Lincoln's Code

by John Fabian Witt

  THE LEGALITY OF torture was a question to be decided by reference to the instructions of 1863, for at the outset of the Spanish-American War they were still the governing body of rules for the U.S. armed forces. As the war began, Judge Advocate General Norman Lieber had arranged to have his father’s code reprinted and distributed by the thousands in a three-inch by five-inch blue pocket edition. Where Halleck and Judge Advocate General Joseph Holt had been obliged to build an entire system of military justice for the prosecution of law of war violations from scratch, the younger Lieber presided over a new series of military commission trials made in the image of their Civil War predecessors. Lieber’s military commissions tried crimes by Filipinos such as unlawfully furnishing supplies to the enemy and murder in violation of the laws of war. They tried more than 300 enlisted men in the U.S. Army, as well, for crimes ranging from petty theft and assault, to robbery and rape, to shooting and beating prisoners of war. In December 1900, Major General Arthur MacArthur commanding U.S. troops in the Philippines reissued selected sections of General Orders No. 100 to the armed forces under his command. Two years later, Secretary of War Elihu Root assured the Congress that all orders in the Philippines had conformed to the terms of Old Hundred.

  Invocations of General Orders No. 100, however, disguised a transformation in military thought in the post–Civil War United States, one that had altered the delicate balance of humanity and necessity in the 1863 instructions. In 1892, Major General John Schofield, the commander of the U.S. Army from 1888 to 1895, had issued an order incorporating the terms of the 1864 Geneva Convention into Lieber’s code, announcing that the Geneva rules would thenceforth “form part of the ‘Instructions for the Government of the Armies in the Field.’” But Schofield argued openly for short and sharp wars that would avoid the quagmires all too often produced by what one like-minded officer called “squeamish humanity.” Schofield, who served as superintendent of the Military Academy at West Point in the 1880s, who had helped shape the treatment of the Modoc Indians in 1873, and who had survived the guerrilla conflicts of Civil War Missouri, also explicitly rejected international law’s formal moral symmetry for warring nations. He insisted instead that righteous causes licensed tougher methods.

  Influential military strategists from the Army Officer Corps echoed Schofield’s views, anticipating that the future of warfare would look more like Sherman’s March to the Sea than like the set-piece battles of yesteryear. Leaders of the prominent U.S. Military Service Institution believed that modern wars would be campaigns with “no objective point, no lines of communication, no base of supplies.” War would be fought by “armies of raiders.” Everything from “railroads, telegraphs, factories, stores and store houses,” to “shops, barns, roads, and bridges” would disappear before great devouring armies. “Giant famine and pestilence” would follow in their wake. Leading members of the turn-of-the-century officer corps did not shrink from this vision. They embraced it. “Terrible! Say you?” asked the editors of an influential strategy journal. They supplied their own answer: “Well, yes. War ought to be terrible. The trouble is that it has ceased to be terrible to altogether too many men.”

  In the Philippines, the laws of war seemed to officers trained under Schofield’s influence to be an inspiration for their fierce war strategy, not an obstacle to it. Some officers treated the Filipino resistance fighters as savages with no claim on the laws of war. (That had been Theodore Woolsey’s ultimate defense of Funston’s otherwise unlawful ruse to capture Aguinaldo.) But most embraced the laws of war and its terms, confident that they were adaptable to the irregular warfare of the Philippines. When MacArthur reissued the Civil War instructions in December 1900, he did so at the moment when the Army had decided to step up the aggressiveness of its campaign, just as Lincoln had in 1862. MacArthur’s version of General Orders No. 100 was even tougher than Lincoln’s, for MacArthur omitted the sections that imposed restraints on the soldiers and officers of the United States, while retaining the sections authorizing retaliatory violence for the savage conduct of Filipino independence fighters. MacArthur’s reading of Old Hundred quickly became a pattern in American invocations of the Civil War instructions in the Philippines. General James Bell cited it to justify harsh measures against those who rose up against an occupation. “A short and severe war,” he said, was better than “a benevolent war indefinitely prolonged.” Bell announced that he would execute a prisoner for every American or friendly native murdered. On Samar, Jacob Smith cited General Orders No. 100 for the idea that the United States should “wage war in the sharpest and most decisive manner possible” because “short, severe wars” were “the most humane in the end.” Smith’s officers, in turn, believed that their policy of giving no quarter to prisoners was justified under the laws of war in general and General Orders No. 100 in particular. Newspaper editors and congressmen back home got into the act as well, urging critics of American soldiers to “study with advantage” the laws of war as embodied in Lincoln’s Civil War instructions. Even Judge Advocate General Norman Lieber’s office prepared a private defense of the Army’s actions in the Philippines, finding support for its conduct in the code’s articles.

