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.

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.

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.

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.

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!

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.

New Review

In the New York Journal of Books.  More on the way...

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.

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.

Symposium on War Time today at USC

A symposium on War Time is being held at USC Law School on January 27.  Here's the program:

FRIDAY, JANUARY 27
"WAR TIME: An Idea, Its History, Its Consequences"
Location: USC Law School, Faculty Lounge, Room 433
Time 1:00 – 5:30 followed by reception.
RSVP: Faculty Services at facserv@law.usc.edu

When is wartime? On the surface, it is a period of time in which a society is at war. But we now live in what President Obama has called "an age without surrender ceremonies," as the Administration announced an "end to conflict in Iraq," even though conflict on the ground is ongoing. It is no longer easy to distinguish between wartime and peacetime. In this inventive meditation on war, time, and the law, Mary Dudziak argues that wartime is not as discrete a time period as we like to think. Instead, America has been engaged in some form of ongoing overseas armed conflict for over a century. Meanwhile policy makers and the American public continue to view wars as exceptional events that eventually give way to normal peace times. This has two consequences. First, because war is thought to be exceptional, "wartime" remains a shorthand argument justifying extreme actions like torture and detention without trial. Second, ongoing warfare is enabled by the inattention of the American people. More disconnected than ever from the wars their nation is fighting, public disengagement leaves us without political restraints on the exercise of American war powers.

Principal Presenters:
Elaine Tyler May, Regents Professor of History and American Studies at University of Minnesota
Lynn Hunt, Professor of History, UCLA

Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

Reflections by USC Faculty:
Rebecca Brown, Newton Professor of Constitutional Law, USC

Patrick James, Professor of International Relations, USC
Hilary Schor, Professor of English, Comparative Literature, Gender Studies and Law, USC

Response:

Mary Dudziak, Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science, USC

Brewer, Visions of War

Susan Brewer, author of Why America Fights: Patriotism and War Propaganda from the Philippines to Iraq, which is essential reading on the history of 20th century American war, has an op-ed on the SHAFR blog placing Obama's December speech about the war in Iraq in the context of reactions to Iraq from American veterans who served there.  She begins:

On December 15th President Barack Obama welcomed home U.S. troops from a war he once had called “dumb.” His speech avoided the reasons why the Iraq War was fought and focused instead on honoring the American servicemen and women who fought it.  Inspiring words–“extraordinary achievement,” “honor,” “sacrifice,” “finest fighting force,” “unbroken line of heroes,” “progress of human freedom and dignity,” and “success”–far outshone the brief reference to the accomplishment of “leaving behind a “sovereign, stable, and self-reliant Iraq with a representative government elected by its people.”[i] At a time when public support for the Iraq War is low and regard for the military high, the president’s remarks made political sense. The speech, however, contributed to what veterans call the “disconnect” between the way civilians see war and they experience it.

Brewer argues that  "when a president praises the warriors but not the war, he evades questions about foreign policy objectives, strategic and economic interests, and accountability raised by those veterans who want to make sense of what they have done."  Read the full essay here.

Phillips on Black Freedom Struggles and the U.S. Military from WWII to Iraq

An important new book on African Americans and the U.S. military, War! What Is It Good For?: Black Freedom Struggles and the U.S. Military from World War II to Iraq, by Kimberley Phillips, has just been released by the University of North Carolina Press.  It is in the UNC Press John Hope Franklin Series in African American History and Culture.  Going well beyond the desegregation story, the book illuminates the relationship between military service and African American culture.  Beautifully written, it is essential reading for anyone with an interest in race and war in U.S. history.

Here's the press book description:

African Americans' long campaign for "the right to fight" forced Harry Truman to issue his 1948 executive order calling for equality of treatment and opportunity in the armed forces. In War! What Is It Good For?, Kimberley Phillips examines how blacks' participation in the nation's wars after Truman's order and their protracted struggles for equal citizenship galvanized a vibrant antiwar activism that reshaped their struggles for freedom.

