During the past half-century, the United States has declared war on (among else) poverty, cancer, crime, drugs, and terrorism. This essay examines, in the context of these, war as a model for responding to domestic political problems and focuses on the role that that model has played in representing the state and its relation to those evils identified as the enemy.
The Bush administration often preferred to characterize the enemy as "terror"- primarily, it seems, as a means of subsuming what it referred to as (Islamic and other varieties of) "fascism," "radicalism," "extremism," and "totalitarianism." However, because my focus here will be the domestic arena, where the language of "terrorism" is more common, I shall for shorthand refer to the "war on terrorism."
2.
See, e.g., Kansas City Star, "A War on Poverty," Nov. 15, 1908, 6; Oklahoma World Herald, "War on Cancer," Nov. 21, 1901, 4; The Daily Inter Ocean, "The Inter Ocean Crusade," March 4, 1882, 13 ["war on crime"]; Grand Forks Herald, "Revolutionize Administration of Schools under Proposed Plans," Oct. 26, 1912, 1 ["war on drugs"]; New York Times, "The War on Terrorism," Apr. 2, 1881, 1 [referring to the European response to anarchism].
3.
I shall use the term "model" in the sense of "a type or design" for which the Oxford English Dictionary offers the following illustration: "1874 J. R. GREEN Short Hist. Eng. People viii. §5. 508 The new faith. borrowed from Calvin its model of Church government." ("Model," III, 13a.) This is roughly the sense in which Thomas Kuhn (The Structure of Scientific Revolutions, 3rd ed., University of Chicago Press, 1996) used the term "paradigm," which I might equally have used, although the model of war to conceive of social evils is obviously less fixed by practice than are the engrained paradigms of normal science. I do not refer to these "wars" generically as metaphors because, as I shall suggest, for some of them their metaphorical character is part of what is at issue.
4.
Even in the case of terrorism, my focus will be on the domestic side of that war.
5.
Quoted by David Zarefsky, President Johnson’s War on Poverty ( Tuscaloosa: University of Alabama Press, 1986), 20.
6.
Samuel S.Epstein, The Politics of Cancer (New York: Anchor Press, 1979), 325.
7.
Georg Wilhelm FriedrichHegel, Philosophy of Right, trans. Knox (Oxford University Press, 1967), ¶322.
8.
Ibid., my emphasis.
9.
Sigmund Freud, "Negation," in Standard Edition of the Complete Psychological Works of Sigmund Freud, ed. James Strachey (London: Hogarth Press, 1943-1974), XIX:237.
10.
Ibid.As the so-called "object relations" school emphasized, early introjection involves both "good" and "bad" objects. But even for Melanie Klein, "[a]s the ego becomes more fully organized," the tendency is to "identify itself more fully with ‘good’ objects." Melanie Klein, Contributions to Pscyho-Analysis, 1921-45 ( London: Hogarth Press, 1968) 284.
11.
Freud, "Civilization and its Discontents," XXI:66.
12.
Freud, "Group Psychology and the Analysis of the Ego," XVIII:70, 116 (translation slightly modified).
13.
Jean-Jacques Rousseau, Du Contrat Social (Amsterdam: Chez Marc-Michel Rey, 1762), I :6, II :7, my translation.
14.
Samuel S. Epstein, "Reversing the Cancer Epidemic," Tikkun 17:3 (May/June, 2002), 57; Epstein, "Losing the War Against Cancer," Extension of Remarks (inserted into the record by Congressman Henry Waxman)," Congressional Record (Extension of Remarks), 100th Cong., 1st sess, September 9, 1987, 133 Cong. Rec. E3449-01
15.