  STILL, there seemed to be no getting around the question of torture. Torture was one of the few things that Old Hundred had ruled out as definitively unlawful. “Military necessity,” stated Article 16, “does not admit of . . . torture to extort confessions.” Article 80 provided further that it was unlawful to use “violence against prisoners in order to extort the desired information.” It did not seem possible to justify torture by reference to the 1863 instructions. And when rumors of widespread torture began to leak back to the United States in early 1902, and when a political firestorm seemed on the verge of engulfing the war effort, President Roosevelt and Secretary of War Root quickly ordered courts-martial for the worst offenders.

  Army commanders initiated at least five trials of accused American torturers. The most prominent was that of Major Edwin F. Glenn, on charges of ordering the administration of the water cure in November 1900 on the island of Panay.

  Born in North Carolina, Glenn was a member of the class of 1877 at West Point. He had a law degree from the University of Minnesota as well, and had served as a judge advocate beginning in the middle of the 1890s. In 1895, he had even published a book on international law designed for law students. The book discussed war at length and reprinted Lincoln’s instructions of 1863 in their entirety. In 1898, Glenn led a pioneering expedition to southeastern Alaska, where his name still graces towns and highways. Now serving in the Philippines, he was the judge advocate for the island of Panay.

  In 1900 and early 1901, while serving as the judge advocate, Glenn orchestrated a systematic campaign of arrests and torture. In the Philippine islands of Leyte and Samar, he led a mobile team of crack water cure experts who arrested community leaders (some called it kidnapping) to extract information about the insurgency. General Nelson Miles of Geronimo fame reported privately to Secretary of War Root that Glenn and his team had become notorious for moving around the islands and arresting men “for the purposes of extorting statements by means of torture.” Glenn soon became so well known as the chief administrator of torture in the Philippines that the torture squad was called “Glenn’s Brigade.”

  Members of Glenn’s torture team did their work with little secrecy or shame. They thought their actions perfectly justifiable on the now familiar grounds that short wars were humanitarian wars. Glenn defended himself at his court-martial by conceding his acts and trying to justify them. “I am convinced that my action resulted in hastening the termination of hostilities and directly resulted in saving many human lives,” he told the court. His actions, he claimed, were justified by military necessity. Water torture, insisted another officer prosecuted by court-martial, was the humane thing to do. “Without firing a shot or shedding blood,” he had been able to uncover munitions stashes and, he believed, save lives.

  Life magazine put the water
cure on its cover in 1902, showing American soldiers administering the “cure” while European empires look on in delight.

  Judge Advocate General George B. Davis, Norman Lieber’s successor, rejected Glenn’s justifications. “No modern state,” Davis concluded, could admit torture as a “usual practice” in wartime, even when “at war with a savage or semicivilized enemy.” Here was a forceful refutation of Glenn’s logic. Yet Davis’s reasoning contained a surprising caveat. Lincoln’s 1863 instructions had set torture outside the realm of necessity; it was never permitted. Davis, however, asked whether an emergency had existed that was “so instant and important as to justify the disobedience of the plain requirements of General Orders, No. 100.” No such necessity had existed sufficient to justify torture, he concluded. But by asking whether torture was permitted under the circumstances, he seemed to have changed the law to allow it in at least some dire situations. Davis’s recommendation to the president and the secretary of war urged approval of the conviction in Glenn’s case but opened a door that Lieber had held shut.22

