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.
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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.
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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.
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