Balkinization: Now on SSRN: Law, War, and the History of Time

Comments:

Professor Dudziak:

Thank you for the very interesting paper.

I would make a couple preliminary observations:

1) Generally, there should not be a temporal problem with the powers of the Executive or the rights enjoyed by the citizenry because neither should change during wartime. Nothing in the text of the Constitution states or even implies that either Executive powers or citizen's rights are conditioned in any way on a de jure or de facto state of war. To the extent that they have granted the Executive greater powers during wartime, the courts are arguably in error.

2) The problem with temporal limits appears to arise primarily in the context of the duration of detention for prisoners of war (generic) in our current "war on terror." (WOT) (I do not like this term, but it is convenient).

The remedial purpose of detaining prisoners of war for the duration of a conflict is to prevent them from returning to fight or to support the fight of the enemy. The duration of the detention lasts until the enemy ceases warring against the United States.

Contrary to the musings of the Boumediene majority, there is no arbitrary time limit to POW detention. The enemy determines the duration of the detention of POWs by its decision to continue a war against the United States or its allies.

However, the nature of our current WOT makes application of the traditional POW model difficult.

The enemy is a decentralized Islamic fascist movement waging war through multiple, clandestine non-state militaries who refuse to self identify as required under the Geneva Conventions and often change their identities to further conceal themselves.

If the authority for detention of an enemy POW ends when an enemy ceases warring against the United States, the problem here is to identify the proper enemy.

Does the conflict end when the particular non-state military to which the POW belonged is defeated? How will we know this? Terrorist groups go underground for periods of time and frequently commit terrorist attacks under different names or do not take credit for them at all. Even if we could correctly determine that a particular enemy military like al Qaeda in Iraq has been defeated, what is to prevent the released POW from joining another terrorist group fighting for the same Islamic fascist cause?

Does the conflict end when the entire Islamic fascist movement is militarily defeated? The problem here is that the Islamic fascist movement is likely to war against the US and its allies for a generation or more before it is exhausted and gives up. This approach means the military has the authority to detain members of that enemy movement for the duration of their lives or until the military has a reasonable basis to believe that a particular enemy POW is no longer likely to return to the war.

Given that something over 1 in 10 POWs released from Gitmo have returned to terrorism in general and often to high command positions in al Qaeda of the Taliban, I would urge that the latter approach better meets the remedial purposes of POW detention.

Until the Islamic fascist movement stops warring against the United States, enemy leadership or support personnel should be detained indefinitely. Because actual combat is a young man's game, enemy foot soldiers or what they call "the muscle" can be safely released when they reach their 40s or 50s.

This rule of thumb only applies to the duration of remedial POW detention. If war crimes trials impose sentences of imprisonment of greater length or execution, then those will take priority. However, POW detention should not be reduced simply because a war crime trial acquits or imposes a lesser sentence on the POW. One can be found not guilty of a particular war crime and still be a member of the enemy.

Is this approach somehow unfair? I do not see how. The enemy has it within its power to end the detentions by ceasing its war. When an enemy decides to join or support a terrorist movement whose goal is mass murder, he assumes the risk of death or indefinite detention by the people he is attempting to murder.

# posted by

Bart DePalma : 4:30 PM

WWII in some ways can be compared to the end of the Civil War. When did that end? When Lee surrendered to Grant? When the last Confederate army surrendered? When President Johnson declared it at an end? When functional state governments returned? 1877?

[Meanwhile, has the Korean "War" truly ended?]

Habeas speaks of "rebellion," "invasion," and "public safety." Findlaw: "The privilege of the Writ was suspended in nine counties in South Carolina in order to combat the Ku Klux Klan, pursuant to Act of April 20, 1871, 4, 17 Stat. 14." Was this an act of war?

The 3A expressly compares "peace" with "war." Other provisions suggest differences. "Reasonable" searches might depend on various criteria. Congressional war power not being the sole criteria here.

As to the "impact on rights and governance" of "perpetual war," we can point to the restrictions of freedom during the "Cold War." "Antebellum" times also had a sense of war in the sense that there was an ongoing fear (and occurrence) of slave rebellion.

The threat to rights and governance was one reason so many feared slavery and saw it as a threat to republicanism.

# posted by

Joe : 5:49 PM

Thanks for your comments. Readers might be interested in comments on the same paper at the Legal History Blog, where
discussion has turned to the physics of time.

