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Wartime: Foreign Conflict and Domestic Rights

War Time: An Idea, Its History, Its Consequences
Mary L. Dudziak (New York: Oxford UP, 2012)

For Supreme Court Justice Felix Frankfurter, December 7, 1941, was a day on which “everything changed.” Seventy years later, many Americans view September 11, 2001, through the same lens. But not Mary Dudziak. That’s because the accomplished University of Southern California law professor doesn’t believe in watershed moments like Pearl Harbor Day. In fact, Dudziak maintains that the widely embraced narrative of the American wartime experience—with its clear beginnings and endings—actually obscures the reality that the United States has consistently been at war for over a century. And, she argues, this is no small matter, because wars have a way of justifying cavalier government action and loosening constitutional restraints.

The first sentence of the US Constitution asserts that two of its central purposes are to “provide for the common defense” and “secure the blessings of liberty.” Yet these twin aims often find themselves in tension during crises when efforts to satisfy the former end up impinging on the latter. Many of America’s most controversial and regretted episodes—such as Japanese interment and, more recently, the waterboarding of suspected terrorists—were the result of wartime policies designed to protect the country. Dudziak wades into this uncomfortable space to take stock of where things stand as the War on Terror enters its second decade in what President Barack Obama describes as “an age without surrender ceremonies.”

 

The book’s central metaphor is a play on seasonal shifts between standard time and daylight savings time. Many assume that the United States also shifts between “War Time” and the more typical “Peace Time.” But during the last century, according to Dudziak, someone stopped adjusting the clock, and without even realizing it, we have become stuck in “War Time.”

This book’s achievement lies in refocusing attention to one of liberal democracy’s most endemic challenges. Two claims underpin Dudziak’s analysis. First, wartime is not as rare as we think. Second, being consistently at war has facilitated grave government overreach. We acquiesce to this antidemocratic governmental activity because we wrongly assume that wartime is the exception rather than the rule.

While war is an inexact term in an age without congressional declarations, Dudziak is certainly on firm ground in emphasizing the US armed forces’ ongoing lack of downtime. “When we look at the full time line of American military conflicts,” she notes, “there are not many years of peacetime.” As such, “wartime has become normal time in America” and is an “enduring condition.” Indeed, it is easy to forget the many small wars and military operations that fall between the major conflicts that organize history textbooks. Dudziak is also right to suggest that Americans frequently rely on a wartime/peacetime rubric for understanding the nation’s history and thinking about its present circumstances. But as helpful as this binary framework may be for organizing major stretches of the American past, it may unintentionally serve to deprive us of a more nuanced understanding of the constant challenges in US foreign affairs.

As useful as her insight into the dominance of wartime may be, however, Dudziak wades into murky territory when she goes on to argue that an unending string of wars poses an urgent threat to American democracy. It is, of course, undeniable that, on several well-known occasions, extraconstitutional policies have been implemented during wartime. Abraham Lincoln suspended habeas corpus during the Civil War to keep suspected Confederacy supporters behind bars. During World War I, Woodrow Wilson imposed speech restrictions, censored mail, and arrested groups of immigrants thought to be disloyal. And Franklin Roosevelt incarcerated one hundred and twenty thousand Japanese descendents on the West Coast.

Dudziak argues that Americans have accepted these and other less controversial wartime policies because they are assumed to be rare and temporary while they are neither. Alarmingly, Dudziak reports that “the assumption of temporariness becomes an argument for exceptional policies, like torture,” that are an affront to our cherished democratic principles and basic civil liberties. This feature of wartime—forcing acceptance of otherwise dubious policies—is not limited to the famous cases associated with major wars. For Dudziak, the War on Terror is merely the latest extension of America’s hundred-year reign of international belligerence that has served to undermine constitutionalism at home.

 

Supporting the broad claim that America has been in wartime for a century and that this experience poses an urgent threat to core American values would seem to require an extensive cataloging of overreach during that bellicose century. Indeed, the early pages of this book leave one worrying that our selective national consciousness has effectively repressed collective memories of internment camps and sedition acts beyond those well-known cases. Unfortunately, supporting facts and evidence for wartime’s alleged assault on our democratic institutions and sensibility are scarce. The lack of explanatory details is a missed opportunity to flesh out this provocative claim and sets War Time apart from Dudziak’s prior work, including the masterful Cold War Civil Rights.

