War

[Ilya Somin]

I would note several ways in which the current war is more analogous to
past wars than some previous posts have indicated. They suggest 1) that
the Bush administration's record, while far from perfect is actually less
bad than the historical norm, and 2) that if we hope to preserve civil
liberties in time of war, more attention should be paid to the incentive
structure facing wartime administrations.

1. The Civil War, WWII, and other conflicts were expected to have much
longer durations at the time than actually occurred.

2. The Civil War, like the present conflict, not only involved a domestic
threat, but also extended into the Reconstruction era, when the federal
government for years continued to restrict various peacetime civil rights
in the South - in part because of the threat of what we would today call
"terrorism" against southern unionists and African-Americans. The legal
precedents of this era strike me has highly relevant to our present
circumstances (which is not to say that they were necessarily correct).

3. I agree that these past experiences provide cause for concern about the
present. In all these conflicts, restrictions of civil liberties arguably
went well beyond what was constitutionally justifiable or even what was
necessary to win the conflict in question. At the same time, this
comparative perspective shows that the present administration, far from
showing atypical "authoritarian" tendencies has in fact been much more
restrained than its predecessors in similar circumstances. For example,
its treatment of Muslim-Americans is incomparably superior to the
treatment of Japanese-Americans during WWII, and its merely verbal attacks
on critics of the war contrast favorably with President Lincoln's actual
censorship of several pro-Confederate newspapers. Many other similar
comparisons can be listed, and no doubt others on the list are better
qualified to do so than I.

4. Another important comparative dimension is with the experience of other
democratic nations threatened by terrorism in recent years. Without
getting into details, my impression is that the Bush administration has
restricted civil liberties much less drastically than, for example,
Germany when threatened by the Red Army Faction in the 1970s, Italy during
the Red Brigades era, Spain in its policies towards Basque terrorists, and
other similar cases. Post Sept. 11, new civil liberties restrictions
passed by the British Labor  government have gone beyond those adopted in
the United States in several respects.

This is not to say that all the administration's actions are defensible (I
myself disagree with several of them), or even that they should be judged
by the admittedly low standards established by our own past and our
allies' more recent actions in similar circumstances. It does, however,
suggest that a a comparative perspective shows that the problem here is
not a case of special venality by Pres. Bush or even John Ashcroft but
rather of the incentives faced by all governments threatened by terrorism.
These governments will receive much more blame for failing to do "enough"
to prevent terrorism than for restricting civil liberties, especially if
the restrictions are (or seem to be) focused on unpopular and politically
weak groups. If there is another large, successful terrorist attack, the
Bush administration will surely get blamed and they are no doubt very
cognizant of that fact and willing to (albeit, to a surprisingly limited
degree, when viewed in historical perspective)  sacrifice some civil
liberties to reduce this danger. In past wars, particularly those that
included a significant domestic threat, presidents of differing ideologies
and temperaments, including Madison, Lincoln, FDR, Wilson, LBJ and Nixon
behaved no better than the Bush administration and in most cases a good
deal worse.


If our purpose as academics is truly to reduce the threat posed to civil
liberties by war, we should consider institutional reforms to alter the
structure of incentives faced by wartime administrations. This is a much
harder task than focusing on the shortcomings of individual policymakers
but, ultimately, I think, a more rewarding one.

Ilya Somin



On Wed, 30 Oct 2002, James Maule wrote:

