Panel on Law and Ideology in the National Security State

At the American Society for Legal History meeting this weekend in Washington, DC, I am chairing a panel on Law and Ideology in the National Security State, which promises to be very interesting. The panel is below, and conference info is here.The panel is Friday, October 30, 10:45 am to 12:15 pm.

Chair: Mary Dudziak, Emory University Law School

Commentator: Christopher Capozzola, Massachusetts Institute of Technology

Panelists:

Aziz Rana, Law, Cornell Law School,
“The Philippines, World War I, and the New Creedal Constitution”

Anne M. Kornhauser, City College of New York, CUNY,
“German Émigré Intellectuals and the Struggle Over the Emerging National Security State”

Jeremy K. Kessler, Columbia Law School
“The Myth of the Strong American State: On the Cold War Draft and the Paradox of Anti- Communist Governance”

Jeannette Rankin and the 1940 Election as a War Referendum

I am exploring the history of efforts to amend the constitution to include a requirement for a popular vote before entering a foreign war in one of my chapters in my current book project. One of the arguments I'll make -- previewed this Tuesday at Stanford, where I'm giving the David M. Kennedy Lecture on the United States and the World -- is that sometimes elections have served as war referenda. Here's a snippet, featuring Congressmember Jeannette Rankin of Montana.

The most important moments of democratic engagement over the war powers [for WWI and II] were the elections preceding the war declarations. The elections of 1916 and 1940 were, in essence, referenda on war. Since 1914, there had been efforts to amend the constitution to enable some sort of popular participation in decisions to go to war. But an important moment for the public to register their sentiment was already there: the power to elect not only the Commander in Chief, but also the members of Congress who would vote for or against war.

Nothing more strongly illustrates this point than the success of a Republican candidate in the 1940 election. Wendell Wilkie, the Republican presidential candidate, was defeated by Franklin D. Roosevelt, of course. But the State of Montana would send back to the House a candidate who had first captured the nation’s attention when, in April of 1917, she cast the first vote ever by a woman in Congress, a vote against the declaration of war with Germany.

Jeannette Rankin had been a suffrage organizer before she ran for political office for the first time in 1916. Her platform included preparedness for coastal defenses, as a way to avoid war. It was her widely publicized vote against war that shaped the course of her political life in later years. Unable to hold her seat in 1918, Rankin would be out of office -- until 1940.

In the interim, she worked for pacifist organizations and lobbied for constitutional reform of the war powers, believing that the people’s voice must be heard through a referendum before the nation went to war. In 1940, she challenged a weak incumbent, running an anti-war campaign. “By voting for me,” she said in a campaign speech, “you can express your opposition to sending your son to foreign lands to fight in a foreign war.”[i] The people of her district could vote against war by voting for Jeannette Rankin.

Elected by a comfortable margin, she predicted that, unlike the flurry of attention she received in 1917, “no one will pay attention to me this time,” since it was no longer unusual for a woman to serve in Congress.[ii]

Once in office, Rankin offered an amendment to the Lend-Lease bill to require specific congressional approval for the president to send American troops abroad. Twice in the spring of 1941, she introduced a resolution condemning any effort “to send the armed forces of the United States to fight in any place outside the Western Hemisphere or insular possessions of the United States.” These efforts were unsuccessful.[iii]

In December 1941, Congressmember Rankin heard the news about Pearl Harbor on the radio. She
was anguished as she made her way to the Capital on December 8. She listened along with her colleagues as Roosevelt spoke of “a day that will live in infamy,” and called for a declaration of war. The House and Senate then quickly took up the resolution that “the state of war between the United States and the Imperial Government of Japan which has been thrust upon the United States is hereby formally declared.”[iv] In the Senate, there was no debate, and a swift and unanimous vote.

In the House, a radio station, continuing to broadcast after the president’s speech, in violation of House rules, captured the scene. Because of Rankin’s role as a war dissenter, “all eyes were on her as majority leader John McCormack moved the question.” She “rose to object, but was quickly cut off.” Congressman Martin of Massachusetts held the floor, “yielding to isolationists ready to recant their isolationism.” Rankin again tried to speak, but Speaker Sam Rayburn ignored her. Spectators in the gallery called out for her to sit down. When word came through that the Senate had already voted, House members insisted on moving forward. “They’re calling to shut down any further debate,” the radio announcer said. “A most unusual procedure.”

Standing, her hand raised, Rankin tried once more, and attempted to raise a point of order. Rayburn slammed down the gavel and said, “The roll call cannot be interrupted.” The other 388 members of the House present that day voted yes. Rankin's no vote was met with a chorus of hisses and boos.[v]

Harsh words about “Japanese devils”[vi] could be heard that day, as could Representative Byron’s claim that she would be willing to sacrifice her sons for the war effort.[vii] The House violated its own rules in their effort to silence the one voice in their chamber wishing to question the rush to war.

