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.
The controversy of the American targeted-killing program, and especially the resurgence of covert paramilitary and military action, has inspired a great deal of concern about the accountability and oversight of America’s supposed new ways of war. Does the lack of risk they offer encourage the Congress, media, and public to stay silent? One of the most prominent scholars of military robotics, P.W. Singer, recently put out an article that reiterated an argument he makes about the decline in the accountability of American wars, as exemplified in the drone program:
In democracies, there have always been deep bonds between the public and its wars. Citizens have historically participated in decisions to take military action, through their elected representatives, helping to ensure broad support for wars and a willingness to share the costs, both human and economic, of enduring them.
In the U.S., our Constitution explicitly divided the president’s role as commander-in-chief in war from Congress’s role in declaring war. Yet, these links and this division of labour are now under siege as a result of a technology that our founding fathers never could have imagined.
We don’t have a draft anymore. Less than 0.5 per cent of Americans over 18 serve in the active-duty military. We do not declare war anymore. The last time Congress actually did so was in 1942 – against Bulgaria, Hungary, and Romania. We don’t buy war bonds or pay war taxes anymore. During the Second World War, 85 million Americans purchased war bonds that brought the government $185 billion. In the last decade, we bought none and instead gave the richest five per cent of Americans a tax break.
And now we possess a technology that removes the last political barriers to war. The strongest appeal of unmanned systems is that we don’t have to send someone’s son or daughter into harm’s way. But when politicians can avoid the political consequences of the condolence letter – and the impact that military casualties have on voters and on the news media – they no longer treat the previously weighty matters of war and peace the same way.
For the first 200 years of American democracy, engaging in combat and bearing risk – both personal and political – went hand in hand. In the age of drones, that is no longer the case.
This narrative exemplifies a civil mythology under final assault from the robotic barbarians at the gates. Unfortunately, history itself tells a far messier story. For one thing, the notion that there are always deep bonds between the public and the war-fighting effort is false. I have tackled the question of the draft previously on this blog, but the rest of the arguments merit further scrutiny.
For one, the Constitution’s demands on Congressional oversight in war have never been so clear, nor so linear in their erosion. The U.S. fought several wars without a formal declaration – and even without direct Congressional authorization – before it ever formally declared war in 1812. In some cases, such as the Quasi-War and the Barbary Wars, these were authorized by Congressional statutes short of a formal declaration. In 1801, Congress passed the Naval Peace Establishment Act, and Jefferson cited Congress’s funding of the military capacity as sufficient authorization for its use against hostile powers. A State Department directive told the U.S. Navy that if the Barbary states declared war on the U.S., then the Navy was to “protect our commerce & chastise their insolence – by sinking, burning, or destroying their ships & Vessels wherever you shall find them.”
Of course, Jefferson was hesitant to expand this further than defense and limited retaliation, but even he did not believe a formal declaration, nor, obviously, any kind of conscription, was necessary for waging offensive war. What he received was a series of Congressional statutes expanding the fleet and specifically authorizing expanded military action against the Barbary states.
The Indian wars were justified on much the same logic. At no point did the U.S. formally declare war against the Indians. By the period of the Seminole Wars it was well-established that Congress recognizing hostilities and appropriating resources to the combat established constitutional recognition of a conflict. Insofar as Congress receives statutory notification and continues to defray the costs of conflict, it legitimizes war as constitutional. The differences between a Congressional authorization for using force and a formal declaration are statutorily meaningful, but both are legitimate with respect to the Constitution.
The deep civic bonds have actually generally been quite shallow. State militias were called up in local wars for military geographical reasons, but the burning of the capital in 1814 failed to merit a draft. The AUMF, NDAA, and War Powers Resolution all constitute a system of Congressional compliance to Presidential military initiative, in which war is retroactively legitimized through post hoc defrayment.
The U.S. Navy, with its peacetime establishment and broad writ to conduct “small wars” and punitive expeditions (as well as a Marine Corps with similar advantages), did far more to undermine the political barriers to U.S. wars than drones have or likely will. Expeditionary warfare by forces inherently limited in their political costs of extraction is as old as the republic itself.
