Necessary Evils

  "In a time of war," wrote Cicero, "the laws are silent." (That's "inter arma silent leges," in case some nuance is missing from the usual English rendering.)

Well, perhaps not quite silent. Marouf A. Hasian's In the Name of Necessity: Military Tribunals and the Loss of American Civil Liberties, available next month from the University of Alabama Press, revisits more than 200 years of American argumentation for and against the legitimacy of "military justice."

That phrase merits the scare quote marks because it is very much open to question whether they quite belong together. You don't need to be a pacifist, or even to harbor any doubt about liberal democracy, to have such concerns. The role of the military is, of course, to fight; and the legitimacy of its monopoly on violence derives (in modern societies anyway) from its subordination to a lawful order. At best -- so the argument might go -- the military can pursue a just policy, as subject to oversight and review by outside institutions. Hence the rise of what is called the "civilianization" of military law.

That's the theory, anyway. The actual record is a good bit messier, as Hasian, an associate professor of communications at the University of Utah, shows in some detail. His book presents a series of analytic retellings of events from the Revolutionary War through the detainments at Guantanamo Bay. To some degree, then, it overlaps with William Rehnquist's All the Laws But One: Civil Liberties in Wartime, (1998, which focused mainly on cases from the Civil War and the two World Wars.

But the difference is not simply a matter of the opening of a whole new chapter in history over the past four years. Hasian's book is the work of a scholar who has taken "the rhetorical turn" -- drawing on the toolkit of concepts from one of the founding disciplines of humanistic study. A social historian or a law professor might also cover, as he does, the 1862 U.S-Dakota war tribunal, which led to the execution of a group of Native Americans -- or the 1942 trial of several German saboteurs, captured shortly after they had been deposited on the coasts of New York and Florida, along with bomb-making materials, by U-boat. But Hasian treats these cases neither as events (as a historian would) nor as precedents (the lawyer's concern).

The emphasis in his book falls, rather, on how a particular element of persuasion took shape in each case: the argument of necessity. In each case, the claim was made that circumstances demanded the suspension of normal legal procedures and guarantees, and their replacement by military tribunals that practiced the warlike virtues of secrecy, efficiency, and swiftness.

A philosopher or legal theorist might want to dissect the validity, coherence, or applicability of "necessity" as a principle applied in such cases. Hasian's approach treats it, not as a concept, but as what rhetoric scholars have in recent years called an "ideograph" -- that is, "a key evocative term or phrase that illustrates the political allegiances of an individual and a community in a major social, political, economic, or legal controversy." Other ideographs include such terms as "equality," "progress," and "freedom."

The range of definitions and of emotional charge for each term varies. They have a rather timeless sound, but a complex history of mutations in meaning. And in the heat of debate, they can be made to perform a variety of functions. The meaning of an ideograph in a given context is marked by that context.

Perhaps the strongest version of the argument from necessity is the one that Lincoln made against those who criticized him for suspending habeus corpus during the Civil War: "Are all the laws, but one, to go unexecuted, and the government go to pieces, lest that one be violated?" In other words: Moments of extremity can require the temporary sacrifice of some civil liberties to preserve the rest.

Rehnquist signaled his basic agreement with this line of thought by titling his book All the Laws But One. "It is neither desirable nor is it remotely likely," he wrote there, "that civil liberty will occupy as favored a position in wartime as it does in peacetime."

But even the fairly straightforward affirmation of necessity as a legitimate ground for suspending civil liberties is the result of (and a moment of conflict within) a complicated history of arguments. In tracing out the history of necessity, Hasian identifies two strands of -- well, it's not clear what the expression would be. Perhaps "ideographic DNA"? One he calls the "Tory" concept of necessity; the other, the "Whig" version.

In the Tory framing, there are "many times when a society is called upon to defend itself against riots, revolutions, and rebellions," as Hasian puts it. It is the responsibility of the monarch or the executive branch to recognize the danger and respond accordingly. "Since this is an issue of survival, the military authorities should be given a great deal of discretion. In these situations, the 'will' of those in authority will be of paramount importance."

(In other words, an element of sovereign authority is handed over to the military. The commanding officer is then in the position to say, "I am the law." And legitimately so.)

By contrast, the Whiggish conception of necessity sees "relatively few times when a society has to worry about exigent circumstances." Responsibility for judging whether or not a real emergency exists should fall to the parliament or the legislative branch -- to which the military must remain accountable.

Appropriately enough, given a Whiggish sensibility, this means a certain degree of guardedness and jealousy about the degree of judicial authority delegated to the military. There will be a tendency towards suspicion that the trust might be abused. The Whig discourse on necessity wants to keep to a bare minimum the scope, duration, and degree of secrecy that military tribunals may claim.

The classic formulation of the Whig conception in American history is Ex parte Milligan, from 1866, in which the Supreme Court found that the Union military authorities had overstepped by arresting and trying a Confederate sympathizer in Indiana -- a state where the normal functioning of the court system had not been interrupted by the war.

Of course, Ex parte Milligan fans have taken some hits lately. We had a good run there, for a while. But lately all the swagger comes from enthusiasts for Ex parte Quirin (1942), which denied the claim of German saboteurs to appeal for civil trials.

What makes Hasian's account of Quirin so interesting is his suggestion that some Supreme Court justices "actually thought that their decision would be construed as falling in line with the precedents that placed limits on military commissions and executive power." But if that was the intention 60 years ago, you'd never know it to read the newspapers today.

This is an aerial overview of In the Name of Necessity. The real provocations are in the details. Perhaps the analytic category of ideograph sounds a trifle thin -- turning bloody arguments into something rather anemic. But Hasian's book is ultimately more polemical than that. The framework is only just technically "value neutral." He's got a position to stake out.

"In the very, very rare cases of extreme necessity," he writes, "when Congress and the United Nations have decided we need to impose martial law or have commissions in occupied lands, we may have situations where all of the civil courts are closed and where the military may need more discretion."

That much, Hasian will concede to the Tory worldview, and no more. But even then, such assertions of power "need to be held in check by recognizing that most of the time we should begin with the baseline 'Whig' assumption that we want to maintain the civilianization of the military, and not the other way around."

OK, fair enough. Now how will that play out in the courts under Chief Justice Roberts? And particularly under a circumstance in which the Tories are so powerful that nobody really doubts that Chief Justice Roberts will be presiding?

That Whig in extremis John Milton said that necessity is "ever the tyrant's plea." But we might be entering a period when the plea doesn't even have to be made -- when war doesn't silence law, but writes it.