It is easy for us to question Jeannette Rankin’s judgment, but she was fulfilling her campaign promise, she would later say, the pledge she had made to the mothers and fathers of Montana to keep their sons out of war. The vote came so quickly, as compared with World War I – at 1:10 pm Eastern time, less than 24 hours after the attack on Pearl Harbor. She thought that for something as momentous as war, they should wait until the facts were all in.[viii] There would be later occasions when Americans would wish that their members of Congress had taken the time to investigate. But on December 8, Rankin was widely vilified.

An avalanche of opprobrium fell down upon her immediately. She had to escape to a telephone

booth, and a police officer helped her get safely back to her office. Beneath a mountain hate mail, some, like Roger Baldwin, wrote to say that they admired her courage, and as the nation geared up for war, the writer Lillian Smith said: “that one little vote of yours stands out like a bright star in a dark night.”[ix]

I have more to say about how this fits into the politics of war, but this post is long enough! The short version is that the effort to silence Rankin shows that the events of Dec. 8 were better at mobilizing the country, and potentially at protecting seats in Congress for the former "isolationists", than as an example of interbranch deliberation and decision. The times of robust war politics were during the 1940 election campaign, and during the push and pull over neutrality legislation in the late 30s through 1941.

[i] Norma Smith, JR, 175-76. [Please excuse incomplete citations -- I thought they would be helpful nevertheless.]
[ii] Smith, JR, 177.
[iii] http://history.house.gov/People/Listing/R/RANKIN,-Jeannette-%28R000055%29/
[iv] Cong Rec 9520.
[v] http://history.house.gov/People/Listing/R/RANKIN,-Jeannette-%28R000055%29/
[vi] Walter Cronkite, NPR.
[vii] Cong Rec 9521.
[viii] Ted Carlton Harris, “Jeannette Rankin: Suffragist, First Woman Elected to Congress” (Ph.D. diss., University of Georgia, 1972), 295-96.
[ix] Lillian Smith to JR, December 13, 1941, quoted in Ted Carlton Harris, “Jeannette Rankin: Suffragist, First Woman Elected to Congress” (Ph.D. diss., University of Georgia, 1972), 297.

Cross posted from Balkinization.

“You didn’t see him lying so grotesque and pasty beside the gravel road in France”

The line in my title appeared in a note found in the pocket of journalist Ernie Pyle when he was killed by a sniper in Okinawa on April 18, 1945.  There was more that Americans would not see, including Pyle’s own body, neatly arranged and straightened, with folded hands. A photo quickly taken of Pyle was censored out of concern that it would hamper morale, since Pyle’s work was so closely followed and and he was so popular.

A post about Pyle, with the arresting quote, by Mark Stout was on War on the Rocks this morning, as I was on my way to Rutgers to discuss, in part, the censorship of war photographs this Tuesday. Censorship of even this peaceful image of a dead journalist is one part of the broader story about the distance of most Americans from the cost and consequences of war, even when it comes to still images, and even in the context of the massive mobilization of World War II.

Americans did not see the crumpled body in France, and did not see Pyle’s own body, because of a government policy to, in essence, curate the photographic record of the war to calibrate the emotional response of Americans to war. Initially bad news was suppressed, but by 1943, out of concern that Americans needed to rededicate themselves to the war effort, photo censorship was eased so that images of dead American soldiers could now be shown. But they were bloodless bodies, like this famous photograph, the first photo of dead WWII U.S. soldiers to appear in Life magazine. It was not until May 1945 that, as George Roeder put it, blood was spilled on the pages of Life for the first time, in this image.

I’ve argued in the past that the most important presidential war power is the power to narrate a context as a war, thereby enabling the popular mobilization for war that supports presidential war power. Censorship, or the curating of a pictoral record of war, increasing or decreasing the violence in the images, was used to maintain that mobilization. Censorship is a feature of all wars. In a distant war, without access to the site of battle or the dead themselves, the very sights (and sounds) of World War II were produced by the government for the homefront through both propaganda and censorship. In this way, power over culture helped maintain support for presidential power, not only for overseas deployments, but for the ongoing management of most

More of Ernie Pyle’s note is in Stout's post, here.

Cross-posted from Balkinization.

Edward S. Corwin and the "Totality" of America's World War II

What makes a war “total”? And how is war’s totality experienced? Edward S. Corwin, in the opening of his influential 1947 book Total War and the Constitution, turns to Deuteronomy:

Of the cities of these people, which the Lord thy God doth give thee for an inheritance, thou shalt save alive nothing that breatheth: But thou shalt utterly destroy them…as the Lord thy God hath commanded thee.

The biblical reference enables Corwin to say that total war “is at least as old as recorded history.” He also finds in Deuteronomy a motive for total war. The Bible justified ruthlessness, “For…the Lord thy God hath chosen thee to be a special people unto himself, above all people that are upon the face of the earth.”