Among these contributions were chemical pesticides, industrial discharges, hazardous waste disposal, and occupational carcinogens, the last of which alone, predicted a blue ribbon governmental commission summarizing the scientific evidence seven years after the war on cancer was declared, would account for "38% of all cancers in coming decades." Hearings before the House Subcommittee on Health and the Environment, 100th Cong. (September 9, 1987) (testimony of Samuel Epstein, Extended Remarks). Yet "of the 80,000-100,000 chemicals registered for use in the United States, only a relatively few" have ever "been evaluated . . . for carcinogenic effects. (James Huff and Ronald Melnick, "Misconceptions about the Causes of Cancer," International Journal of Occupational and Environmental Health 12 (Jan.-March, 2006): 81-86) On the evidence concerning human contributions to cancer, see, e.g., Samuel S. Epstein, The Politics of Cancer (New York: Anchor Press, 1979) and The Politics of Cancer Revisited (East Ridge Press, 1998). On the politics of the war on cancer, see, e.g., Devra Lee Davis, The Secret History of the War on Cancer (New York: Basic Books, 2007), especially chap. 8; Robert N. Proctor, Cancer Wars (New York: Basic Books, 1995); and Richard A. Rettig, Cancer Crusade (Princeton, NJ: Princeton University Press, 1977), especially chap. 5.
16.
Public Papers of Richard Nixon, Document 163, "Remarks about a Proposed National Cancer Program," (May 11, 1971). Retrieved from http://www.nixonfoundation.org/Research_Center/1971_pdf_files/1971_0163.pdf
17.
Epstein, Politics of Cancer, xi, 326; see also Davis, The Secret History.
18.
Public Papers of Richard Nixon, Document 409 (December 23, 1971). Retrieved from http://www.nixonlibraryfoundation.org/clientuploads/directory/archive/1971_pdf_files/1971_0409.pdf
19.
This portrayal of cancer as an invasion came full circle in the not infrequent representation of cancer as though it were a foreign pathogen invading the human body; and, indeed, the declaration of a war on cancer saw an increase of interest in the theory of the viral etiology of cancer. Guy B. Faguet, The War on Cancer (Netherlands: Springer, 2005), 66.
20.
Not surprisingly, the conservative opposition to the war on poverty thus often simply denied the existence of significant poverty in the United States.
21.
State of the Union Address, January 8, 1964, Public Papers of U.S. Presidents, Lyndon B. Johnson, 1963-1964 (Washington, DC: Government Printing Office, 1965), I:112-118.
22.
On these and other motivations for the use of the war language, see, e.g., Zarefsky, President Johnson’s War on Poverty, especially chapter 2.
23.
Special Message to Congress, Public Papers (March 16, 1964), I:375-80.
24.
To name just a few: the relocation of manufacturing from cities to outlying areas, the development of suburbs (approved and subsidized by public authorities) in which low-cost housing was limited or prohibited, and the use of local property taxes to fund public education and social services. See, e.g., Daniel S. Shah, "Lawyering for Empowerment: Community Development and Social Change." Clinical Law Review, 6 (1999): 217-257.
25.
Michael B. Katz, The Undeserving Poor: From the War on Poverty to the War on Welfare ( New York: Pantheon Books, 1989), 85, quoting Adam Yarmolinsky.
26.
Johnson, "Special Message to Congress."
27.
Freud, "Negation," 237.
28.
J.L. Austin, How to Do Things with Words, eds. J. O. Urmson and Marina Sbisà, 2d ed., (Cambridge, MA: Harvard University Press, 1975), 155-56.
29.
Reprinted at http://avalon.law.yale.edu/wwii/gerdec41.asp, emphases mine.
30.
Retrieved from http://www.law.ou.edu/ushistory/germwar.shtml, http://www.law.ou.edu/ushistory/japwar.shtml, emphases mine
31.
Austin, How to Do Things with Words, 153.
32.
In a similar vein, Derrida noted the ambiguity in the grounding of declarations of independence-for example, in the meaning of "holding these truths to be self-evident." Jacques Derrida, "Declarations of Independence,"New Political Science, 7, 1 (1986): 7-15.
33.
