an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
On December 7, the nation will remember the 1941 Japanese attack on Pearl Harbor as the beginning of World War II. What happened in the U.S. territory of Hawaii that day was not the beginning of American involvement in World War II, however. And Japan, on her own, did not bomb Pearl Harbor into American memory. Instead, President Franklin D. Roosevelt, in his dramatic address the next day, honed the nation’s attention on the Hawaii attack, and away from simultaneous Japanese military strikes throughout the Pacific. Pearl Harbor would come to be remembered as a decontextualized attack on America, as the nation was thrown, by the acts of another, quickly into the war.
Remembering Pearl Harbor as the beginning of World War II, and seeing the war as captured between the bookends of December 7 and the Japanese surrender, reinforces a set of ideas about “wartime,” (critiqued here) in which “real” wars are exceptional and confined in time. World War II is often regarded as the last time in U.S. history that war powers were properly contained within a formally declared war, but instead the war illustrates an enduring dynamic: the use of war-related powers beyond the terms of a declared war.
In light of the way Pearl Harbor is remembered, it is jarring to read an entry in U.S. Secretary of War Henry Stimson’s diary about December 7, 1941: “When the news first came that Japan had attacked us, my first feeling was of relief that the indecision was over and that a crisis had come in a way which would unite all our people.” (Post continues...) As relations with Japan deteriorated in the fall of 1941, Roosevelt hoped that Japan would fire the first shot. There was both danger and benefit in this strategy. Stimson later recalled, “in order to have the full support of the American people it was desirable to make sure that the Japanese be the ones to do this so that there should remain no doubt in anyone’s mind as to who were the aggressors.” Yet as the military prepared for imminent war, “they were surrounded, outside of their offices and almost throughout the country, by a spirit of isolationism and disbelief in danger which now seems incredible.”
Speaking before a joint session of Congress, Roosevelt called December 7 “a date which will live in infamy,” and he asked Congress for a declaration of war with Japan. Roosevelt helped center American memory on Pearl Harbor. His draft remarks initially highlighted the attacks on Hawaii and the Philippines, but Roosevelt removed all but one mention of the Philippines from his address. Emily Rosenberg argues that emphasizing Hawaii reflected “Roosevelt’s fear that the damage might not be perceived as hitting close enough to home to crush isolationist sentiment.”
In the aftermath, the nation’s long entry into World War II was quickly eclipsed by the shock of Pearl Harbor. Stimson testified at a Pearl Harbor inquiry: “From some of the comments quoted in the public press, one would get the impression that the imminent threat of war in October and November 1941 was a deep secret, known only to the authorities in Washington who kept it mysteriously to themselves.” The president did not keep knowledge of World War II’s longer beginning from the American people, but he did hope to avoid scrutiny of the fact that, long before war was declared, he was fighting what Edward Corwin called “the war before the war,” acting as Commander in Chief, amassing an Army, deploying weaponry, supplying American allies. And reinforcing the idea of the war’s beginning at Pearl Harbor enabled a narrative of infamy, Rosenberg argues, “establishing American military action as reactive and defensive.” James Reston reported at the time: “By not the slightest indication did [President Roosevelt] suggest that the facts of the world situation had finally justified his policy, as even his opponents were admitting...he might very well have done.” What was shocking at the time of Pearl Harbor was Japan’s unanticipated military effectiveness, and the level of American vulnerability. It was not a shock that America was at war.
There were important consequences, of course, of this final step in a longer path toward war. Within two weeks of Pearl Harbor, Congress passed a war powers act “authorizing the President to reorganize the federal government virtually as he saw fit,” as constitutional historian Paul Murphy put it. Other measures followed, and FDR made clear that if Congress would not support his war initiatives, he would forge ahead without them. And Pearl Harbor surely enabled the most vast incursion on civil liberties of the war years. On February 19, 1942, the President ordered the removal from the West Coast and internment in camps of Japanese American citizens and Japanese immigrants, providing them with no means of demonstrating that their imprisonment served no military purpose.
Even though December 7 and the declaration of war were catalytic events, a war that had consumed Europe and Asia since the late 1930s had deeply engaged the United States as well. And the national security environment fueled by international affairs did not wait for war to be declared before spilling over to affect American liberties, as in 1940 Congress passed the Smith Act, the president sought broader surveillance powers, and the Court upheld a compulsory flag salute law, stating that “national unity is the basis for national security.” These actions were part of a domestic “security drama of the years from 1938 to 1947,” Murphy argues, which was in part a stand-off between Congress and the White House, as security was politicized.
If World War II is the classic, old-fashioned American war, placing Pearl Harbor in its context – as an event in a longer story of America’s entry into World War II – helps us to see that even during the most iconic 20th century American war, war powers could not be contained within a declared “wartime.” As we face the contemporary problem of maintaining democratic checks on war powers when war has no boundaries, we should not look back with nostalgia to a time when things seemed clearer. Instead we find an example of our current troubles in the fuzzy borders of World War II.
