John Fabian Witt

The Bancroft Prize has been sullied by its most notorious recent recipient, Michael Bellesiles, whose fraudulent research into a highly politicized topic was eventually exposed by non-historian scholars such as Clayton Cramer and James Lindgren. Bellesiles was forced to resign from Emory and his Bancroft Prize was revoked, but l'affaire Bellesiles gave a lasting black eye to both the prize and to the community of professional historians. However, one of the most recent recipients of the Bancroft Prize, John Fabian Witt, has produced a masterpiece of objectivity in his Lincoln's Code: The Laws of War in American History.

Witt goes where the history leads him, and shows remarkable restraint in going any further. Sure, there are a couple of spots where he seems on the verge of taking a pot shot at the Bush administration, but he won't quite go there. I would guess that Witt is probably much further to the left than I, or even Lane, is; but I sure wouldn't want to bet money on that. The objectivity and the determination to go wherever the history actually takes us is admirable. The depth of research is impressive. But what makes its other qualities matter is that the book is a darn good read.

The focus is on the Lieber Code, otherwise known as General Order 100, a compilation of the laws and customs of war as the Union Army were instructed to apply them during the Civil War. Lieber was a German-American who had fought the French, bounced around Europe, then settled down (ironically) in South Carolina, where he actually purchased a couple of slaves before moving north to Boston. (His pragmatic view was that, if you're living in an area that allows slavery, you might as well get a couple yourself and treat them more decently than your neightbors.) He became an expert on international law, such as it was at the time, while simultaneously growing wealthy from the success of his Encyclopedia Americana. He was also a strong champion of the Union cause and, again ironically, a strong advocate of the idea that wars ought to be sharp, both to keep them short and to keep them something to be avoided.

But the book is not just about Lieber's Code, even if that is the centerpiece. The book begins with the allegations of war crimes against a certain young Virginian lieutenant, accused of killing a French officer (or perhaps of permitting him to be killed by his Indian allies; the record is unclear) under flag of truce. George Washington went on to become a strong advocate of the Enlightenment view of war. It did not hurt that the Enlightenment rules seemed to favor the American cause.

According to Witt, the ancient concept of just war really did not separate just ad belllum (war in a just cause) from jus in bello (war by just means.) At most, one side in a war could be in the right, and soldiers fighting in an unjust cause were criminals subject to every sanction no matter in what manner they fought. Killing the enemy in a just cause by just means was acceptable; anything else was murder. Not hard to see where that led. As a result, Grotius philosophized, and Vattel further elaborated, an Enlightenment view of war that made it strictly a matter between sovereigns and soldiers, waged according to sporting rules and in such a way that ordinary citizens were as nearly untouched by it as possible. A big part of this was the idea that captured enemy soldiers ("public enemies") were immune from criminal punishment; after all, there was always room for uncertainty in which side was in the right, and a decent respect for this uncertainty called for soldiers to be treated as if their cause might be just. Jus ad bellum was thus completely separated from jus in bello; as long as soldiers obeyed the laws and customs of war, the question of whether their cause was just was not to be brought up. This obviously was aimed at avoiding the kind of internecine warfare that a no-quarter policy would quickly lead to.

There were some important caveats to all this, as well as a lot of devilish details to be worked out. According to Vattel, savage enemies were not protected by the laws of war, since they didn't wage gentle Enlightenment warfare. This view was reflected in the early Indian wars of the United States. There were also long debates about neutral shipping at sea, in which the United States pressed strongly for the rights of neutrals: We had a large merchant marine but almost no Navy with which to protect it. But a big fly in the ointment was slavery.

Witt asserts that slavery was originally a merciful alternative to slaughter of captives in war. With the new Enlightenment rules, slavery was no longer acceptable because the alternative of slaughter was now unacceptable. Slavery itself was regarded by the Enlightenment philosophers as a permanent subdued state of war; the Southerners, interestingly enough, took this view, and fear of a servile insurrection was very much on the minds of the leading men of the South from 1776 on. The official American position was that slaves were private property, and therefore could not be seized under the Enlightenment rules. British officers who encouraged southern slaves to rise against their masters in the war of 1812 were threatened with hanging when captured. It all seems very quaint and backwards (my observation, not Witt's; he maintains his impressive objectivity throughout.)

With the Civil War, Lincoln faced some serious law of war issues. He confessed that the laws of war were not much a part of his Illinois law practice, but he was apparently a quick and astute learner. It has been claimed by historians as eminent as Bruce Catton that Lincoln's proclamation of a blockade of Southern ports was a huge political blunder, because gave the impression that the Confederacy was recognized as a sovereign polity. Witt shows that it wasn't as simple as that, and that the proclamation of a blockade was arguably a brilliant political stroke. Had Lincoln simply declared the ports closed, so that British ships visiting them were violating criminal law and their captains subject to criminal penalties, England might well have gone to war with the North right then and there. But by proclaiming a blockade, whose rules were well understood in international law, Lincoln actually avoided war with Britain, which was (oddly) much more willing to accept a blockade than a simple port closure. Thus Admiralty law prevailed, and a number of British ships (particularly those stopping just across from Brownsville, Texas, in Mexican territory) were ordered returned to their owners by American admiralty courts that ruled their seizure illegal.

The famous case of Mason and Slidell came very, very close to bringing Britain into the war, but our diplomats and lawyers were able to defuse the crisis. It was done through a technicality: The U.S. maintained it had a right to seize the two men (for which there was actually a case to be made under international law) but because the Union captain had allowed the British ship to proceed on its way, rather than bring it to Admiralty court for adjudication, the captain had broken the rules and the two Confederate representatives were sent on their way. Crisis over. Gotta love lawyers.

