War Time: An Idea, Its History, Its Consequences.

• Author: Levine, David
• Position: Book review

WAR TIME: AN IDEA, ITS HISTORY, ITS CONSEQUENCES. By Mary L. Dudziak. Oxford and New York: Oxford University Press. 2012. Pp. 136. $24.95.

INTRODUCTION

Between 2002 and 2008 I served as an intelligence officer in the U.S. Air Force. Though I had been deployed overseas several times, my primary place of duty was in the United States. When I landed at Baghdad International Airport in June 2006, however, several things immediately changed for me as a result of military regulations. I had to carry my sidearm and dog tags at all times. I could not eat anywhere other than a U.S. military installation. I could not drink alcohol. My pay was a bit higher. Personally, I was more vigilant, more aware of my surroundings. In other words, I was at war.

Indeed, the U.S. government claimed wartime powers because thousands of others like me--members of the U.S. military--were stationed in Iraq: the United States deployed large numbers of troops to provisional bases on foreign soil, those troops used lethal force, and they detained individuals without trial for using force in return. And while there was a reasonably clear beginning point for the exercise of these powers--found in an Authorization for the Use of Military Force ("AUMF") rather than a formal declaration of war (1)--from the vantage point of June 2006, it was unclear whether or when this authority would cease. There was no enemy that could surrender or sign a peace treaty, or give some other sign that "war" had ended; the forces that the United States was fighting--variously, Sunni tribesmen, Shia militias, and foreign extremists--had changed significantly since the 2003 invasion and would even change during my yearlong deployment. Although, as an officer in the U.S. military, it was very clear for me when I was at war and when I was not, the temporal bounds of this "wartime" were actually quite murky for the U.S. government. That murkiness increased significantly when considering not only the war in Iraq but also the "Global War on Terror" writ large.

Professor Mary L. Dudziak's important new book War Time (2) confronts the murkiness between wartime and peacetime, investigating its history, present reality, and implications. Although the boundaries of the War on Terror are commonly perceived as shifting and uncertain, especially compared to relatively defined wars such as World War II, Dudziak argues that the murky boundaries of war are not a new phenomenon and highlights the corrosive effects that such uncertainty can have on the rule of law. She argues that this uncertainty will accelerate as the United States engages in increasingly amorphous armed conflicts. She likewise predicts that political leaders--particularly executive branch officials--will try to take advantage of wartime's uncertain boundaries while using the terminology of a more certain past.

Dudziak contends that the increasing invocation of wartime as an argument for increased executive power runs counter to the conception of the United States as a nation of laws. She suggests that we need to understand the flawed rationale behind such invocations to effectively combat them. Part I of this Notice summarizes Dudziak's work, tracing the development of the modern concept of "wartime" from World War II to the present day. Parts II and III evaluate Dudziak's arguments in light of two of the most extraordinary powers that a state may claim in wartime--the power to detain and the power to project force. Part II argues that, for all of Dudziak's concerns about the diminishing barriers between peacetime and wartime, there still exist some hard limits on the power that the executive may claim, as evidenced by U.S. detention policies in Iraq. But while some limits may still apply, Part III also finds truth in Dudziak's premise that wartime's boundaries are eroding, using the recent U.S. intervention in Libya as an example. Part III also examines the limits to Dudziak's paradigm, under which wartime necessarily equals government power, against the backdrop of a president who has expanded his power by conspicuously avoiding "war-time." While arguing that the relationship between war and executive power is more nuanced than War Time might let on, this Notice nonetheless concludes that Dudziak's book is compelling and raises very real concerns about the future of executive power.

1. DOES WARTIME EXIST?

   Dudziak argues that the idea of wartime has undergone a dramatic shift in the last century: American presidents have claimed war powers in an increasing variety of situations, while ignoring the traditional temporal limits that make such expansive powers palatable in the first place. War Time's chapters track that evolution. Consequently, Part I of this Notice proceeds chronologically through various incarnations of "war" that have arisen over the last 100 years.

   1. War as Time

      During wartime, Dudziak writes, "we expect the rules to change," but we also expect that "by definition, wartime comes to an end" (p. 15). Wartime is a discrete period, one with finite boundaries, that dovetails almost precisely with its converse: peacetime (p. 16).

