Consider two views about what went wrong after 9/11 (if you think anything did).
In one view, endless war began: the conflict with Islamic radicals was defined as war (rather than crime), with all the special executive prerogatives that implied; and it was potentially endless, with no end to those prerogatives. In another view, however, “wartime” began: a term traditionally implying a discrete period that comes and goes with relatively neat beginnings and ends, but misleading either generally or in this conflict. In her fascinating new book, War Time, Mary Dudziak primarily argues for the latter thesis.
Ultimately, however, the myth of endless war remains the bigger concern.
“You’re right,” Jack Goldsmith responded to Jon Stewart’s query about the president the other night. “He has extraordinary powers in an endless war.” No wonder Stewart wanted to push back at least a bit against Goldsmith’s own provocative new book claiming that Barack Obama, after the trials of George W. Bush, is constrained in this best of all possible national security worlds exactly as much as necessary. [Goldsmith responds to Moyn here at Lawfare – ed.] “You do make a good case that there’s a very healthy system,” Stewart conceded, after mounting a brief and mild attempt to suggest that what occurred was primarily a liberal compromise with many aspects of the national security posture conservatives had established after 9/11.
But Stewart failed to challenge Goldsmith’s premise of “endless war.” Some vigorously insist that the Authorization for Use of Military Force Against Terrorists offers clear boundaries to our war, at least as to who the enemy is. But it is not as obvious that it imposes serious chronological (or for that matter geographical) limits. Goldsmith, far from using “endless war” as a throwaway line, incorporates it in the title of his book’s preface. The main value of Dudziak’s War Time is that comes much closer to mounting the challenge to interminable hostilities.
This is so despite Dudziak’s predominant focus on the misapplication of the belief in chronologically boundaried hostilities. It leads her to interesting theoretical excursions into how constructed human temporality is. It prompts valuable indictments of civil libertarians imposing on events the expectation of a cycle of governmental intrusion in wartime and relaxation in peacetime. And it inspires useful worries that Americans – primed by the notion of temporally delimited conflict to expect the end — are distracted by the repeated victory (or at least handoff) ceremonies from seeing that the Long War, and the executive privileges that accompany a state of war, continues apace. All of these are important matters to take up. They are most interesting when they intersect the syndrome of interminable war Americans still don’t question today.
War Time spends many of its pages on the valuable but preliminary task of connecting students of the law and students of the humanities, who rarely share one another’s assumptions. Humanists will regard much Dudziak’s text as an anecdotally rich and sprightly written reestablishment of the threshold claim that culture and society affect temporal categories and experience. The bulk of Dudziak’s book is given over to showing how genuinely malleable time is, inserting war in a long train of kindred studies of how the experience of chronology is a cultural rather than natural fact.
Thanks to traditions of scholarship from Mircea Eliade on ancient religion to Max Engamare on the Protestant founders of modern temporality, not forgetting the obsession with the theme in twentieth-century Continental philosophy or the modernist novel, it is well-known that time is not a neutral medium. For humans, at least, individual and collective experience is not that of the clock ticking equivalent seconds but the packaging of meaning through temporal definition. “Wartime,” Dudziak can therefore add, is not an objective fact about history but a fashion of assigning significance with its own cultural style and political implications. Dudziak reveals and exploits this truth beautifully.
War Time thus takes the reader on brief but intrepid sallies through World War II and the Cold War. Both, Dudziak argues, show how constructed the notion of wartime is – but for opposite reasons. One seems wholly discrete, beginning (for Americans) with Pearl Harbor and ending with Japan’s surrender. Dudziak is interested in showing that things were not so simple, for the war bled beyond its initial boundaries in both directions. Conversely, even as Americans were not led by the struggle against the Soviets to ditch the entire notion of temporally confined militarization, the Cold War seems ambiguous and open-ended on its face. Dudziak neatly illustrates this fuzziness by showing that medals for military engagements abroad were given practically continuously, in spite of the fact that many Americans felt they were not engaged in “hot” war (outside their East Asian interventions at least).
