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Torture, America, and the Laws of War

Lincoln’s Code: The Laws of War in American History
By John Fabian Witt
(Free Press, 498 pp., $32)

WAR IS ABOUT killing, maiming, and destroying. Yet in its midst men have sought heroism not only in savage acts of bravery but also in observing limits, in finding a way to affirm their and their adversaries’ common humanity, in the concept of honor as a higher expression of morality than is attainable even in peace. I am put in mind of Simone Weil’s “The ‘Iliad,’ or the Poem of Force” and of the portrait of grace and generosity in Velazquez’s painting “The Surrender of Breda,” a scene repeated at the Appomattox courthouse. John Fabian Witt’s book is the story of how American leaders from colonial times through the Philippine insurgency navigated the treacherous channel between savagery and chivalry. 

When I first read this enthralling and important book, I took it as an extended tribute to Lincoln’s moral genius. There is genius in many fields and on many dimensions. Moral genius, like political genius, is far closer to artistic genius than it is to genius in science or mathematics. It has to do with putting together familiar elements in unexpected ways, combining and recombining the materials to take account of and overcome the constraints of those materials, and finally coming up with a whole that surprises by its power, its aptness, and its sense that we are experiencing something fundamentally new. Relating moral genius to the genius of Keats or Raphael or Bach may seem to diminish the ultimate seriousness, the urgency of morality—or at least to make a category mistake that slights the special quality of each. But they do have things in common. In each case we cannot look at the world again in the same way after we have taken them in. Everything that has gone before and comes after takes on a different valence and hue. They change our world, they change our lives.

The centerpiece of Witt’s book is General Orders No. 100, dated April 24, 1863: Instructions For the Government of Armies of the United States, which “having been approved by the President of the United States, he commands that they be published for the information of all concerned.” Of course Abraham Lincoln was not himself the author of the 157 terse articles that compose the code. Its author was Francis Lieber, a professor of law at Columbia University. Lieber had been born in Berlin in 1798, and was seriously wounded as a young Prussian soldier pursuing the French after Waterloo in 1815. Five years later he joined the international brigade fighting for Greek independence from the Turks, and in 1826 he left the repressive Prussian state for London, where he befriended Bentham and Mill. He finally landed in the United States in 1827. 

Lieber was a passionate and tireless scholar whose whole preoccupation was with war—its technology, but more its history and its moral and political significance. Lieber chafed at not being able to join the Union war effort in 1861, but was nonetheless tragically involved in it: his son Oscar was killed in battle on the side of the Confederacy. (Lieber had taught in South Carolina before taking up his post at Columbia in 1857, and Oscar had stayed behind.) His other two sons fought on the Union side, one gravely wounded, the other going on to be a professional soldier, a teacher at West Point, and eventually judge advocate general. 

WITT, WHO IS a fine lawyer as well as an accomplished historian, tells in detail how from the start legal intricacies were implicated in the conduct of the Civil War. Early on there was Lincoln’s illegal suspension of habeas corpus, probably indispensible to allow Union armies to travel through Maryland to relieve the insufficient garrison in Washington. Lieber had been consulted. There were critical questions about the blockading of Confederate ports, the use of privateers to seize ships running the blockade, the treatment of neutral shipping—principally British—carrying war material, and in one fraught case two Confederate officials traveling to London to treat with the British. The deft resolution of those questions would determine whether the British, whose economic interests were very much aligned with those of the South, would recognize the independent status of the Confederacy or perhaps even ally with it. 

On land, a crucial decision had to be reached as to whether to treat the Confederacy and its fighters as traitors and criminals, or to recognize them as a hostile force fighting as an enemy nation. To take the latter stance would seem to concede the very point at issue: this was, after all, a war to preserve the Union. To deny that the South was another nation would strip its captured soldiers of prisoner-of-war status, with the entailment that Union soldiers could hardly expect that status in return. Eventually uniformed soldiers from each force were treated as prisoners of war, and the pressure that the growing numbers of such prisoners put on both sides led to prisoner exchanges and the complicated and unsatisfactory practice of “parole,” where the paroled captured soldier agreed not to return to his fighting force. 

Particularly urgent was the question of slaves who quit their masters to seek refuge with Union forces and eventually to join them. The more benign Southern commanders returned these former slaves to their former masters; but others mistreated them horribly and often slaughtered them on the spot. For the Union forces, the former slaves were an important source of manpower, which correspondingly disrupted and degraded the Southern labor economy. For the Southerners, these defectors raised the specter of a slave revolt and the dread precedent of the slave rebellion in Haiti. 

