed in Iraq, Americans back home shopped at Walmart and watched reality television....Outside the tight-knit community of military families who cared so deeply about the wars, nearly everyone in America went about his or her life as though Iraq and Afghanistan didn’t matter much. Nor had Americans been asked to change their way of life. It had become possible, I realized, for a nation to be at war without suffering the inconveniences associated with war—including the inconvenience of thinking about it.

Continue reading here.

Project on War and Security in Law, Culture and Society

I'm pleased to announce the launch in Fall 2012 of the Project on War and Security in Law, Culture and Society at Emory Law School, where I will be Director of the project and the (as yet unnamed chair) professor of law.  While I have been thinking about an interdisciplinary law-and-war-related project for some time, I started putting thoughts on paper in a more focused way on this blog and elsewhere in response to reactions to my new book and related commentary.  So I must especially thank Benjamin Wittes, who prompted this post.

There are a few reasons that this project will be at Emory.  Most important is that the law school is at the beginning of a promising era, with the appointment of Robert Schapiro as Dean, which has generated much excitement on campus.  The university as a whole is a terrific fit for this project due to significant interest in war in the Political Science Department, beginning with its Chair, Daniel Reiter.  Human rights history scholar and long-time friend Carol Anderson    is also at Emory, along with others at the law school and elsewhere on campus who I look forward to collaborating with.  And then there’s the end of cross-country commute, and other family-related reasons that make Atlanta attractive.  Having a lateral offer is always a good time to pitch a new project, and both deans offered full support for the start-up.  It is a project instead of a center because I think that not every idea needs a center and the bureaucracy that can go with it, so the focus will be on ideas and not infrastructure.  At least for now.

The project’s first event will be a fall lecture by legal historian John Witt, Yale Law School, who will discuss his exciting new book, Lincoln’s Code (date and details to be determined).  A grad seminar and colloquium series will begin in spring 2013.  I will also create a web presence for the project, and which I’ll post about when that’s up and running.

Here’s the basic idea, from the project proposal:

Many American law schools have developed programs focused on legal issues related to war and national security.  Meanwhile, serious study of the nature of war and security is underway in many other disciplines, including political science, history and anthropology.  Although interdisciplinarity is a central feature of American legal scholarship, programs on law and national security tend to focus intently on law and policy, and do not have interdisciplinary inquiry as a central objective.  This deprives legal study of war and security of broader critical inquiry that is essential to understanding this area.

This Project proceeds from the premise that the study of law and war is necessarily an interdisciplinary inquiry.  Legal scholars often carefully analyze the law, but they take "war" as a given - as a feature of the world that does not require the same close interrogation.  There have been compelling reasons for the narrow focus of other programs, as the changing nature of warfare presents new legal and policy questions.  But a full understanding of the intersection of law and war/security requires a broader canvas.  It is best pursued in an interdisciplinary environment involving scholars and law and graduate students trained in different fields.

This idea paper proposes a workshop series and related courses and programs aimed at an interdisciplinary approach to the study of law and war.  The core of the Project would be a deeply interdisciplinary workshop series, modeled after the Project on the Rhetoric of Inquiry, a brilliant and rigorous seminar directed by economist Deirdre McClosky at the University of Iowa in the 1980s.  Ideally the Project will eventually expand to include post-docs and other components, but this will depend on outside funding.

Westbrook review for Christian Century

Robert Westbrook, University of Rochester, reviews War Time for Christian Century.  He begins:

One of the notable features of the Obama administration’s foreign policy has been its disavowal of the locution, if not necessarily the policies, of the “war on terror” declared by George W. Bush in the wake of the terrorist attacks of September 11, 2001. Apparently wary of committing himself rhetorically to a war with no conceivable conclusion, Obama has sustained many of the liberty-averse, antiterrorist practices of the Bush administration, while muting the war word.

This difference might be said to be purely semantic. But semantics can matter a great deal, as historian and legal scholar Mary Dudziak demonstrates in this brief, accessible and provocative study of the idea of wartime in recent American political and legal history.