# posted by

Mary L. Dudziak : 9:45 PM

Looking at the abstract and readying to review the article, and visit the other site as well, several real world paradigm shifts come to mind.

The process which Mao Tse Dung began in the most populous nation, seemed to me a turning point, and certainly the similar thesis promulgated by Ho Chi Minh as some distillation of the guerrila form of hostility. Africa likewise has similar exemplars.

A process which occurred relatively simultaneously with the foregoing was the refining arms of all sorts, individual soldier arms which utilize new technologies, infrared, satellites for spotters, and recently robotic counterinsurgency by armed drone aircraft, a development which traditional US Intell resisted until very recently. Reaching a few years back, the creation of bombs so large civilizations and life itself would not survive provided a new reason to legitimize guerrillaism. Technology, be it emergence from the bronze age or entry into the nuclear age, tends to nudge conflict into new spheres nearly unnoticed.

# posted by

JohnLopresti : 10:07 PM

"Bart" DeTorquemada:

If the authority for detention of an enemy POW ends when an enemy ceases warring against the United States, the problem here is to identify the proper enemy.

Why, "Bart"!!! I'm surprised. I think you've hit the nail on the head here. Why don't we just torture them until they confess? That way, we'll be sure.

I've heard tell that every one of them in Guantánamo floated when tested....

Cheers,

# posted by

Arne Langsetmo : 11:39 PM

"Bart" DeApologistForTorture:

Given that something over 1 in 10 POWs released from Gitmo have returned to terrorism in general ...

... where that is defined as "criticising their detainment in the media".... Why, the ingrates! How dare they?!?!?

Cheers,

# posted by

Arne Langsetmo : 11:44 PM

Arne, and others: I would like to keep comments open, since comments on this blog can be interesting and helpful. If the comments area becomes a place for commenters to snipe at each other, rather than discuss ideas, I will turn them off. So it is up to you whether you want to continue to have access to this space.

# posted by

Mary L. Dudziak : 7:22 AM

Prof. Dudziak:

I apologise; I don't want to be responsible for turning down thread comments. I thought I was being on point (albeit in my own inimitable way), and fairly criticising the views of other commenters here (I'd note that sniping per se is not a war crime, and I haven't been aiming at non-combatants).

Bart says that the problem is defining who the enemy is. I pointed out the previous maladministration's approach to this (which previously met with Bart's approval), and suggested some deficiencies there. I certainly think that this aspect of the law of war (who is the "proper enemy"?) bears some discussion. I think that Bart's answer is insufficient, even if he raised the right question.

I think it only fair to lay the proper factual basis for discussion as well; thus my second comment. Perhaps everyone knows this as well and can ignore any misstatements concerning such. If so, sorry for "telling people what they already know".

And with that, I'll bow out.

Cheers,

# posted by

Arne Langsetmo : 7:45 AM

Arne, thanks, apology accepted.

If I could steer things (or at lease some folks) in a slightly different direction, on the Legal History Blog,
a reader, Michael F. Martin, began this thread which I thought would be of interest to readers here. The rest is a quote:

I know very little about the history of WWII, but I have a comment on your more general remarks at page 6.

The so-called "arrow of time" is one of the great unsolved mysteries of science right now. Our most fundamental understanding of the universe at a microscopic scale does not recognize a directionality to the progression of time -- if we watched a cartoon showing how atoms and molecules move according to quantum mechanics, we couldn't tell whether it was running forwards or backwards. Obviously the same is not true of a movie showing macroscopic objects. I think there is a reasonable chance that we'll get some new insight on this within our lifetime.

There are some (like Julian Barbour) who argue that time doesn't really exist except as a predictable parameter (that runs indefinitely into both the past and the future). But these arguments generally overlook the fundamental limitations on our ability to measure and observe the universe.

There are others (like Roger Penrose) who argue that the arrow of time is linked with gravity -- a hypothesis that remains out of reach of experiments because gravity is so weak a force compared to the others at work at the microscopic scale.

Regardless of what is really going on, it seems safe to say that any fully general theory will recognize a role for both linear and cyclical approximations of time in different contexts.

On a different note, If you haven't seen them, I recommend the new translation of Harald Weinrich's On Borrowed Time, and the work by Carl Honore on the slow movement.

The discussion continues here.

# posted by

Mary L. Dudziak : 8:13 AM

I admit, for me personally, that things like "arrow of time" and the like is a bit too metaphysical for my taste, and a little of that goes a long way.