Then there was the question of irregular bands—guerillas fighting Union forces in what today would be called asymmetrical warfare. Differently troubling was the phenomenon of Southern sympathizers of various degrees of militancy in Union states. Lambdin Milligan was the leader of a semi-clandestine militia of rabid Northern supporters of the Confederate cause and of slavery. Working with Confederate agents, they were planning to free Confederate soldiers held as prisoners of war and to lead an uprising in Indiana, Illinois, Ohio, Missouri, and Kentucky. He was captured, tried before a military commission, and sentenced to death. Milligan petitioned the Supreme Court for a writ of habeas corpus. It was only in 1866 that the Court got around to deciding the case, and it decided in Milligan’s favor and against the use of military commissions to try a citizen of Indiana where civil courts were sitting and capable of trying him for treason and other crimes against the United States. By that time, of course, the war was over, and the case had become a stalking horse in the campaign against military occupation and military law in the reconstruction of the former Confederate states. During the war such niceties had not prevented thousands of trials before military commissions across the country.

Lieber, an expert in the law of war, was a close friend of General Henry Halleck, who in 1862 was promoted to general-in-chief of the Union armies, and on many of these vexing matters Lieber was consulted regularly. The status of irregular fighters, the treatment of prisoners of war, the status of former slaves (200,000 of whom would eventually fight under the Union flag), the treatment of the person and property of civilian populations (who were on one view United States citizens though possibly in criminal accord with armed traitors, on another view citizens of a hostile and occupied nation), and the impending Emancipation Proclamation posed questions that urgently needed clear, specific, and uniform resolution. And so Lincoln turned to Halleck and Secretary of War Edwin Stanton, who on December 12, 1862, commissioned Lieber and a small group of advisers to produce a comprehensive draft of a code of conduct for the war. Witt tells of the pressures on Lieber from every quarter: there were some who recommended the most draconian responses to both uniformed and irregular opposition, and there were others, such as General George McClellan, who despised blacks, and could not abide the thought of commanding an army with black soldiers in it, and believed that defecting slaves should be returned to their masters as another form of improperly acquired civilian property. Lieber’s remarkable document was produced, discussed, and approved; and on April 24 was ordered promulgated by the president.

THERE HAD BEEN many scholarly treatises on the laws of war, of course; and military forces had long had particular and standing orders governing various aspects of their operations. But Witt explains that General Orders No. 100 was the first comprehensive code for the conduct of war ever officially drafted and promulgated. It was immediately disseminated to all officers and to the civilian population. It was pointedly transmitted to the Confederate side, so that they might know what to expect, if they played by its rules and if they did not. Jefferson Davis condemned it as barbaric, and found particularly irksome the threat of what seemed to him “servile insurrection as an instrument of war.” This was all to be expected. 

What is truly remarkable is the international influence and renown that the code attained. Witt shows that it became “a global phenomenon. European international lawyers [translated] it into French, German and Spanish. In 1870, the Prussian army [adopted] the American code as its own, and other European nations quickly [followed]. At the beginning of the twentieth century, armies around the world issue[d] field manuals inspired by the American model, forerunners to the wallet cards that [instructed] twentieth- and twenty-first century soldiers on the laws governing such matters as the treatment of prisoners of war.” In 1899 it served as the basis for the Hague Convention. “Statesmen in Europe and America, along with generations of military men and lawyers, will pay homage to Lincoln and tout Lieber’s code as a seminal document in the history of civilization.” 

It is impossible not to be moved by Witt’s account of the inflexible prohibitions against torture, the use of poisons, the mistreatment of prisoners of war, and acts of treachery such as the misuse of flags of truce. Adopted in the darkest days of the Civil War, these provisions were an affirmation of honor, of chivalry (to use a term that Elaine Scarry employs in discussing the laws of war), and of Lieber’s precept that dishonor, not death, was the ultimate evil. But the deeper inspiration of this sacred text was dictated by Lincoln’s complex and heroic mind. 

I first read Witt’s book at a time when I was involved in a project to insist on the absolute moral prohibition of torture as compared to the shifting, relative, and often trivially legalistic strictures against eavesdropping, detention, and the like. So the majesty of Lincoln’s code stood out against the strained and awkward rationalizations of the Office of Legal Counsel’s infamous torture memos and those who defended them. And Witt’s book has deepened my veneration for Lincoln: this is a more complex story than I had grasped before. It is a tale not entirely of moral heroism triumphant, but of moral risk, moral loss, and moral tragedy. Grown-ups have always understood that saints and heroes are complicated, conflicted, self-contradicting. To paraphrase Kant, out of the crooked timber of humanity no entirely straight thing has ever been made. I grew up a little more reading and re-reading Witt’s story. 