Total war, in this sense, went beyond domination, to elimination. Wars have been thought of as “total” when lacking genocidal objectives, however, at least for some participants. Ubiquity of violence is often a central aspect of war’s totality. The Oxford English Dictionary defines it as unrestricted war, especially “war in which civilians are perceived as combatants and therefore as legitimate targets.”

Totality takes a turn when applied to the United States. For Corwin, the totality that was relevant to American law was “functional totality,” which he defined as “the politically ordered participation in the war effort of all personal and social forces, the scientific, the mechanical, the commercial, the economic, the moral, the literary and artistic, and the psychological.” Total war was when “every human element” of a society was involved in the conflict. He draws examples from nations under siege. During the War of 1793 in France, the Committee of Public Safety ordered that “young men will go into battle; married men will forge arms and transport food; the women will make tents, garments, and help in the hospitals.” Even children and the elderly had orders.

In the examples Corwin draws upon, including the 1935 invasion of Ethiopia, a core experience of war’s totality was collective vulnerability to violence. Corwin doesn’t explain how totality could apply to a society distant from the fighting, like the United States in World War II (with the exception of Hawai’i). Instead, he assumes its application, as he turns to the consequences of total war for government power and individual rights.

Another logic is needed to explain an American totality in World War II: a focus on the totality of power, as compared with total vulnerability to violence. Corwin’s application of total war to the American experience suggests that totality is experienced by a collective, society as a whole, with every element in society touched in some way by war. The body that feels war’s totality is the collective, and each human body within that collective might feel only some aspect of war. Many World War II Americans felt the war’s violence directly; others felt it through their connections with loved ones deployed. For others, the impact was felt through income taxes and shortages at the grocery store. The extension of war’s impact beyond its core violence is what makes American war “total,” although this experience of war's totality cannot compare with the lived experience of World War II in Europe, Asia and North Africa.

In his analysis of individual rights in this generative work, Corwin suggests that “the requirements of total war” are incompatible with fundamental American constitutional principles. But perhaps there is something more important in Corwin that we might look for elsewhere in the history of American thought. Perhaps Corwin provides a window on the way American war could be seen as present, personal, and “total,” even though the shooting, killing and dying were thousands of miles away.

I am thinking this through for an upcoming plenary at a Duke conference on violence, and for a lecture as part of a Rutgers symposium on totality, so comments and suggestions are most welcome.

 Cross-posted from Balkinization.

Civil Rights History, Foreign Affairs, and Contemporary Public Diplomacy

It seems like a good time to reflect on the policy implications of scholarship on the relationship between civil rights and U.S. foreign relations. President Obama has recently emphasized that protecting human rights matters to the fight against terrorism. And the Council on Foreign Relations in DC will soon hold an event on the International Implications of the Civil Rights Movement. The event is not open, and discussion may go in a different direction, but below are a few points I hope to have a chance to get across.

The history of the intersection of civil rights and Cold War era U.S. foreign relations is copiously documented here and here. It took a while for American diplomats and political leaders to grasp the extent of the problem and how to address it. Here’s how they got it wrong, and then right – at least for U.S. public diplomacy:

In the late 1940s, as the U.S. hoped to encourage a newly independent India to ally with the United States, but encountered persistent criticism of U.S. racial segregation and discrimination, American diplomats in India initially made things worse. They dismissed the problem and analogized American racism to the Indian caste system, suggesting that all nations have racial problems. If not exacerbating the U.S. image problem, this at least delayed addressing a critical issue during an important moment in US/Indian diplomacy.

Because the United States argued that American democracy was a model for the world (in the context of a Cold War battle for hearts and minds with the Soviets), the U.S. encountered global criticism for not living up to its own ideals. The more the U.S. emphasized the values of democracy – at the same time that there was global news coverage of American civil rights abuses – the more the U.S. was criticized as hypocritical, and the benefits American democracy were questioned. It took a very long time for American leaders to understand that they couldn’t talk about rights for other nations without protecting rights at home.

Important steps forward – Brown v. Board of Education, sending in the troops in Little Rock, and the Civil Rights Act of 1964 – along with careful management of the global story in U.S. public diplomacy, helped turn this around. By 1964, American diplomats could report that peoples in other nations had come to believe that the American government was on the side of civil rights, rather than being part of the problem. The unfortunate part of the story is that formal legal change, effectively marketed, could accomplish this. Continuing inequality, if below the radar of global news coverage, did not hold the world’s attention.

One obvious takeaway from this history is that a call for global human rights cannot be effective, and could be counter-productive, without meaningful progress toward human rights at home. There has been global coverage of the protests in Ferguson, Missouri, reminiscent of the international interest in American civil rights in the 1950s and 60s. And there has been a devastating hearts and minds problem stemming from abuses at Abu Ghraib, revelations of U.S. torture, and the continuing scar of Guantanamo. If President Obama believes that promoting human rights is important to the fight against terrorism, this history shows that there is only one effective way to begin: by starting at home.