A simple, and extreme, example of this was the Nazi war on cancer which sometimes moved from the metaphorical aim of "eliminat[ing] sickness" from the Volkskörper ("people’s body") to the very literal one of "eliminating the sick" from that body. Robert N. Proctor, The Nazi War on Cancer (Princeton, NJ: Princeton University Press, 1989), 114.
34.
The wars on crime and drugs have, of course, been aimed only at certain kinds of crimes and drugs. But again I use these terms without quotes to refer to the movements so named. I shall refer to the wars on crime and drugs as still ongoing, for while that language has been dropped by the current presidential administration, it continues to be used by public officials at other levels of government.
The particular character of the moral judgment, however, has differed in the war on crime and the war on drugs. In the former, it has been articulated largely in terms of respect for the moral rights of others: specifically, the integrity of their bodies and property. But the war on drugs included in the enemy camp nonviolent drug users. In an attempt to subsume drug use under the same conception of moral wrong, illegal drug use was associated with violence and property crimes. But particularly in light of empirical evidence that undermines that association, the moral good against which narcotics stand as an enemy has alternatively been portrayed in broader terms of individual responsibility, integrity, and clean living, all of which were said to be essential components of cultural strength. See, e.g., William J. Bennett, "Should Drugs Be Legalized?" reprinted in Drugs: Should We Legalize, Decriminalize, or Deregulate? ed. J. A. Schaler (New York: Prometheus Books, 1998) 63-67.
Jim McGee , "War on Crime Expands U.S. Prosecutors’ Powers," Washington Post, Jan. 10, 1993, A1.
39.
Proclamation 4929-Crime Victims Week, 1982 (April 14, 1982). Public Papers of the President: Ronald Reagan, 1981- 1988.
40.
James Q. Wilson and Richard Herrnstein, Crime and Human Nature (New York: Simon and Schuster, 1985).
41.
Oval Office Tape, May 13, 1971 (transcript retrieved from http://www.csdp.org/news/news/nixon.htm). More recently, a state court of appeals judge concluded that national drug policy on marijuana was pursued "not for any medical or physiological reason, but for cultural and ethnic reasons: we dislike the lifestyles of those who use it." Rudolph J. Gerber, "On Dispensing Injustice,"Arizona Law Review43 (Spring, 2001): 153.
42.
Since the Reagan escalation of the war on drugs, African Americans have been arrested on drug charges from two to eleven times more often than whites, despite similar rates of drug use. Human Rights Watch, "Targeting Blacks" (retrieved from http://www.hrw.org/sites/default/files/reports/us0508_1.pdf); "Decades of Disparity" (retrieved from http://www.hrw.org/sites/default/files/reports/us0309web_1.pdf).
43.
Bennett, "Should Drugs Be Legalized?"
44.
Richard Posner, who as a federal appellate judge has witnessed first-hand the war on drugs, has criticized the "arbitrariness in the choice of the subset of . . . mind-altering substances . . . to prohibit," relative to those made legal by prescription. "The Becker-Posner Blog." Retrieved from http://www.becker-posner-blog.com/archives/2005/03/the_war_on_drug.html
45.
Retrieved from http://library.uchastings.edu/library/california-research/ca-ballot-measures.html#ballotprops
46.
One notorious example of this is the 100:1 equivalence established in the 1986 Drug Abuse Act between powder cocaine (used disproportionately by African Americans) and crack cocaine (used disproportionately by whites). When the U.S. Sentencing Commission moved to change this, and to disaggregate the factors responsible for the somewhat greater harms correlated with crack cocaine use, Congress, for the first time in the commission’s history, overturned its recommendation.
47.
One consequence of these statutes was a dramatic increase in the overrepresentation of African Americans in jails and prisons relative not only to their percentage of the general population, but to their percentage of narcotics users. Marc Mauer, Race to Incarcerate (New York: The New Press, 1999), 125-26; Human Rights Watch; "Punishment and Prejudice: Racial Disparities in the War on Drugs" (retrieved from www.hrw.org/reports/2000/usa/Rcedrg00-04.htm).
48.