> Looking at all of history, most wars that have taken place have involved
> either two non-nation-state groups or a nation-state and a
> non-nation-state group. It is only in recent times that
> nation-state-nation-state wars have become more predominant (though
> probably still in the minority of ongoing wars and military conflicts).
> And I will include in nation-state kingdoms, empires, emirates, and
> caliphates.
>
> Does it make sense to constrict an interpretation of the Constitution
> to a definition of war that relies on a set of parameters that are so
> limited? Would that not increase the opportunities for enemies of the
> nation with this Constitution to bring about its demise (setting aside
> the disagreement over the seriousness of the risk and threat)? Isn't
> there a principle of document construction, generally, that strives to
> prefer interpretations that ensure the document's existence over those
> that render the document a nullity? If so, should it not be applied in
> this context?
>
>
>
> Jim Maule
> Professor of Law, Villanova University School of Law
> Villanova PA 19085
> maule at law.villanova.edu
> http://vls.law.vill.edu/prof/maule
> President, TaxJEM Inc (computer assisted tax law instruction)
> (www.taxjem.com)
> Publisher, JEMBook Publishing Co. (www.jembook.com)
> Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
> Maule Family Archivist & Genealogist (www.maulefamily.com)
>
>
>
>
> >>> VOLOKH at MAIL.LAW.UCLA.EDU 10/30/02 04:47PM >>>
>     I much appreciate Cornell's thoughtful and detailed post, and I
> share
> some of his concerns.  In fact, I made a similar same point about the
> war's
> end being indeterminate in a Slate exchange on Sept. 18, 2001,
> http://slate.msn.com/?id=115633
> <http://slate.msn.com/?id=115633&entry=115678> &entry=115678, and
> argued
> that we shouldn't console ourselves too much with the notion that some
> of
> these rules will be merely temporary.  I do think that the rules should
> be
> narrow, and focused on things related to the war, but the war may
> indeed be
> with us in one form or another for a long time.
>
>     But I do think that the war on terrorism is a war, in a sense that
> the
> war on drugs is not.  A hostile armed foreign group has attacked us,
> and has
> announced its desire to attack us further.  True, the armed group is
> not a
> state; but I don't see why that should be dispositive of whether this
> is a
> war.  I think that Montoya v. United States, 180 U.S. 261, 266-67
> (1901),
> put it well; the case arose in the context of a war with Indian tribes,
> but
> applied broader principles:  "If [the] hostile acts [of 'a collection
> of
> marauders'] are directed against the government or against all settlers
> with
> whom they come in contact [as opposed to being 'for the purpose of
> individual plunder,'] it is evidence of act of war."  That, I think,
> distinguishes them from pirates -- they aren't just trying to steal
> from
> American citizens, but they are trying to strike at American citizens
> precisely because they are Americans, and with a goal of changing
> American
> behavior.
>
>     Nor does the absence of a formal declaration of war strike me as
> particularly relevant.  I'm unaware of any Supreme Court case that says
> that
> the question turns on a formal declaration of war -- or that says that
> the
> authorization of the use of force is materially different from a
> formal
> declaration of war.  (It turns out there are a couple of military
> court
> cases from the early 1970s that make the presence of a formal
> declaration of
> war dispositive as to certain narrow questions, but I'm not sure
> they're
> right.)  See generally
> http://volokh.blogspot.com/2002_09_08_volokh_archive.html#85444270
> <http://volokh.blogspot.com/2002_09_08_volokh_archive.html#85444270> ,
> my
> brief attempt at canvassing some cases that bear in some measure on
> the
> issue.  As best I can tell, the doctrines that relate to war, such as
> they
> are, ask whether there is a war in fact, not whether a war has been
> declared.
>
>     As to the Administration's desire to go to war against Iraq -- at
> least
> unless some unlikely events, such as total Iraqi disarmament and,
> better
> yet, regime change, happen without a war -- that would surely be a war
> under
> any standard.  Cornell things the war would be unwise, and outside the
> rubric of the war on terrorism.  I think that it would be wise, whether
> or
> not it is part of the war on terrorism as such (though I think that it
> is
> closely related to the war on terrorism).  But I'm skeptical that it's
> a
> good idea to debate the wisdom of a possible war against Iraq on a
> constitutional law list (though any specific constitutional issues
> related
> to the potential war would of course be fair game).
>
>     Eugene
>
> -----Original Message-----
> From: Cornell Clayton [mailto:cornell at MAIL.WSU.EDU]
> Sent: Wednesday, October 30, 2002 10:46 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Dots
>
>
>
> I've been away from my office so I apologize if others have already
> made
> this point, but yesterday Eugene made a perfectly reasonable defense of
> the
> Bush administration's policies and positions related to the "war on
> terrorism."  Namely, that how we understand constitutional rights and
> other
> restraints on the executive must change during a period of war or
> crisis (I
> don't have the email in front of me, so I'm sure Eugene will correct me
> if
