I read Geoffrey Stone’s Perilous Times a couple of years ago. Daniel Farber’s Lincoln’s Consitution has a similar focus, but covers only the Civil War rather than the entirety of the history of civil liberties during troubled times. In addition to examining whether the Lincoln administration’s curtailment of civil liberties during the Civil War was constitutional, Farber also looks at the question of secession and use of military force against the south. Farber’s conclusion is that most of Lincoln’s actions were constitutional.

For the most part, Farber’s analysis was understandable to this non-lawyer. Irrespective of his personal views on the proper framework for constitutional analysis, Farber looks at each of the situations under several of the analytical paradigms currently advocated: originalism, textualism, and that of the constitution as a living document. The book is somewhat dismissive of textualism, at least as practiced today. The drafters didn’t nit-pick every word or phrase for exactness, so such analysis done today isn’t very valid according to his writing. His greatest focus is on analyzing in terms of what the framers and the country originally understood the document to mean. One big caveat though is that even then many of the clauses were ambiguous, by design or by inattention. Farber writes that we shouldn’t ascribe detailed meaning to the framers when it didn’t necessarily exist at the time.

As to the question of secession, Farber writes that under all but the most radical of interpretations, the south did not have the right to secede. The union was meant to be perpetual; no clauses for secession were included. Under standard rules of contracts, entering into one has to be universal, but unless the terms for abrogating it are written into it, other parties must approve a release. So unless the south got the permission from the entire country, it could not secede from the U.S. or de-ratify the constitution. He also dismisses a right of revolution as the south had not endured any indignities from the U.S. or the north. In fact, until Lincoln’s election is had exercised a great deal of control over U.S. policy. At best, international law and norms meant the south could enter into negotiations to secede. It did not. It unilaterally seceded and then started the war by firing on Fort Sumter.

James Buchanan, the president prior to Lincoln, came to the conclusion that while the South had no right to secede, under the Constitution he could not use the military to stop them absent a congressional declaration of war. So he did nothing. Lincoln, and Farber in retrospect, disagreed. To them, the south clearly had started insurrection, which gave the President the right to defend the U.S.

Civil liberties were more questionable though. Lincoln ignored a writ of habeas corpus, summarily arrested opponents, and shuttered newspapers critical of the war. Not all actions did he take himself. Some were attempted by his subordinates, but Lincoln usually supported those actions after the fact, at least publicly. In some cases these might have been legal, such as the preventive arrest of southern sympathizers. Others, such as the shuttering of newspapers critical of the war probably were not. Most of the time Lincoln was pretty careful to not abuse his authority.

One nice thing Farber did in summation was to look at Lincoln’s evolving theory of the rule of law, which was his ostensible reason for prosecuting the war. While he was against slavery, he was fine with a decades long slow death for the practice. He fought the war to preserve the rule of law and to preserve the United States. But his ideas for what that meant changed over his lifetime.

Having read Perilous Times, I thought the chapters on civil liberties were somewhat redundant to my earlier reading. However, I learned some things from his examination of secession and the sources of the theory of the unitary executive. (He doesn’t embrace that theory.)

Interesting, but not really enough a-ha moments to rate it as a must-read. A worthy read, definitely.

One blogged review:

• Brian Flanagan excerpted at Legal History Blog

Title: Lincoln’s Constitution
Author: Daniel Farber
Imprint / publisher: University of Chicago Press
Format: Hardcover
Length: 200 p.
Publication date: 2003
ISBN-10: 0-226-23793-1
Subject: Lincoln, Abraham — 1809 – 1865 — Views on the Constitution
Subject: United States — Politics and government — 1861-1865
Subject: Constitutional history — United States
LC classification: E457.2.F216 2003

Denis Johnson’s Tree of Smoke has been my audiobook for around 6 weeks. It’s 23 hours in length, so it takes a while to listen to.

Tree of Smoke is Johnson’s Vietnam novel. Unlike a lot of other war novels, it doesn’t really follow soldier’s in the thick of fighting. William Skip Sands idolizes his uncle, Colonel Francis Sands, who works for the C.I.A. The younger Sands goes to work for the Colonel, but finds himself mostly just waiting for the Colonel’s schemes to come to fruition where he’ll be needed. A second, mostly unrelated story, follows James and Bill Houston’s military experiences. Bill washes out of the Navy before he serves in Vietnam. James lies his way into the military to serve before he turns 18, and then re-ups for 3 more tours. The two stories briefly connect at a battle for a landing zone, but otherwise remain separate.