Cross-posted from Balkinization.

Distant War and the Politics of Catastrophe

My earlier musing on this blog are finally turning into a book that puts war death into the history of the war powers. More particularly, I am taking as my point of departure Drew Gilpin Faust, This Republic of Suffering: Death and the American Civil War. During the Civil War, an intimacy with death and dying, and a close experience of war’s brutal after effects, would transform the United States, Faust argues, creating “a veritable ‘republic of suffering’ in the words [of] Frederick Law Olmsted.” If the experience of war death was somehow constitutive of the republic itself during the Civil War, I have been puzzling over how American identity and politics might be affected or even constituted by its comparative absence.

Initially, I thought that all the important action in the story happens after World War II, and especially after Vietnam, when three developments isolate most Americans from the direct experience of war: the absence of a draft, the rise in military contracting, and changes in war technologies. But I’ve come to understand that the entire 20th century requires rethinking as a century of distant war.

There was deep and broad-based engagement of Americans in the two world wars, but geographic distance mattered to the politics of war declaration and authorization. In essence, distant war required a politics of catastrophe, in which presidents made decisions, and then waited for a disaster of sufficient proportions to generate political support to get strong backing from Congress for what had already been decided. Catastrophe didn’t generate a decision for armed conflict, but instead facilitated political mobilization.

This easily fits the Spanish American War, with a war declaration coming on the heels of public uproar over the sinking of the battleship Maine in Havana harbor, mistakenly attributed to the Spanish. And the World War II chapter of my War Time book illustrates the way this fits WWII (though I don’t develop this argument in that book). What was surprising to me was how well it fits World War I.

The important story comes before Woodrow Wilson sought a formal war declaration, in his failed effort to get an “armed neutrality” bill through Congress (which failed not due to the policy but due to Wilson’s political missteps). The bill would have enabled Wilson to arm merchant ships that would, in certain areas, fire upon German U-boats without warning, and would have certainly launched the U.S. into the war. Amid continuing reports of sunken ships and American deaths, Wilson had announced that an “overt act” by Germany would move the United States closer to war. Wilson, his close advisers, and the press then contemplated whether particular sinkings were the “overt act” he had in mind. Ultimately the “overt act” was the sinking of the Laconia, with only three American deaths. Wilson used the incident to build political momentum. Biographer Arthur Link wrote that  “Wilson’s decision to capitalize on the incident was apparently part of his strategy for focusing public pressure on Congress.” Others were puzzled, since many more were killed in previous incidents that had not been the magic “overt act.” This illustrates an important role of catastrophe in war politics. The terrible event doesn’t always lead to a new policy. Instead, a catastrophe is needed for political reasons: to generate support for a decision already made. And catastrophe itself is defined by politics, not by the event itself. Public opinion scholar David Berinsky has written that “the facts of war do not speak for themselves.” Neither do the facts of catastrophe.

I am continuing to work this out. In the meantime, if you are in the SF Bay Area and want to see how it all turns out, my David M. Kennedy Lecture on the United States and the World, May 12 at Stanford, will be on The Politics of Distant War: 1917, 1941, 1964. You can RSVP here. I'll give a similar lecture at the University of Washington on May 21.

Cross-posted from Balkinization.

Eric Holder in American History

Attorney General Eric Holder's statement on Friday that the administration would likely file an Amicus Brief in the same-sex marriage cases is an example of why I told New York Magazine that Holder is a member of the cabinet likely to be regarded by historians as consequential 20 years from now. Holder said that the government "will urge the Supreme Court to make marriage equality a reality for all Americans.  It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans—no matter who they are, where they come from, or whom they love." When historians look back, the rapid progress on marriage equality will be a striking feature of the early 21st century, and Holder's actions will not be forgotten.

Development of the secret law of surveillance and targeted killing, and the prosecution of whistle-blowers, will not be forgotten either. In LGBTQ rights and security matters, it will be the enduring impact of legal change that will make Holder stand out as more consequential in the future than he may have seemed to be during the administration itself.

Among the 53 historians included in the piece on how historians will look back on the Obama Administration, Joyce Appleby and Charles Kesler agreed with me. Annette Gordon-Reed included Valerie Jarrett alongside Holder in importance. Crystal Feimster, Matthew Lassiter, and Robert Williams listed both Holder and Hillary Clinton. Many others pointed to Jarrett, Clinton or John Kerry. Others noted were: Timothy Geitner, John Brennan, Kathy Ruemmler, Nancy Pelosi, Susan Rice, Elizabeth Warren and Larry Summers. Lots of people included in the article skipped this question.

Cross-posted from Balkinization.