Yet potentially lost in the shuffle of Dudziak’s sometimes digressive book is a deeper and politically more consequential point. The American way of war changed precisely into open-ended engagement with the initiation of a “Cold” War, and indeed the longer it went inconclusively on and on. (During long stretches of the Cold War, America thought it was losing.)
World War I and II, after all, really were much more temporally confined than the Cold War or today’s forever war. The very fact that Americans quickly called it a “Cold War” implied that, however unusual in chronology and scope, they knew they had moved to armed struggle. Even so, no one knew when – or if – this one would end. It was not a matter of bringing Germany (and, in World War II, Japan) to its knees, but choreographing the protracted minuet of permanent nuclear standoff and inconclusive third-world engagement. If so, while the 9/11 attacks appeared to insert a neat caesura between peace and war, they mainly ended up reviving Cold War open-endedness. As Dudziak puts it, “As during the Cold War era, there was a lack of fit between the conceptual categories of wartime and peacetime and geopolitical realities.” This grounds one of Dudziak’s most bracing corollaries: that legal scholars, liberal and conservative, have mainly spent their time since 9/11 continuing, and indeed amplifying, the Cold War mistake of thinking within the culturally constructed frame of a chronologically bounded understanding of war. Insistence on this frame, and failure to see its constructed qualities, prompts an obsession with “civil liberties in wartime.” But the “civil liberties in wartime” argument depends upon a social construction of “wartime” that in fact fit World War I and II much better than either the Cold War or today’s “endless war” in the first place.
Dudziak explores this corollary in several discussions of Geoffrey Stone’s scholarship. David Cole’s account of the post-9/11 era provides another case in point. According to Cole, after 9/11 and in the heat of wartime overreach, “civil society” forced a constitutional consensus on the expansion within limits of wartime powers – a claim from the Left that tracks the story Jack Goldsmith offers in his new book rather precisely, in spite of quibbling about details. Like Goldsmith, Cole doesn’t challenge the premise that the post-9/11 era should be seen as chronologically indefinite wartime. It is true that, unlike Goldsmith, Cole places the phrase “war on terror” in square quotes. But, just as Dudziak’s study might lead one to predict, Cole still organizes his account around a conceptual distinction between chronologically “ordinary” times and the “extraordinary” ones in which – Cole suggests — civil libertarians heroically shouldered the burden of checking power.
I wonder, however, if the civil libertarian strategy came about because of ill-fitting conceptual categories or, instead, a failure to challenge geopolitical realities. Was the error of our time conceding a wartime frame, or conceding an open-ended struggle on which to impose it?
Dudziak’s most pressing intuition, emerging beyond the claim that the grid of “wartime” led them in the wrong direction, is that liberals after 9/11 – with a few lonely exceptions – have accepted the chronological open-endedness that once led them to embrace grievous immorality in the Cold War. Cold War beliefs about endlessness have come to be applied, by Right and Left, to the global struggle against violent extremism. In doing so, both sides of the American political equation have been caught up in a vast expansion of American military reach, a catastrophe for which legally punctilious targeting, clean fighting, humane detention, and meaningful process provide some consolation but not enough.
I suppose that one could respond to Dudziak’s general argument by saying that the fuzziness at the edges of “wartime” doesn’t eliminate the fact that we know it when we see it. If the Cold War never ended, as the distribution of medals shows, it was nonetheless very different to have 15,000 troops in southern Vietnam before the Gulf of Tonkin incident and 500,000 after escalation. While civil liberties may have increased precisely in the Cold War (as Dudziak claims at one point), they were definitely under threat a few years later at Vietnam’s height. Similarly, 9/11 didn’t “change everything,” but it still returned the country in a spectacular way to direct intervention it had by and large given up after the Vietnamese catastrophe in exchange for geopolitical intervention through proxies. These objections are worth exploring. But they wouldn’t interfere with Dudziak’s most consequential insight into a fundamental transformation of American war and American national security policy in, and through, the Cold War. This transformation in turn served as the background for the acceptance of “forever war” that many liberals chose – and still choose – to share with conservatives whether in view of genuine facts or political assumptions or both.