Continue reading here (subscription required).

Review: Margulies on The Myth of Wartime

"The Myth of Wartime" is the focus of  Joseph Margulies' (Northwestern University) review of War Time on the Diplomatic History Listserv H-Diplo.  Margulies writes that the myth's "essential flaw" is that it "imagines that wartime is a fixed and recognizable period, that it is a statement of fact rather than a state of mind."  Even though

the case law includes a lot of throat-clearing about "winding down,"...people seem to think they know when the country is 'at war' and when it is not. Wartime is a condition that comes round now and again. We all know when it begins, when it ends, and where it happens, or so the story goes.

But for at least two generations in the United States, "wartime" has been nothing like what the myth imagines it to be, and grows less so as the seasons pass and the wars accumulate. In _Wartime: An Idea, Its History, Its Consequences_, the legal historian Mary Dudziak has taken a closer look at the entire conceptual category. A slim and engaging volume, wonderfully written and carefully wrought, _Wartime _is a fascinating meditation on the perils of clinging to a myth of national identity that increasingly bears only a glancing resemblance to modern life. Particularly since the Cold War, "wartime" has been pretty near all the time. It is, as Dudziak writes, "not an exception to normal peacetime, but an enduring condition" (p. 4). And at least since President George W. Bush launched the "war on terror," it's also everywhere, unbounded not only in time (since no one knows what victory over an ideology looks like) but also in space (since ideologies have a way of taking root in the darnedest places).

Many writers have made a similar point and the concern that wartime initiatives will last beyond the emergency that summoned them forth is a familiar complaint. But Professor Dudziak, a professor of law, history, and political science at the University of Southern California, goes significantly beyond prior discussions by focusing our attention not on the risk of normalization, which is serious enough, but on the very idea that wartime remains an identifiable category, recognizably separate from whatever might be its opposite. The problem is not simply that we may come to accept roving wiretaps as part of the "normal" landscape of life (i.e., that we will tolerate them even when we are "at peace"), but that we will come to tolerate the idea that we are always "at war" and therefore eternally prepared to accept all manner of ostensibly exceptional measures because we cling to the myth that war is temporary and aberrational. The concern, in short, is that the myth to which we have grown so attached has outlasted its relevance to the American experience. It has decayed from myth (which has at least a passing resemblance to the truth), to fantasy (which is nothing more than truth as we would wish it). Though Professor Dudziak does not put things in precisely these terms, that is the implication of her account, and it is an exceptionally valuable insight.

Read the rest here.

"Wartime" as a Concept in History

"'Wartime' as a Concept in History" is the focus of my keynote address at the 4th Annual GSHA Graduate Student Conference, "The Politics of Unrest: A Transdisciplinary Conference" at Claremont this Saturday, April 14, at 1:30 pm.  Details are here.

Robert Jackson on Law and Security after Nuremberg

My new essay, Law, Power, and 'Rumors of War': Robert Jackson Confronts Law and Security after Nuremberg, is just published in the Buffalo Law Review (60 Buffalo Law Review 367 (2012)).  It is based on my contribution to the 2011 James McCormick Mitchell Lecture program at SUNY Buffalo Law School, which commemorated Robert Jackson’s first public lecture after he returned from Nuremberg in 1946.  Here's the abstract:

Supreme Court Justice Robert Jackson’s most important legacy was his role as chief prosecutor for the United States at the Nuremberg Trials. This essay follows Jackson’s legal thought from his return to the United States after Nuremberg, until his death in 1954. Jackson hoped that the lesson of Nuremberg would be “to establish the supremacy of law over such lawless and catastrophic forces as war and persecutions.” Jackson changed law that applied to warfare. In looking to the future, he seems to have assumed that although law had changed, war would retain its essential character. Yet as the post-war years became instead the Cold War years, Jackson found himself in an era when the boundaries around wartime were eroding. The world entered an ambiguous era that seemed to be neither war nor peace. As Jackson himself would put it in 1951, rather than a break between wartime and peacetime, there was instead “a prolonged period of international tension and rumors of war, with war itself as the ever threatening alternative.”

