Three arguments about war.

• Author: Tsai, Robert L.
• Position: Introduction through III. War as a Justification, p. 1-27

1. INTRODUCTION

   America is a nation built on war. This is true not only in the historical fact that armed conflict during the Revolutionary period secured the independence of a freshly imagined people, and that American interests in economics, territory, and security have been regularly advanced through war. It is also reflected, more generally, in the content of the rule of law, which has increasingly has been derived from the country's war experience. Although talk of war permeates public debate, it is a grave mistake to presume that all invocations of war are identical. In truth, there is a multiplicity of ways in which references to armed conflict can appear in constitutional discourse. Acquiring a more sophisticated understanding of these occurrences is essential to appreciating the stakes involved and determining what, if anything, can be done about it. The practice of taking rhetorical advantage of war implicates theories of constitutional structure and political development, while raising persistent rule of law concerns.

   Consider three very different contexts in which the topic of war has been engaged in recent years: the targeted killing of suspected terrorist Anwar al-Awlaki, President Obama's efforts to mark the end of war in Iraq, and President Obama's decision to "end" his predecessor's "war on terror." Observe, too, three different ways war can be used in a legal argument. In the first example, a claim to an actual state of hostilities plays a central role in legal argumentation. On September 30, 2011, the United States launched a drone attack at the believed location of al-Awlaki, who was suspected of masterminding Al Qaeda attacks on the U.S. The legality of al-Awlaki's killing depended in large part on the assertion that an actual state of armed conflict against Al Qaeda existed. Relying on a classified Office of Legal Counsel opinion (whose main arguments were later leaked to the media), the administration argued that congressional authorization of military force against the perpetrators of the 9/11 attacks covered this situation and that al-Awlaki was a lawful target in the armed conflict. The bulk of the arguments turned on whether there was a live military conflict against suspected terrorists. Specifically, the memo addressed whether a presidential ban on assassination or laws against murder applied to the situation, whether al-Awlaki and others who might have been present were seized unreasonably or deprived of their lives without due process of law, and whether the action violated international law. (1)

   As far-reaching as the OLC position might have been, the presidential action nevertheless involved the use of the fact of war as a general justification. When military engagements are rampant, as they are today, this appears as a routine persuasive technique. In the classical form of the argument, a legal actor relies upon a claim to the existence of a lawful military conflict to defend a course of action. Whether a lawful, live war exists has profound legal repercussions. For instance, according to the Obama administration, if an individual is a suspected "cobelligerent" who might be difficult to capture, the government can take reasonable means to kill the target. In such event, the ordinary rule of law expectations need not apply: the marshaling of evidence, trial in front of an impartial magistrate, an opportunity to be heard, judgment by one's own peers.

   Although it represents the most familiar type of war talk, the war-as-justification argument poses a recurring set of rule of law challenges. Some are definitional: how do we determine if there is, in fact, a lawful state of armed conflict and when it starts or ends? How many different kinds of military engagements should be recognized as constitutionally salient? For instance, lawyers for the Bush administration drew a consistent line between a declaration of a "legal state of war," a power accorded to Congress alone, and the President's inherent authority to use military force "in defense of the national security of the United States." (2) For Bush's legal team, this vast category of national security engagements allowed the Commander in Chief to pursue a host of external and internal measures against suspected terrorists and their supporters, including ordering a military strike against a nation-state believed to aid terrorism.

   Other standard questions involve how to assess permissible ends and means, i.e., just how far should the fact of military conflict go to justify coercive actions? What kinds of limiting principles on war-justified actions are warranted and feasible? The stakes are enormous, for an entire network of state actions, policies, institutions, and programs can be built upon an initial claim to a temporary state of war.

   Now consider another notable reference to war, one that presented a very low possibility for major legal change. As a candidate, Barack Obama repeatedly called for the end of actual hostilities in Iraq, which he believed to be "misguided." Once elected as President, he gave a speech at Fort Bragg marking the end of the Iraq conflict and since then he has repeatedly called attention to its anniversary, but made no discernible effort to harness popular approval of the "historic moment" in favor of legal transformation. (3) At most, he recommended that any savings be reinvested in aid for veterans and other domestic programs, or used to pay for military redeployments to Afghanistan and elsewhere.

   Far from calling for the dismantling of the national security state or the advancement of new rights based on the gains from ending the war, Obama remained content to engage in war rhetoric for partisan gain and ordinary policy change. Unlike Lincoln or FDR, Obama never argued that the way that the Iraq war was fought or concluded should alter the way ordinary people understand the Constitution. In passing up the opportunity to engage in what I call "war legacy" rhetoric, his efforts presented little potential for reshaping the legal order. War legacy arguments have their own tenor, structure, and rule of law concerns, but none of these were raised by Obama's orations on Iraq. His election in 2008 heightened expectations of transcendence in foreign affairs, but his actions on this front since then offer a reminder that not every mention of war poses order-altering possibilities.

   A third scenario is illustrated by the trope of counterterrorism-as-warmaking, a metaphor that permeated many institutions and all levels of constitutional discourse after 9/11. President George W. Bush coined the phrase "global war on terror," which key figures in the administration then used to mobilize support for dramatic alterations to the constitutional landscape. (4) Once in office Obama decided to depart from his predecessor on public terminology, preferring instead the narrower formulation, "war on al-Qaeda," or the clunky phrase "overseas contingency operation." (5) This rhetorical shift itself is notable, confirming a belief that this particular form of war talk has power and consequences, and that certain negative connotations should be avoided from that point on. Although his change in constitutional language signaled an intention to quit actively governing through terror, much of the justificatory apparatus created by the previous administration remains and new interrogation sites have been established. (6) If anything, the change in public rhetoric hinted at a desire for presidential orations on terrorism to do less partisan work even as they facilitate institutional flexibility for aggressive, often covert, military operations. Ultimately, Obama's shift in rhetoric is consistent with a plan to tinker with the national security order (7)--perhaps even to soften its edges or make it more efficient--but augured no design to radically downscale it or attack basic assumptions.

   The nuances are important. In each case, a legal actor referenced war in making a public law argument, but in each instance the idea of war did a different kind of persuasive work. In the first case, advocates insisted that the fact of an ongoing war licensed a set of coercive programs reasonably adapted to prosecuting that conflict. In the second instance, a hot war had ended or was soon to be concluded, but a public figure declined to use an already mobilized electorate as an engine for legal transformation. If he had done so, the nation would have faced a distinctive set of concerns over how to do justice to military participation and what social meanings should be drawn from the people's wartime experience. In the third case, as with the second, the order-changing potential is immense. By characterizing a social phenomenon in war-like terms, decisionmakers are not so much limited by the parameters of any real military conflict as they are impelled by a general sense of crisis. Insofar as a pervasive sense of siege can be maintained over time through this open-ended discourse, the potential for legal transformation remains.

   Why pay close attention to the subtleties in war rhetoric? For one thing, the background fact of American military engagement around the world is unlikely to change anytime soon, infusing war-inspired arguments with a visceral urgency. Americans' experiences, in turn, have altered the tactical possibilities for constitutional debate, granting these kinds of arguments history-laden legitimacy and cultural potency. After generations of military conflict, legal actors have grown adept at taking strategic advantage of the people's fears, hopes, and recollections of war. We can expect war-dependent arguments in one form or another to persist, as advocates of all stripes turn the American people's ideas about armed conflict--either real or imagined--for partisan gain and structural change.

   Perhaps the best reason to be more attentive to war speak is that serious rule of law concerns are implicated by these various...