THIS IS A STORY about war in America. To be more specific, it is the story of an idea about war, an idea that Americans have sometimes nurtured and often scorned. The idea is that the conduct of war can be constrained by law.
A scene from the deadliest war in American history captures the puzzle that lies at the story’s heart. The date is 1862, on Christmas Day. The setting is a modest room in a boardinghouse in Washington, D.C., tucked behind the perpetually unfinished Capitol building. At a small desk lit by an oil lamp, an aging professor works late into the night. From a distance, the man seems to be a serene oasis of calm amid the mud and the tumult of wartime Washington in winter. But if we look more closely, the illusion of peacefulness gives way to something unsettling. Below a shock of pewter hair, the man’s eyes are dark hollows. His face is drawn into a perpetual scowl. A high white collar and black silk cravat cannot quite hide the old battle scars on his neck. The man’s bearing betrays newer, less tangible wounds as well. In the past week, he has learned the gruesome details of the death of one son fighting for the Confederate Army in Virginia and sent another to fight for the Union in occupied New Orleans. A third son lost his right arm earlier in the year.
If we approach still closer, we can see in the dull glare of the lamp that he is working like a man possessed. He writes with a fierce intensity, pouring the furious energies of the war onto the pages before him, as if to vindicate the sacrifices of his sons by the force of his pen. At the request of President Abraham Lincoln’s closest military advisers, he is drafting an order that will lay the foundations for the modern laws of war.
The man’s name is Francis Lieber, and he is one of the forgotten figures from the American Civil War. As he works, the Civil War is in the darkest hour yet after almost two years of fighting. Chaos reigns in the Union war effort. In the past three months, the Army has suffered more than 25,000 casualties in two terrible battles, one at Antietam and another at Fredericksburg. President Lincoln has fired the commander of the Army of the Potomac, George B. McClellan. His replacement, Ambrose Burnside, is already failing and will be dismissed before another month goes by. In less than a week, on January 1, 1863, the Emancipation Proclamation will declare all slaves behind Confederate lines to be free. In one area after another, Lincoln has been compelled to abandon what he calls the “rose-water” approach to the conflict in favor of a far more aggressive strategy.
At this low moment of the Union’s fortunes, Secretary of War Edwin Stanton and his general-in-chief Henry Halleck have turned to Lieber to draw up a code of laws for armies in battle. The project is breathtakingly ambitious. It aims not only to establish rules to govern the conduct of the Union Army but to set down in a short, usable form the accumulated customary rules binding all the armies of the extended European world. Nothing quite like it has ever existed. Lieber is its principal draftsman, and out of his pen flow prohibitions on poisons, on wanton destruction, on torture, and on cruelty. The code protects prisoners and forbids executions and assassinations. It announces a sharp distinction between men in arms and noncombatants. It disclaims tactics of bad faith and enjoins attacks motivated by revenge. It prohibits the infliction of suffering for its own sake. Lieber drafts the code in short epigrammatic articles, 157 in all, which not only set out rules for right conduct but provide the rationales and general principles that lie behind the rules. It is a working document for the soldier and the layman, not a treatise for the lawyer or the statesman.
When spring arrives and the season of active campaigning resumes, President Lincoln will issue Lieber’s code as an order for the armies of the Union. He will deliver it to the armies of the Confederacy, too, and expect them to follow the rules he has set out. The code will be published in newspapers across the country and distributed to thousands of officers in the Union Army. It will endorse the new policy of Emancipation. And it will set the terms under which the Union expects the South to treat the thousands of black soldiers enrolling in the Union Army.
What starts as an American project will soon cross the Atlantic and become a global phenomenon. European international lawyers will translate it into French, German, and Spanish. In 1870, the Prussian army will adopt the American code as its own, and other European nations will quickly follow. At the beginning of the twentieth century, armies around the world will issue field manuals inspired by the American model, forerunners to the wallet cards that will one day instruct twentieth- and twenty-first-century soldiers on the laws governing such matters as the treatment of prisoners of war.
In 1899, diplomats and international lawyers will turn the American code into the first great treaty of the laws of war, signed at The Hague by nations from all over the world. 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. In the aftermath of World War II, its principles will provide part of the legal basis for trying Nazi leaders. Traces of the code will be visible in the Geneva Conventions of 1949, which will govern the law of war into the twenty-first century.