Jackson’s response to the Cold War era was twofold. In cases involving members of the Communist Party, he argued that they were different in kind from other dissenters, so that the Justice who argued that the rule of law should apply to Nazi leaders also argued for a departure from applicable first amendment analysis because of the dangers posed by communism. In the area of war-related powers, Jackson took up more directly the ambiguous character of an era that seemed neither wartime nor peacetime. In this context, he favored limits on presidential power. Calling the Korean War an undeclared “foreign venture,” he argued in his famous Steel Seizure concurrence that it would subvert constitutional limits for a president to go to war without a declaration from congress, and then use that state of war as the basis for expanding his own domestic authority.

America at War -- April 9 on C-Span2 Book TV

2012 Tucson Festival of Books: "America at War"
To be aired Monday, April 9, at 2:00 a.m. ET

About the Program
From the 2012 Tucson Festival of Books, a panel discussion entitled, "America at War." The panelists include, William Inboden, Religion and American Foreign Policy, 1945-1960, Mary Dudziak, War Time: An Idea, Its History, Its Consequences, and Andrei Cherny, The Candy Bombers: The Untold Story of the Berlin Airlift and America's Finest Hour. The panel is moderated by Sam Kleiner, MPhil Candidate in International Studies, St. Anthony's College.

About the Authors

William Inboden is an assistant professor of public affairs at the LBJ School of Public Affairs and distinguished scholar at the Strauss Center for International Security and Law, University of Texas at Austin. He formerly served during the Bush administration as senior director for strategic planning on the National Security Council at the White House.
Buy the author's book from: Amazon | Barnes & Noble | Indiebound

Mary Dudziak is the author of several books, including Exporting American Dreams: Thurgood Marshall's African Journey. She is a law, history and political science professor at the University of Southern California Gould School of Law. For more information, visit mdudziak.com.
Buy the author's book from: Amazon | Barnes & Noble | Indiebound

Andrei Cherny is a former speechwriter and advisor to Vice President Al Gore. He is the author of The Next Deal: The Future of Public Life in the Information Age. Mr. Cherny is the former Arizona Democratic Party Chairman and is running for Congress to represent Arizona's 9th District.
Buy the author's book from: Amazon | Barnes & Noble | Indiebound

On Fairness Radio 3/29

I'll be talking about War Time on FAIRNESS RADIO with Patrick O'Heffernan and Chuck Morse on Thursday, March 29, 1:15-1:45 Eastern time.

Wisconsin Public Radio Today

I'll discuss War Time this afternoon on Wisconsin Public Radio, airing at 5:00 to 6:00 p.m. Central Time, 3:00 pm Pacific Time.  You can listen live here.

Scholar's Circle discusses War Time on Pacifica Radio

Updated:
War Time will be the focus of a radio panel discussion with Patrick James, Center for International Studies, University of Southern California, Christoper Nichols, Department of History, University of Pennsylvania, and me.  It will be broadcast on KPFK, 90.7 in Los Angeles, airing just before 12:30 pm on Sunday, March 18. I'll post a podcast link when it is available.

America at War: 21st Century Struggles -- at the Tucson Book Festival and on C-Span2

C-Span2 will have live streaming of this panel on Sunday, 1 pm Arizona time/4 pm Eastern time, at the Tucson Festival of the Book:

"America at War: 21st Century Struggles"
William Inboden, Religion and American Foreign Policy, 1945-1960
Mary Dudziak, War Time: An Idea, Its History, Its Consequences
Andrei Cherny, The Candy Bombers: The Untold Story of the Berlin Airlift and America's Finest Hour

On MSNBC on Wednesday

...at 4:40 pm Eastern time, the Dylan Ratigan Show.

On WAMC's Roundtable Today

I'm discussing War Time on Northeast Public Radio/WAMC’s Roundtable, this morning,11:10-11:25 Eastern.

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.

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.

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.