  In the end, Glenn was convicted and his conviction affirmed by President Roosevelt. But his sentence barely amounted to a proverbial slap on the wrist. Citing Filipino provocations to which he was said to have been responding, the court sentenced Glenn merely to be suspended from his command for one month and fined a grand total of $50. The sentence was typical of other officers convicted at courts-martial for similar offenses. Some were simply reprimanded. Others were acquitted altogether. Of the fifteen officers prosecuted by general courts-martial in the Philippines for offenses of any kind, only one received a prison sentence, and that was for five years for killing a prisoner of war. Even then, President Roosevelt commuted the sentence to loss of half-pay for nine months and a loss of thirty-five places on the officer promotion list. Filipinos accused of law of war violations fared considerably less well. One man Glenn had tortured, Tobeniamo Ealdama, was convicted of being a war traitor under Articles 90 and 91 of the 1863 code. For the crime of rising against an occupying army, Ealdama, the torture victim, was sentenced to ten years imprisonment at hard labor.

  Lincoln’s fierce code seemed to have lost its way in the Philippines. A dubious war of empire had detached the code from the righteous cause that had produced it. It was as if questionable wars compelled the armies that fought them to go to ever more terrible lengths to defeat enemies whose own sense of righteousness drove them to ever stiffer forms of resistance. Senator George Frisbie Hoar of Massachusetts, the seventy-four-year-old lion of the anti-imperialist faction of Congress, believed that unscrupulous wars were precisely the kind of thing that empire would produce. Looking back on American conduct in the Philippine War, Hoar could only bemoan his country’s new direction: “We have been brought to the unexampled dishonor of disregarding our own rules,” he said, “for the conduct of armies in the field.”

  IN THE YEARS following the Philippine War, international lawyers, statesmen, and military men in the United States began to develop a law of war that would no longer rest on the fifty-year-old rules that Francis Lieber had drafted. William Tecumseh Sherman had praised General Orders No. 100 while serving as commander of the Army in the 1880s. As secretary of state in 1913, Elihu Root celebrated the occasion of the code’s fiftieth anniversary with a public address praising Lincoln’s order. The Army’s chief of staff called the code “almost sacred.” Yet even as early as 1898, when Norman Lieber had distributed his father’s code at the outset of the Spanish-American War, long sections of it must have struck him and his readers as odd. A dozen of its articles dealt with questions arising out of slavery in wartime. There were provisions for the status of captured and fugitive slaves, for slave insurrections in wartime, and for the enlistment of an enemy’s slaves in the armed forces. Lincoln’s order prohibited the outlawry of black soldiers and declared the sale of enemy prisoners of war unlawful. It was no wonder, then, that when European lawyers like Bluntschli and Martens adapted Lieber’s work to their own conflicts, they quietly excised a number of irrelevant passages that made no sense out of their original context.

  The new conventions and treaties of the postwar period also left the Civil War instructions badly incomplete. Privately published compilations stitched together the 1863 rules with the Geneva Convention of 1864 and the Hague Convention of 1899 to produce comprehensive but awkward treatments of the rules of engagement. In the Judge Advocate General’s office, an internal concordance literally constructed with scissors and glue tried to patch together a reconciliation of the Lieber Code of 1863 with the Hague Convention. It was increasingly clear that a new departure was necessary.

  But who was to produce such a document? Who would be the Francis Lieber for the twentieth century? The task would be a delicate one; in 1904, an ill-conceived code for naval warfare (designed, as Yale’s Theodore Woolsey wrote in 1900, to be “comparable in all particulars with the land code of thirty-seven years ago”) had to be revoked when Navy men concluded it put restraints on American conduct that were not likely to be reciprocated by the country’s future enemies. The job thus required someone with knowledge of the international law questions at issue, ideally someone who also knew how the Judge Advocate General’s corps worked. Even better would be someone who could bring to the task experience in wars of empire, which seemed likely to be the kinds of wars that would occupy the U.S. military in the twentieth century.