WITT STARTS HIS story with another American hero, George Washington. The more we learn about him, the more there is to admire. He did not have Lincoln’s wit or rhetorical gifts, but from the time he assumed the preeminent place among the revolutionary leaders Washington consistently made the right choices: bold when boldness was all that would keep the enterprise from foundering, persistent, brave, inspiring to his troops. During the formative political days of the Republic he showed such modesty and restraint that, unlike the more republican and less aristocratic John Adams, he was rarely accused of monarchical tendencies. And during the Revolutionary War he enjoined a strict code of soldierly chivalry, forbidding all cruelty and retaliation against the British, who did not respond in kind. It was the British who kept their prisoners of war in rotting hulks under inhumane conditions, who incited their Indian allies to commit atrocities not only against soldiers but also against civilians, women, and children. 

It is true that Washington tried Major John André, the brave British spy, before a military commission—that’s right: a military commission—and hanged him. But that was what the laws of war provided for spies. It was what Lincoln’s armies did to spies, what Roosevelt did to the German saboteurs who came ashore on the East Coast, what allied troops did to German soldiers (some of them perhaps American citizens) who infiltrated our lines in American uniforms to sow confusion during the Battle of the Bulge. Witt recounts about Washington that, in 1754, the twenty-two-year-old officer in the Virginia militia surprised a company of French soldiers, and together with his Iroquois allies treacherously murdered the French who had surrendered, including among them one Jumonville who was probably not a soldier at all but an ambassador delivering a message. This is the same man who some twenty years later, on December 26, 1776, treated so generously the defeated Hessians whom he surprised at Trenton.

MORE TO THE POINT is the content of the code itself and the interpretation that it received in the field. Lieber had no pacifist inclinations. He believed that a short war was finally more humane than one protracted by sentimental hesitations. The purpose of waging war was to win. Here is some of the salient language of the code, to give a sense of its tone, style, and affect:

Art. 15.
Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.
Art. 16.
Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.
Art. 19.
Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity.
Art. 20.
Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, suffer, advance and retrograde together, in peace and in war.
Art. 21.
The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.
Art. 22.
Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.
Art. 23.
Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war.

The code forbids all ill-treatment of prisoners and allows no retaliation or punishment against enemy soldiers simply for being and fighting as enemy soldiers, though in extreme circumstances a commander may kill his captives if absolutely necessary to secure the safety of his troops. Yet these protections are not accorded to persons who do not fight as part of an organized army but assume the appearance of civilians—what today are called unlawful combatants. They “are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.” 

THIS LAST addressed the question of guerrilla fighters, and the earlier sections quoted justified Sherman’s bombardment of Atlanta and his march to the sea. This was a fighting code, and it fit with Lincoln’s development as a wartime president. Like Franklin Roosevelt after him, Lincoln did not allow legal niceties—such as habeas corpus and the possible argument that disloyal civilians could not be expeditiously dealt with by military commissions, but only by ordinary criminal processes with all their constitutional protections—to impede the successful prosecution of a civil war. But neither did he ever forget what the war was about, and this was his evolving sense that slavery was incompatible with the conception of the Union he was trying to save:

Art. 42.
Slavery, complicating and confounding the ideas of property, (that is of a thing,) and of personality, (that is of humanity,) exists according to municipal or local law only. The law of nature and nations has never acknowledged it. The digest of the Roman law enacts the early dictum of the pagan jurist, that “so far as the law of nature is concerned, all men are equal.” Fugitives escaping from a country in which they were slaves, villains, or serfs, into another country, have, for centuries past, been held free and acknowledged free by judicial decisions of European countries, even though the municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions. 
Art. 43.
Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State can have, by the law of postliminy, no belligerent lien or claim of service. 
Art. 58.
The law of nations knows of no distinction of color, and if an enemy of the United States should enslave and sell any captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint. 
The United States cannot retaliate by enslavement; therefore death must be the retaliation for this crime against the law of nations. 

And here, in legal language, is the thought that Lincoln expressed poetically in his Second Inaugural:

The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage. 
Art. 28.
Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution. 
Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine wars of savages. 

Peace is the normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace. The more vigorously wars are pursued, the better it is for humanity. Sharp wars must be brief. 