Dudziak’s indirect rather than frontal attack on the Cold War turn to and post-9/11 revival of endlessness can prompt misunderstanding. Overemphasizing the application of the chronological structure of “wartime” to interminable war leads Dudziak to dwell too long on her general theory – as if it were crucial to show how World War II bled in minor ways beyond its universally assumed confinement. In his combative review of Dudziak’s book, Eric Posner may have been right to criticize that focus. Yet it doesn’t at all follow – as Posner goes on to argue — that there is no relation between the extent of a threat a political culture faces and the temporality with which it frames its response. In the face of Adolf Hitler, Americans took those old-fashioned steps of solemnly commencing war and duly ending it. No more. Though no enemy truly requires eternal belligerence – which is ultimately a religious concept too close to the extremism our war is supposed to be about rooting out – Americans now commonly adopt that response to their enemies. A vision of a perpetual enemy (communists then or terrorists now) practically guarantees overreaction.
Similarly, Dudziak singles out for great attention that Bush and Obama keep declaring war over and continuing it anyway. But is the main problem declaring it over, or continuing it anyway? Dudziak’s book contends that the August 2010 reporting of an end to hostilities in Iraq distracted America from their continuation elsewhere. In a more recent New York Times op-ed, she says the announced goal of pulling out of Afghanistan does the same work. Losing sight of her story of the move to endless war, Dudziak overemphasizes how, just as during the Cold War, the core feature of our “long wars” is that they end some places but never altogether. A bewildered Benjamin Wittes responds that there is no contradiction between concluding a battle and continuing a war. If the problem is not so much the wartime frame, but the endlessness on which it is imposed, however, then Wittes needs to say more. One might take the repeated ceremonial endings Dudziak singles out, for example, to imply widespread nostalgia for the very chronological confinement to war Americans long ago gave up.
Which brings me back to Jon Stewart.
If the unquestioned assumption of “endless war” encourages excessive responses to the threat, then what looks like a perfect equilibrium might turn out to be unchecked and unbalanced executive power after all. The post-9/11 American state that Jack Goldsmith depicts as reverting after the early Bush mistakes to the moral, political, and ultimately constitutional mean might instead show a mean that has shifted, and not for the better.
Another possible view, in other words, is not that “the system worked” after 9/11, but instead that the system crashed in the Cold War; it is to our great and lasting moral discredit that matters were never put right after it. True, few Americans seriously opposed the national security consensus Goldsmith’s new book vividly illustrates. But ethics is not merely a matter of reaching equilibrium. This isn’t to say that Dudziak’s book is the perfect normative rejoinder to current views. Its style of cultural analysis, and not merely its glancing attention to endlessness, ultimately talks past the policy-oriented debate that dominates. The current policy debate lacks perspective on the cultural determinants of politics, but it also lacks moral content, even though it is a matter of life and death.
It is our fault that our era is one in which our humorists have tried to provide some of the sole nationally prominent moral checks on otherwise reigning assumptions. “Is that constraining the presidency or codifying things we did not think were possible, and that we have now accepted, and maybe shouldn’t?” Stewart mused haltingly about Obama’s policies on detention, trials, and drones, but not even reaching whether it is wrong to see ourselves in endless war in the first place. “I don’t know who the ‘we’ is that thinks we shouldn’t do this,” Goldsmith responded.
Who indeed? It is among the main questions posed by our era. When we finally turn up to answer it, we will first need to ask how to bring the premise of endless war itself to an end.
(Samuel Moyn teaches history at Columbia University, and his most recent book is The Last Utopia: Human Rights in History (reviewed at Lawfare by Alice Beauheim); he is visiting next academic year at Harvard Law School.)