Can law survive permanent wartime?

Rosa Brooks is not a "delighter."

Delighter is the label I affix on George W. Bush, and even more on Dick Cheney and his minions. The 9/11 attacks served their purposes by offering an excuse to escape U.S. and international constraints on projection of lethal U.S. force wherever they saw or imagined enemies. And, conveniently, their Global War on Terror also freed the President and his executive branch from domestic democratic (small "d") expectations of judicial and legislative oversight, all in the name of "homeland security." The falling Twin Towers were a bonanza for politicians aspiring to increase presidential power to the detriment of legal limits.

President Obama seemed as if he might scale back some of the Bush-era power grab. But he didn't get there. Discovering a president had available military snipers who could kill Somali pirates with just three shots... in the dark, from the deck of a rolling ship must have been a rush. And understanding that he'd be blamed if some more competent terrorist than the underwear bomber succeeded on his watch, Obama retained much of the Bush-era global war abroad and furthered erosion of privacy and transparency at home.

Rosa Brooks is a Georgetown law professor, an expert on national security, international law and human rights issues. She served at the Pentagon working on these issues for a couple of years at the beginning of Obama administration. How Everything Became War and the Military Became Everything: Tales from the Pentagon recounts her evolution from skepticism about US imperial adventures, through approval of Bill Clinton's "humanitarian" bombing in the Balkans, to horror at Bush's unbounded permanent war. She wanted a role in inventing something different. This book is the record of her further developing understanding of security, the U.S. military, and what has survived as a "rule of law" framework after a decade and a half of the Forever War.

The attacks might have been defined as egregious acts of criminality -- mass murders, or massive crimes against humanity, for instance. The United States instead chose to define the 9/11 attacks and the U.S. response as an "armed conflict" ...

So who was "right"? Were the 9/11 attacks "crime," or "war," or something in between: Isolated attacks triggering a temporary U.S. right to use force in self-defense, but not a full-fledged armed conflict? ... If we think of law as being game-like, you could say that these positions posed entirely novel questions that the rules of the game simply didn't address. ... In the "real world" of law and war, new actors and new technologies present [new] challenges: sometimes the rules just don't offer a right and wrong answer.

This book is a serious attempt to bring together an informed humanitarian and legal description of where the U.S. had come to in 2016 in our military and imperial ambitions and how evolving international law might both constrain and justify those actions and postures. It is a very good book full of fact and humane intent. She wants us to get real: there's insight here into the implications of targeted killings in faraway lands, of the drone war, of cyberterrorism, and of the increasing primacy of the U.S. military in all aspects of the state.

It's an exploratory book. According to Brooks, we've come to exist in a "blurred" condition somewhere between a formerly relatively clearcut "wartime" and "peacetime". If we are to have rules at all, we will need to imagine new ones.

... we can create new rules and institutions for global decision making. We tend to forget this. Instead we defer to the lawyers [asking questions outrun by realities.] We should be asking a far more urgent question: What kind of world do we want to live in -- and how do we get from here to there?

These questions might have gotten a hearing in a Hillary Clinton administration -- maybe, if people of good will had applied constant pressure. Under the Trump regime, we face an administration whose notion of legitimate power seems to derive from the chest thumping displays of jungle apes. It's going to take everything we've got --and a lot of luck -- to impose any limits.

Nonetheless, though probably it's not immediately applicable, I still want to highly recommend Brooks' take on war and law. I'm not anywhere near as confident as she is that U.S. military supremacy can be a global force for good. And I written in the past about what good soldiers do when misused and abused.

But for all my distrust of some of Brooks observations, she is the sort of lapidary thinker who gives legal reasoning a good name. If we ever get the chance to put Humpty-Dumpty together again, we need this woman. She's another one who probably ought to run for office if we're serious about democracy.