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The Longest Battle

MARY DUDZIAK’S TITLE has two words because she wants to emphasize the role of “time” in legal and public thinking about the fight against Al Qaeda and in earlier militarized conflicts. Dudziak argues that “‘wartime’ is necessarily entering a temporary condition. Built into the concept of wartime is the assumption of an inevitable endpoint.” And yet, she says, “war has become part of the normal course of American life.”

How can these two propositions both be correct? Dudziak sees “wartime” as a cultural understanding. People assume a standard model of war that features two or more states in continuous combat, with a definite beginning and a definite end. When Americans survey their relations with other countries, they see either “major war,” which they call “war,” or “small war” or “low intensity war” or other quasi-war or conflict, which they call “peace.” As a result, Americans do not understand that the United States is almost continuously in military conflict with other states.

Why should this matter? Dudziak argues that the decision to classify a security threat as a war is a political judgment. It is not driven by—or solely driven by—exogenous events. Since people think that all “wars” are temporally bounded; people willingly suspend their principles and cede their liberties, because they believe that the war will come to an end. Political leaders instinctively understand this cultural feature of wartime, and take advantage of it. The president can frame a security threat as “wartime” in order to rally the public, expand his powers, suspend civil liberties, and justify his abuses. But since conflict never really ends, and one war follows another, Americans end up permanently tolerating infringements of their civil liberties.

Dudziak’s argument provides a twist on a common view among legal academics about the relationship between wartime and civil liberties. Like these scholars, Dudziak believes that people tolerate infringements of civil liberties because they are bamboozled by leaders and not because security threats require sacrifices. But whereas most scholars emphasize the public’s emotional reaction to a threat (people panic and approve of excessive measures that lead to abuse), Dudziak focuses on cognitive or perhaps imaginative deficiencies (people misunderstand the nature of wartime and approve excessive measures because they think the war will be temporary).

Dudziak’s argument rests on weak empirical foundations, and makes little sense on its own terms. It is not clear why a person would willingly yield civil liberties (or some of them) on the understanding that the war will end, but would not do so on the understanding that the war might continue indefinitely. The only reason to accept limitations on civil liberties is to ensure an acceptable level of security, and the validity of that reason does not depend on when one expects the threat to end. It might be argued, indeed, that one should not yield civil liberties for a short war, such as the invasion of Panama, when the enemy poses no threat; and one should yield liberties whenever a geopolitical or technological shift creates a new and possibly permanent threat that cannot be addressed under the current regime of rights. Temporality as such plays no obvious role in this analysis.

The idea that Americans misapprehend the nature of wartime also possesses little explanatory power. The theory makes the same predictions as the null hypothesis that Americans accept limitations on liberties because they rationally fear a threat for which the status quo legal regime is not suited. Moreover, the theory is too crude to explain the enormous variation in the way that Americans and the American government responds to wars—sometimes with rather strict limitations on liberties, and sometimes with none at all, and sometimes with limitations that fade over time.

In any event, Dudziak does not try very hard to prove her thesis. She does not show that Americans unjustifiably gave up civil liberties during major wars; or that Americans gave up their liberties because they believed that the wars were temporally bounded rather than for some other reason; or that these mistakes bore consequences for periods between the major wars. And it is unclear why she thinks it important that Americans believe they are at peace even when they are continuously at war. Like others writing in this genre, Dudziak seeks to explain a trend that does not exist. Civil liberties have expanded in this country, so whatever Americans’ misperceptions about war and peace, those misperceptions have not impeded the growth of liberty.

Rather than provide evidence for her arguments, Dudziak muses on time zones, the division of time into arbitrary units of measurement, daylight savings and standard time, the psychological sense of the passage of time, the vagueness of temporal beginnings and ends, railroad time tables, and historical periodization. These discussions seem to be intended to show the reader that time is in part a psychological or cultural construct, which is surely right, but this point is both obvious and remote from her argument. Dudziak inexplicably devotes a chapter to showing that World War II had a fuzzy beginning (there was some conflict with the Axis prior to the formal declarations of war) and a fuzzy ending (wartime laws remained in existence for a few years after hostilities formally ceased), whereas she claims (again without evidence) that Americans believe that it had a clear beginning and a clear end. But it does not matter for her argument whether Americans believed that World War II ended fuzzily or not. If the point is that Americans wrongly believe that wars must be temporally bounded, then World War II does not support that point, because the war did end. If the point is that wars never end, then World War II does not support that point, either.

The real significance of World War II, it turns out, is that it entrenched the cultural understanding that wars are temporally bounded. The fuzziness of the boundaries, then, lack relevance; what matters for Dudziak’s argument is that World War II ended, which hardly needs to be demonstrated with pages of text. And yet just a few years later, Dudziak says, Americans understood that the Cold War may never end. So the entrenching effect of World War II on cultural understanding was minimal or nil.

In another chapter, Dudziak offers evidence that distracts rather than illuminates. She wants to show that the United States is continuously at war—that war is “normal.” To some extent this is true, as casual acquaintance with recent American history reveals. After World War II, the United States maintained military readiness at a heightened level, fought two major conventional wars in Korea and Vietnam, and occasionally sent small numbers of troops into battle in localized areas. Dudziak hardly needs to prove this point, but she does so in a strange way. Dudziak reports the dates on which the American military has bestowed combat medals on soldiers, which she puts on a timeline. Sure enough, virtually the entire period from World War II is covered by a “war.”