Slavery remained the big issue, and the South was quite clear that it intended to hang any captured ex-slaves and their white officers on the grounds that they were inciting a servile insurrection. This argument actually carried a fair amount of currency with Northerners, and a number of ranking Union officers returned escaped slaves to Confederate lines early in the war. The Emancipation Proclamation was seen as inciting servile insurrection as well, and as a gross violation of the laws of war. Arguably, it was. But Lincoln commissioned Lieber to work with Union officers to come up with a codification of the laws of war that would address the issue. This became Lieber's Code, General Order 100, which so served Lincoln's purposes that it is fair to call it Lincoln's Code.

The Union's black soldiers understood this. A large group of black soldiers of the 1st South Carolina Volunteers made a raid on Jacksonville after Emancipation, and conducted themselves impeccably so as to put the lie to the Confederate claim that black soldiers would fight as savages. But the soldiers on the raid had no illusions. "Dere's no flags ob truce for us. When the Secesh fight de Fus' South, he fights in earnest." I could not help but think of the Jewish Brigade in the Second World War.

The Code called for a rather harsh, un-Enlightenment view of war. Lieber, after all, thought that winning in a just cause was paramount, and that gentle Enlightenment rules of war were simply a recipe for risking the defeat of the right side and, in the longer view, risking wars that went on forever because they just didn't hurt enough. If you're thinking classic Star Trek and Eminiar-7 here, well, yeah, that was exactly the argument. What, you didn't think Roddenberry's screenwriters were plowing any new ground, did you? Lieber's rules seemed to proclaim a lot of Enlightenment standards, but always with the caveat of military necessity. Don't bombard women and children, unless they are in a town you really need to take (Vicksburg.) Treat prisoners of war with humanity, unless you can't. Give quarter, unless the other side doesn't (this had direct bearing on the Southern policy towards black soldiers.)

A big issue was prisoner exchange. It broke down because the North demanded that black prisoners be exchanged on the same basis as white prisoners, which the South was absolutely not going to do. The result was horrible conditions in overcrowded POW camps like Andersonville (but it was not the only one, or even arguably the worst, and the Northern camps were nearly as bad -- though the data are ambiguous here; a Union soldier was 60% more likely to die in a POW camp than from disease if he had remained with the Union Army, but a Confederate soldier was less likely to die in a Union POW camp than from disease if he had stayed with the Confederate Army. So the Confederate prisoners may have died like flies in Union POW camps in part because they were in really bad shape to begin with.

The concept of military commissions to punish war criminals arose from the Code, to fill the gap between courts-martial and regular civilian courts. This was largelly prompted by the ugly guerrilla warfare in Missouri and elsehwere. But it laid out all kinds of constitutional questions that Witt goes over pretty thouroughy. At one extreme was the idea that in time of war the laws of war were paramount, overriding all other American law. This idea pretty much died a slow death once the war was over, though not quickly enough to prevent a military commission trying the Lincoln assassination conspirators. (Bedford Forrest escaped the noose for the Fort Pillow massacre, though, which I have to consider unfortunate, particularly in light of later developments.) There was a huge tussle over how to conduct Reformation; the ultimate solution was the 14th Amendment, but in the meanwhile the South was under military law.

The Code lived on and is still a founding document of today's international law. Whereas Indians were formerly regarded as savages with no protection under the laws of war, the Code changed this. Instead of Indians being massacred en masse in retaliation for raids on white settlers, they were now first tried by a military commission, then hanged en masse. Except it wasn't quite en masse; Lincoln's successors sometimes dismissed convictions of Indians for whom there was no evidence they had fought except against Union soldiers in open battle. So the Indian wars became more civilized, a little.

The Philippines were a serious test of all this. Initially the Americans and Filipino rebels fought conventional open battles, which the Filipinos all lost. The Filipinos turned to guerrilla tactics, which soon became ugly. The Americans, relying on "Old 100", retaliated in kind. Except that one of the few things absolutely forbidden in the Lieber Code was torture, and American commanders frequently employed the water cure to get information from captives. The argument, then as now, was military necessity: If torturing a few men would save the lives of many others, and bring the insurrection to quick end, was it not more humane in the long run? I admire Witt for objectively giving the arguments for both sides.

Ultimately, one of the officers involved in water cures, Edwin Glenn, was convicted by court-martial, fined, and reduced in seniority. Twelve years later, Edwin Glenn wrote the Army's new manual on the laws of war, which would govern it in the First World War. The rules incorporated large sections of Lieber's Code word for word, including, ironically, the prohibition against torture. Life is full of irony.

Witt pretty much stops with the Philippines. However, he notes that Lieber's Code strongly influenced the Geneva and Hague Conventions. It thus remains a foundational document in international law.

Epilogue: Witt clearly is strongly opposed to water boarding, but he refuses to draw any particular conclusions about modern applicability of historical experience. "History won't tell us what interrogation techniques are appropriate and permissible. It won't tell us whom we should prosecute in military commissions, or for what crimes. It won't tell us how many civilian casualties are permissible, or how much certainty we should require when issuing drone strikes against faraway people." So what's the point? "But history does put us face-to-face with past generations' efforts to manage many of the same kinds of dilemmas we face today." Fair enough.

Two thumbs up.… (mais)

The history of military commissions and the evolution of the laws of war in the US and how that evolution influenced the world of international laws of war.

The main focus is on the Civil War. There is discussion of how things evolved from there but it's brief. Some discussion on the 1898 war with Spain and conflict in the Philippines. Very little discussion relating to anything from WWI thru the first Gulf war but a chapter or two at the end discussing torture, which was mentioned only in passing in the Civil War context but discussed in the Philippine conflict and then briefly mentioned as something that should still be unacceptable in the current war on terror.

Good legal history relating to the laws of war from the Civil War perspective and the author does avoid to much editorializing in that context.… (mais)