ALL THESE SCRUPLES and sentiments throughout our history ran up against the terrible reality that originally this was not our land, that we took it from those who lived here. They did not fight by Lieber’s rules. They were cruel and murderous, and made no distinction between fighters and women and children. And neither did we. We stole the country. But could it have been otherwise? It was unjust, but was it conceivable that this vast continent, fertile and rich in resources, would be ceded to a sparse population some (but by no means all) of whom might be described as Stone Age nomads? Maybe some accommodation other than the racist and genocidal path we took was conceivable. The oft-repeated justification of civilian and military murderers of Indian children was that if you kill the nits you don’t get lice. Perhaps we might have followed a different path. Washington appears to have been so inclined, but Andrew Jackson’s determination to clear the southeastern United States of Indians, driving them west of the Mississippi, led to a policy of ethnic cleansing especially by the state of Georgia, a policy John Marshall’s decision in Worcester v. Georgia declared unconstitutional without putting a stop to it. 

The Indian wars were perhaps a precursor to the fight against Al Qaeda today—an enemy who wears no uniforms, melts into the civilian population, hides among non-combatants, and shows no restraint in its methods or choice of targets. In the past, military actions against hostile Indians often concluded with the U.S. Army summarily killing Indian men, women, and children, just as the Indians had done to the white settlers they attacked. Lieber’s code specifically exempted Indians from its protections; he ruled that the laws of war applied only to those who lived and fought as citizens of modern, organized sovereign states. And yet the code exerted an influence. 

In 1862, when Dakota Sioux warriors, reasonably believing that they had been cheated out of vast lands by the United States government, rampaged across the southwestern part of Minnesota, killing men, women, and children by the hundreds, the U.S. Army determined “utterly to exterminate” them. Two thousand Sioux of all conditions were rounded up, but instead of simply massacring them the American soldiers, to the fury of Minnesota settlers, proceeded to try them before military commissions—very summary affairs indeed, some trials lasting five minutes. Almost four hundred were charged with murder, rape, and robbery. Three hundred and twenty-three warriors were convicted, of whom all but twenty were sentenced to death. Yet Lincoln approved the death sentences of only thirty-nine Dakotas, those who had participated in massacres of settlers; and he left unresolved the sentences of Dakotas who had fought against soldiers and militia. 

WITT ENDS HIS BOOK in the same vein as he begins it: with an account of the brutal suppression by the American military of the brutal insurgency in the Philippines, prominent in which was the organized and systematic use of torture to extract information from the insurgents. The most frequent technique was the so-called water cure, or waterboarding but without the board. Major Edwin Glenn was the chief organizer and proponent of these methods, and for this, in 1902, along with several others, he was court-martialed, with reference to Lieber’s code, and convicted. It was said in Glenn’s defense, paraphrasing a dictum of Lieber’s, that “short, severe wars” were “the most humane.” But Article 16 of “Old Hundred” explicitly stated that “military necessity does not admit of ... torture to extort confessions,” and Article 80 made unlawful “the use of any violence against prisoners in order to extort the desired information.” 

The Judge Advocate General, in confirming Glenn’s conviction, mused whether exceptions might be made in an emergency “so instant and important as to justify the disobedience of the plain requirements of General Orders, No. 100”—an early version of the “ticking bomb” defense. President Theodore Roosevelt affirmed the convictions, but later commuted the sentences to little more than slaps on the wrist. This episode is well-known in military academies, where the cadets study Old Hundred and the precepts of military honor and morality alongside courses in strategy and engineering. It went wholly unmentioned, though it was the closest precedent, in the Office of Legal Counsel’s torture memos in the Bush years.

Death—which was dealt out during the Civil War in numbers greater than modern warfare had yet known—was not the worst thing that could happen to an individual. Men have always known that there are things worth dying for. The great question was, and always has been, what those things are. It was Lincoln’s moral genius that he knew not only what was worth the deaths of many hundreds of thousands, but also that the ideals we fought for were put in jeopardy not only by the prospect of losing that fight but also by the prospect of winning it in a way that poisons those ideals and makes us unworthy to fight in their name. General Orders No. 100 were a terse, lucid, and necessary casting of the balance in the language of law and rules. It demonstrated that laws need not be turgid and prolix to do their work, but can have an eloquence and majesty peculiar to their genre. 

Still, it would be a mistake to take from Witt’s book, and its awful, inspiring, and contradictory story, the lesson that if only we draft good laws and enforce obedience to them, if only we could find a Francis Lieber for our time, the moral dilemmas of the wars against terrorists and insurgents would somehow be resolved. I am sure that Lincoln did not think so. He would not have believed that just laws and the scrupulous adherence to them were a guarantee of virtue or a triumph of right. He knew when to break the law and which laws to break. But those infractions were themselves driven by a deep moral sense, and it is what shines, in all its complexity and eloquence of tongue and heart, through this important book. 

Charles Fried is the Beneficial Professor of Law at Harvard University and the author, with Gregory Fried, of Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror (Norton). This article appeared in the December 31, 2012 issue of the magazine under the headline “Humanity in War.”