THE STORY OF Lincoln and Lieber presents an enigma. The code Lincoln approved—the foundation of the modern laws of war—emerged amidst a war that was the harbinger of modern war in its mass destructive scale. Indeed, Lincoln approved Lieber’s rules at the very moment in which he was working to transform the Union war effort. While Lieber wrote hurriedly in his Capitol Hill boardinghouse, Lincoln issued the Emancipation Proclamation and abandoned the limited war policies of the war’s first year in favor of what William Tecumseh Sherman would later call the “hard hand of war.”
The usual pattern of making the rules for war is very different. Laws of war typically come in the dismayed aftershock of conflict, not in the impassioned heat of battle. The first Geneva Convention went into force in 1864, shortly after a war between the Austrians and the French left Europe horrified at the carnage modern weaponry could inflict. The Franco–Prussian War of 1870–71 prompted an early effort in Brussels to draft rules for warfare in 1874. The Hague Conventions of 1907 followed hard on the Russo-Japanese War of 1905. A Geneva Protocol in 1925 prohibited asphyxiating gases and biological weapons soon after the poisonous clouds of World War I had lifted. The four Geneva Conventions of 1949 drew on the lessons of World War II. Humanitarians usually fight the last war when they make rules for the next one.
In December 1862, however, the United States was in the middle of a war in which it aimed to become more aggressive, not less. At such a moment, Francis Lieber was a striking choice. Lieber was no secret pacifist, no “simpering sentimentalist,” as he liked to say scornfully. He was a passionate and sometimes even rash nationalist, a patriot who did not shy from war so much as he found himself powerfully attracted by it. He believed that nations had breathtakingly broad authority to use armed force. His hero was not thegreat philosopher of peace, Immanuel Kant, but the prophet of modern total warfare, Carl von Clausewitz, whose contempt for the law of war would later become legendary. In 1862, the man who helped create the modern laws of war urged blow after blowagainst the South and hoped fervently that the Union armies would strike the enemy with the greatest possible force. “The more vigorously wars are pursued,” Lieber announced, “the better it is for humanity.”
Looked at in a different light, Lieber’s code seems not so constraining after all. It authorized the destruction of civilian property, the trapping and forced return of civilians to besieged cities, and the starving of noncombatants. It permitted executing prisoners in cases of necessity or in retaliation. It authorized the summary field execution of enemy guerrillas. And in its most open-ended provision, the code authorized any measure necessary to secure the ends of war and defend the country. “To save the country,” Lieber wrote, “is paramount to all other considerations.”
When the leaders of the Confederacy read the text the following spring, they spluttered in outrage. It was an “unrelenting and vindictive” code, they complained, one that gave “license for a man to be either a fiend or a gentleman.” Jefferson Davis condemned the code as authorizing barbarous warfare. The basic rule of conduct in Lieber’s code, Davis observed, was the test of military necessity. The code ruled out only four acts: torture, assassination, the use of poison, and perfidy in violation of truce flags or agreements between the warring parties. With these exceptions, armies could do virtually anything so long as it was necessary for “securing the ends of the war.”
Here, then, is the beginning of an answer to the puzzle of Lincoln, Lieber, and the laws of war. The law of war Lincoln approved in early 1863 was not merely a constraint on the tactics of the Union. It was also a weapon for the achievement of Union war aims, like the Springfield rifle, the minié ball, and the ironclad ship. It is not just a humanitarian shield, though it was that. It was also a sword of justice, a way of advancing the Emancipation Proclamation and of arming the 200,000 black soldiers who would help to end slavery once and for all. As such, the code Lincoln sent into the world was the written embodiment of tensions that have been internal to the law of war in American history from the Revolution to the present. For many Americans, the law of war has been more than merely a set of constraints on the means available to armies in combat. It has been a tool for vindicating the destiny of the nation.
HUMAN BEINGS WRITE history in the heat of political controversy, and in the fiery debates since September 11, 2001, Americans have begun to tell two competing stories about the law of war in U.S. history.
