Law and the Concept of “Wartime”

by

Mary L. Dudziak is the Asa Griggs Candler Professor of Law at Emory University School of Law, and Director of the Project on War and Security in Law, Culture and Society.  Her most recent book is War·Time: An Idea, Its History, Its Consequences (New York: Oxford University Press, 2012).

 

Well over a decade after the 2001 terrorist attacks, are we still in a “long war” without an end in sight?  Or does the category of “wartime” no longer fit our experience?  These questions are not simply abstract and academic.  In the aftermath of the Boston Marathon bombing, a debate erupted over whether a wartime or peacetime legal regime is appropriate.  If the bombing was an act of war, perhaps the surviving suspect should be tried by a military commission rather than a civilian court.  Answering this legal question requires us to think about what a wartime is, since this temporal concept – the time of war – has a legal consequence: it triggers application of an exceptional legal regime, and the suspension of the normal rule of law.

Jeh C. Johnson, former General Counsel of the Defense Department, recently suggested  that wartime is coming to an end.  We may be reaching a “tipping point” in the war with Al Qaeda, he argued.

 

I do believe that on the present course, there will come a tipping point — a tipping point at which so many of the leaders and operatives of Al Qaeda and its affiliates have been killed or captured and the group is no longer able to attempt or launch a strategic attack against the United States, such that Al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.

 

Johnson’s speech was heralded by some legal scholars as a recognition that exceptional measures like detention without trial would come to an end before too long. Under the conventional formulation of wartimes and their impacts, when peace arrives we end the prioritization of security over rights, and the normal rule of law returns.  Echoing this idea, Johnson remarked: “‘War’ must be regarded as a finite, extraordinary and unnatural state of affairs....Peace must be regarded as the norm toward which the human race continually strives.”

 

But is peacetime really our normal time? 

 

“Peace” is believed to be something real and attainable – a place we can get to – even though peace is a concept that lacks its own definition, most often described as a negation of something else, the absence of war.  After World War II, as global conflict persisted, George Orwell thought that nuclear weapons would lead to a world divided between super-states that would avoid “large-scale wars at the cost of prolonging indefinitely ‘a peace that will be no peace.’” Orwell shows us that ending one conflict does not automatically produce “peace.”

 

The reason the ideas of wartime and peacetime matter is that wartime is not simply a description of what is happening in an era, but is also an argument in support of harsh policies.  Why are we detaining people without charges at Guantanamo, for example?  Because it’s wartime, and it is legitimate to detain the enemy for the duration of a war.

 

In her book Measuring Time, Making History, historian Lynn Hunt notes that during the French Revolution,  Bertrand Berère claimed that his era compelled his acts of repression.  I “did not at all shape my epoch, time of revolution and political storms,” he argued. “I only did what I had to do, obey it.”  The times, or the era, in this account, compelled the action, so that time modifies human agency.  The idea that wartimes are exceptional moments enables this kind of determinism:  the idea that one is driven or determined by the times.

 

Wartime as a Form of Time

 

If time has this kind of power in history, or at least if temporality serves to excuse or explain human behavior, then the nature and conception of wartime as a form of time demands critical attention.

 

In scholarship on law and war, time is seen as linear and episodic.  There are two different kinds of time:  wartime and peacetime.  Historical progression consists of moving from one kind of time to another (from wartime to peacetime to wartime, etc.).  Law is thought to vary depending on what time it is.   The relationship between citizen and state, the scope of rights, the extent of government power depends on whether it is wartime or peacetime.  A central metaphor is the swinging pendulum – swinging from strong protection of rights and weaker government power to weaker protection of rights and stronger government power.

 

This conceptualization is embedded in scholarship in law and legal history; it is written into judicial opinions, it is part of popular culture.  Since 9/11 there have been important revisionist efforts, but by and large they aim for different ways to describe the era (is it a war or an emergency?) leaving the basic conceptual structure in place (normal times ruptured by non-normal times).  But this understanding of time is in tension with the practice of war in American history.  The problem of time clouds our understanding of law and war.

 

One reason that the temporal frame for war has so much power is that the outbreak of war is often experienced as ushering in a new era.  After Pearl Harbor, for example, Supreme Court Justice Felix Frankfurter said to his law clerk: “Everything has changed, and I am going to war.”  But the onset of war is seen not as a discreet event, but as the beginning of a particular era that has temporal boundaries on both sides.  It is during such an era – a wartime – that law takes on its wartime qualities.

