In a scene near the end of Page One, Andrew Rossi’s 2011 documentary about the New York Times, Brian Stelter, a reporter on the Times media desk, learns that NBC is preparing to declare the end of the Iraq war. The network’s correspondent Richard Engel is embedded with what NBC describes as the “last combat troops” in Iraq, the US Army’s 4/2 Stryker Brigade. Engel’s live broadcast from the back of a troop transport vehicle rattling across the Kuwaiti border, anchor Brian Williams informs his audience on that evening’s NBC Nightly News, “constitutes the official Pentagon announcement” of the end of fighting.
At this point—mid-August 2010—there were still fifty thousand US soldiers in Iraq. No one in the White House has confirmed NBC’s claim, and no one at the Times knows what to make of it. As night falls and deadline looms, a handful of the newspaper’s staffers gather in a warren of cubicles in the paper’s midtown newsroom to try to make sense of what is, or isn’t, happening. “How do you cover the end of a war,” one editor wonders out loud, “that’s not ending?”
It’s a fascinatingly unreal moment, and it feels of a piece with its era: an early twenty-first century in which Americans seem unable to agree on the occurrence of even the most indisputable events. But is it really unique? In War Time, Mary Dudziak, a professor at the University of Southern California Gould School of Law, argues that this ambiguity is hardly limited to Iraq—that in a legal sense, at least, the boundaries of what constitutes “wartime” have always been slippery. World War II—that most straightforward of conflicts, with official days of surrender in both major theaters—didn’t technically end in Germany until 1951, and the United States’ peace treaty with Japan didn’t go into effect until the following year. Nor is the decade and counting of open-ended global conflict precipitated by 9/11 entirely unusual. Tallying up the years that US servicemen and servicewomen were considered eligible for campaign medals, Dudziak finds that the United States, by its military’s own criteria, was at war for almost the entire twentieth century. “War is not an exception to normal peacetime,” she writes, “but instead an enduring condition.”
These two observations—that wartime is a political determination rather than a reflection of the facts on the ground, and that it is the norm rather than an aberration—set the stage for Dudziak’s legal argument. “In time of war,” Cicero famously said, “law is silent.” But making this axiom acceptable in a liberal democracy requires defining wartime as exceptional, a moment of national emergency with a discrete beginning and ending. What happens if it isn’t? “When we understand that ‘wartime’ is an argument, rather than an inevitable feature of our world, then we can see that it need not cause us to suspend our principles,” Dudziak writes. “Our times do not determine our actions, they do not absolve us from judgment.”
This is a big idea but also a simple one. And the greatest strength and weakness of War Time is Dudziak’s tendency to treat her subject as more complicated and hazy than it actually is. In its most compelling passages, the book is a vaguely postmodernist riff on the ragged edges of its titular concept, with a wealth of intriguing digressions: daylight saving time’s use as a tool of national unity during World War II, the temporal implications of the Bulletin of the Atomic Scientists’ nuclear Doomsday Clock, the withholding of timepieces from detainees at Guantánamo Bay as a means of disorientation and control. But many of these tangents have little to do with the legal and political history that Dudziak narrates, which mainly concerns the uses and abuses of the concept of wartime in modern American history. The periods when the US government has run most roughshod over its citizens’ lives and the law under cover of national emergency, Dudziak observes, have not necessarily been times that Americans were most directly threatened by conflict. The Red Scare of the 1940s and ’50s, for instance, happened years before the cold war reached its apex in the Cuban Missile Crisis, and had more to do with domestic election-year politics than anything in particular the Soviets had done.
This story leads inevitably to 9/11 and the George W. Bush administration’s subsequent expansion of executive power, rollback of civil liberties, and abuses of human rights. But there’s an odd credulity to Dudziak’s treatment of the Bush administration, even as she offers a fairly conventional critique of its legal record. “Bush administration lawyers and policymakers looked to the past for examples,” she writes, “setting their own time within the context of past wartimes. In so doing they could see themselves as part of an inevitable pattern. They were bound by their times to go to the edges of propriety. Wartime was more than a justification; it was an explanation of what fate demanded of them.”
But Vice President Dick Cheney’s expansive view of executive power was a matter of public record more than a decade before 9/11—and what, in Dudziak’s analytical scheme, does one make of Barack Obama’s insistence on maintaining Bush’s national security state and its attendant legal scaffolding even as he tries to distance himself from the notion of a permanent national emergency? Documenting the idea of wartime’s potency as a tool for consolidating power is certainly worthwhile. But it’s hard to know what to make of a book that leaves the motives for doing so mostly off the page.
Charles Homans is a special correspondent for the New Republic.