I was only 11 years old on that Sunday listening to a radio comedy program (Jack Benny?). So what did I know about this:
"Stimson testified at a Pearl Harbor inquiry: 'From some of the comments quoted in the public press, one would get the impression that the imminent threat of war in October and November 1941 was a deep secret, known only to the authorities in Washington who kept it mysteriously to themselves.' The president did not keep knowledge of World War II’s longer beginning from the American people, but he did hope to avoid scrutiny of the fact that, long before war was declared, he was fighting what Edward Corwin called 'the war before the war,' acting as Commander in Chief, amassing an Army, deploying weaponry, supplying American allies."
But what did America's "Greatest Generation" know and when did it know it? I don't think it was just an 11 year old who did not know. I was aware that my family was doing better financially, attributable to my mother's job in the garment industry, making clothing for the armed services. There was no WikiLeaks around at the time. Had there been, I don't know how that might have affected the populace as we were coming out of the Great Depression.
Switch ahead to the Great Recession of 2008 and the recent WikiLeaks dumps. Is a war necessary to pull America - and much of the rest of the world - into a recovery? Hopefully not. As for nostalgia, I can still hear the words "Let's remember Pearl Harbor as we did the Alamo ... " sung to a lilting, patriotic melody. At age 11, I knew about the Alamo in Hollywood history terms; but it was years later that I learned what the Alamo was really about. History has a way of correcting perceptions for which we may be nostalgic. Hopefully history will provide lessons for the current troubles alluded to by Mary.
Shag -- thanks for your comment. I just wanted to add that you would really enjoy reading Emily Rosenberg's book "A Day that Will Live: Pearl Harbor in American Memory" linked to in my post. She has a section on comparisons between Pearl Harbor and the Alamo.
Regarding when the "Greatest Generation" knew that war was afoot -- some of them knew when they got drafted in the fall of 1940.
Mary, I was at my library yesterday and picked up Emily Rosenberg's book. The index revealed the Alamo comparisons, which included a stanza from the song I had recalled in my earlier comment.
Nostalgia may be tempered by humor. I recall a skit in the early days of TV with Red Skelton in the role of a doofus soda jerk who said he lost his job because he forgot the Alamo. A customer had ordered apple pie and Red forgot the "Alamo" [a la mode to hard of hearing gourmets]. Perhaps only Red Skelton could have drawn laughs with the Alamo.
Sometime in the 1970s, long before Tom Brokaw popularized the "Greatest Generation," a Las Vegas comedian (Shecky Greene? Don Rickles?) had a nasty joke about a fellow who was half Jewish and half Japanese and what he would do every December 7th. The punch line was nasty and funny but this is a family blog so I shall omit it.
A lot of wars have taken place in my lifetime which began in 1930. We have wars today - with several potentials on the horizon - all this during the American Century (which some say is fading like all empires eventually do).
I recall a Seinfeld episode where Jerry told Elaine (who worked for a book publisher) that the original title proposed for Tolstoy's "War and Peace" was "War, What is it Good For?" which Elaine mentioned to a Russian author her firm represented who of course became upset, especially when Elaine answered with the words from a song: "Absolutely Nothing."
I served in the Army as a draftee after law school. I describe myself as a "Post-Korea, Pre-Vietnam Veteran." Peace time military service can be boring with its inefficiencies, although we got a tad nervous with potential problems along the Nile in the mid-1950s. Ike knew well what war was like. Perhaps Elaine had the right answer.
Brokaw created a patriotic profit center with the "Greatest Generation." Call this neo-nostalgia. Perhaps in years to come other neo-nostalgians will address Korea, Vietnam, Grenada [?], Gulf I, Afghanistan, Iraq, in similar fashion. For Korea, we had the benefit of "M*A*S*H" with its humor to overcome the tragedy. Personally, I think the humor portion survives. Now if only our C-I-Cs had senses of humor, perhaps they might not get in a snit with WikiLeaks.
Mary, I plan to read Ms. Rosenberg's book and revisit my years of innocence. Thanks for bringing it to my attention. For now, let's see if I can download "War, What is it Good For?".
Dammit! Back to reality of war with Tom Englehardt's 12/7/10 TomDispatch.com sobering essay "One November's Dead - The American War Dead Disappear into the Darkness." The number of American military who died in WW II, the "good war", was enormous compared to Vietnam, the "bad war." With the Afghan war in its 10th year, American military dead is much lower than in Vietnam. WW II involved shared sacrifices by many in America, Vietnam less so, and Afghanistan even less. Is there a correlation? Can there be another "Hundred Years" war so long as the number of American dead is low although the financial costs may be high? Where is the shared sacrifice, e.g., with the extension of the Bush tax cuts? We still "Remember Pearl Harbor" after 69 years. We haven't forgotten what happened on 9/11/01 but we don't remember that tragedy in similar fashion today. Both the Iraq and Afghan wars are low on the list of Americans' concerns. Neocons (aka Republicans) who pushed America into these wars seem more concerned with the sacrifices of the top 2% of earners if their portion of the Bush tax cuts were not extended. Perhaps this is what voters should remember as 2012 approaches.
So back to the question: "War, What is it Good For?"