  The man the Army chose was none other than Edwin F. Glenn. If not for the torture conviction, Glenn would have been a natural choice for the job. He had a law degree and had served as a judge advocate. He had published a treatise on international law. And he had considerable experience with courts-martial, though not all of it good. After his command of the torture squad in the Philippines, Glenn had been exiled for years to a series of backwater posts in upstate New York, Ohio, and Indiana. Having served a second stint in the Philippines in 1908, however, Glenn’s sins had been forgotten. (The Army apparently viewed them as venal rather than mortal.) He was promoted to colonel in 1911. Two years later, he was detailed to the Army War College, then in Washington, D.C., which charged him with updating the old Civil War instructions.

  In 1914, the War Department issued Glenn’s field manual on the laws of war in a sturdy, yellow-bound, pocket-sized manual titled Rules of Land Warfare. The rules did not bear his name; they were ostensibly the product of the War Department as an institution, not of any one officer. But it was Glenn who was their primary author. Glenn described the new rules as retaining “everything vital” from Lincoln’s Instructions for the Government of Armies of the United States in the Field, while shedding the anachronisms. Gone were the rules about slaves. But Glenn still filled his text with long passages taken verbatim from its 1863 predecessor. And Glenn’s field manual would prove to have almost as long a life as Lieber’s. After a few insignificant editorial alterations, Glenn’s 1914 Rules accompanied American soldiers across the Atlantic to fight on the Western Front in World War I. A substantial update in 1934 retained the basic logic and structure of Glenn’s text. With a few cosmetic changes in 1940, it was his manual that went to war again in Europe and the Pacific in 1941 and 1942. At the war crimes trials of Nazis in American-occupied Germany from 1946 to 1949, provisions of the laws of war that Glenn had written would be cited and argued about at length by prosecutors and defense lawyers alike. No one noted that they had been crafted by a convicted torturer, a man whom we would today (following Lieber and Bluntschli) call a war criminal.

  SURELY HERE IS REASON to see the laws of war as shot through with hypocrisy. If the work of Lieber and Lincoln comes down to us through the dirty hands of a torturer, is this not irrefutable evidence that Cicero was right when he said that law was silent among arms? Or that Cervantes knew best when he said that all was fair in love and war? There is much to this view, of course. It would be feckless to dismiss it out of hand.

  But the critics’ view is too glib. For the most striking thing about Glenn’s Rules of
Land Warfare is not the identity of its author, but the restraint of its terms. The manual bore few traces of its author’s terrible past. Judge Advocate General George B. Davis took to the pages of the official journal of the American Society of International Law to argue that the very man whose conviction for torture he had recommended the president uphold just twelve years before had “done his work exceedingly well.” Reviewing the Philippines torture cases in 1902, Davis had condemned Glenn’s necessity justification for torture in strong terms. Now, reviewing Glenn’s Rules of Land Warfare, he wrote that Glenn’s text could not “fail to be of the greatest assistance in following the course of the great war now in progress in continental Europe.”

  Indeed, the 1914 rules went considerably further than Mahan and the American delegates at The Hague had been willing to go in 1899. The new field manual prohibited the use of poisons, contagious diseases, and any weapon “of a nature to cause unnecessary injury,” including “lances with barbed heads, irregular-shaped bullets, projectiles filled with glass,” and “soft-nosed and explosive bullets.” It banned the contamination of water supplies. Glenn gave the close reader a glimpse into his internal struggle when he observed Field Marshal von Moltke’s bleak critique of the very idea of humanitarian limits (“the greatest kindness of war is to bring it to a speedy conclusion”). But Rules of Land Warfare also paid conspicuous homage to Fedor Fedorovich Martens’s clause in the Hague Convention embracing the protections of the “laws of humanity.” Glenn adopted Lieber’s term “war crimes” for the first time in an official American document. And as for torture, Glenn faithfully reproduced precisely the section of the 1863 code that Judge Advocate General Davis had cited when he recommended that the president uphold Glenn’s own conviction and sentence. “Military necessity,” the Rules of Land Warfare stated, “does not admit of . . . torture to extort confessions.” Following Lieber’s Old Hundred, the Rules banned coercive means to obtain information from prisoners of war.