Thanks to a coincidence of film release debates, Lincoln and Django Unchained have prompted no small outpouring of commentary on the relationship between law, race, and violence private and public both. Lest anyone fear I’m about to hijack this blog for pop culture commentary, I bring these films up because the problem of slavery, and its role in the military contest for the fate of the Union, played an integral role in the development of modern laws of war. There can be no doubt that emancipation in America required horrific carnage, and for precisely this reason the U.S. went to great lengths to find a framework to restrain it without compromising its obligation to prosecute and win an eminently just war.
John Fabian Witt’s Lincoln’s Code provides a compelling account of the evolution of the laws of war in America, not simply within the Civil War but from the Revolution through the occupation of the Philippines. Central to its story though, as the title implies, is the critical role of General Orders No. 100 not simply within the context of American history and warfare, but international humanitarian law worldwide.
Franz Lieber, who wrote “Old Hundred,” was perhaps the exact opposite of the prevailing stereotype of an international lawyer as one might expect. He was a Prussian and a soldier, who’d been shot through the neck at Namur and yet still felt drawn towards the “indelible horrors” of war, which provided the “rich dew” of historical progress. It was precisely because of this inherent moral component to war that Lieber saw fit to revise and crystallize the ethics of warfare for an age of mass combat – a desire almost certainly enhanced by Lieber’s several sons who fought on both sides of the Civil War.
Lieber, interestingly, was likely America’s first Clausewitzian of any major influence. He’d been familiar with his fellow Prussian’s work perhaps before most Germans. In Lieber’s Manual of Political Ethics, Lieber explains war’s object is to “compel him to peace at my will.” With the aims of a war providing justification to these means, conceptions of military law underwent a radical shift from Enlightenment standards morally indifferent to the aims of combatants. Lieber, as Clausewitz implied, saw these 18th century standards as customary artifacts from a bygone era, but rather than dismissing laws of war as a concept, he sought to recast them in order to simultaneously advance the Union’s war aims while ensuring war’s hardness retained some justice.
The elevation of justice, however, was not identical with humanitarianism. No. 100 forbade torture, poison, assassinations, cruelty towards prisoners and any other sort of violence beyond military necessity. It also permitted the execution of illegal combatants, reprisal killings for hostile violations, and the expropriation or destruction of hostile property under a wide range of circumstances.
In the context of emancipation, the codification of new laws of war mattered a great deal. Jefferson and other founders sympathetic slavery endeavored to redefine the laws of war, as they did a great many other things, to prevent the use of emancipation as a weapon against the United States. For most of young America’s history, it gravely feared British or other foreign incitement of slave revolts, and consequently ensured the Enlightenment humanitarian law protected slaves like any other civilian property. Even among critics of slavery, the classically-educated hoped America would avoid the servile wars past empires faced.
Lincoln, even as he became convinced of the military and moral necessity of emancipation by the bayonet, still hoped to avoid such insurrections while protecting the legitimacy of uniformed black combatants in the Union ranks. Hence the strong penalties on fighting outside a military hierarchy – it would deter not simply Confederate partisans but avoid extending sanction to rebelling slaves (it’s also notable that many former pacifists vocally embraced using slave revolts against the South).
The modern iteration of the laws of war, then, grew in part out of a desire to undo a codified injustice at odds with the new contemporary political reality. What had, in the past, appeared as a humanitarian protection, was extended in order to provide safety for a gross injustice that permitted brutal killings of what should have been legitimate combatants. The Lieber Code provided recourse but it defined them within the limits of the law.
There is no practice so odious as American slavery now receiving protection under the cloak of humanitarianism. But a great deal of behavior morally repugnant in the 19th century – the use of perfidy to protect partisans and guerrillas and assassination – now exists as a new, frightening reality for proponents of international humanitarian law’s value. In the Civil War, defining the laws of war was synonymous with enhancing the ability of the combatants to prosecute just war aims, even as it hardened the prohibitions on unjustifiable acts.
Indeed, one of the great lessons of the Lieber Code is that a country can use the laws of war in a Clausewitzian fashion to better relate violence to policy and enhance the prosecution of the war effort. Indeed, not only can they do so with military success, but in a manner that actually accepts and even elevates a country’s international legitimacy, as the Lieber Code did when the country which razed Atlanta found its orders codified in international humanitarian law. While there is much more to it than this quasi-review offers, Lincoln’s Code is effective not simply as history but as a sobering reminder for strategic theorists to take seriously the laws of war, and to reflect on the opportunities today for reshaping them in a manner conducive to victory in a just war.