According to one study, 13 percent of African Americans nationwide and 25 percent in seven states have been disenfranchised as a result of felony convictions. "Losing the Vote" (1998). Retrieved from www.sentencingproject.org/tmp/File/FVR/fd_losingthevote.pdf
49.
Frederick Pollock and Frederic William Maitland, The History of English Law before the Time of Edward I, 2nd ed. ( Cambridge University Press, 1899), II:449. See also Giorgio Agamben’s discussion of the Roman figure of homo sacer. Homo Sacer (Palo Alto, CA: Stanford University Press, 1995), 35.
50.
This is so as well of certain foreign "wars." (Was the "cold war," for example, a kind of literal war, a metaphorical war, or something of each?) Moreover, even with respect to war in the wholly literal sense, there is no absolute demarcation between war and not-war. (When, for example, does confiscation of goods on the high seas-or espionage or sabotage or economic embargoes or blockades- constitute an act of war?)
51.
Ruth Marcus , "History of Mistrust May Have Contributed to Riots," Washington Post, May 2, 1992, A18.
52.
Barry McCaffrey , "Dealing with Addiction" Global Issues 2, 3 (June, 1997): 5-9. Retrieved from http://usa.usembassy.de/etexts/soc/ijge0697.pdf
53.
Donald Davidson offers the analogous case of a "man who says ‘Lattimore’s a Communist’ and means to lie," but when confronted with it, "can always try to beg off by pleading a metaphor." "What Metaphors Mean," Inquiries into Truth and Interpretation (Oxford University Press, 1986), 258.
54.
John Locke, "Second Treatise of Civil Government" §17, emphasis added. This view ignores Locke’s further and crucial claim that "To avoid this state of war . . . is one great reason of men’s putting themselves into society, and quitting the state of nature: for where there is an authority . . . from which relief can be had by appeal, there the continuance of the state of war is excluded." Id., §21.
66 Fed. Reg. 57,833 (Nov. 13, 2001);, 2001 WL 1435652 (Pres.) In Rasul v. Bush, the government similarly characterized the AUMF as authorizing "force to deter and prevent acts of terrorism against the United States." 2004 WL 425739, p. 2.
59.
Josh Gerstein , "Bush Backs Off of Talk of War, Echoing Kerry ," The New York Sun, August 1, 2005, p. 1, quoting a National Security Council spokesman.
60.
Dana Milbank , "Reprising a War with Words," Washington Post, Aug. 17, 2004, A13; Homeland Security Council, "National Strategy for Homeland Security," October, 2007 (retrieved from http://georgewbush-whitehouse.archives.gov/infocus/homeland/nshs/NSHS.pdf ).
61.
Gerstein, "Bush Backs Off of Talk of War," 1.
62.
Interview with Charles Allen, Deputy General Counsel for International Affairs at the Department of Defense. Retrieved from http://www.crimesofwar.org/onnews/news-pentagon.html
63.
Detainee Treatment Act of 2005, H.R. 2863, Title X; Military Commissions Act, Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006).
64.
Douglas Jehl and Neil A. Lewis, "U.S. Said to Hold More Foreigners in Iraq Fighting." New York Times, January 8, 2005 , A1, quoting "a senior administration official."
65.
For example, in Hamdi v. Rumsfeld, while claiming the authority to hold for the duration of the "hostilities" an American citizen who had been apprehended in Afghanistan and classified as an enemy combatant, the administration simply refused to answer the District Court’s question of whether the relevant hostilities were the conflict in Afghanistan or the "war on terror," and what would determine their conclusion. Hamdi v. Rumsfeld, 316 F.3d. 450, 461 (4th Cir. 2003). Similarly, in claiming the authority to hold indefinitely an American citizen "captured" in Chicago on the allegation of "engag[ing] in . . . hostile and war-like acts," the administration remained vague for most of the course of the litigation as to whether the President’s putative authority was based on the campaign to "subdue the al Qaida terrorist network" or the general "war against terrorists." (Concerned about its prospects in the Supreme Court, the government finally asserted for the first time that the relevant conflict was against al Qaeda. Rumsfeld v. Padilla, Brief of Petitioners, 2004 WL 542777, p. 4.) The idea of declaring war against an organization raises important questions that I shall not take up here.
