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
How Presidential War Power is Made, or why rhetoric matters to war powers
Mary L. Dudziak
Over at Lawfare, Benjamin Wittes found my op-ed in yesterday’s New York Times, on Obama’s double-take on the nature of our current war era, to be “perplexing.” Let me say a few words that are unlikely to lead Wittes and me to agree on everything, but at least might help crystalize what the disagreement is about. I should also say that I tend to agree with one of the underlying ideas at Lawfare, as I understand their project, and that Mark Tushnet has also made: “liberals” and “conservatives” are often talking past each other on questions of national security, and there is a need to reshift the conversation, and get beyond partisan and left/right divides.
The most essential point is methodological (and if you’re looking for the direct points about my op-ed/Wittes’ post, skip ahead a couple of paragraphs). As legal scholars we tend to focus especially on law, of course. Law and society scholars, including legal historians like me, study law by going beyond it – by studying law in a broader historical and cultural context. Law exists as part of and in relation to society and culture, so that we can’t fully see law without understanding the way it is produced and understood – socially, politically, culturally.
Like other legal problems, law related to war and security is a law-and-society subject. Many very smart war powers and national security law specialists have been drilling down on the complex legal issues related to the post-9/11 context, an effort that Lawfare contributes to. But as with all legal issues, there is also a law-and-society component. Although war powers and national security scholarship often draws upon historical examples, the scholarship does not tend to incorporate current important work by historians and others related to war and security. So, in my view, the law-and-society aspect of legal war and security studies is underdeveloped. Alongside of the current focus on national security law in American law schools, we need, essentially, law-and-society law & security.
How does that relate to my op-ed? My piece is about Obama’s political rhetoric related to war, and I argue that he is trying to have it both ways. As a political matter, he has focused on the wars in Iraq and Afghanistan. His campaign promise was to bring these wars to an end. Early in his administration he would say “we’re in two wars.” But in 2010 he shifted, and gave a speech that said the nation is “at war with Al Qaeda.”
This shift in political rhetoric enables the president to argue that he is filling his campaign promise of ending the wars that he was talking about when he got elected, but at the same time the new formulation maintains (politically) the basis for his war-related powers.
Now for the law-and-society point: presidential war powers are determined not only by legal authorities and constraints, to the extent they exist, and by capacities inherent in the executive branch. As Scott Silliman put it in a national security law class at Duke last semester, the president “paints the scene.” Important work by historians helps to fill in the way presidents essentially narrate wars for the American public (my formulation, not Silliman’s), helping to generate both political sentiment and also, most simply, the conception that something happening faraway is a “war” that the security of Americans at home hinges upon. (This is not a post-9/11 problem, but was a critical Cold War issue, and also was important in earlier years.) Political scientist Adam Berinsky helps us to see that what Americans “know” about overseas conflict does not derive directly from the conflict itself, but is filtered in the same way as public opinion on other matters: it is affected by elite discourse and partisan politics.
This is a long way of saying that presidential rhetoric on war and security is tremendously important and consequential. I focused only on Obama’s flip: “Ending major conflicts in two countries helps him deliver on campaign promises. But his expansive definition of war leaves in place the executive power to detain without charges, and to exercise war powers in any region where Al Qaeda has a presence.” But the ultimate problem goes beyond what looks like a political bait-and-switch. By narrating war differently, Obama is “painting the scene” differently, in a way that will not determine the scope of his war-related powers down the road, including but not limited to detention. Though not determinative, a president’s framing of a war era is a first and essential component of the generation and maintenance of presidential war powers.
I take up Wittes directly, and the ways we’re talking past each other, below the fold.
Wittes makes this point (emphasis added):
With respect to the war against Al Qaeda and the Taliban, the United States still has troops deployed in Afghanistan who are actively fighting Al Qaeda, the Taliban, and associated forces on a daily basis. Whatever the point at which hostilities can reasonably be said to be over for purposes of conveying detention authority, we are nowhere near that point yet. And critically, I don't know anyone in the Obama administration who would argue that detention authority will persist after hostilities really are over-any more than we took our prisoners with us when we left Iraq. Indeed, if the negotiations with the Taliban that are now getting started were to produce a peace deal, it's hard for me to imagine that detention authority would persist vis a vis Taliban detainees.
It’s the starting point that matters: “with respect to the war against Al Qaeda and the Taliban.” The “war” against Al Qaeda is a different way of saying “war on terror,” though it is at least a more specific form of a “war on terror.” (Wittes includes the Taliban, but Obama’s framing is not so limited, or at least not consistently limited.) The reason for the parallel is that President Bush’s “war on terror” was a conceptualization that had no limits in space or time. The potentially unlimited nature of that sort of conflict, and the way it might justify detention without end, has troubled the Supreme Court. In Hamdi, Justice O’Connor noted that Hamdi was arguing that he potentially faced “the substantial prospect of perpetual detention.” But she reasoned that the Court did not have to face the prospect of endless detention, because, in essence, the war in Afghanistan looked like an old fashioned war, limited in space and time. There were “active combat operations” against the Taliban in Afghanistan, so it was appropriate to detain Hamdi “for the duration of these hostilities.” The “war against Al Qaeda” – Obama’s formulation as of 2010 – is not limited in space and time the way a war in Afghanistan – Obama’s earlier formulation – could be.
There is more to say about all of this, some of it covered in my new book, but Wittes states: "Dudziak's implicit argument seems to me altogether perverse. She seems to be saying that in a conflict in which literally tens of thousands are actively fighting today, detention authority must ebb because the government hopes aspires to wind things down. That can't be right."
At this point, we are talking past each other, a consequence that, as I understand it, is one of Lawfare’s goals to avoid. Wittes is arguing that there is legal authority for detention. I’m not affirming or disputing the question of the legal limits of detention power. I’m talking about something else: presidential war rhetoric, a matter of great importance to presidential war power. My call is simply for transparency if not consistency. And so Wittes misses the op-ed’s point about Obama’s political rhetoric, and then draws a mistaken implication from that misreading.
If he might complain that I could have been clearer, of course the response in part is: it was in a newspaper, with a word limit. But if he believes that I helped produce the misreading, let me just say mea culpa. And now let’s get back to trying to understand war and security in a deeper way, across ideological lines, and – one of my arguments generally – in a more nuanced and interdisciplinary way.