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 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
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
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Chesney on War Rhetoric and the Obama Administration
Mary L. Dudziak
Robert Chesney, a leading national security law scholar, has a helpful post on Lawfare talking up my points here on why political rhetoric matters to war powers. (If you’re just tuning in, the starting point was my NYT op-ed on the way Obama has framed war, followed by a response from Benjamin Wittes, a reply from me, and now Bobby’s post.) Just a few notes, to continue the discussion: Bobby seems to have corrected my periodization, noting that Obama made a “war on Al Qaeda” speech in May of 2009 – going beyond the “two wars” in Iraq and Afghanistan formulation that he discussed during the presidential campaign. Helpful point, but the flip in his characterization of war from the campaign to the presidency, my central critique, remains.
In future years, historians of the Obama presidency may conclude that, faced with greater knowledge about the threat of terrorism, Obama shifted his stance to accommodate reality. Or they may conclude that he read the political tea leaves, and reached for the middle. Understanding that a closing of Guantanamo was not going to happen during his first term, he recast his message so that it would be consistent with this policy direction. What we can be most sure of, I think, is that historians will fight over how to interpret the evidence on these issues for years.
Bobby also makes this point:
Even if the President's rhetoric was less clear early on than I've suggested, there is the separate matter of the very-clear (and non-Afghanistan-focused) claims advanced in (i) much-reported major policy speeches by key administration officials like Harold Koh and John Brennan, (ii) the litigation positions advanced by the Justice Department in relation to GTMO habeas cases and one-off suits such as the al-Awlaki suit, (iii) the high-profile media coverage of the administration's actual practice of using force against al Qaeda-related targets in places like Yemen and Somalia, and (iv) Congressional narratives that rarely suggest a geographically-circumscribed conception of the conflict with al Qaeda. These are not examples of presidential rhetoric, of course, yet they too contribute to the formation of the war narratives against which war power claims are made. Indeed, in an age where presidential speeches and press conferences just don't have the same media impact as in generations past, it may be that the net of these sub-presidential contributions may have a larger impact on public perceptions. An interesting possibility, at any rate.
Here he takes up an important methodological question. How is it that public perceptions of war and security are formulated, and to what degree do statements of members of the administration and others play a role? On a question like this, I find recent work on public opinion in political science to be most helpful. Drawing from this scholarship, the answer would be that of course it can matter, and it would depends on how much it breaks through the surface to be a part of the elite discourse that helps shape popular opinion.
But my principle critique in the NYT op-ed was about the president himself: “Mr. Obama is trying to have it both ways. 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.” This point still stands, even if others in the administration and in congress have held different public positions.
Bobby’s final points go to the reasons why a president might devote more speechmaking to large conflicts rather than smaller scale ones. My central concerns are with democratic accountability and the importance of political engagement, while Bobby’s perspective is more sensitive to how a president might navigate difficult issues politically and diplomatically. We’re not disagreeing here, we’re just interested in different things. I’ve argued before on this blog that the small wars matter to democratic accountability – and they will be increasingly important as warfare itself becomes more remotely managed through technology. Presidential power scholar Stephen Griffin and I disagree about the importance of small wars (his take is here), and I suspect the idea that larger-scale conflicts are what matter most is a majority viewpoint among legal scholars. But there is much traction among historians on the idea that smaller scale conflict takes war off the political radar screen so that Americans, essentially, don’t notice it, and this lack of attention facilitates executive branch autonomy. I take this up, to a degree, in my new book, which is a focused analysis about the ways we think about wartime. In the next book I’ll return to a more traditional narrative structure and try to tell the deeper story of the ways the practices of war, including smaller scale wars, have atrophied public engagement and political controls on executive power.
Which is a long way of saying – there’s a lot more work on this to do. We can do it most effectively when lines of communication – across disciplinary and political boundaries – remain open, in the spirit of Bobby’s post. Posted
by Mary L. Dudziak [link]