THE UNITED STATES went to war with Spain in 1898 deeply divided over its place in the world. A generation of aggressive imperialists, including Assistant Secretary of the Navy Theodore Roosevelt, saw the American overthrow of tottering Spanish imperial outposts in Cuba, Puerto Rico, Guam, and the Philippines as ratification of the kinds of global power that Mahan had imagined for the fast-growing republic. Missionary statesmen like the Congregationalist leader Josiah Strong thought that the United States was“divinely commissioned” to help the backward peoples of the world and to spread the blessings of American civilization. Roosevelt called the American campaign “a war for liberty and human rights.” But many anti-imperialist critics worried that American traditions of liberty would be at risk in a republic turned into an empire. Others decried the incorporation of millions of nonwhite people into what they imagined was an Anglo-Saxon country. The controversy was especially acute with respect to the Philippines. Advocates of naval power longed for a coaling station and foothold in the western Pacific. Critics viewed the peoples of the Philippines as irredeemable savages whose annexation would degrade the American character and corrupt its institutions.
One result of the sharp domestic disagreements over the war was that no one really knew what would happen when the conflict arrived in the Pacific islands. For years, Filipino independence forces led by the handsome and charismatic Emilio Aguinaldo had been fighting against Spain and claiming (much as Washington and Jefferson had in the 1770s) the privileges of “a civilized” and “peace-loving” independent state. Now, in the summer of 1898, American forces under Commodore George Dewey, commander of the American fleet at Manila, forged an uneasy alliance with Aguinaldo’s fighters in their common cause against Spain. Officials of the American State Department in the Pacific assured the Filipino leader of the United States’ intent to cooperate with his independence efforts. But the truth of U.S. intentions was more ambiguous; and as President William McKinley dithered about whether to retain the Philippines after peace with Spain, tensions quickly heightened. For six months after Spain’s defeat in August, the United States managed by a combination of untruths and misunderstandings to keep Aguinaldo guessing about American postwar plans for the archipelago. When it became clear that the United States had no intention of leaving, hostilities broke out in a war that proved far more difficult and deadly than the one Americans had fought with Spain.
The Philippine War of 1899–1902 produced a law of war crisis like none to that point in American history, though it bore an eerie resemblance to the controversies that would arise in Vietnam in the 1960s and in Afghanistan and Iraq in the early 2000s. After months of losing conventional battles against U.S. forces, Aguinaldo followed the Mexican example from 1847 and turned to guerrilla warfare. Among his advisers were men who admired the combat tactics of the American Indians; others adapted tactics drawn from the Cuban resistance to Spain and the Boer War against the British in South Africa. The violence of their campaign was often horrific. Corpses were mutilated; bodies were cut open and stuffed with food to attract voracious tropical ants. The insurgents executed prisoners, especially natives who collaborated with the American forces. Noncombatants were executed, too. The insurgents used poison and killed men under the protection of truce flags. American accounts of insurgent atrocities were often self-serving, but a Senate committee on the Philippines had no trouble filling reports with hundreds of credible episodes of brutal violence by insurgents.
Filipino leaders conceded that their tactics were harsh. But they also insisted that Americans unfairly tilted the standards in their favor. Aguinaldo’s principal adviser Apolinario Mabini (widely known as “the brains of the revolution”) told American general James Bell that the so-called rules of civilized combat that purported to require Filipinos to fight in uniforms in the open were designed simply to promote the power of strong armies at the expense of powerless peoples. Guerrilla warfare was the weapon of the weak, Mabini contended, and “when it comes to defending their homes and their freedoms against an invasion,” Mabini made clear that he would be willing to resort to extraordinary means. In 1863, Francis Lieber had written that saving the country was paramount to all other considerations. Mabini now insisted that it was precisely a mark of the Filipinos’ status as a civilized people that they would fight doggedly to save theirs.
The U.S. Army responded with a retaliatory campaign of startling violence and destruction. Reports of exceptionally harsh treatment of Filipino prisoners began to trickle back to the United States as early as May 1899. Over the next two years, American officers ordered or condoned dozens of prisoner executions, and perhaps more. Mass incarcerations put between 1,500 and 2,000 Filipinos in prison. Concentration camps moved civilians out of their homes and killed thousands when epidemics struck the overcrowded facilities. American troops destroyed large amounts of property and food supplies in the name of denying resources to the insurgents. In March 1901, when brigadier general and Congressional Medal of Honor winner Frederick Funston acquired evidence (possibly by torture) of Aguinaldo’s whereabouts, he sent a band of American soldiers and Filipino scouts disguised as insurgents to capture him. President Roosevelt quietly asked the international law expert Theodore Woolsey of Yale University to defend the legality of the ruse in the pages of the popular press, but the use of enemy garb was clearly unlawful. Lieber’s General Orders No. 100 had said so unequivocally, and in other contexts American officials said as much themselves. Funston’s daring gambit was an impetuous breach of the basic laws of war.
