New book chronicle's America's lawmaking and a gruesome record of American wartime cruelty


Published: September 28, 2012


In recent years, the American debate about war — about torture, drone strikes, the killing of civilians in Afghanistan and Pakistan — has also been a debate about the international laws of war. But much of this law, as John Fabian Witt shows in his magnificent new book, was originally made in America.

Abraham Lincoln’s administration published a new fighting code for Union soldiers in 1863, which diffused far beyond American shores: to the Prussian Army in 1870, into the landmark Hague Convention in 1899, and even into the Geneva Conventions and the Nuremberg trials after World War II. Witt, a professor at Yale Law School, writes that it was Francis ­Lieber, the Lincoln team’s foremost wartime legal authority, who — trying to figure out how Union troops should treat Southern irregulars — came up with some of the defining features of soldiers that guided the Third Geneva Convention in 1949: wearing distinctive insignia identifying them as combatants; operating under a command structure; and following the laws of war.

“Lincoln’s Code” is both a celebratory chronicle of American lawmaking and a gruesome record of American wartime cruelty, from William Tecumseh Sherman’s rampage through Georgia and South Carolina to the Indian wars. In an effort to make sense of what animates the “world’s only military superpower” today, Witt looks backward: “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.”

Witt argues that Americans have been torn between “two powerful but competing ideals”: humanitarianism, which seeks to make war less awful through gentler rules; and justice, which demands victory in a righteous cause. Americans, he writes, have seen military law not just as an obstacle to effective fighting, but also “a tool for vindicating the destiny of the nation.”

Witt himself is a pragmatic type. While he admires much about the laws of armed conflict, he does so largely on the modest grounds that they can serve “as tools of practical moral judgment in moments of extreme pressure.” He is impatient both with skeptics who dismiss international law as rank hypocrisy, and with more aspirational legalists whose ideals are “so remote” from actual war-fighting that they make it “less likely . . . the laws of war will find traction in times of crisis.” He paraphrases Oliver Wendell Holmes Jr.: “The life of the laws of war has not been logic. It has been experience.”

“Lincoln’s Code” narrates that experience thrillingly. Witt’s first possible lawbreaker is George Washington himself. In 1754, he was bitterly accused by the French of overseeing men who executed a French official who had already surrendered. But when Washington was given command of the American Revolutionary Army, he was charged by the Continental Congress to obey “the rules and discipline of war,” the better to contrast with the barbarian British. The Declaration of Independence, Witt writes, bristles with Thomas Jefferson’s protests against British imperial violations of the laws of war.

Washington, Witt notes, “became the living embodiment of the Enlightenment way of war,” trying to ensure that clashing, escalating armies upheld what he called “the rights of humanity.” This was both out of principle and out of a pragmatic awareness that mistreating British prisoners of war would undercut American claims to be a civilized nation — and invite the British Navy to blast away at American cities along the Atlantic coast.

The most distinctively American aspect of “Lincoln’s Code” is also the most sordid: the status of slavery in concepts of wartime justice. By 1776, the humane spirit of the 18th century’s laws of war contradicted the American slave power. If it was wrong to kill or enslave prisoners of war, it could not be moral to enslave humans. But Jefferson, performing what Witt acidly calls “extraordinary moral gymnastics,” tried to enlist the laws of war to defend slavery. After the War of 1812, John Quincy Adams despicably sought to extract compensation from the British for freed slaves, thousands of whom had fled to liberty in British ships and forts. Adams saw them not as emancipated humans but as stolen property.

Lincoln shattered that vile tradition. By July 1862, he resolved that freeing the slaves was “a military necessity.” Despite Southern howls that the Emancipation Proclamation was an act of unrestrained wartime barbarism meant to unleash slave revolts, Witt hails Lincoln’s great edict as containing “a millennium of moral and legal reasoning.”

ieber, the man responsible for much of that legal reasoning, is the hero of Witt’s book. He is a complex character — a Columbia history professor obsessed with war who scorned “namby-pamby” peaceniks, as well as a former slaveholder who became a fiery critic of slavery. One of his sons died fighting for the South while two others fought for the Union, one of them losing an arm in a grisly battlefront amputation. When the Lincoln administration asked Lieber to draft a new code of wartime regulations, he produced what Witt calls a pathbreaking “distillation of the laws of war for the age of democratic nations and mass armies.”

Lieber’s code was driven above all by military necessity, aiming for swift victory. So while it protected prisoners of war and banned torture, poisons and assassination, it also allowed the starving of civilians and bombardment of cities without notice. Most strikingly, Lieber’s regulations declared that slaves who came under the Union Army’s protection were immediately free, and proclaimed that the Union’s African-American troops could not be enslaved if captured by the South: “The law of nations knows no distinction of color.” This practical code — which helped to muster some 200,000 African-American soldiers for the Union — was, Witt writes, “a weapon for the achievement of Union war aims, like the Springfield rifle, the Minié ball and the ironclad ship.”

“Lincoln’s Code” ends abruptly at the dawn of the 20th century, as the United States was becoming a great power. The debates about the vicious American imperial war in the Philippines, Witt writes, “bore an eerie resemblance to the controversies that would arise in Vietnam in the 1960s and in Afghanistan and Iraq in the early 2000s.” The United States executed scores of prisoners, jailed over 1,500 Filipinos and forced civilians into overcrowded camps where thousands perished of disease. Despite the Lieber code’s outright prohibition of torture, American troops systematically tortured Filipino prisoners — most commonly with the so-called water cure, forcing water down a helpless man’s gullet.

Witt wants to destroy the conceit that once upon a time Americans were more law-abiding, or that the laws of war were more clear or that the stakes are higher now. (He’s wrong about that last one: James Madison didn’t have to face a world with nine nuclear-armed states.) “Lincoln’s Code” persuasively shows how the laws of war are created and institutionalized by the self-interests and principles of powerful states, and are all too often swept away by battlefield necessity. “Every generation,” Witt writes, “has its law-of-war crisis.” This monumental book, resting on colossal archival research and packed with memorable stories and arguments, is a major contribution to making sense of ours.

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