I really enjoyed the book for the story and the characters. I’m not literary enough to get all the symbolism, nor erudite enough to understand most of the historical context. Are Skip and the Colonel stand-ins for something else? No idea. But they are interesting even without understanding anything deeply.

Maybe I’ve just never met one of them, but larger than life people don’t intrigue me the way they do other people. The Colonel is one of those characters. He didn’t interest me much, but two other characters fall under his sway and they did interest me. Skip has such loyalty to the Colonel that he forsakes being an American. After the Colonel’s demise, the other, Jimmy Storm, refuses to believe it’s happened. The Colonel must have had a secret plan B and never told Jimmy about it. A couple of decades later he still continues to search for the Colonel. Logically, were he still alive, the Colonel would have stopped hiding from Jimmy at some point, but logic doesn’t enter Jimmy Storm’s head much. He feels things.

James and Bill Houston are good character studies as well. James’ story gets a little closer to a typical war is hell kind of storytelling, but only briefly during a firefight. Even then he never really sees the enemy. He shoots at jungle. The jungle doesn’t shoot back. That’s not really the important part. The important part is watching how James relationships change as his presence in Vietnam deadens him. By the end, he has loyalty to the men in his squad and little else. He’s openly insubordinate to his commanders by that point. Once home he follows Bill into shiftlessness, bar fights, drinking, and weddings without any connection.

Despite a decent number of characters, all of whom spend a lot of time interacting with each other, one big result is that every single one is alone. None of them can maintain connections to other people after their Vietnam experience. They live in the same cities as their families, yet cannot call or meet them. All are disconnected from society. This is one depressing novel.

One thing that some authors get criticized for is too much description. Johnson describes a lot of places and things in Tree of Smoke but he doesn’t overdo it. It’s interspersed seamlessly with dialogue and thoughts and action. As a result I could visualize where everything took place yet never got bored with ornate descriptive prose.

Tree of Smoke won the National Book Award and was a finalist for a Pulitzer, losing out to Junot Diaz The Brief Wondrous Life of Oscar Wao. I think Denis Johnson’s work will have a more lasting impact.

Title: Tree of Smoke
Author: Denis Johnson
Narrator: Will Patton
Imprint / publisher: Audio Renaissance / Macmillan
Format: Overdrive WMA
Length: 23 hours, 4 minutes
Publication date: 2007-09
ISBN-13: 978-079275115-1
Subject: Vietnam War, 1961-1975 — Fiction
LC classification: PS3560.O3745 T74 2007

Fiasco was a very illuminating book, but was also very frustrating. Illuminating because Ricks details exactly how and why the U.S. went wrong in prosecuting the war in Iraq. Frustrating because he supports his narrative mostly with interviews rather than data.

The central tenet of Ricks reporting is that the U.S. military treated the Iraq conflict tactically as a conventional war, when in reality the strategy needed to be that of counter-insurgency. Faulty political assumptions by civilian leaders such as George Bush and Donald Rumsfeld started everything off. There were no weapons of mass destruction, and there wasn’t a unified Iraqi population ready to accept our soldiers as liberators. Militarily nearly every leader got it wrong. Some were simply incompetent, particularly L. Paul Bremer, in charge of the pseudo-military Coalition Provisional Authority (C.P.A.), the nominally civilian temporary occupational government. In addition, infighting between branches of the military and the C.P.A. hampered effectiveness (particularly when all sides were wrong).

I was a lukewarm supporter of the Iraq invasion in 2003. I thought using the U.S. military there was moral for the same reasons I supported Bosnian intervention. Removing a brutal dictator to prevent massive civilian deaths is fine in my book. I was lukewarm because I didn’t believe the weapons claims by the Bush administration, nor did I think the timing was right.