      It is in this perceived stark divide between wartime and peacetime, according to Dudziak, that we find a rationale and reassurance for the legal changes that are seen as necessary during wartime. Law during wartime "afford[s] less protection to civil liberties and giv[es] more deference to executive power" (p. 16). However, because "we share a belief that this moment will end decisively," the shift toward a powerful executive is broadly accepted (p. 22).

      Dudziak notes, though, that the view of wartime as temporary and exceptional is only accurate if one gerrymanders the definition, ignoring numerous smaller conflicts to which the United States has been a party. (3) In particular, she notes a disconnect between the public perception of war-time--a temporary, limited affair--and the reality of military operations over the twentieth century. Dudziak uses a chart to illustrate just how filled with "wartime" the twentieth century was for the United States, and puts to rest the notion that wartime has been limited or temporary (p. 29). The boundary between wartime and peacetime, then, is more porous than the American public might believe. Even the apparently clear cases--wars with surrender ceremonies and parades--reveal, upon closer examination, a rather muddy divide between war and peace.

   2. A Big War with Uncertain Boundaries

      Dudziak observes that "World War II is thought of as having obvious starting and ending points: an abrupt beginning at Pearl Harbor and a clear end when the Japanese surrendered after the United States dropped atomic bombs." (pp. 35-36). She then identifies no fewer than six plausible choices for an "actual" end date. (4)

      Identifying the proper start date for World War II (from the American perspective) is similarly troubling. Although the 1941 Japanese attack on Pearl Harbor and the subsequent declaration of war provide an easy marker, Dudziak points out that President Roosevelt began exercising what we might consider "war powers" much earlier. Starting in 1938, Roosevelt bypassed Congress in order to implement several defense programs that he found necessary after Axis aggression became apparent (p. 41). Roosevelt, or more specifically, Robert Jackson, Roosevelt's attorney general (and a later Supreme Court justice), justified these actions under the president's commander-in-chief powers (pp. 42-43). Even when Roosevelt went to Congress, the result was a significant grant of power to the executive. For example, the 1941 Lend-Lease Act gave the president the power to provide war equipment and supplies to "any country whose defense the President deem[ed] vital to the defense of the United States." (5) Seen in this light, the actual beginning of World War II is less clear.

      The upshot of all of this murkiness for Dudziak is that the legal consequences of "wartime" extended beyond what might traditionally be thought of as the temporal boundaries of World War II. In Lee v. Madigan, (6) a murder case, the legal issue before the Supreme Court hinged on whether the country was still at war in 1949, the year during which the murder occurred. (7) In 1948 the Court had stated, "War does not cease with a cease-fire order, and power to be exercised by the President ... is a process which begins when war is declared but is not exhausted when the shooting stops." (8) The government argued in Lee that that executive power still had life in 1949. (9) By the time the Court decided Lee in 1959, it was "common sense" that the crime had been committed during peacetime (pp. 39-40), but Dudziak marshals many other instances of legal repercussions stretching out on either side of the 1941-1945 timeframe.

      Among these examples, Dudziak describes myriad restrictions on civil liberties and the imposition of domestic surveillance programs by Congress and the executive in the late 1930s. (10) She notes the Court's complicity in placing the country in a more warlike legal framework, citing the upholding of a compulsory flag-salute statute in Minersville School District v. Gobitis (11) in 1940. (12) Dudziak similarly finds traces of "wartime" post-1945 in the Court's deference to executive detention power after "the shooting stops" in Ludecke v. Watkins, (13) and its decision that Congress's invocation of war powers in enacting a 1947 rent control statute was appropriate in Woods v. Cloyd W. Miller Co. (14) Having debunked the myth of a clean beginning and end to World War II, Dudziak next sets her sights on the Cold War.

   3. The Cold War as the Beginning of Permanent "Wartime"

      Dudziak notes that the status of the Cold War as a proper "war" was (and is) deeply uncertain; many of the confrontations were certainly "not the sort of battle imagined by Clausewitz." (15) Despite the sources and scholars she surveys, Dudziak is unable to reach a conclusion about whether the Cold War...