E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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
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Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
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Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
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Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I’m
happy I had the chance to make a post about war powers before the ACA din
descends.My comments here are taken
from a short review of fellow Balkinization blogger Mary Dudziak’s book War Time that I just posted to
SSRN.Her book is well worth reading and
is expressive of a widespread unease with the way America went to war after
9/11.
The
most helpful feature of the book is that it both encourages and enables us to
place the Cold War and the “war on terror” in meaningful contact.In focusing on the Cold War, Dudziak makes
the important point that the metaphor of “war” can be so mesmerizing that it can
cause analysis to go astray.The Cold
War is more fruitfully understood as a period of state-building.Setting to one side major wars such as Korea
and Vietnam, the key developments revolved around the creation and maintenance
of the national security state.This is quite
helpful in directing our attention to issues of state resources and the
relative capacity of state officials, particularly those in the executive
branch, to make effective policy decisions.The Cold War constitutional order appeared to underwrite granting the
president the authority to order the nation to war.President Truman’s 1950 decision to intervene
in Korea without asking for congressional authorization is well known.In an especially insightful discussion, Dudziak
correctly emphasizes the enormous authority that flowed, seemingly automatically,
to President Bush as commander in chief after 9/11.
Dudziak
seemingly wants to see not only the Cold War and post-9/11 as “wartimes,” but
nearly the entire twentieth century.To
be sure, Dudziak is on solid ground when, like many historians, she emphasizes
the neglected importance of the many “small wars” in which the U.S. was
involved in the twentieth century, particularly in Latin America.But Dudziak determinedly ignores the issue of
the relative significance of
America’s various and very different twentieth century military conflicts to
our post-9/11 reality.One plausible way
to distinguish among America’s wars, for example, is to take into consideration
the importance of the foreign policy objectives pursued, the costs incurred,
both quantitative and qualitative, and, of course, casualties.Dudziak stays well away from these
markers.
Under
the rubric of exploring the meaning of wartime, Dudziak runs together a number
of different issues.At one and the same
time, she advances a critique of the militarization of foreign policy, the
concept of a broad “war on terror,” and raises matters that are more properly
considered in terms of what Julian Zelizer has reminded us are the politics of
national security.Meanwhile, amid the
concerns of Dudziak and many others about the novel issues posed by the
Guantanamo detainees and constitutionally questionable surveillance by the NSA,
the United States fought two wars using thousands of ground troops in
Afghanistan and Iraq.My specific
concern is that we might be led to overlook their significance if we bought
Dudziak’s idea that throughout the post-1945 period (throughout the entire
twentieth century!) we were “at war” in the same sense we were at war in Korea,
Vietnam, the 1991 Gulf War, Afghanistan and Iraq.Dudziak usefully alerts us to the question of
timing (when, exactly, did the Vietnam War begin?) and the often disingenuous
character of presidential claims that we were in a World War II-style wartime
in the absence of sufficient democratic deliberation.But Dudziak bypasses any attempt to sort
through the relevant differences and assess the relative historical
significance of the varied military conflicts the U.S. has fought.
In
particular, the equivocal nature of the Cold War and the post-9/11 “war on
terror,” did not diminish the political, policy, constitutional, social and
cultural realities that rapidly accrue when the United States puts tens or
hundreds of thousands of “boots on the ground” in foreign locales.As the war in Afghanistan wore on and the war
in Iraq finally came to a conclusion in 2011, the American public was quite
credibly said to be “war-weary.”But how
could citizens be war-weary in the age of the all-volunteer military, when
President Bush did not ask citizens to pay for the war with increased taxes and
did not invoke a shared sense of national sacrifice?In a democracy, wars on the scale of Iraq and
Afghanistan evidently cannot be fought without public involvement, without the
summoning of the morale necessary to underwrite their painful
consequences.The public clearly stood
behind the military after 9/11 and there was a sense of a common purpose in
opposing the threat of terrorism by al Qaeda.Yet there is nothing in American history to suggest that such a shared burden
can be sustained indefinitely.We may
nod our heads in approval, thinking this an obvious point, but it undermines
the coherence of Dudziak’s project.These realities point toward a reasonable end for wartime, not an
endless slog.
We are
still floundering in many respects in trying to understand the ongoing war
against al Qaeda authorized by Congress after 9/11.Despite Congress’s arguable clarity in the
September 2001 AUMF, one undisputable fact that will be studied by future
historians is that many observers, both international and domestic, never
accepted the resulting conflict as “war” and thus wartime.I certainly agree with Dudziak that we don’t
want the presidential framing of “wartime” to determine our responses.Deciding that the conflict with al Qaeda was
a war, however unconventional, was indeed a choice, one made and shared by many
Americans.What I would like Dudziak and
others to see more clearly is that this particular war was attended by
democratic politics, however flawed, rather than being imposed by an executive
branch offering the assurance of a temporary wartime.