It is worth bearing in mind that whatever our opinions of the war initiated by the September 2001 Authorization to Use Military Force, all three branches of the federal government have repeatedly reaffirmed or at least assumed that the United States is still in a state of war. One of the key questions facing the next Congress and especially the next president, is whether they are going to continue the war, that is, commit themselves to an indefinite war against a largely unknown enemy. The point has been made that the U.S. has fought indefinite wars before, that is, wars such as the Second World War in which the end of the war was unknown. Those familiar with the history of that war know that the Allied leaders had strategies in place to bring the war to an end by at least 1946 or 1947. But that is a minor point. The more important point is that a better analogy for the current war against terror is not any declared war the U.S. has fought but rather the Cold War, the constitutional implications of which were largely negative, as they arguably include Vietnam, the constitutional crisis of Watergate, and dealing with the legacy of extensive domestic political surveillance by all of the chief intelligence agencies. ...While I want to encourage this line of thinking, it also needs to go a step further. Griffith works with a conventional conception of "wartimes," and the way they have operated in the history of law and war. But the real lesson of the Cold War may be that "wartime" is an outdated concept, and that we should look at the model of the Cold War in a different way. This was a time when security became so central to the state, and big and small wars faded one into another, so that there were really no beginings and endings to wars, but instead a consistenty engaged national security state.
With respect to scholarly commentary, I think there has been too much theorizing in the shadow of the next terrorist attack and not enough “normal science,” despite the Supreme Court’s efforts to restore some sort of balance to the conversation among the branches. Law professors can surely be expected to produce reams of legal argument in reaction to any event with dramatic legal implications. But the absence of sustained reflection on the lessons of the wars of the twentieth century, including Vietnam and the Cold War, has been very surprising.
We tend to think of history as marked off into "wartimes" and non-wartimes (sometimes called "peacetime"). In constitutional analysis, we think of the relationship between citizen and state as varying depending on which sort of time we're in -- war-time, or non-war-time. This is the idea of the swinging pendulum -- swinging toward rights in peacetime, and away in wartime. There may well have been eras in American history when this way of thinking made sense. But the concept of "wartime" breaks down by the mid-twentieth century. Just one part of the story is the way nuclear weapons affected the security environment. The importance of the Cold War era is not that is had a nebulosity that might be a parallel to the "war on terror," but rather, by this era in U.S. history, the lines between war and non-war had become blurred.
This may lead to the sort of argument Mark Tushnet makes in The Constitution in Wartime collection -- that the "war on terror" is more of a continuing condition than, for example, an emergency, requiring that we consider long-term trade-offs regarding the scope of executive power and the nature of rights.
But the particular intervention I wanted to emphasize here is that in asking us to turn to history, Griffin maintains a conception of history that is obscuring our ability to see the deeper lessons of the Cold War: the Cold War unravels the idea of "wartimes," and was a the time when the United States became a consistently engaged national security state. This might allow us to see something other than parallels between our time and an earlier time. Perhaps the Cold War ushered in an era, in terms of the state and security, that we are still operating in, and perhaps these are the conditions that framed the response of government and society to the post-9/11 environment.