But on closer inspection, one notices that aside from the major wars that Dudziak thinks even ordinary Americans know about (World War II, Korea, Vietnam), and the many small wars that are just pinpricks on the timeline (Granada, Panama, and so forth), there are only two long wars that cover almost the entire period: a “Berlin” war of 1945 to 1990 and a “Korea” war of 1954 to today. The military may have possessed good reasons to award combat medals to soldiers who served in these places—Berlin was a Cold War flashpoint with occasional outbreaks of violence; and the Korean DMZ remained a dangerous place even after active hostilities with North Korea ended in 1953; but surely it is wrong to say that the United States was continuously at war in Berlin for 45 years and in Korea for 57 years after the putative end of the Korean War.

This chapter illustrates a major source of confusion in the book. Dudziak wants to say that war is continuous and yet she acknowledges that individual wars start and stop—and that the wars that start and stop really do start and stop, so that it is not just a matter of the perceptions of naïve Americans. One can reconcile these positions by stipulating that a certain level of international conflict, much of it merely in the air, threatened but not acted on, almost always exists. War is a continuous variable, not a dichotomous variable, and so political actors always have some freedom of action to decide whether a state of war should be recognized or not. Perhaps that is how best to understand Dudziak’s claim.

So the determination that the nation is at war is a political judgment. Well, what else could it be? Dudziak’s implicit target, never clearly articulated, is what a philosopher would call an essentialist claim, and what a lawyer would call a formalistic claim—that war is a natural kind; it either exists or not, and then the legal consequences follow as a matter of course. Dudziak thinks that this view is held by legal scholars and ordinary Americans alike, but she does not provide any evidence for this.

The debates about the Cold War reveal that Americans were capable of seeing that conflict can have a twilight existence, exemplified by the very phrase “Cold War”—a period of frequent military conflict and a constant readiness to engage in open hostilities, reflected in a persistent anxiety about nuclear Armageddon that permeated popular culture and public discussion. And although Dudziak frequently scolds legal scholars and judges for formalist reasoning, she rarely takes the trouble to describe their ideas and how their misunderstanding of wartime leads them into blind alleys. Courts have recognized the complexity of the concept of war—indeed, the cases Dudziak discusses shows that judges are capable of discounting war claims made by the government when conditions do not justify deference to the executive. As for the academic work, the footnotes contain plenty of citations, but little if any of it commits the blunders that Dudziak attributes to it.

Dudziak argues, for example, that constitutional law “continues to be bound up in an imagined World War II model, so that … leading scholars believe that a war between nation-states, bound in time, is what war is.” She does not explain where scholars go awry, or provide any evidence for this claim. In fact, it is not true that leading (or, for that matter, any) legal scholars believe that a war between nation states is what a war is. The small wars Dudziak mentions, not to mention civil wars and vague security crises like the Cold War, produced many of the canonical legal cases discussed in law school classes devoted to foreign relations and presidential powers. A frequently cited case called Little v. Berreme, decided in 1804, came out of the Quasi-War with France, and set the stage for all that would follow. In modern times, two hotly contested legal issues—when can the president send troops abroad without congressional authorization, and when do the Geneva Conventions apply to a military conflict—turn on what “war” is, and the participants in these debates do not advance the simplistic understanding of war that Dudziak attributes to them.

In another passage, Dudziak criticizes the legal scholar Geoffrey Stone and other scholars who argue that the 1950s-era violations of civil liberties stemmed from the Cold War. Dudziak points out correctly that the Cold War and the period of rights violations did not exactly coincide. By the early 1960s rights had gained, but the Cold War had intensified. Dudziak suggests vaguely that domestic politics provide a better explanation for the limitations of rights than the fear of war did, citing one scholar’s argument that the Red Scare resulted from fear of communism, not fear of the Soviet Union, and other academic work stressing the importance of domestic politics in the crafting of security policy. But the relevance of this argument for her thesis is obscure.

Dudziak then complains that legal scholars such as Stone focus on executive power in the courts while ignoring “the real story of the growth of executive power.”  The “development of the national security state has either been largely conceded or simply ignored.” This is the result of trying “to fit the Cold War into the model of traditional wartimes.” Dudziak is wrong. While Stone’s focus in his book is elsewhere, it would be hard to exaggerate legal scholars’ obsession with the rise of executive power, going back at least to the Nixon administration, indeed to the New Deal.

The book culminates with September 11. Dudziak argues that Bush framed the conflict with Al Qaeda as a “war,” thus “an exceptional state, a new time-zone when the usual rules would not apply,” leading to deference to presidential power. Bush’s legal advisers justified expansive powers by citing wartime precedents. In doing so, the lawyers could take advantage of people’s sense that wartime is temporary, so our civil liberties will be returned to us after a short period of time. (Or, at least, they could have done so if they had not stamped their documents “top secret.”) Yet the attack on Iraq made it clear that in the post 9/11 era, “war seemed to have no boundaries in space or time.” And while the “war” becomes indefinite in space and time, legal scholars continue to treat the 9/11 conflict within the traditional model of war as bounded in space and time. Thus, the danger is that they do not realize that the suspension of civil liberties which may be justified only for a temporary period of conflict will actually continue indefinitely.

But the problem was not so much that a war on terror might not end. Any war might last forever, or a very long time. The problem was that the government might curtail civil liberties beyond what was justified by the nature of the threat. One reason for more intrusive surveillance was that modern technology had put destructive weapons within the reach of ordinary individuals. Henceforth that problem may always be with us, and so intrusive surveillance may be something we will need to learn to live with, even if Al Qaeda surrenders on the deck of the Missouri. We tolerate the safety procedures at airport checkpoints because they make us safer, not because they are temporary measures. It is unlikely that Americans accepted statutes like the Patriot Act because they believed that the “war” with Al Qaeda might end. They accepted these laws because a new security threat seemed to justify them. Whether this judgment was right or wrong depends on the scale of the threat, not on whether it was transitory.

Eric A. Posner is a professor at the University of Chicago Law School.