 

But is an “era” a natural phenomenon – a property of time itself, or is it what we make of time?  For anthropologist Carol Greenhouse, we tend to think of “our” time as natural time, and everything else as socially constructed, but the linear time we think of as natural is also given meaning in social life.  Sociologist Emile Durkheim explained that it is difficult to see the cultural nature of time. “Try to represent what the notion of time would be without the processes by which we divide it, measure it or express it with objective signs, a time which is not a succession of years, months, weeks, days and hours!  This is something nearly unthinkable.” How could we  “conceive of time except on condition of distinguishing its different moments.”  But Durkheim asks:  “what is the origin of the differentiation?”  The categories come from social life.  Our ideas about time, and the way it works in history, are ideas we share to make sense of our experience.

                                                                                               

As Thomas Allen has written, time is not “a transhistorical phenomenon, an aspect of nature or product of technology existing outside of human society,” but is “an historical artifact produced by human beings acting within specific historical circumstances.”

 

Just as our understanding of clock time comes from social life, the idea of wartime, as it appears in American legal and political thought, is a historical artifact, a historically contingent set of meanings that derive not from the essential nature of either war or of time.  We need to view wartime, like linear time, as social time.

 

This matters to American law and politics because law is thought to vary depending on what time one is in. It is generally assumed that law is different during wartime, and that wartime determines law’s exceptional character.  For this formulation to work, war must have temporal limits: a beginning and an end.  In between exceptional wartimes is peacetime – our usual time – when normal law functions.

 

But if we include the small wars in U.S. history, during the twentieth century there were only six years when the United States did not employ military force overseas.  United States involvement in military conflict overseas is ubiquitous at least since the beginning of the twentieth century, and not confined to identifiable “wartimes.” [insert graphic]

 

When did World War II end?

 

Perhaps major American wars – the wars we think of as having important impacts on domestic politics and culture – wars like World War II – have real time boundaries.  We think we know when World War II happened, for example. But in a murder case on a U.S. Army base in California, the defendant’s life depended on when World War II had ended, requiring the U.S. Supreme Court to rule on whether the war was over in 1949.

 

John Lee, a prisoner at the United States Army Disciplinary Barracks at Camp Cooke, and three others, were charged with killing another inmate, Charlie Taylor.  They were convicted following a court-martial and sentenced to death, but Lee’s sentence was later reduced to life in prison.  The difficulty in the case was that Article 92 of the Laws of War provided that “no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace.”  Lee brought a habeas corpus challenge, arguing that the date of the crime, June 10, 1949, was a time of peace, depriving the court-martial of power over the case.

 

This case literally turned on when World War II ended.  What were the possibilities?  Germany surrendered on May 8, 1945.  Japan announced its decision to surrender on August 14, 1945, and surrender documents were officially signed on September 2, 1945. President Harry S. Truman proclaimed the cessation of hostilities on December 31, 1946, but said that “a state of war still exists.”  As late as 1951, “as a legal matter,” the nation was still in a state of war against Germany.  Truman called for an end to this state of war in July 1951, but stressed that this would not affect the occupation of Germany.  A declaration of peace with Japan occurred on April 28, 1952.

 

The various endings to World War II left the Court in something of a muddle in Lee v. Madigan.  The prosecution argued that the nation was not  ‘in time of peace’ in 1949 “for the purpose of Article 92,” since that provision had not yet been repealed.  Ultimately Justice William O. Douglas argued that “Congress, in drafting laws, may decide that the Nation may be “at war for one purpose and ‘at peace’ for another.”  The Court’s job was “to determine whether, ‘in the sense of this law,’ peace had arrived.”  While the Court in previous cases had found the war powers to extend long beyond the dates of surrender, Madigan concerned “a grant of power to military tribunals to try people for capital offenses,” unlike cases on regulatory powers.  Douglas essentially gave the Article a “common sense” reading, holding that the date of the crime was a “time of peace” as those words were used in the Article.

           

This example illustrates that even for the 20th century’s most iconic American war, there is an uneasy and uncertain relationship between wartime and war power.  War provides the occasion for use of war powers, but it is hard to contain them within “wartimes.”   

 

Wartime Today

 

What can be said of our latest “wartime”?  The dust had not yet settled in lower Manhattan before one of the features of the post-9/11 era began to emerge.  As the events of September 11 unfolded, amid the shock and horror was a discomforting narrative ambiguity: what was this?  From the beginning, September 11 was seen as a day that “changed everything.”   The conflict had broken time, had severed historical continuity, had opened a new era. 

 

Americans proceeded to impose traditional categories on an unruly present:  especially the idea of wartime. If the “war on terror” lacked the boundaries of traditional wartimes, the justification for new policies from domestic surveillance to detention at Guantanamo to waterboarding was nevertheless that it was wartime – as if time itself compelled extreme policies. 

