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Endless War Watch, Summer 2016

Samuel Moyn
Friday, June 24, 2016, 11:28 AM

This Sunday the New York Times Book Review prints my all-too-brief rundown of Mark Danner’s new Spiral: Trapped in the Forever War. Danner’s book is not a work of academic analysis or journalistic reportage but instead a synthetic account of America’s drift since 9/11 by someone who thinks the country has gone dreadfully wrong.

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This Sunday the New York Times Book Review prints my all-too-brief rundown of Mark Danner’s new Spiral: Trapped in the Forever War. Danner’s book is not a work of academic analysis or journalistic reportage but instead a synthetic account of America’s drift since 9/11 by someone who thinks the country has gone dreadfully wrong.

There is little or no new information in it for experts, but the national security law community should still read and ponder it. Danner’s contribution and voice are very different, for example, from Charlie Savage’s much noted Power Wars, with its new information and judicious balance. Danner steps outside the bipartisan consensus on national security law whose current equilibrium and minor bickering set the term of Savage’s inquiry. Danner, clearly, did not simply want to split the difference between the tangling lawyers within a bipartisan consensus around the war. Instead, he offers a cri de coeur about a national security culture that has gone deeply awry. If only to verify that he is wrong, everyone who is part of that consensus, which I assume describes most of the writers for and readers of this site, should take a look.

That said, Danner’s book is just a first stab at an analysis of the political dynamics of the forever war. Indeed, people less wary than he is of our age of permanent quasi-war to police the globe have already recognized the transition the country has undergone without indicting it as sternly. Jack Goldsmith has done so from the perspective of the dynamics of the branches of government, and a forthcoming book by Rosa Brooks tracks a comparable evolution within the military. All agree that we have entered an era in which “peace” coexists uncomfortably with interminable global violence (for those non-state actors that risk committing it or those state actors powerful enough to do so and avoid condemnation). All agree that executives have pushed the boundaries of national and international legality and redefined the scope and timeline of legal violence with little apparent constraint — except, theoretically, a wayward public, which has not done much to push back yet.

In the newspaper (though I certainly wish I had had more room), I fault Danner’s generally absorbing and excellent book on two main counts.

First, he works with a framework in which 9/11 unleashed a “state of exception.” Few except those who frequented humanities departments in the early 2000s will remember how many grad students carried around dog-eared copies of contemporary Italian philosopher Giorgio Agamben’s book of that title (with the phrase tracing further back to German legal theorist Carl Schmitt’s thought). But especially after Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush came down, Agamben’s framework seemed premature. Few could sustain belief anymore in the notion that the global war on terror was about establishment of law-free zones for executive warmaking. The framework left no room for good news like Supreme Court intervention. But it also got the bad news wrong. The critical attribute of the global war on terror is not its illegality but its legalization.

The thesis of Savage’s book is that after some point Americans, or at least all the current president’s men and women, “were trying to fight al-Qaeda while adhering to what they saw as the rule of law” (my emphasis). Now some people might disagree that Americans have in fact adhered to the rule of law and worry about a regime in which people whom the law is supposed to regulate get to decide what the law is. (I have tried to avoid staying hungry while adhering to what I see as my weight-loss regime, and I am afraid it hasn’t worked very well either.) It once seemed like “constitutional alarmism” to complain that checks within the executive branch—such as the storied independence of the Office of Legal Counsel— were too weak, but what about now? That the legislature has been out to a very long lunch as its statutes proved infinitely elastic has long struck many as regrettable, even though it is routinely treated as inevitable. Few people in America have considered that it is Americans who are deciding what international law says – Savage cites few if any foreigners on such questions — even though every law student learns the maxim that no man should be a judge in his own cause. But even to have such debates it is critical to grasp that the new normal is a war asserted to be legal and fought in ostensible conformity with law. Condemning the war as “state of exception” skirts this all-important fact or ignores for how long and how broadly the war has been legalized.

