Legal scholars argued over Bush administration policies, of course. But underlying these expected disagreements were divisions over just what the post-9/11 environment was, with debates over whether “war” or “state of emergency” was the better way to frame the sort of security environment Americans found themselves. Many adopted the wartime frame and supported an expansion of executive power, emphasizing the idea that wartime justified government action to address the danger. Some international law scholars countered that the war on terror did not fit the definition of war under international law. This mattered since the switch from peace to war triggered the application of the law of war and international human rights protections. Bruce Ackerman argued that this era was not a war, but an emergency. Before long “emergency” or “crisis” became dominant ways of describing the era. Some scholars re-characterized wartimes in American history as emergency times, and at least one important scholarly paper about the impact of war on American courts was renamed, substituting “crisis” for “war.”
Underlying the disagreement about how to characterize the post-9/11 era was the concern that “wartime” called for the suspension of normal restrictions on executive power. Searching for workable analogies, Mark Tushnet argued that
the long duration of the “war on terrorism” suggests that we ought not to think of it as a war in the sense that the Second World War was a war. It is, perhaps, more like a condition than a war -- more like the war on cancer, the war on poverty, or, most pertinently, the war on crime. Suspending legality during a time-limited war is one thing. Suspending it during a more or less permanent condition is quite another.The play in the terms of post-9/11 scholarship reveals a broader issue. Like the Cold War era, there was a lack of fit between the conceptual categories of wartime and peacetime and the geopolitical era which scholars confronted. An essential element of a traditional wartime was that war was temporary. And in the past, war was most commonly defined as a conflict between nations, not between a nation and a social group or an ideology. The state had dropped out of many definitions of war by the end of the 20th century. But the war on terror also seemed to defy the idea that war was limited in time.
Most legal scholars responded not by jettisoning the old categories, but by renaming and re-imposing them, retaining the distinction between normal times and exceptional times. For example, in a 2005 essay, Samuel Issacharoff and Richard H. Pildes described the dividing lines not as between wartime and peacetime, but between “normal times” and “times of heightened risk to the physical safety” of citizens. Post-9/11 scholarship persisted in the assumption that normality is a state of existence outside times of danger. “Wartime” and “peacetime” broke down, but the basic temporal structure (normal times, ruptured by non-normal times) largely remained in place in legal thought, even if it seemed unclear whether normal times would ever return.
While many drew comparisons between the post-9/11 era and other wartimes, for Benjamin Wittes, the era had a different character, for the war on terror was “a conflict unlike any that this country has ever faced.” For Wittes, it was reasonable for the Bush Administration to adopt a war model after 9/11, but later in the decade the war on terror had “entered a different phase” in which “traditional warfare had given way to something more elastic.” As the immediacy of September 11 receded, the nation seemed to enter an ambiguous era that was neither wartime nor peacetime. For the most part, however, scholars, courts and lawmakers continued to employ the old categories, although wartime had been renamed as crisis time.
Up next: The turn to Schmitt.
Cross-posted from Balkinization.