January 01, 2003

From the Chair

by Mark D. Agrast

The Constitution has not greatly bothered any wartime President.

– Francis Biddle
In Brief Authority

As I was preparing this column, I learned of the death of Eugene V. Rostow, an eminent statesman and dean of the Yale Law School, with whom I had the privilege of studying in the mid-1980s. Professor Rostow spent most of his career engaged with issues of war and peace. In 1945 he penned a powerful and justly famous article excoriating the Supreme Court for upholding the wartime internment of Americans of Japanese descent. I will return to that article shortly, because it has much to say of relevance to our present situation.

A collection of essays on the laws of war must somehow get around the ancient Roman maxim “inter arma silent leges”: in time of war, the laws are silent. Taken literally, this suggests that there is little to be said on the subject. Or the less said the better. In fact, the proverb lends itself to a number of less frivolous interpretations, each of which holds profound implications for individual rights and the rule of law. Thus, we might say the laws are silent because there are too few enforceable norms that regulate armed conflict—or too few warring nations that are willing to submit to them. Or because the courts, the Congress, and other civil authorities are reluctant to challenge the actions of those charged with waging war. Or all of the above.

To some, the very phrase “laws of war” may seem a contradiction in terms. What is war, after all, but a suspension of the normal rules that constrain aggression? Indeed, as Telford Taylor wrote in Nuremberg and Vietnam: An American Tragedy, “War consists largely of acts that would be criminal if performed in time of peace.”

Yet, over the past two centuries, the advent of modern warfare has gradually given rise to a body of customary international law regulating the treatment of civilian noncombatants and prisoners of war, proscribing the aggressive use of force, and placing limits on the means by which even defensive war may be waged. The codification of these rules through the Geneva Conventions, the UN Charter, and other international agreements, and the establishment of international courts to enforce them, have created a legal framework for distinguishing lawful combat from crimes of war.

But customary norms of international law depend for their legitimacy upon the willingness of state actors to be bound by them. When, for example, the world’s sole remaining superpower engages in armed action without seeking UN authorization, it contributes to the erosion of the Charter’s prohibition on the unilateral use of force. Indeed, the tendency of U.S. governments to act in this manner has recently caused some authorities to question whether the prohibition can still be said to be a valid source of customary international law. See, e.g., Michael J. Glennon, How War Left the Law Behind, N.Y. Times, Nov. 21, 2002, at A37.

Arguably, the U.S. refusal to ratify such measures as the Rome Statute establishing the International Criminal Court (long supported by the Section and the American Bar Association) and the Ottawa Treaty on the use of antipersonnel landmines has slowed or prevented the emergence of other customary norms that might “speak” in time of war.

Whether the law will be silent here at home remains an open question. For 200 years, the Bill of Rights has withstood the efforts of wartime governments to curtail civil liberties—efforts in which the judiciary has all too frequently acquiesced. The current campaign against terrorism has presented the courts with novel challenges—measures that some have described as a “parallel legal system” lacking customary protections for the accused.

Novel challenges, certainly, but not unprecedented. Half a century ago, Dean Rostow described the World War II internment policy as “a system . . . for . . . indefinite confinement and detention . . . without charges or trial, without term, and without visible promise of relief,” and portrayed the Court as “a bench of sedentary civilians . . . reluctant to overrule the military decision of those charged with carrying on the war.” Eugene V. Rostow, The Japanese American CasesA Disaster, 54 Yale L.J. 489, 502 (1945).

Although I do not equate the current antiterrorism measures with the World War II internments, the two situations have important points in common. First, in each case, the government claimed sweeping authority to detain, without charge, without trial, and without term, individuals lawfully present in the United States, many or most of whom were singled out because of their national origin or ethnic heritage. Second, the government argued that the courts should uphold the exercise of that authority based solely on the ipse dixit of a government official, without undertaking any independent review.

It was the Court’s failure to conduct a meaningful review that Dean Rostow identified as its chief failing in the Japanese cases: “Unless the courts require a showing, in cases like these, of an intelligible relationship between means and ends, society has lost its basic protection against the abuse of military power.” Rostow at 516.

This is surely what the rule of law should mean in time of war. Far better for the law to be silent than for the courts to give such measures their imprimatur without adequate review. Should they do so, they will be guilty—as was the Court in Korematsu—of converting “a piece of war-time folly into political doctrine, and a permanent part of the law.”  Rostow at 491.

Midyear Meeting Note

The Section has devoted considerable energy to ensuring that the American Bar Association responds thoughtfully and forthrightly to these challenges. During the past year we played a major role in the development of policies on indefinite detention and the use of military tribunals. At the 2003 Midyear Meeting in Seattle, we will propose further policies on the treatment of “enemy combatants” and the expanded use of electronic surveillance of U.S. persons under the Foreign Intelligence Surveillance Act. We will also sponsor a program on “Bringing Saddam Hussein to Justice: Examining the Law of War Crimes,” on Friday, February 6, 2003, from 4:00 p.m. to 5:30 p.m. at the Westin Seattle Hotel. I hope you will join us .