One story asserts that the actions of the United States after September 11, 2001, disrupted a long American tradition of respect for and participation in the international laws of war. Critics of the administration of President George W. Bush’s war on terror tell this story with passionate energy. For them, acts such as the use of enhanced interrogation tactics, torture, kidnappings, and indefinite detentions, not to mention the disregard for the Geneva Conventions, betrayed a long-standing historical commitment to international law’s code of conduct for war. We can see the aberration narrative in early accounts of the war on terror by journalists and lawyers like Jane Mayer and Philippe Sands, as well as in books published since 9/11 by leading historians on the military history of the founding generation. We can see it in historians’ briefs to the U.S. Supreme Court in the hard-fought legal battles over military commissions. We can see glimpses of it in the Supreme Court’s cautious holdings in post-9/11 terrorism cases.
Others, including many critics of international law, adopt a different story of historical rupture. For them, the novelty of our present moment is not American policy toward the laws of war. What is new, they say, is that international law has taken on a much more prominent role in American policymaking in the past few decades. Legal instruments such as the Geneva Conventions of 1949, a series of constraining statutes enacted by Congress in the 1970s and 1980s on topics such as torture and war crimes, and a controversial treaty promulgated through the United Nations in 1977 all seem (in this view) to signal a fundamentally changed regime of international law, one that has culminated in the International Criminal Court at The Hague and that for the first time seems to threaten U.S. policymakers with criminal prosecution for their wartime decisions.
Stories of great disruptions furnish the partisans on all sides of the contemporary debate with a usable past. They offer nostalgia-tinged golden ages for all concerned. But the cardboard stories we have told ourselves about the history of the laws of war in America are well-meaning myths at best. At worst they are dangerous fictions. If we look more closely at the history of American warfare, a pattern emerges, but it is not a pattern of sudden aberrations or ruptured traditions. Instead, it is the pattern captured by Lincoln and Lieber and by the startling juxtaposition of the hard hand of war and the laws of war in December 1862. 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 that has come to be known among military historians as the “American way of war.” Enlightenment rules stand alongside wars of extermination on the Indian frontier. Lincoln’s code precedes Sherman’s March to the Sea. The Hague Conferences of 1899 and 1907 bookend a terrible war in the Philippines. The American-made charter for the Nuremberg Tribunal is initialed in the same week the United States drops atomic bombs on Hiroshima and Nagasaki.
The failing of the stories told about American history on the left and the right is that they either discount the abiding significance of the law of war tradition in American history, or they offer a false idol of worship for the ideals of the law of nations, one that is so remote from our experience as to make it less likely (not more likely) that the laws of war will find traction in times of crisis. At their best, the laws of war have served as tools of practical moral judgment in moments of extreme pressure. If the law of war is to do this work, however, and not merely to be thrown overboard at the first sign of danger, it will have to rest on a better conception of the relationship between our ideals and our practices than the current historical conventions entail. Making better sense of American history—really taking account of it, in its ugly complexities instead of its airbrushed first drafts—will be indispensable if the laws of war are to survive as a useful source of moral engagement in the twenty-first century.
TO MAKE SENSE of how the laws of war have functioned in American history, we will need to grapple with a third widely held view of war and law. It is one that tries to take account of the contradictions of that history, and it is perhaps the most commonly held view about the laws of war to be found in the world today. Its explanation of history is that the laws of war are hypocrisy through and through.
In the twentieth century, the hypocrisy critique animated the work of the formidable Nazi jurist Carl Schmitt, who viewed international law’s pretenses of neutrality as thoroughly disingenuous. In the twenty-first century, hypocrisy is the explanation for the laws of war offered by critics of American military action, who claim that the so-called laws of war aim most of all to advance the authority of the world’s most powerful states. (Hawks in the United States and Israel turn right around and level the same charge at weak states and insurgents in the developing world.) The hypocrisy claim can be found in conversations about American power today in every quarter of the globe.
