Here, then, is the beginning of an answer to the puzzle of Lincoln, Lieber, and the laws of war. The law of war Lincoln approved in early 1863 was not merely a constraint on the tactics of the Union. It was also a weapon for the achievement of Union war aims, like the Springfield rifle, the minié ball, and the ironclad ship. It is not just a humanitarian shield, though it was that. It was also a sword of justice, a way of advancing the Emancipation Proclamation and of arming the 200,000 black soldiers who would help to end slavery once and for all. As such, the code Lincoln sent into the world was the written embodiment of tensions that have been internal to the law of war in American history from the Revolution to the present. For many Americans, the law of war has been more than merely a set of constraints on the means available to armies in combat. It has been a tool for vindicating the destiny of the nation.
HUMAN BEINGS WRITE history in the heat of political controversy, and in the fiery debates since September 11, 2001, Americans have begun to tell two competing stories about the law of war in U.S. history.
One story asserts that the actions of the United States after September 11, 2001, disrupted a long American tradition of respect for and participation in the international laws of war. Critics of the administration of President George W. Bush’s war on terror tell this story with passionate energy. For them, acts such as the use of enhanced interrogation tactics, torture, kidnappings, and indefinite detentions, not to mention the disregard for the Geneva Conventions, betrayed a long-standing historical commitment to international law’s code of conduct for war. We can see the aberration narrative in early accounts of the war on terror by journalists and lawyers like Jane Mayer and Philippe Sands, as well as in books published since 9/11 by leading historians on the military history of the founding generation. We can see it in historians’ briefs to the U.S. Supreme Court in the hard-fought legal battles over military commissions. We can see glimpses of it in the Supreme Court’s cautious holdings in post-9/11 terrorism cases.
Others, including many critics of international law, adopt a different story of historical rupture. For them, the novelty of our present moment is not American policy toward the laws of war. What is new, they say, is that international law has taken on a much more prominent role in American policymaking in the past few decades. Legal instruments such as the Geneva Conventions of 1949, a series of constraining statutes enacted by Congress in the 1970s and 1980s on topics such as torture and war crimes, and a controversial treaty promulgated through the United Nations in 1977 all seem (in this view) to signal a fundamentally changed regime of international law, one that has culminated in the International Criminal Court at The Hague and that for the first time seems to threaten U.S. policymakers with criminal prosecution for their wartime decisions.
Stories of great disruptions furnish the partisans on all sides of the contemporary debate with a usable past. They offer nostalgia-tinged golden ages for all concerned. But the cardboard stories we have told ourselves about the history of the laws of war in America are well-meaning myths at best. At worst they are dangerous fictions. If we look more closely at the history of American warfare, a pattern emerges, but it is not a pattern of sudden aberrations or ruptured traditions. Instead, it is the pattern captured by Lincoln and Lieber and by the startling juxtaposition of the hard hand of war and the laws of war in December 1862. From the Revolution forward, the United States’ long history of leadership in creating the laws of war stands cheek by jowl with a destructive style of warfare that has come to be known among military historians as the “American way of war.” Enlightenment rules stand alongside wars of extermination on the Indian frontier. Lincoln’s code precedes Sherman’s March to the Sea. The Hague Conferences of 1899 and 1907 bookend a terrible war in the Philippines. The American-made charter for the Nuremberg Tribunal is initialed in the same week the United States drops atomic bombs on Hiroshima and Nagasaki.
The failing of the stories told about American history on the left and the right is that they either discount the abiding significance of the law of war tradition in American history, or they offer a false idol of worship for the ideals of the law of nations, one that is so remote from our experience as to make it less likely (not more likely) that the laws of war will find traction in times of crisis. At their best, the laws of war have served as tools of practical moral judgment in moments of extreme pressure. If the law of war is to do this work, however, and not merely to be thrown overboard at the first sign of danger, it will have to rest on a better conception of the relationship between our ideals and our practices than the current historical conventions entail. Making better sense of American history—really taking account of it, in its ugly complexities instead of its airbrushed first drafts—will be indispensable if the laws of war are to survive as a useful source of moral engagement in the twenty-first century.