Funston’s ruse looked positively tame in comparison to some of the tactics American commanders were adopting. In the fall of 1901, General Jacob Smith reacted to the massacre of fifty-nine American soldiers in the town of Balangiga by ordering his men to retaliate against the entire island. Smith ordered his men “to kill and burn all persons who are capable of bearing arms in actual hostilities against the United States.” Who was so capable? Any person over ten years old, Smith explained. The interior of the island of Samar, he instructed his men, “must be made a howling wilderness.”
Most strikingly, American forces in the Philippines resorted to a systematic and widespread campaign of torture unlike anything in more than a century of American history. Officers hanged Filipino prisoners by the neck until they agreed to talk. They lowered prisoners headfirst in water to threaten drowning. The torture they employed most often was known as the water cure. The practice was designed to cause the perception—indeed, the reality—of drowning. While three or four soldiers held a man down, a carbine barrel would be shoved into his mouth making it impossible for him to close his jaws. With his head held back, water was poured into his mouth and nostrils until he became unconscious, at which point the torturers rolled him over or struck him in the stomach to expel the water. Sometimes American torturers used salt water, which made it worse, or a syringe to inject the water directly into the nostrils or throat. When a victim came to his senses, he was given the choice to divulge the wanted information about the location of insurrectionists or to endure the process again. In at least one well-established case, the water cure resulted in the death of its victim.
We can document with certainty fourteen instances in which United States forces administered the water cure. But that figure is almost surely a small fraction of the total. One enlisted man in 1902 said that he alone had administered the water cure to 160 Filipinos. Funston bitterly denied the man’s claim, but when Lieutenant General Nelson A. Miles (the man who had captured Geronimo in 1886) toured the Philippines in late 1902, he heard complaints about torture from residents in the village of Lipa on the island of Cebu, from the people of Laoag on the island of Luzon, and from the inhabitants of Calbayog on Samar. Officers and enlisted men alike testified to having seen the water cure administered on multiple occasions. Cavalrymen composed songs celebrating torture and set them to the tune of the Battle Hymn of the Republic. (“Get the good old syringe boys and fill it to the brim / We’ve caught another nigger and we’ll operate on him.”) The future president William Howard Taft, who served as civilian governor of the Philippines beginning in 1900, conceded to a Senate committee investigating war atrocities that the “so called water cure” was employed “on some occasions to extract information,” though Taft implausibly claimed to believe that prisoners asked to be tortured so as to avoid retaliation by Aguinaldo’s insurgents for having divulged information to the Americans.
THE LEGALITY OF torture was a question to be decided by reference to the instructions of 1863, for at the outset of the Spanish-American War they were still the governing body of rules for the U.S. armed forces. As the war began, Judge Advocate GeneralNorman Lieber had arranged to have his father’s code reprinted and distributed by the thousands in a three-inch by five-inch blue pocket edition. Where Halleck and Judge Advocate General Joseph Holt had been obliged to build an entire system of military justice for the prosecution of law of war violations from scratch, the younger Lieber presided over a new series of military commission trials made in the image of their Civil War predecessors. Lieber’s military commissions tried crimes by Filipinos such asunlawfully furnishing supplies to the enemy and murder in violation of the laws of war. They tried more than 300 enlisted men in the U.S. Army, as well, for crimes ranging from petty theft and assault, to robbery and rape, to shooting and beating prisoners of war. In December 1900, Major General Arthur MacArthur commanding U.S. troops in the Philippines reissued selected sections of General Orders No. 100 to the armed forces under his command. Two years later, Secretary of War Elihu Root assured the Congress that all orders in the Philippines had conformed to the terms of Old Hundred.