1. Jane Mayer's lengthy article in the New Yorker on the National Security Agency should be required reading within defense policy circles because it raises so many good questions about domestic spying, classification, and how we prosecute leakers. I like Mayer's reporting a lot, as I've made clear in the past, so I'll only pause to take issue with one thing in her article: I have a tough time having any degree of sympathy for those who leak classified information -- even when that information exposes a problem in or abuses of the system. And I think Mayer intends for us to pity her protagonist, who is being prosecuted for feeding information to a reporter for the Baltimore Sun. (The protagonist claims none of the information he leaked was classified, though it was cut-and-pasted from SECRET documents.) I found myself nodding along with the guy who told Mayer, "To his credit, he tried to raise these issues, and, to an extent, they were dealt with. But who died and left him in charge?" Exactly right: the system breaks down when every Tom, Dick, Harry and Jane gets to decide what gets released to the media and what does not. Unsurprisingly, journalists have a more sympathetic view toward those people who feed them scoops than do those whose jobs and lives are made harder by their colleagues leaking information.
2. Egypt: Why Are the Churches Burning? by Yasmine El-Rashidi in the New York Review of Books.
3. Kim Dozier on the Osama bin Laden raid. Kim is much admired within the special operations community, and her excellent sources and contacts inform this great article, which incorporates inside information (and leaks) without compromising OPSEC ...
4. ... but John Kenney gets the real scoop on the raid, interviewing several SEALs and printing their testimonies.
5. Confessions of a Vulcan: Dov Zakheim explains how the Bush Administration screwed up Afghanistan.
6. Finally, the Modern Library has re-issued Shelby Foote's Civil War Trilogy with a series of introductory essays. The first essay, by Jon Meacham, correctly places Foote within a very specific social and literary context in central Mississippi in the early 20th Century and notes the influence of the salon of William Alexander Percy. My scarily erudite paternal grandfather, actually, grew up in the exact same time and place, and it was a crazy one: on the one hand, it was in some ways a Third World country, yet on the other hand, it managed to produce a ridiculously disproportionate number of the Twentieth Century's men of letters. (And women, of course, because you can't forget Eudora!) Having only read the section on the Gettysburg Campaign previously, I started the first volume of the series last night and had trouble putting it down.
So Google chooses today to celebrate the achievements of a brutal totalitarian regime (that one of its founders fled!) instead of the 150th anniversary of the war that freed the slaves and unified the United States of America. Super.
What Sherman finally decided on was the annihilation of the city itself—an instructive example, as it were, for other Southern cities; or if you will, an act of terrorism. Earlier he had warned Atlantans to "prepare for my coming." In his written orders he couched the warning in terms of obliterating everything of military value, but, as in so many other places his army visited, the reality was destruction of the town by fire—the 19th century's version of carpet-bombing.
This kind of devastation was relatively unprecedented for Sherman's time; the burning and sacking of cities had more or less gone out of fashion as the customs of "civilized" warfare had generally foreclosed the molesting of civilians.
Sherman defied this sense of military restraint almost from the beginning; in fact, his earliest pyromaniacal urges in connection with Southerners and their property seem to have developed in 1862, while he was in charge of the recently captured city of Memphis. There, in retaliation for Confederates shooting at Union steamboats from the Arkansas side of the Mississippi, Sherman ordered the torching of all towns, villages, farms and homes for 15 miles up and down the river. ...
It is hard to reconcile the peculiar psychology of Sherman's military tactics with the fact that these were his fellow Americans whose homes were being burned—mostly women, children and old men, at that. For despite all his hard-bitten declarations against the Confederacy and its supporters, Sherman, in his private correspondence, often made a point of expressing an abiding fondness for the South and the Southern people.
With his victory at Atlanta, Sherman solidified himself as an American hero—in the North, at least—and ensured what Lincoln's ally Sen. Zachary Chandler called "the most extraordinary change in publick opinion here that ever was known." The South's hopes to exploit Northern discontent and wring a "political victory" from the war vanished.
Eventually, Sherman's scorched-earth tactics validated a new standard for military operations—the notion of "hard war" or "total war," in which civilians were no longer treated as innocent bystanders and their property became fair game. This policy was incorporated, improved and refined over the ensuing decades, reaching its most pitiless apogee at Hiroshima in 1945.