TO MAKE SENSE of how the laws of war have functioned in American history, we will need to grapple with a third widely held view of war and law. It is one that tries to take account of the contradictions of that history, and it is perhaps the most commonly held view about the laws of war to be found in the world today. Its explanation of history is that the laws of war are hypocrisy through and through.
In the twentieth century, the hypocrisy critique animated the work of the formidable Nazi jurist Carl Schmitt, who viewed international law’s pretenses of neutrality as thoroughly disingenuous. In the twenty-first century, hypocrisy is the explanation for the laws of war offered by critics of American military action, who claim that the so-called laws of war aim most of all to advance the authority of the world’s most powerful states. (Hawks in the United States and Israel turn right around and level the same charge at weak states and insurgents in the developing world.) The hypocrisy claim can be found in conversations about American power today in every quarter of the globe.
Indeed, hypocrisy is the operative logic of what is undoubtedly the most influential work on the law and the morality of war in the past half century: the philosopher Michael Walzer’s achingly beautiful book, Just and Unjust Wars. Written in the wake of the Vietnam War, Walzer’s book identifies the moral aspirations of states and soldiers in war and contrasts those ideals with the acts of states and soldiers in combat. Walzer exposes the actions of states to the clear light of the moral and legal limits those same states claim to espouse. Walzer’s account is radically different from Schmitt’s. Where Schmitt sees power and hypocrisy all the way down, Walzer claims to identify humanitarian ideals in the moral engagement of states and warfare. Hypocrisy, Walzer tells us, is the tribute vice pays to virtue, and Walzer finds plenty of it in the actions of the United States.
It will not do to deny for a moment that hypocrisy abounds in the history of the United States at war, as it doubtless does in the history of other nations as well. The actions of nations time and again fail to live up to the standards they set for themselves. The United States is no exception. As we shall see, Thomas Jefferson engaged in wildly one-sided invocations of the laws of nations in the American Revolution. In the era of American expansion, Andrew Jackson raged against the British for their violations of the laws of civilized warfare, while at the same time treating the laws of combat with contempt. President Theodore Roosevelt and his secretary of war Elihu Root claimed to uphold the highest values of international law while whitewashing widespread torture by American forces in the Philippines. Today, there are many who view the startling influence of lawyers and legal rules in the conflicts of the twenty-first-century American military as a kind of moral cloak that disguises the brute exercise of American power.
Yet if we want to make sense of the law of war in American history, the hypocrisy answer is too easy.
The puzzle of December 1862 begins to come into focus once we see that two competing ideals have animated American behavior around the international law rules for war. The two ideals are the ideal of humanitarianism and the ideal of justice. We hold each of them so dear that it may seem like they should ru
n together. What is peculiar about the laws of war is not merely that they sometimes do not. The peculiarity of the laws of war is that humanity and justice diverge by design. For 250 years, the laws of war have sought to minimize the horrors of war by inviting war’s participants to temporarily set aside the conviction that their cause is right. Advocates of international law have aimed to create a parallel moral universe in which questions of justice are bracketed (even if temporarily) for the sake of reducing human suffering. Americans have been leading participants in the effort to elaborate these humanitarian rules. We have helped craft prohibitions on torture, on harming prisoners, and on violence against civilians. But when asked to abandon our deepest convictions of justice—even for a moment—Americans at war have been understandably reluctant to accept the invitation. The United States has thus undercut the humanitarian architecture of the laws of war even as Americans have often been some of its chief engineers.
THIS BOOK IS an account of the alternately troubled and triumphant history of the laws of war in the United States in the long century after independence. It follows the rise and fall of the project that culminated in Lincoln and Lieber, from the founding fathers, through slavery and Emancipation, to the launching of the American empire and the eve of World War I.