 

President George W. Bush invoked the idea of wartime to rally public support for the Administration’s response to the attacks, but he was not alone.  A war narrative was reinforced in American popular culture.  Legal scholars debated whether it was a wartime, but most responded to the era’s ambiguity not by jettisoning the categories, but by renaming and re-imposing them.  “Crisis” or “emergency” became a dominant framing device.   But they coalesced around a conventional understanding: that there was an ideal of normal time that was periodically ruptured and restored in American history.  Whatever title might be ascribed to this new era, it was not normal time.

The greatest challenge to the idea that war is exceptional is simply the facts on the ground.  If the war on terror was a rupture of normal time, then it was inherently temporary, and would last only until normal times returned. Jeh Johnson has urged that we are now tipping into peacetime.  But as conflict continues, perhaps instead we are tipping into a form of warfare that largely escapes our attention.

 

Most American are isolated from the experience of war, but this era doesn’t seem very peaceful in parts of the world where American drones hover.  The ongoing deployment of force is not so exceptional, of course, for persistent smaller-scale wars have been a feature of U.S. international relations for the last century and more.

 

That wartime does a lot of work in our thinking about law and politics may be ironic at a time when – except when there is a crisis – we rarely think about it.  Although the Obama administration has worked to maintain the “wartime” paradigm, the president has also sought to convince the American people that he is moving us to the place we want to be:  peacetime.  Meanwhile, a president who came into office pledging to end wars and promising transparency, champions decision-making about the use of force behind closed doors, and with methods that don’t disturb the American people.  The focus on secrecy – even the legal rationales for targeted killings are secret – reinforces the president’s ability to pursue military action while the American people experience what seems like a peacetime.  In this way, contemporary wartime is not exceptional, but instead the passage of what has become normal time in America.

 

Because of this, the law and politics we have during war is not a suspension of normal rules that will someday go away. Instead, during ongoing war, our “wartime” law is our everyday law, which we as citizens must take responsibility for.


Discussion Questions

 

  1. What do we mean by the terms “wartime” and “peacetime”? How do we typically understand their difference?
  2. The author discusses use of a swinging pendulum as a common “central metaphor” for issues of law and national security. What does it mean? What does the author think of this metaphor?
  3. In Lee v. Madigan, Justice Douglas argued that “Congress, in drafting laws, may decide that the Nation may be ‘at war’ for one purpose and ‘at peace’ for another.” Does that standard make sense to you? Why or why not?
  4. Do you agree that September 11 changed everything? Why or why not?

 

The author concludes “During ongoing war, our ‘wartime law’ is our everyday law, which we as citizens must take responsibility for.” Do you agree? What do you think she means by asserting that citizens must take responsibility? What would this involve?

 

Additional Resources

 

Dudziak, Mary, War·Time: An Idea, Its History, Its Consequences (New York: Oxford University Press, 2012).

 

“Mission Accomplished: How Wars End,” Backstory with the American History Guys, 2013.

http://backstoryradio.org/mission-accomplished-how-wars-end-2/

 

Stone, Geoffrey, Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (New York: Norton, 2005).

 

Learning Gateways: Wartime or Peacetime? Lee v. Madigan Case Study

This case study helps to illustrate how the legal distinctions between wartime and peacetime, while significant, can often be blurry.

 

Facts of the Case

 

On June 10, 1949, John Lee, a prisoner at the United States Army Disciplinary Barracks at Camp Cooke, in California, and three others, were charged with killing another inmate, Charlie Taylor. Lee had served with the U.S. Army in France during World War II, and was still an active soldier. He was court-martialed, convicted, and sentenced to 20 years in prison. He challenged the verdict based on Article 92 of the Laws of War, which  provided that “no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace.” Lee argued that the date of the crime, June 10, 1949, was a time of peace, depriving the court-martial of power over the case.

 

Ultimately, the case reached the U.S. Supreme Court in 1958. The question before the Court was essentially whether June 10, 1949 was peacetime or wartime. Why was there a question? What were the possibilities?  Germany had surrendered in World War II on May 8, 1945.  Japan had announced its decision to surrender on August 14, 1945. Surrender documents were officially signed on September 2, 1945. In 1947, Congress terminated many provisions of the Laws of War, but not Article 92. President Harry S. Truman proclaimed the end of hostilities on December 31, 1946, but said that “a state of war still exists.”  But, as late as 1951, “as a legal matter,” the nation was still in a state of war against Germany.  Truman called for an end to this state of war in July 1951, but stressed that this would not affect the occupation of Germany.  A declaration of peace with Japan occurred on April 28, 1952.

 

Opinion of the Court

 

The Court issued its opinion on January 12, 1959, in favor of Lee. Six justices were part of the opinion, which was written by Justice William O. Douglas.