The very concept of covert action helped too, and the idea of a secret air force predates the CIA itself. Roosevelt’s Flying Tigers, approved before U.S. entry into WWII using government money laundered through a contractor and lend-lease, sought to secretly put dozens of aircraft into China to fight Japan. Manned aircraft, along with a PMC, and an extralegal or illegal authorization by a frustrated executive began what was planned to be a covert war. December 7, 1941, not deep civic responsibility, saved it from being remembered as such. Later, the CIA was flying secret air forces for Cubans and Congolese. WWII era aircraft flew secret wars, but covert action itself was the real mechanism for reducing political costs. That it now happens to employ robots rather than deniable pilots, foreign mercenaries, or nameless spooks allows changes in quantity more than essential quality.
Yet many insist that drones, by removing the threat of casualties, undermine oversight and accountability because politicians can avoid legislative backlash and media scrutiny. Even recent history does not bear this out.
For example, at least 17 Americans died in Operation Enduring Freedom-Philippines, including some in militant attacks and not simply accidents or other causes. Operation Enduring Freedom-Horn of Africa has its casualties too. The media noted their deaths but there was no backlash. Bemoaning the lack of media coverage of Afghanistan – Afghanistan! – is a cliché of war commentary that will be decade old before the drawdown. Relative to the number of U.S. personnel committed, I would wager the targeted killing campaign is far better covered than Afghanistan today, and it is certainly out of proportion in terms of the casualties that the personnel supporting the war suffer.
Indeed, the wars in Iraq and Afghanistan themselves do not suggest that the link between perpetual war and lack of risk is so straightforward. What, exactly, has Congressional oversight there saved us from? For all the bemoaning of the “drone wars,” they have broad public approval, incredibly little Congressional criticism – by the cost-defrayment standard, continual support – and can we really say their consequences are so much more deleterious to the body politic and the public trust than the disaster that was the choice to invade Iraq? To ignore, escalate, and bungle in Afghanistan?
We can’t blame the drones for the U.S. war in Yemen, where US SOF and clandestine agents watched from the ground when 2002’s lethal drone strike came down, or where cruise missiles and most likely F-15Es take part in the bombardment. We can’t blame the drones for the U.S. war in Somalia, where naval guns, AC-130s and helicopters, along with JSOC, operated for years before the Predators and Reapers let loose missiles there. In any case, neither of these states really have the air defense capability, or the intention, to challenge U.S. airpower. Are we really to believe the risk of a plane crash is why policymakers switched to drone strikes?
As for Pakistan, the model of accountability that Singer holds up, the bin Laden raid, involved a lot of deliberation and careful consideration, to be sure – but it was done entirely in secret. That we even know of its deliberations so intimately is because, for basically everyone involved, it’s a good story. That we use drones there and not conventional aircraft is not because of American casualty aversion, but because it is what the Pakistani government appears to accept – and these strikes frequently cease or slacken when Pakistani and U.S. relations come too close to the brink. Political costs retain veto power, but in covert action, they are quiet and indirect.
The fault lies not in our drones, but in ourselves. The reason our wars – secret or no – are so poorly managed are because of the policy process itself and the goals it seeks, alongside the incredible capability of the U.S. military and federal government which lets them sustain the weight and persevere through so many missteps and failures. The draft does not stop failing wars, overt or covert, as we learned from Vietnam and the “secret wars” surrounding it. That the condolence letter of a pilot crashing his aircraft in Yemen might be the difference between peace and war seems proper, but what would make its power so much greater than those for the advisors and the spotters, or the vastly larger number of letters for the fallen of Afghanistan, which was sickeningly, but unsurprisingly, absent from the general election? The political silences that enable these processes are older than we care to admit. It is not just that we cannot turn back time, but that there is no extended length of time much better to turn back to. Before drones were, these kinds of wars were there, waiting for them.