The book makes no claim that the paradoxes and tensions embedded in the idea of a law of war were unique to American history. Nations and peoples around the world have confronted the startling disjuncture between the law of war’s humanitarian structure, on the one hand, and the pursuit of justice, on the other. Nonetheless, particular features of the United States experience have created distinctive patterns in the nation’s history. In particular, the problem of slavery in wartime ran through the first century of American history from the founding onward. In 1862, it was the crisis of slavery and emancipation that called forth the Union’s law of war instructions and thus helped produce the modern laws of war. Historians and international lawyers who discuss General Orders No. 100 usually call the order Lieber’s code after its principal drafter. But once we see the Union’s instructions as arising out of the crucible of slavery, the order is better thought of as Lincoln’s. For it was Lincoln’s Emancipation Proclamation that required its production and sent it out into the world.
Focusing on the history of the United States makes a good deal of sense for another reason as well. The United States is today the world’s only military superpower. The United States accounts for almost half the defense spending in the world each year. Only the United States has the capacity to mount the sorts of military engagements that have become most familiar to Western observers. Grappling with the American history of the laws of war is therefore indispensable if we are to make sense of the law and morality of military force in the twenty-first century. Understanding this history is about coming to see that the idea of a law of war has contained inside itself two powerful but competing ideals for armed conflict. One is humanitarianism. The other is justice. We struggle to reconcile them today. Lincoln and Lieber wrestled with them a century and a half ago. And the founders sought to come to grips with them in the days of the Minutemen at Lexington and Concord.
PART I
You Have Brought Me into Hell!
A young Angel of Distinction being sent down to this World on some Business for the first time, had an old Courier-Spirit assign’d him as a Guide. They arriv’d over the Seas of Martinico in the middle of the long Day of obstinate Fights between the Fleets of Rodney & DeGrasse. When thro’ the Clouds of Smoke he saw the Fire of the Guns, the Decks cover’d with mangled Limbs, & Bodies dead or dying, the Ships sinking, burning, or blown into the Air, and the Quantity of Pain, Misery, and Destruction the Crews yet alive were thus with so much Eagerness dealing round to one another; he turn’d angrily to his Guide, & said, You blundering Blockhead, you are ignorant of your Business; you undertook to conduct me to the Earth, and you have brought me into Hell!—No, Sir, says the Guide; I have made no Mistake; this is really the Earth, and these are Men. Devils never treat one another in this cruel manner; they have more Sense, and more of what Men (vainly) call Humanity!
—Benjamin Franklin to Joseph Priestley,
June 7, 1782
Chapter 1
The Rights of Humanity
The authorized maxims and practices of war are the satire of human nature.
—Alexander Hamilton, 1780
IN 1754, a rash young officer in the Virginia militia became for a short while the world’s most notorious violator of the laws and usages of war. The officer, a twenty-two-year-old named George Washington, had come to public attention a year before when he made his way through a barely mapped wilderness to deliver a defiant message to the encroaching French. Now, as rumors flew of further French incursions along the Ohio River, Washington went once again into the woods, this time with 160 members of the Virginia militia and a party of Iroquois warriors. At a boulder-strewn glen between the Allegheny Mountains and the junction of the three rivers that form the Ohio Valley’s eastern end, Washington encircled and attacked an unsuspecting French encampment. Firing the first shots of what would become the Seven Years’ War, Washington and his men killed ten Frenchmen and took twenty-one prisoners in less than fifteen minutes. That much is clear, or as clear as such things can be. What happened next, however, has been obscured by controversy for two and a half centuries.
In his official report of the engagement Washington would later write that the French commander, Joseph Coulon de Jumonville, was killed in the initial shooting. But in French accounts, Jumonville was alive when the French company surrendered. According to the French, the entire attack was an outrage. Jumonville, they said, had not been a combatant but an ambassador delivering a message, much like Washington the year before. The French commander, they said, had not resisted the British attack, but had called for a cease-fire. And the French insisted that the attackers had murdered Jumonville in cold blood—that they had assassinated him after the fighting had stopped. In one version of the French story, the British executed Jumonville with a musket shot to the head. In another version, Washington’s Indian ally, the Iroquois leader Tanacharison, did the deed. In full view of Washington and the British, Tanacharison said, “You are not yet dead, my father,” whereupon he drove his tomahawk into the defenseless Frenchman’s skull. Tanacharison’s warriors fell upon the remaining wounded Frenchmen and killed them, too.
