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.

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.