The Sunday Book Review section of the New York Times is devoted to books on war, even though the editors note that "no one is quite sure what the meaning of 'war' is anymore." Featured books range from a new translation of The Aneid to Imperial Life in the Emerald City, a celebrated book about Iraq's Green Zone. Legal history is not featured, unfortunately. On law there is a paired review of Ackerman, Before the Next Attack, and John Yoo, War By Other Means, principally raising expected criticism. In defending the Bush Administration's actions, "at the heart of Yoo's argument," writes Fareed Zakaria, "is the notion that we are at war....Everything...follows from this fundamental premise....But are we really at war? And if so, who are we at war against?" The practical difficulties of applying a traditional war model to the "war on terror" seem obvious, but in the face of questions about the outer limits of executive power and discretion, as Zakaria puts it, Yoo's answer is simply "trust us." While he finds more satisfying Ackerman's effort to think through the way the contemporary threat of terrorism affects our political and legal institutions, through an "emergency constitution" model, Zakaria faults both authors for inattention to the broader political context. For him this means in part public diplomacy. We need all the weapons at our disposal in this current conflict, he argues, and "perhaps our most potent weapons are the sense people around the world have had that the United States is an exemplar of rights and liberties and that it lives by those principles even under storm and stress." When we casts aside rights "and trade them for the traditional tools of dictatorships...will this trade really help us prevail?"
Other reviews of interest include Mark Attwood Lawrence on Fursenko and Naftali, Khruschchev's Cold War, a book based on new research in Soviet archives painting the Soviet leader not as a "reckless buffoon" threatening the world's safety, e.g. in the Cuban Missle Crisis, but as a leader hoping ultimately to ease tensions to raise his nation's standard of living.
Legal historians might benefit from engaging another reviewed book, Max Boot, War Made New, on the history of military technology. The history of technology is not a usual subject in legal history. But surely in the 20th century at least, the history of war, the history of technology and the history of law intersect and develop together. David Kennedy has shown in his new book Of War and Law that law is a technology of war. In Boot's new work are lessons about the role of technology in history that we might bring into the study of law. As Josiah Bunting puts it, Boot argues that "technological innovation has a bleak dialectic: advances in warfare usually require adaptive mechanisms purchased at tactical cost." Bunting's example is the body armor of contemporary American soldiers, protecting them from harm, but leaving them "waddling like armadillos" and easier targets. What does this have to do with law and politics? Changes in war technologies affect not only the way the rules of engagement apply, but also the way war is percieved and viewed at home. Nuclear bombs ushered in a nuclear age, with its anxieties. "Smart bombs" are portrayed as cabining the impact of war to a precise target, making it more palatable. With our traditional focus on civil liberties and executive power, legal historians have largely left the exploration of the fuller implications of American militarization and military engagement to the military historians. But surely there is a larger story about the way the phenomenon of war has seeped into the structure of American governance, and American political culture, well before the terrorist attacks that inform much of the new scholarship. One part of this story is the dark dialectic of the march of technologies of destruction. In Boot's work, and in these other works on the history of war, perhaps there are places of engagement for a fuller legal history of American war.