As the war progressed and spiraled out of control, I often wondered what the hell was going wrong. We seemed to change our political plans every six months. The constant spew of feel-good rhetoric from the administration pissed me off. Most frightening was that it seemed like we had no permanent successes. I had lots of scenarios running through my head that I thought would be better than what I saw. After reading Fiasco, I’m pretty sure most of my ideas wouldn’t have worked. But then, neither did most of the ideas tried by the army.

The book is really depressing. With a title like Fiasco that’s pretty much guaranteed. The biggest reason though is that the same mistakes are repeated over and over and over again. Overwhelming force. Round up civilians. Disrespect the populace. Wash, rinse, repeat.

One big thing that frustrated me about Fiasco is that Ricks focused so heavily on narrative, or telling a story. He was a reporter for the Washington Post, part of the main stream media. A media that overly focuses on narrative. In other words, the reporter constructs a story that fits what he sees and tells that. When I’d rather the paper just tell me what it is they see.

As an example, one of the main arguments Ricks makes is that we went in with too few troops to occupy a country. In only one spot does Fiasco cover what adequate troop levels might look like. He does that when he reports what appears to be back-of-the-envelope calculations done by General Eric Shinseki. Fiasco doesn’t provide a timeline of the troop levels we did use either. Scattered here and there are mentions of troop levels, but only when they fit the narrative.

The problem with narrative is that I have no way to tell if it’s the correct narrative. It seems to make sense. His method of creating that narrative is to have lots and lots of interviews. But I can’t go to those people to check, and I can’t be sure they didn’t create the narrative for Ricks themselves out of whole cloth. Without data I don’t know.

The narrative (story) is good though. In a depressing way.

A few other blogged reviews:

• Tiger Hawk
• Jordon Cooper
• CapitalistImperialistPig

Title: Fiasco: The American Military Adventure in Iraq
Author: Thomas E. Ricks
Cover creator: Alex Majoli (photographer) / Darren Haggar (designer)
Imprint / publisher: Penguin
Format: Paperback
Length: 492 p. (includes notes and index)
Publication date: 2007
ISBN-13: 978-0-14-303891-7
Subject: Iraq war, 2003-
Subject: United States — History, military — 21st century
LC classification: DS79.76.R535 2006

The Freedom is The Nation writer Christian Parenti’s first-person account of his stints reporting on the war in Iraq from the frontlines during 2003 and the first half of 2004. It’s a moving account, and covers ground I haven’t read in newspapers or magazines. That’s not to say it hasn’t been written, but I haven’t seen it.

For its descriptions of the facts on the ground, I don’t think the book is very useful anymore. While the conflict is still bloody, and still similarly bleak, the people, alliances, and situations no longer exist. That’s the danger in a war such as this. The fronts are fluid. The opponent changes. The political situation morphs. It remains as a testament of the war as it existed in 2003 however.

However, I think some parts are probably still useful for informing Americans about how Iraq operates. I imagine that the requirements for being allowed to report from the insurgency remain the same: a referral from a sheikh influential in the local underground. I suppose as well that the current insurgency is still as disorganized as it was then. While some groups such as the Mahdi Army have some level of control (by Moktadr al-Sadr), most still only maintain loose connections with other groups, preventing the U.S. military from gaining any traction against them. But then, I’m not there. I’m just guessing that this key to their survival then remains why they still survive today. Parenti describes it very well in The Freedom with his interviews with multiple resistance cells.

I have one big criticism though. It’s clear that Parenti spent significant time embedded with a few U.S. military units. He writes a rich picture of the U.S. personnel he describes. But other than his translators, the Iraqis in his book are interviewees. There is only one group with whom he describes spending significant time. The rest are interviewed. Some obviously more than once. But the narratives of the Iraqis in the book are all related by them to Parenti to us. He is not embedded with them the way he was with the military. Not even with Iraqi government forces or apparatchiks. Consequently, those stories are less rich. And they suffer from hearsay doubts.

The other criticism is that the one group Parenti seems to spend any time with is an Iraqi Marxist group. His interpreter relays to him, Iraqis will never follow these people. I don’t know why you’re spending so much time with them. There is a certain old-school class of progressives in the U.S. that clings dearly to Marxism. Iraqis will not follow communists. Americans will not be much impressed with Marxist rhetoric and are not much interested in a failing Marxist ideology or those who espouse it. Maybe he was able to spend time with them simply because no one cared about them on any side in Iraq.