How we organize our lives, including segments of 'time' (think "childhood") is an interesting subject, one with cross-discipline connotations, which is always interesting as well.

I look forward to the final product & hope you will let us know when it is released.

# posted by

Joe : 8:53 AM

This is a wonderful insight and might be useful to contemporary military strategy and doctrinal thinking. Over the past 8 or 9 years, military planning doctrine (the US military's Joint Operational Planning and Execution System (JOPES) and strategic and doctrinal publications and thinking coming from the US Joint Staff and US Joint Forces Command has been following a similar thread of thought: planning for operations in linear phases from peace through conflict and back to peace does not reflect reality. Indeed, in some current cases, we can be at peace on one block, and at war on another in the same city. So you might find some review and study of these doctrinal publications and thinking useful in your thinking here.

# posted by

Alan G. Kaufman : 9:07 AM

I think Arne's primary concern lies with the initial status determination that the detainee is an enemy POW.

At first glance, one would not think that the subject at hand - the temporal scope of a war - would have anything to do with that determination. However, the Boumediene Five and a recent district court decision extending civilian court habeas corpus review to Afghanistan both suggested that the standard of proof in a POW status hearing should increase the longer the war continues.

Apart from the fact that neither the law of war nor the Constitution imposes any such requirement, such an approach would also appear to reward an enemy for continuing to war against the United States by making it more likely as time went on that the enemy's combatants and supporters would be returned to them to reinforce the enemy war effort.

# posted by

Bart DePalma : 9:25 AM

Thanks to everyone for your helpful ideas. To Alan G. Kaufman -- your suggestion is just the sort of insight (or one of the sorts of insights) I've been looking for. In military history, I have found Adrian R. Lewis, The American Culture of War, to be quite helpful, especially on Desert Storm. I have not yet focused on more contemporary military planning, and hope to do that, at least for the book project.

Apologies if it takes me a while to respond to others during the next couple of days, as I will be on the road.

Thanks again.

# posted by

Mary L. Dudziak : 9:30 AM

Indeed, in some current cases, we can be at peace on one block, and at war on another in the same city.
When I first looked at Professor Dudziak's article, I immediately thought of our ways[s] of thinking about past 'wars.' Think, for example of THE Hundred Years' War. Of course, 'it' was not a uniform period of constant warfare all over the relevant territories at all. Neither was THE Thirty Years War.
So, while I recognize that global terrorism presents a special problem for both historical and legal analysis, I'm inclined to agree with Joe that 'time' for us as humans is significantly determined by 'how we organize our lives.'
What time is, in itself [if it has any existence in itself], metaphysically and physically undoubtedly constrains our organization of it for our own purposes, just as the facts of our biology constrain our conceptions of childhood and aging.
That 'time' appears to us to move in a linear fashion and in a single direction is probably an epistemic constraint imposed on us by our psychology. While there have been both attempts in both philosophy and physics to describe a non-linear and non-unidirectional time, these notions seem to be deeply foreign to how we think - or are able to think.

P.S. Arne: I think just not calling Bart names (DeTorquemada) would eliminate any problem.

# posted by

CTS : 1:50 PM

CTS:

Wouldn't that eliminate entire classes of posts from BartBUSTER, etc.? Hopefully, Professor Dudziak doesn't turn off comments, as we can all learn from the answers. What I don't understand is Jack Balkin asking questions on his new threads but not allowing answers.

# posted by

Charles : 2:21 PM

If he's going to pose a Final Exam, at least give us one page from a Blue Book to respond with . . .

# posted by

Charles : 2:33 PM

What do hourglasses tell us about time?

Physicists came up with a new model for sandpiles, called "self-organized criticality" in the mid-1980s. In a nutshell, the model predicts that the shape of the sandpile results from an interplay of low-frequency events (grains of sand dropping onto the pile) and high-frequency events (avalanches).

Philosophers will recognize an application to the Sorites paradox.

Lawyers may recognize this in another application of self-organized criticality -- the modeling of earthquakes. Remember what Judge Hand wrote in Schecter Poultry?

"In an industrial society bound together by means of transport and communication as rapid and certain as ours, it is idle to seek for any transaction, however apparently isolated, which may not have an effect elsewhere; such a society is an elastic medium which transmits all tremors throughout its territory; the only question is of their size."

See here for more.

# posted by

Michael F. Martin : 2:59 PM

To avoid more spam, I'm cutting off future comments. Thanks to everyone who weighed in.

# posted by

Mary L. Dudziak : 2:25 PM