> I've misstated his position).
>
> I suspect that most on this list agree with some version of this
> argument.
> It is essentially the position asserted by Holmes in Schenck, Black in
> Korematsu, and probably underlies the logic of Quirin, not to mention
> the
> rationale behind many of Lincoln's wartime policies.
>
> But this raises an interesting question with respect to a
> "translational
> jurisprudence", one which Frank Cross (and perhaps Maule) raises.  War
> and
> warfare seem to have changed radically in the last several decades.
> Wether
> its appropriate to use of previous "wartime" doctrines and
> constitutional
> rationales to justify the Bush administration's current policies is I
> think
> an interesting questions (and possibly what divides those who see the
> administration as "authoritarian" from those who belive its merely
> acting
> prudently and constitutionally in the face of a threat).
>
> Clearly the "war on terrorism" is not like WWI or WWII or even the
> Civil
> War, and what I find troubling is the Administration's constant
> reference to
> legal doctrines from those periods and the more general use of the
> rhetoric
> of "war" to justify their policies (whether we are talking about the
> establishment of military tribunals, the post 9-11 roundup, the secrecy
> of
> immigration hearings, or the application of "unlawful combatant" to
> American
> citizens held in the U.S.).
>
> To begin with, the "war on terrorism" (as Cross notes) is indeterminate
> and
> never ending.  So application of previous "wartime" doctrines and
> precedents
> to justify a relaxed standard of rights and increased power in the
> executive
> would turn what was previously justified as temporary changes in
> constitutional protections into permanent ones.  Secondly, and related,
> as
> there are no state-combatants, the war on terrorism is a war only in
> the
> rhetorical sense.  The U.S. can have a war against Afghanistan, it can
> have
> a war with Iraq, but the "war on terrorism" is like the "war on drugs"
> or
> the "war on poverty", its not really a war at all.  9-11 was a tragedy
> of
> major proportion.  However, I see no reason to call it an act of war
> any
> more than the attack on the federal building in Oklahoma was an act of
> war.
> These are heinous criminal acts of particular individuals or groups.
> If a
> state sponsors or harbors such criminal activity (such as Afghanistan),
> then
> this may provide a justification to go to war against that state, but
> the
> constant conflation the war on Afghanistan (or now Iraq) with a "war
> on
> terrorism" has serious ramifications (for example, if we consider the
> Afghanistan detainees as POWs in the Afghan war, not the "war on
> terrorism,"
> then (since the war is now over) shouldn't the U.S. begin the process
> of
> charging and trying these prisoners according to international
> conventions
> or releasing them?  Third, unlike constitutional precedents arising
> from WWI
> or WWII, which were formally declared wars, the Bush administration has
> no
> formal declaration of war and shouldn't be relying upon precedents in
> earlier periods when a constitutional declaration of war was made.  In
> some
> ways this may seem to be a technical difference given the sweeping
> terms of
> Congress' authorization to use force in Afghanistan and Iraq, but from
> a
> legal standpoint it is important one nonetheless (If Bush really thinks
> he
> is exercising wartime powers, why not seek and obtain a formal
> declaration
> of war?).  Finally, the whole idea of a war on "terrorism" as a
> justificaton
> for going to war against Iraq seems laughable.  If the Administration
> really
> wanted to go after a state that supports and harbors Islamic terrorist,
> then
> they would go after Saudi Arabia. The administration has produced no
> evidence that Iraq has been involved in recent terrorist actions.
> Sadam is
> a ruthless despot.  He posses a risk to his neighbors and the region
> (not to
> mention the oil supply).  He is trying to acquire weapons of mass
> destruction.  These may all be good reasons to go to war, but isn't it
> a
> confusion and oversimplification for the Administration to continually
> justify a war with Iraq as part of a war on terrorism?
>
> Bottom line, while I agree that constitutional rights and other
> restraints
> on the executive have and should bend during periods of war, I see no
> reason
> to apply past wartime legal precedents to justify the Bush
> administration's
> policies today.  From a purely political or pragmatic standpoint, I
> also
> think its troubling that the Administration and its supporters continue
> to
> rely on the rhetoric and fear of "war" to justify policies that erode
> individual rights.  There have been previous periods in our history
> where
> both real and imagined threats to national security led us to "bend"
> our
> protections of individual rights.  When leftists assassinated McKinley
> and
> sent bombs through the mail to government officials, the government
> responded with the Palmer Raids.  When the Japanese attacked Pearl
> Harbor,
> the government responded by locking up Japanese-American citizens.
> When the
> Soviet Union acquired nuclear weapons and pointed them at the U.S.,
> the
> government responded with the Smith act and the McCarthy hearings.  I
> think
> history  provides lots of evidence for why we should be careful not to
> overreact to real and perceived threats.
>
> Best,
> CWC
>