 

... Since June 10, 1949 -- the critical date involved here -- preceded these latter dates, and, since no previous action by the political branches of our Government had specifically lifted Article 92 from the "state of war" category, it is argued that we were not then "in time of peace" for the purposes of Article 92. That argument gains support from a dictum in Kahn v. Anderson, that the term "in time of peace," as used in Article 92, "signifies peace in the complete sense, officially declared." Of like tenor are generalized statements that the termination of a "state of war" is "a political act" of the other branches of Government, not the Judiciary. ...We do not think that either of those authorities is dispositive of the present controversy. A more particularized and discriminating analysis must be made. We deal with a term that must be construed in light of the precise facts of each case and the impact of the particular statute involved. Congress, in drafting laws, may decide that the Nation may be "at war" for one purpose and "at peace" for another. It may use the same words broadly in one context, narrowly in another. The problem of judicial interpretation is to determine whether, "in the sense of this law," peace had arrived. Only mischief can result if those terms are given one meaning regardless of the statutory context.

We deal with the term "in time of peace" in the setting of a grant of power to military tribunals to try people for capital offenses. Did Congress design a broad or a narrow grant of authority? Is the authority of a court-martial to try a soldier for a civil crime, such as murder or rape, to be generously or strictly construed?

We do not write on a clean slate. The attitude of a free society toward the jurisdiction of military tribunals -- our reluctance to give them authority to try people for nonmilitary offenses -- has a long history.

We approach the analysis of the term "in time of peace" as used in Article 92 in the same manner. Whatever may have been the plan of a later Congress in continuing some controls long after hostilities ceased, we cannot readily assume that the earlier Congress used "in time of peace" in Article 92 to deny soldiers or civilians the benefit of jury trials for capital offenses four years after all hostilities had ceased. To hold otherwise would be to make substantial rights turn on a fiction. We will not presume that Congress used the words "in time of peace" in that sense. The meaning attributed to them is at war with common sense, destructive of civil rights, and unnecessary for realization of the balanced scheme promulgated by the Articles of War. We hold that June 10, 1949, was "in time of peace" as those words were used in Article 92. ...

 

Dissenting Opinions

 

Justice John Marshall Harlan II and Tom C. Clark dissented from, or disagreed with, the Court’s opinion.

 

... today's decision is demonstrably wrong. This Court has consistently, for nearly 100 years, recognized in many contexts that a cessation of active hostilities does not denote the end of "war" or the beginning of "peace" as those or similar terms have been used from time to time by Congress in legislation.

... This Court, in construing a statute, recognized that "'The state of war' may be terminated by treaty or legislation or Presidential proclamation. Whatever the mode, its termination is a political act."

... The Court says that "Congress, in drafting laws, may decide that the Nation may be at war' for one purpose, and `at peace' for another." Of course it may. But the Court points to no case, and I know of none, which has construed statutory language similar to that found in Article 92 to mean anything but "peace in the complete sense, officially declared." Under these circumstances, ... the conclusion seems to me unmistakable that Congress intended that "peace" in Article 92 means what we have always, until today, held it meant in this and other congressional legislation. When Congress has wished to define "war" or "peace" in particular statutes as meaning something else, it has explicitly done so. See, e.g., War Brides Act, 59 Stat. 659:

"For the purpose of this Act, the Second World War shall be deemed to have commenced on December 7, 1941, and to have ceased upon the termination of hostilities as declared by the President or by a joint resolution of Congress."

Today's decision casts a cloud upon the meaning of all federal legislation the impact of which depends upon the existence of "peace" or "war." Hitherto, legislation of this sort has been construed according to well defined principles, the Court looking to "treaty or legislation or Presidential proclamation," to ascertain whether a "state of war" exists. The Court, in an effort to make a "more particularized and discriminating analysis," has apparently jettisoned these principles. It is far from clear to me just what has taken their place. ...

The Court does not say when the "peace" which it finds to have existed in June, 1949, came into being. It may be noted that the Presidential Proclamation of December 31, 1946, proclaiming the cessation of hostilities, specifically announced that "a state of war still exists," and that Senate Joint Resolution 123, 61 Stat. 449 (effective July 25, 1947), which repealed or rendered inoperative a selected group of wartime measures (not including Article 92), was obviously an expression of a conscious and deliberate decision by Congress that the time had not yet come to end the state of war. It was not until October 19, 1951, that Congress, by joint resolution, declared that "the state of war declared to exist between the United States and the Government of Germany by the joint resolution of Congress approved December 11, 1941, is hereby terminated," and not until April 28, 1952, the effective date of the Japanese Peace Treaty, that peace with Japan was proclaimed by the President. ...

Case Study Discussion Questions

  1. What happened in the case of John Lee? Why was the legal distinction between “wartime” and “peacetime” so important?
  2. What did the Court ultimately decide? What does the dissenting opinion argue?
  3. Do you agree or disagree with the Court’s decision? Why or why not?
  4. What governmental actions do you think are necessary to distinguish between “wartime” and “peacetime?”

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