Using an array of sources--from newspapers and government documents to literature, music, and film--and tracing the period from World War II to the Iraq and Afghanistan wars, Phillips considers how federal policies that desegregated the military also maintained racial, gender, and economic inequalities. Since 1945, the nation's need for military labor, blacks' unequal access to employment, and discriminatory draft policies have forced black men into the military at disproportionate rates. While mainstream civil rights leaders considered the integration of the military to be a civil rights success, many black soldiers, veterans, and antiwar activists perceived war as inimical to their struggles for economic and racial justice and sought to reshape the civil rights movement into an antiwar black freedom movement. Since the Vietnam War, Phillips argues, many African Americans have questioned linking militarism and war to their concepts of citizenship, equality, and freedom.

And an endorsement:

"Kimberley L. Phillips's superb book tells the long overdue story of the disproportionate impact of American wars on African Americans and their resistance to this unequal burden. Her expansive catalogue of black artistic engagement with wartime struggles for justice--from the Double V campaign to Baghdad Hip Hop--creates a new groove in the study of American protest culture. The book sounds off beautifully, voicing cries of freedom through the guns of war."--Bill V. Mullen, Purdue University, author of Afro-Orientalism and Popular Fronts: Chicago and African American Cultural Politics, 1935-1946

Moyn, The Last Utopia: Human Rights in History, reviewed on Lawfare

Samuel Moyn,  The Last Utopia: Human Rights in History, gets a thoughtful review from Alice Diana Beauheim at Lawfare. She writes:

Moyn’s book, The Last Utopia: Human Rights in History, systematically debunks the notion that human rights are generally the gradual culmination of humane, enlightened Western thought or even specifically a reaction to the carnage and genocide in the Second World War.  Instead, he argues that the post-World War Two structures and organizations that have since been claimed by the human rights movement arose from a surprisingly specific source:  the victorious powers seeking an alternative ideology to the rising post-war demand from the colonial world for national liberation, de-colonialization, and an end of empires.  Among the Allied leaders planning the post-war order, to be sure, Roosevelt (like nearly all his fellow Americans) was instinctively hostile to empire and colonialism, but that was scarcely the view of Churchill or De Gaulle, seeking to preserve theirs – or Stalin, seeking to create one.

For Moyn, then, the driving motivation behind the inclusion of “human rights”—which he notes was a “throwaway line,” not a fully conceptualized program—in the founding documents of the UN was to create an alternative to national liberation and self-determination demands by extending basic civic rights to subject peoples, at least on paper.  For the colonized, however, this vague idea of human rights did not stir the soul in the same way as national liberation and self-determination, let alone point to the same political ends.  Human rights as a concept was left on the shelf for decades gathering dust.

Continue reading here.

Available from Oxford University Press

War Time: An Idea, Its History, Its Consequences, is now in stock at Oxford University Press.

Available Now on Kindle

The Kindle version of War Time is now available.  Hardback books will be out soon!

Tirman on Civilian Casualties in American Wars

"We rarely question that wars cause extensive damage, but our view of America’s wars has been blind to one specific aspect of destruction: the human toll of those who live in war zones," writes John Tirman, author of The Deaths of Others: The Fate of Civilians in America’s Wars, in the New York Times.

Gen. Tommy R. Franks famously said during the early days of the war in Afghanistan, “We don’t do body counts.” But someone should. What we learn from body counts tells us much about war and those who wage it....

If our leaders are unwilling to grasp the scale of death and social disruption, and the meaning of this chaos for the local population, then American war efforts are likely to end badly and relationships with allies will become strained, as has happened with President Hamid Karzai in Afghanistan....

Ignoring the extent of civilian casualties and the damage they cause is a moral failing as well as a strategic blunder. We need to adopt reliable ways to measure the destruction our wars cause — an “epistemology of war,” as another general, William Tecumseh Sherman, called it — to break through the collective amnesia that has gripped us.

Read the rest here.