Title: The freedom: shadows and hallucinations in occupied Iraq
Author: Christian Parenti
Photographer: Teru Kuwayama
Imprint / publisher: The New Press
Format: Hardcover
Length: 211 p.
Publication date: November 2005
ISBN-10: 1-56584-948-5
Subject: Iraq War, 2003-
Subject: Iraq War, 2003- — Occupied territories
Subject: Iraq War, 2003- — Personal narratives, American
LC classification: DS79.76 .P335 2004

Perilous Times won the 2004 Los Angeles Times Book Prize for History, but I’m surprised it hasn’t gotten wider acclaim, much like A Bright Shining Lie, And the Band Played On, and Hitler’s Willing Executioners have. Of course, those works brought information to light that previously hadn’t been widely known. Perilous Times covers ground that has been tread before, but from much different directions.

Geoffrey Stone’s book is a detailed examination of the United States treatment of free speech during wartime. I put that term in quotes because several of the eras discussed weren’t times of war, declared or otherwise. In the late 1790s, fear of an impending war with France swept the nation, and the Federalists in Congress and President John Adams enacted and enforced the Sedition Act of 1798 as well as several other laws designed to limit the liberty of residents of the United States. Following that, despite several intervening wars, the next period that that saw a significant attempt to restrict free speech was during the Civil War under Abraham Lincoln. Following those two periods, Stone also inspects our record during the first World War and the red scare shortly thereafter, during World War II, during the Cold War, and during the Vietnam War.

In each era, Stone offers a history of the conflict and the U.S. government’s response to dissent during the conflict, focusing on the expression of dissent through free speech in particular. Each section additionally includes Stone’s analysis of the response by three institutions that make up the federal government: the Congress, the executive branch, and the courts. For each, he examines the actions they took and the justifications for each and measures how well the reasoning holds up in hindsight. Far from being knee-jerk criticism of repression, Stone understand the tendency to clamp down on dissent during times of crisis and offers reasoned analysis giving much consideration to the understanding of the First Amendment at the time. In a couple of cases, Stone also examines the responses by state institutions, non-governmental bodies, and individuals.

Abraham Lincoln first rose to national prominence during the Mexican-American War as a result of his criticism of President James Polk’s handling of that war. Just a few years later Lincoln’s own election to the Presidency kicked off the war; Southern States would not accept a Republican as President. If ever there was a war where dissent and free speech could cause danger, it was the Civil War. Loyal subjects and rebels were mixed together, sometimes splitting families. On the other hand, the proximity of the belligerents made it much harder to suppress free speech. At a minimum, smuggling printed materials across the border and the lines was easy. Lincoln also did not want to risk losing more border states by clamping down hard.

However, his military wasn’t quite so deliberative. In the biggest free speech incident of the war, Congressman Clement Vanlandigham violated a anti-sedition order promulgated by the military commander in Ohio, Ambrose Burnside, without consulting Lincoln. Once done, Lincoln felt he had no choice but to uphold his military. Even though he would not have prosecuted the case, he wrote thoughtful epistles justifying the action in response to criticism from his opponents. Generally, he allowed criticism of his policies to appear unabated, and the opposition pilloried him.

One of the most surprising things to me, is that in each period Stone discusses with the exception of the Cold War, there was effective deliberation in government in the handling of free speech restrictions. By that, I mean that Congress and/or the President held back on some of the most extreme restrictions. The Sedition Act of 1798 had an explicit sunset provision. Lincoln only suspended habeas corpus in limited and narrow circumstances, Congress toned down President Wilson’s requests for nearly unlimited power to control dissent, and Roosevelt’s Attorneys General Murphy, Jackson, and Biddle were committed civil libertarians who held in check Roosevelt’s tyrant tendencies. Still, however effective these people were, they were not nearly effective enough and extreme abuses stifled opposition during each of these periods.

