Academic journal article Michigan Law Review

A Time for Presidential Power? War Time and the Constrained Executive

Academic journal article Michigan Law Review

A Time for Presidential Power? War Time and the Constrained Executive

Article excerpt



Between 2002 and 2008 I served as an intelligence officer in the U.S. Air Force. Though I had been deployed overseas several times, my primary place of duty was in the United States. When I landed at Baghdad International Airport in June 2006, however, several things immediately changed for me as a result of military regulations. I had to carry my sidearm and dog tags at all times. I could not eat anywhere other than a U.S. military installation. I could not drink alcohol. My pay was a bit higher. Personally, I was more vigilant, more aware of my surroundings. In other words, I was at war.

Indeed, the U.S. government claimed wartime powers because thousands of others like me-members of the U.S. military-were stationed in Iraq: the United States deployed large numbers of troops to provisional bases on foreign soil, those troops used lethal force, and they detained individuals without trial for using force in return. And while there was a reasonably clear beginning point for the exercise of these powers-found in an Authorization for the Use of Military Force ("AUMF") rather than a formal declaration of war1-from the vantage point of June 2006, it was unclear whether or when this authority would cease. There was no enemy that could surrender or sign a peace treaty, or give some other sign that "war" had ended; the forces that the United States was fighting-variously, Sunni tribesmen, Shia militias, and foreign extremists-had changed significantly since the 2003 invasion and would even change during my yearlong deployment. Although, as an officer in the U.S. military, it was very clear for me when I was at war and when I was not, the temporal bounds of this "wartime" were actually quite murky for the U.S. government. That murkiness increased significantly when considering not only the war in Iraq but also the "Global War on Terror" writ large.

Professor Mary L. Dudziak's important new book War Time2 confronts the murkiness between wartime and peacetime, investigating its history, present reality, and implications. Although the boundaries of the War on Terror are commonly perceived as shifting and uncertain, especially compared to relatively defined wars such as World War II, Dudziak argues that the murky boundaries of war are not a new phenomenon and highlights the corrosive effects that such uncertainty can have on the rule of law. She argues that this uncertainty will accelerate as the United States engages in increasingly amorphous armed conflicts. She likewise predicts that political leaders-particularly executive branch officials-will try to take advantage of wartime's uncertain boundaries while using the terminology of a more certain past.

Dudziak contends that the increasing invocation of wartime as an argument for increased executive power runs counter to the conception of the United States as a nation of laws. She suggests that we need to understand the flawed rationale behind such invocations to effectively combat them. Part I of this Notice summarizes Dudziak's work, tracing the development of the modern concept of "wartime" from World War II to the present day. Parts II and III evaluate Dudziak's arguments in light of two of the most extraordinary powers that a state may claim in wartime-the power to detain and the power to project force. Part II argues that, for all of Dudziak's concerns about the diminishing barriers between peacetime and wartime, there still exist some hard limits on the power that the executive may claim, as evidenced by U.S. detention policies in Iraq. But while some limits may still apply, Part III also finds truth in Dudziak's premise that wartime's boundaries are eroding, using the recent U.S. intervention in Libya as an example. Part III also examines the limits to Dudziak's paradigm, under which wartime necessarily equals government power, against the backdrop of a president who has expanded his power by conspicuously avoiding "wartime. …

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