66.
While the Bush administration remained strategically ambiguous about the war for which it was asserting war powers, a number of judges have explicitly treated the war on terror as a literal war that could justify those powers. See, for example, the Fourth Circuit Court of Appeals decision in Hamdi v. Rumsfeld, 316 F.3d. 450, 476 (4th Cir. 2003) and Justice Thomas’s dissent in the United States Supreme Court opinion in that case. 542 U.S. 507, 587, 595 (2004).
67.
Amicus brief, American Center for Law & Justice in Hamdi v. Rumsfeld, 2004 WL 608886, fn. 6. The administration’s brief suggested the same, describing, for example, the United States as defending against al Qaeda’s "terrorist holy war," (2004 WL 724020), but, consistent with the administration’s equivocation on the nature of the war, it was not as explicit in claiming in court what Rice and others would say in public comments: that attacks by "terrorists" initiated a "war against terrorism."
68.
Condoleeza Rice , "Opening Remarks to Commission on Terrorist Attacks," April 8, 2004 (retrieved from http://www.9-11commission.gov/hearings/hearing9/rice_statement.pdf). See also "Interview with Charles Allen"; Brief for Senators Cornyn and Craig in Support of Respondents in Hamdi v. Rumsfeld, 2004 WL 553641, p. 9 fn. 2.
69.
Ibid., p. 7.
70.
Pub. L. No. 109-366, § 3.
71.
Pub. L. No. 107-56, § 215. The 2006 modifications to the USA PATRIOT Act required the FBI to provide to the court a statement of the relevance of the "tangible things" to an "authorized investigation," but denied courts the authority to review those grounds. Pub. L. No. 109-177, § 106(b).
72.
Pub. L. No. 107-56, § 802.
73.
Id., §§802, 806. The 2006 changes to the USA PATRIOT Act limited civil forfeitures to a narrow set of "Federal crime[s] of terrorism." Pub. L. No. 109-177, § 121(i).
74.
King, "Letter from Birmingham Jail."
75.
Jarboe, "Threat of Eco-Terrorism," Testimony before House Resources Committee, Subcommittee on Forests and Forest Health, Feb. 12, 2002. Retrieved from http://www.fbi.gov/congress/congress02/jarboe021202.htm
76.
There is good reason to believe that the Bush administration intended for the war on terrorism to play a role similar to that once played by the war on communism in subsuming undesired insurgencies abroad and undesired political and social activities at home. For an explicit statement of the parallel of the "war on terror" with the war on communism, see, e.g., President Bush’s speech at the National Endowment for Democracy. Retrieved from http://georgewbush-whitehouse.archives.gov/news/releases/2005/10/20051006-3.html
77.
In 1932, Carl Schmitt asserted the "ever-present possibility of" war not only between states, but "in the context of the primacy of internal politics." The Concept of the Political, trans. G. Schwab (Chicago: The University of Chicago Press, 1996), 32. But that claim must also be understood as arising in a particular historical context-the late Weimar Republic in which fundamental "internal" divisions over the character of the state (particularly with respect to communism) were connected to international conflicts.
78.
It is a crucial feature of contemporary globalization that the extraterritorial application of domestic law is inconsistent. From the perspective of capital, much of the attraction of globalization is precisely in the ability to escape domestic regulation and to choose a more advantageous regulatory jurisdiction. On the externalization of legal authority, see Jeremy Elkins, "Beyond ‘Beyond the State’: Re-thinking Law and Globalization" in Law without Nations, eds. A. Sarat, L. Douglas, and M. M. Umphrey (Stanford, CA: Stanford University Press, forthcoming), which can be read as a companion piece to-and the other side of-the present essay.