I have only one criticism of this book, which was extremely informative and thought-provoking in it’s entirety. And by thought provoking, I do not mean Stone confirms my civil libertarian tendencies. Quite the opposite in fact. After reading the book, I can understand the legal logic that justifies these restrictions, even if I completely disagree with the need to subdue dissent during wartime except in extremely narrow circumstances (e.g., revealing troop movements). My one criticism has to do with the formatting. Stone uses extensive footnotes and endnotes. I’m a habitual footnote reader, particularly when both endnotes and footnotes are used in the same work. If it appears in a footnote, it’s probably interesting to read. Most of the footnotes here were. But the asterisk marking most of them never stood out well enough for me to notice it. So I’d get to the bottom of the page with the footnote, and then need to rescan the page looking for the text to which the footnote related. Really really annoying.

Title: Perilous times: free speech in wartime from the Sedition Act of 1798 to the War on Terrorism
Author: Geoffrey R. Stone
Award: 2004 Los Angeles Times Book Prize for History
Publisher: W. W. Norton
Format: Paperback
Length: 558 p. (730 p. including notes and index)
Publication date: 2005
ISBN-10: 0-393-32745-0
Subject: Freedom of speech — United States — History
LC classification: JC591 .S76 2004

There’s a sad similarity in most of the war novels I’ve read. Naive recruit goes to the war. Naive recruit fights. Naive recruit has to scramble to survive. Jaded veteran witnesses things he’d rather not see. There’s a lot of that vibe to Ha Jin’s novel War Trash. For connoisseurs of war novels, I suppose they can see through the sameness to the novel parts of these stories. I know I can do it with Science Fiction. But I’m not so good with this for war novels.

The plot is this: Yu Yuan is a former Nationalist conscripted into the Communist Army and sent to Korea. By former Nationalist, I mean he was enrolled at the military university because his family couldn’t afford to send him to another school. In Korea, his unit is under-trained, understaffed, and under-equipped. Very quickly, they are reduced to scrambling the countryside with no food. Instead of harassing the Americans and South Koreans, they are running from them. Soon he is captured.

This is where the book gets interesting. The prisoners of war aren’t uniformly united. Some profess allegiance to the Nationalist government in Taiwan. Some profess allegiance to the Communist government in Beijing. Of course, the U.S. gives a preference to the Nationalists. The Nationalists use whatever methods of coercion they to convince the other prisoners to agree to be repatriated to Taiwan rather than mainland China. Though not a Communist, Yu Yuan wishes to return to mainland China because he has a frail mother and a fiancé there.

Rather than siding with one group or another, Yu tries to avoid taking sides. He cooperates with whoever has power over him at the time, whether it’s the Nationalists in the main camp, or Commissar Pei in a later camp for Communist P.O.W.s. Consequently, no one trusts him very much and he constantly has to prove his loyalty.

To me, his vacillation is what makes him war trash to me. Not the fact that he allowed himself to be captured and didn’t throw himself on the American’s bayonets. The man rarely takes much of a stand at all.

There are also some interesting cultural differences between the prisoners of war here and, say, those in King Rat or the soldiers in All Quiet On The Western Front. In particular, the Chinese seem to be much more tuned in to leadership. Without the appointed leader, they fall back to rote. And they express relief, joy, and all sorts of other emotions when contact with their leaders is restored.

Anyway, this wasn’t a bad book. I’ll probably read more by Ha Jin, but I am learning I don’t think I want to read too many novels which are primarily about soldiers in wartime.

Title: War trash
Author: Ha Jin
Imprint / publisher: Vintage International / Random House
Format: Trade paperback
Publication date: 2004 (May 2005 in trade paperback)
Length: 352 p.
ISBN-10: 1-4000-7579-3
Subject: Korean War, 1950-1953 — Prisoners and prisons — Fiction
Subject: Korean War, 1950-1953 — Fiction
Subject: Chinese — Korea — Fiction
Subject: Prisoners of war — Fiction
Subject: Translators — Fiction
LC classification: PS3560.I6 W37 2005b

Days of Judgment is a nice overview of the war crimes trials in Nuremberg and Tokyo after World War 2. It doesn’t cover much more than the highlights though. Still, my personal knowledge of the war crimes trials was limited, and this book covers them at a high level nicely. But if you want a detailed history of why and how Goering, Hess, von Ribbentrop, Muto, and Tojo were convicted, read elsewhere. If you want details of their crimes, this is not the book. Basically, this is a short unit for junior high or freshman students in their history classes. But it is well-written and does close with a connection to war crimes efforts started in the early 1990s. It does include a nice bibliogrpahy for further reading.