Among the topics they have bickered about, Republicans and Democrats within the bipartisan consensus have tried to take credit for this legalization, differing over whether the later administration of George W. Bush or the early administration of Barack Obama constituted the real turning point. Whoever is right, it is hard to see the merits of a framework that nostalgically treats some pre-war baseline as “normalcy” and everything since as “exceptional.” (Anyway, as I point out in the newspaper, if that is one’s framework it makes far more sense to date the catastrophe to the inception of the Cold War, not to recent times.)

Second, I think Danner is still too obsessed about torture. That is true, I think, of a great many liberals since 9/11, who became so fixated on that brief though outrageous problem that they think their ire about it and opposition to it solves more intellectual and political problems than it does. Danner, as I cite, calls torture the “signal attribute” of our endless war. But in retrospect it looks like a dispensable mistake, a bug rather than a feature of a program for a new normal. This is one reason why Danner is absolutely right to complain that traditional human rights activism, which successfully stigmatized torture, has not made much difference to the basic shape of endless war – in particular, it has provided zero help in confining it geographically or temporally, and may even have enabled war’s expansion. A different kind of politics – an antiwar politics – would be required to impose limits.

Even those who see no hope in this regard – for example, those who dismiss Bruce Ackerman’s suit asking a judge to rule the war on ISIS unconstitutional or at least a violation of the War Powers Revolution as likeliest to strengthen the executive’s hand —should consider the deeper syndrome Danner is anxious about. Put simply, our forever war is a strategic failure. A growing number approach these legal debates convinced of a basic policy failure in a war that has become endlessly cyclical because its destruction of enemies creates new ones. As retired four-star general John Allen – until recently America’s special envoy for the Global Coalition to Counter the Islamic State – noted, the real need is to get at “the underlying causes which take hope from large segments of the population, that give large elements within countries no access to the institutions of government, no hope for a decent job, no way to bring their children up, no hope for education.” He added: “if we don’t get to the left of those symptoms and try to solve these underlying circumstances, working collaboratively with those who are in the region, who best understand the region, then we’re going to be condemned to fight forever.” Granted, some people care about the questionable legality of the war, if not under international or constitutional then at least statutory law, for its own sake. But for most, these arguments matter because they allow indirect reexamination of the wisdom of the policy that got us here. Danner’s book is valuable precisely because it is so insistent that we have chosen catastrophe for ourselves, and the world, on the installment plan. Furthermore, its current effects are not even the most fearful, but instead the precedents the policy sets for future events and future actors (American and not). We do not want to live in a world in which crossborder force has been so unconstrained, even if it has been made as respectful as possible of the law of war and human rights.

The memorialization of the great Michael Ratner a month ago was extremely interesting in precisely this respect. An antiwar activist in his origins, Ratner developed tactics around civil liberties and human rights in that spirit. His colleagues and disciples, adopting some of those tactics, were not always as intent as Ratner in keeping the strategy in mind, and it is critical to consider what result a tactic of humanizing war untethered from a strategy of ending it can abet.

Some celebrated Ratner, and rightly and understandably so, mainly for acting when it was unpopular to put the forever war on firmer legal footing. (Jack agreed, both in his book and in his own memorial post, that no one did more to “bring the rule of law to the war on terror.”) But no one should be surprised by how fundamentally civil libertarians and human rights activists have strengthened the war on terror, since this result follows from the classic theory of interest convergence: you get the part of your reforms that help your opponents too. Let’s take care not to get too laudatory about the “engines of liberty” of civil and human rights activism, then, before figuring out why they have done nothing to silence the drone of endless war — assuming they have not inadvertently helped power the machine.

Fortunately, banning torture and providing detainee process, which did so much to normalize the war on terror as an endless albeit quasi-legal struggle, could never have defined Ratner’s deepest politics. His record of opposing wars is worth as much recollection as his other successes. For as he put it already in 2002, “[P]ermanent war abroad means permanent anger against the United States by those countries and people that will be devastated by U.S. military actions. Hate will increase, not lessen.”

Samuel Moyn is a professor of law at Yale Law School.

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