Washington’s complicity in the Jumonville affair might have been left shrouded forever in the fog of war. But on a rainy night two months later, Washington committed an error that would haunt him for years to come. Rightly predicting that the main body of French troops would soon descend on them, Washington and his small band of Virginia militia had proceeded to construct makeshift fortifications, which Washington named Fort Necessity. But the wooden palisades proved no match for the larger French force. When the French attacked in early July, Washington’s detachment was badly overmatched. With one third of his men killed or wounded, in a heavy downpour as darkness fell, Washington agreed to surrender the fort. But in the midst of the confusion and the soaking rain, with a Dutch translator who spoke French better than English, Washington hastily signed articles of capitulation that acknowledged the death of Jumonville as an “assassination,” a treacherous killing abhorrent to the customs and usages of eighteenth-century warfare. Washington would later deny he had meant to sign any such acknowledgment. He would blame his interpreter. He would claim that the pouring rain had washed away the ink of the Articles. Regardless, the Articles of Capitulation from Fort Necessity were quickly circulated in Canada and France as a damning admission of British savagery. The French seized Washington’s diary, and this also was published with supposedly incriminating passages in the Virginia officer’s own hand. The case against Washington seemed open and shut. “There is nothing more unworthy and lower, and even blacker,” wrote the governor of New France, “than the sentiments and the way of thinking of this Washington.” George Washington ha
d implicated himself in a violation of the laws of war.
For years afterward, Washington’s reputation would be tarred by the affair of Jumonville Glen and its aftermath at Fort Necessity. He would spend the rest of his long and storied career as a soldier in a formal display of honor, seeking to ensure that war’s chaos would never again damage his reputation. Despite his original sin—or because of it—Washington would set out to show European soldiers that his military honor was a match for their own.
Washington and the Moral Logic of War
NO NATION IN the history of the world has made the law governing the conduct of armies in war more crucial to its founding self-image than the United States. The laws of civilized war are embedded in the Declaration of Independence, where Thomas Jefferson made the king’s offenses against the rules of civilized warfare central to the Congress’s brief for American independence. In the fiery peroration of the nation’s founding document, Jefferson charged that George III had “plundered our Seas” and “ravaged our Coasts, burnt our Towns, and destroyed the Lives of our People.” Foreign mercenaries had committed acts of death and desolation “scarcely paralleled in the most barbarous Ages,” acts unworthy of civilized nations. British forces had taken Americans hostage and compelled them to bear arms against their own country. The king had incited slave insurrections and encouraged attacks by “merciless Indian Savages” whose approach to warfare was “an undistinguished Destruction, of all Ages, Sexes and Conditions.”
The Declaration was only the most famous of an outpouring of professions by the men of the would-be republic declaring their faith in the laws of war. In June 1775, as the War of Independence got underway, the Continental Congress wrote the laws of war into George Washington’s commission as commander in chief of the Continental Army. “You are to regulate your conduct in every respect,” the Congress told Washington, “by the rules and discipline of war.” A month later, the Congress explained its decision to take up arms against the British by denouncing General Thomas Gage in Boston for waging uncivilized warfare against the colonies. In the first days of 1776, the Congress addressed Major General William Howe, the commander in chief of British forces, to remind him that it was “the happiness of modern times that the evils of necessary war are softened by refinement of manners and sentiment”; in civilized warfare, Thomas Jefferson wrote for his colleagues, enemies were the “object of vengeance” only “in arms and in the field.” The very same week, Congress rallied the colonies to the cause by calling their attention to the “execrable barbarity” of the British war effort. The British burned “defenceless towns and villages,” Congress said. They murdered “without regard to sex or age,” incited “domestic insurrections and murders,” and bribed Indians “to desolate our frontiers.” Congress instructed the colonies, by contrast, to “take care that no page in the annals of America be stained” by some act that “justice or Christianity may condemn.”
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