Perhaps a thorough accounting of governmental transgressions was beyond the scope of this book; yet it is precisely such a discussion that would be crucial to convince skeptics of the author’s thesis. (And, given the sweeping reassessment of American history Dudziak’s argument proposes, skepticism is bound to be widespread.) Often standing in for systematic assessments of the historical record are sweeping conclusions drawn from questionable sources, such as man-on-the-street recollections and an extended deconstruction of the film United 93. The three chapters featuring case histories, while interesting on their own terms, are only partially tied to the central thesis. A chapter on World War II, for instance, convincingly demonstrates that America’s role in that conflict began well before the Pearl Harbor attack and extended well beyond V-J Day. But it is less apparent what implication this corrective carries for our understanding of World War II–era democratic norms.

The book’s thesis is further undermined when it becomes clear that most of the “wars” in question present no obvious threat to the pillars of American constitutionalism. A time line depicting the many conflicts Dudziak has in mind includes various peacekeeping missions, long-term strategic deployments in Germany and Korea, and other wars such as Grenada, Panama, Lebanon (twice), and Siberia. Most readers will struggle to recall that some of the sixty listed engagements ever occurred at all. While the tabulation aims to shockingly underscore the ceaseless pounding of American war drums, it actually provides considerable comfort because it’s hard to see how the vast majority of these campaigns posed anything like the type of threat Dudziak believes is stalking our history. The fact that American troops have served abroad continuously for many decades doesn’t in itself demonstrate an attack on American democracy. Say what you will about Operation Urgent Fury, but it certainly didn’t compel President Reagan to consider establishing internment camps.

Conflating real wars with humanitarian missions and the standing military presences such as the one that still continues today in Seoul may serve to demonstrate that “wartime,” under a loose definition, is constant, but it’s not particularly helpful for grappling with the truly difficult cases that have pitted democratic freedoms and ideals against national security threats. The frequency with which the US is at war might have been demonstrated more plausibly by ignoring the peripheral events and simply focusing attention on the familiar canon of major and minor American shooting wars and, perhaps, the Cold War. Such restraint would have done little to diminish the key takeaway that American military engagements are more frequent than we often care to realize. It might also have provided Dudziak with a more solid platform for confronting the vexing moral challenges that wartime sometimes presents for liberal democracy. After ten years of the War on Terror, this tension deserves reflection.

 

The real challenge with wartime comes on those rare occasions when existential threats put the Constitution’s restraints on government action on a collision course with its call for the government to protect the country. Because the executive branch is in the best position to address emergencies, presidents have been at the center of these cases. In justifying his suspension of habeas corpus during the Civil War, Abraham Lincoln famously asked, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official [presidential] oath”—i.e., to see that the laws are “faithfully executed”—“be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?”

But presidents don’t have exclusive rights to decide when an emergency justifies extra-constitutional action. Congress plays an important legitimizing role in certifying that an emergency does in fact exist. In the midst of crises and with the legislative branch’s blessing, extraordinary executive actions have typically been upheld by the Supreme Court. Frequently, these rulings have been limited to minor or technical aspects of a case, as in the upholding of Lincoln’s suspension of habeas corpus in 1864’s Ex parte Vallandigham and Roosevelt’s internment order in 1944’s Korematsu. But once wartime is over, the court has frequently tackled the central questions and placed limits on presidential war powers. In 1866, for example, the justices’ Ex parte Milligan decision condemned the very action Vallandigham upheld two years earlier.

A key role of the judicial branch is to determine that any emergency justifying extra-constitutional measures is limited in duration. Although unconventional in nature and indeterminate in length, the War on Terror has also been subjected to this process. The court hasn’t appeared in the least tentative about jumping into the fray with numerous rulings, including Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush, which have all reined in presidential power.

To be sure, wartime presents serious challenges for democratic societies constitutionally grounded in freedom, individual rights, and limited government. One exception may provide a precedent for further exceptions on the way down the proverbial slippery slope. Yet, as Lincoln argued during the Civil War, the government also has a constitutionally mandated obligation to protect the country. Any serious effort to grapple with wartime and its implications for liberal democracy requires equal attention to each of these constitutional requirements. 

 

Robert P. Saldin is a Robert Wood Johnson Scholar at Harvard University and the author of War, the American State, and Politics since 1898.

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