Indeed, hypocrisy is the operative logic of what is undoubtedly the most influential work on the law and the morality of war in the past half century: the philosopher Michael Walzer’s achingly beautiful book, Just and Unjust Wars. Written in the wake of the Vietnam War, Walzer’s book identifies the moral aspirations of states and soldiers in war and contrasts those ideals with the acts of states and soldiers in combat. Walzer exposes the actions of states to the clear light of the moral and legal limits those same states claim to espouse. Walzer’s account is radically different from Schmitt’s. Where Schmitt sees power and hypocrisy all the way down, Walzer claims to identify humanitarian ideals in the moral engagement of states and warfare. Hypocrisy, Walzer tells us, is the tribute vice pays to virtue, and Walzer finds plenty of it in the actions of the United States.
It will not do to deny for a moment that hypocrisy abounds in the history of the United States at war, as it doubtless does in the history of other nations as well. The actions of nations time and again fail to live up to the standards they set for themselves. The United States is no exception. As we shall see, Thomas Jefferson engaged in wildly one-sided invocations of the laws of nations in the American Revolution. In the era of American expansion, Andrew Jackson raged against the British for their violations of the laws of civilized warfare, while at the same time treating the laws of combat with contempt. President Theodore Roosevelt and his secretary of war Elihu Root claimed to uphold the highest values of international law while whitewashing widespread torture by American forces in the Philippines. Today, there are many who view the startling influence of lawyers and legal rules in the conflicts of the twenty-first-century American military as a kind of moral cloak that disguises the brute exercise of American power.
Yet if we want to make sense of the law of war in American history, the hypocrisy answer is too easy.
The puzzle of December 1862 begins to come into focus once we see that two competing ideals have animated American behavior around the international law rules for war. The two ideals are the ideal of humanitarianism and the ideal of justice. We hold each of them so dear that it may seem like they should run together. What is peculiar about the laws of war is not merely that they sometimes do not. The peculiarity of the laws of war is that humanity and justice diverge by design. For 250 years, the laws of war have sought to minimize the horrors of war by inviting war’s participants to temporarily set aside the conviction that their cause is right. Advocates of international law have aimed to create a parallel moral universe in which questions of justice are bracketed (even if temporarily) for the sake of reducing human suffering. Americans have been leading participants in the effort to elaborate these humanitarian rules. We have helped craft prohibitions on torture, on harming prisoners, and on violence against civilians. But when asked to abandon our deepest convictions of justice—even for a moment—Americans at war have been understandably reluctant to accept the invitation. The United States has thus undercut the humanitarian architecture of the laws of war even as Americans have often been some of its chief engineers.
THIS BOOK IS an account of the alternately troubled and triumphant history of the laws of war in the United States in the long century after independence. It follows the rise and fall of the project that culminated in Lincoln and Lieber, from the founding fathers, through slavery and Emancipation, to the launching of the American empire and the eve of World War I.
The book makes no claim that the paradoxes and tensions embedded in the idea of a law of war were unique to American history. Nations and peoples around the world have confronted the startling disjuncture between the law of war’s humanitarian structure, on the one hand, and the pursuit of justice, on the other. Nonetheless, particular features of the United States experience have created distinctive patterns in the nation’s history. In particular, the problem of slavery in wartime ran through the first century of American history from the founding onward. In 1862, it was the crisis of slavery and emancipation that called forth the Union’s law of war instructions and thus helped produce the modern laws of war. Historians and international lawyers who discuss General Orders No. 100 usually call the order Lieber’s code after its principal drafter. But once we see the Union’s instructions as arising out of the crucible of slavery, the order is better thought of as Lincoln’s. For it was Lincoln’s Emancipation Proclamation that required its production and sent it out into the world.
Focusing on the history of the United States makes a good deal of sense for another reason as well. The United States is today the world’s only military superpower. The United States accounts for almost half the defense spending in the world each year. Only the United States has the capacity to mount the sorts of military engagements that have become most familiar to Western observers. Grappling with the American history of the laws of war is therefore indispensable if we are to make sense of the law and morality of military force in the twenty-first century. Understanding this history is about coming to see that the idea of a law of war has contained inside itself two powerful but competing ideals for armed conflict. One is humanitarianism. The other is justice. We struggle to reconcile them today. Lincoln and Lieber wrestled with them a century and a half ago. And the founders sought to come to grips with them in the days of the Minutemen at Lexington and Concord.