What if the War on Terrorism Never Ends?

There's an interesting op-ed by Andrew Bacevich (a BU IR prof) about the balance of war powers between the President in Congress in yesterday's New York Times... Bacevich's basic point, as I take it, is that the war on terrorism should force us to rethink how we allocate warmaking powers among the various branches, and that Congress should more actively assert its constitutional authority to serve as a check on excessive presidential warmaking. Something new and different, to be sure.

Never one to pass up a chance at shameless self-promotion, this got me thinking about a project I'm currently working on concerning what actually happens, legally, to the war powers in a "never-ending" war. More to the point, this reminded me of how much that question has been almost completely ignored in post-9/11 literature concerning the separation of war powers. To be clear, I don't mean to suggest that the "war against terrorism" may never end -- it very well might, and I hope that I live to see the day it does. Importantly, however, for constitutional purposes, that's not the operative question.

One of the lesser-known wartime authority cases from World War II is a case called Ludecke v. Watkins. Ludecke, which is all about the equally unknown Alien Enemy Act of 1798, still on the books today, upheld President Truman's authority to detain as "alien enemies" noncombatant German nationals within the U.S. not just during World War II, but until well after the fighting ended. According to Justice Frankfurter's majority opinion, the "war" wasn't over until the political branches said so, and courts should have no role in second-guessing that determination or the absence thereof. Put another way, Ludecke stands for the proposition that the "end of hostilities" is not a legal reality, but a political one. Regardless of the situation on the ground, the quote from Animal House is apt: "Nothing is over until we say it is," and the "we" does not include the judiciary. [In Ludecke's case, the "war" eventually ended on October 19, 1951]. All of this seems all the more odd in Ludecke, since, after May 8, 1945, there was, formally, no German government on whose behalf Ludecke could possibly commit espionage... But I digress. The more pressing question, especially given Bacevich's piece, is how Ludecke applies today. Put another way, forget the allocation of powers between the two political branches (Bacevich's central focus). There's a far harder problem here if the two political branches, acting in concert, do nothing...

Nor is this all that far-fetched; regardless of the situation on the ground in Afghanistan, or wherever else the war against terrorism is fought, it seems highly dubious, as a purely practical matter, that either of the political branches would ever be inclined to declare the "war on terrorism" over. One can only imagine the disastrous consequences of a terrorist attack after such a declaration. Indeed, even to those whose support for the war is unconditional, and who have no trouble analogizing the conflict against al Qaeda to the nationalist wars of the twentieth century, it has to be a bit disquieting to think that the war power could become a permanent fixture of twenty-first-century American life solely because of a lack of political willpower. For those less convinced that this war is just like the others, I can only imagine that the same is even more true.

The better approach, I think, is to return to the rationale of an opinion written by Justice Brandeis shortly after the physical, if not legal, end of World War I. In Hamilton v. Kentucky Distilleries & Warehouse Co., Brandeis suggested that courts should exercise significant deference when analyzing whether a power only available during wartime should still be countenanced, but that courts could strike down a resort to the war power in a "clear case" where the "war emergency" had passed. Excessively deferential review, under the Hamilton model, seems far more likely to account for the political reality -- that the political branches will have no incentive to say that the war is really "over," even if the fighting had long-since ceased. After all, how many historians would agree that World War II "ended" in October 1951; that World War I ended in July 1921; that the U.S. Civil War ended in August 1866?

As we get further and further away from September 11 (or, more realistically, from September 18, 2001, the day Congress enacted the Authorization for Use of Military Force), it's something to keep in mind, and something entirely missing from current scholarship on post-9/11 issues, including Bacevich's otherwise intriguing op-ed.