Title: Days of judgment: the World War II war crimes trials
Author: Isobel V. Morin
Publisher: The Millbrook Press
Format: Hardcover
Length: 135 p.
Publication date: 1995
ISBN-10: 1-56294-442-8
Subject: War crimes trials
Subject: World War, 1939-1945 — Atrocities
LC classification: D803.M67 1995

I’ve carried around my beat-up copy of this classic since high school, but haven’t re-read it in 20 years. Until now. This is the grandfather of all war is hell stories. Remarque tells the story of Paul Baumer, a soldier recruited directly from school. He’s known no other life other than soldiering and being a child. Remarque’s own experience during the Great War is the basis for Baumer’s tale. There’s no conclusion per sé, just experience after hellacious experience. We learn about the scrambling for food. We see Baumer sneak off to bed a French girl whose house is now behind the German lines. We see Baumer undergo multiple injuries. His comrades fall. He kills, from afar and up close.

There’s not a lot of real emotion in the book. Emotion is replaced with a soldier’s dead outlook on the future. This is pathos. Of particular interest to me were the scenes from Baumer’s leave and visit home. His home and family are foreign to him. Even there, the scenes of the only life he knows other than being a soldier, everything is still painted in shades of disinterested but painful gray. Even there, far away from the front, everything is a matter of survival and little else.

Title: All quiet on the western front (originally Im Westen Nichts Neues)
Author: Erich Maria Remarque
Translator: A. W. Wheen
Imprint / publisher: Fawcett Crest / CBS Publications
Format: Mass market paperback
Length: 256 p.
Publication date: July 1975
ISBN-10: 0-449-20249-6
Subject: World War, 1914-1918 — Fiction

I stopped by the booth at Northwest Bookfest in November 1999 that the publisher of this book put on. Evelyn Whitfield was manning the booth that day. She had sold all the copies of her book, but she was such a warm personality and sold other people’s books so well, that I had to order a copy of her book.

She wrote the manuscript shortly after her release and return from three years spent in Japanese prisoner of war camps in the Philippines. This was not originally meant to be published as a book, but for some reason she has dusted it off and published it. I suspect the Premiere Editions is a vanity publisher, though I do not know for certain.

First off, I must get out of the way that the writing is somewhat amateurish. I might characterize it as something I would write.

She tends to write as I would expect someone of her generation who is not a writer would, with much respect for the sensibilities of the people like her. Everyone in her prisoner of war camp holds up rather well under the circumstances. She does not write much about disagreements, and the ones she does write about she laughs off as minor. While not having experienced the horror of a prisoner of war camp, my experience with living in close quarters with people is that arguments are much more serious that one would gather from the plucky crowd who inhabits her camps.

But several things do come through the story. The lack of contact with the outside world comes through so much in the story that I found myself wondering if they ever made it out alive. Having met the author, I know that she did. The absolute precariousness of their position shines through loud and clear as well. One never finds her in the exaggerated position where she is near death due to the capriciousness of a Japanese guard. No guns being pointed at her head. However, subtly she paints a canvas with arbitrary decisions regarding food, shelter, and bowing which show how much at the mercy of others they were.

The hope that the prisoners exhibit also is apparent. The internees attach themselves to any rumor that whips through the camp. Sightings of planes. Contact with former employees and acquaintances through camp fences. The disappointment shows when their camp translator is no longer allowed to translate in meetings with the Japanese authority, because she can understand the words they say in addition to the official translation.

Author: Evelyn Whitfield
Title: Three year picnic : an American woman’s life inside Japanese prison camps in the Philippines during WWII
Publisher: Premier Editions International
Format: Paperback
Length: 319 p.
Publication date: 1999
ISBN-10: 0-9633818-8-1
Subject: World War, 1939-1945 — Prisoners and prisons, Japanese
Subject: World War, 1939-1945 — Concentration camps — Philippines
Subject: Prisoners of war — United States — Biography
Subject: Prisoners of war — Philippines — Biography
Subject: World War, 1939-1945 — Personal narratives, American
Subject: Women — United States — Biography
LC classification: D805.P6 W39 1999