Saturday, February 9, 2013

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.

Wednesday, February 6, 2013

The Erosion of War and Peace in International Law

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.

Tuesday, February 5, 2013

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.

Monday, February 4, 2013

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.

Saturday, February 2, 2013

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.