Invocations of General Orders No. 100, however, disguised a transformation in military thought in the post–Civil War United States, one that had altered the delicate balance of humanity and necessity in the 1863 instructions. In 1892, Major General John Schofield, the commander of the U.S. Army from 1888 to 1895, had issued an order incorporating the terms of the 1864 Geneva Convention into Lieber’s code, announcing that the Geneva rules would thenceforth “form part of the ‘Instructions for the Government of the Armies in the Field.’” But Schofield argued openly for short and sharp wars that would avoid the quagmires all too often produced by what one like-minded officer called “squeamish humanity.” Schofield, who served as superintendent of the Military Academy at West Point in the 1880s, who had helped shape the treatment of the Modoc Indians in 1873, and who had survived the guerrilla conflicts of Civil War Missouri, also explicitly rejected international law’s formal moral symmetry for warring nations. He insisted instead that righteous causes licensed tougher methods.
Influential military strategists from the Army Officer Corps echoed Schofield’s views, anticipating that the future of warfare would look more like Sherman’s March to the Sea than like the set-piece battles of yesteryear. Leaders of the prominent U.S. Military Service Institution believed that modern wars would be campaigns with “no objective point, no lines of communication, no base of supplies.” War would be fought by “armies of raiders.” Everything from “railroads, telegraphs, factories, stores and store houses,” to “shops, barns, roads, and bridges” would disappear before great devouring armies. “Giant famine and pestilence” would follow in their wake. Leading members of the turn-of-the-century officer corps did not shrink from this vision. They embraced it. “Terrible! Say you?” asked the editors of an influential strategy journal. They supplied their own answer: “Well, yes. War ought to be terrible. The trouble is that it has ceased to be terrible to altogether too many men.”
In the Philippines, the laws of war seemed to officers trained under Schofield’s influence to be an inspiration for their fierce war strategy, not an obstacle to it. Some officers treated the Filipino resistance fighters as savages with no claim on the laws of war. (That had been Theodore Woolsey’s ultimate defense of Funston’s otherwise unlawful ruse to capture Aguinaldo.) But most embraced the laws of war and its terms, confident that they were adaptable to the irregular warfare of the Philippines. When MacArthur reissued the Civil War instructions in December 1900, he did so at the moment when the Army had decided to step up the aggressiveness of its campaign, just as Lincoln had in 1862. MacArthur’s version of General Orders No. 100 was even tougher than Lincoln’s, for MacArthur omitted the sections that imposed restraints on the soldiers and officers of the United States, while retaining the sections authorizing retaliatory violence for the savage conduct of Filipino independence fighters. MacArthur’s reading of Old Hundred quickly became a pattern in American invocations of the Civil War instructions in the Philippines. General James Bell cited it to justify harsh measures against those who rose up against an occupation. “A short and severe war,” he said, was better than “a benevolent war indefinitely prolonged.” Bell announced that he would execute a prisoner for every American or friendly native murdered. On Samar, Jacob Smith cited General Orders No. 100 for the idea that the United States should “wage war in the sharpest and most decisive manner possible” because “short, severe wars” were “the most humane in the end.” Smith’s officers, in turn, believed that their policy of giving no quarter to prisoners was justified under the laws of war in general and General Orders No. 100 in particular. Newspaper editors and congressmen back home got into the act as well, urging critics of American soldiers to “study with advantage” the laws of war as embodied in Lincoln’s Civil War instructions. Even Judge Advocate General Norman Lieber’s office prepared a private defense of the Army’s actions in the Philippines, finding support for its conduct in the code’s articles.
STILL, there seemed to be no getting around the question of torture. Torture was one of the few things that Old Hundred had ruled out as definitively unlawful. “Military necessity,” stated Article 16, “does not admit of . . . torture to extort confessions.” Article 80 provided further that it was unlawful to use “violence against prisoners in order to extort the desired information.” It did not seem possible to justify torture by reference to the 1863 instructions. And when rumors of widespread torture began to leak back to the United States in early 1902, and when a political firestorm seemed on the verge of engulfing the war effort, President Roosevelt and Secretary of War Root quickly ordered courts-martial for the worst offenders.
Army commanders initiated at least five trials of accused American torturers. The most prominent was that of Major Edwin F. Glenn, on charges of ordering the administration of the water cure in November 1900 on the island of Panay.
Born in North Carolina, Glenn was a member of the class of 1877 at West Point. He had a law degree from the University of Minnesota as well, and had served as a judge advocate beginning in the middle of the 1890s. In 1895, he had even published a book on international law designed for law students. The book discussed war at length and reprinted Lincoln’s instructions of 1863 in their entirety. In 1898, Glenn led a pioneering expedition to southeastern Alaska, where his name still graces towns and highways. Now serving in the Philippines, he was the judge advocate for the island of Panay.
In 1900 and early 1901, while serving as the judge advocate, Glenn orchestrated a systematic campaign of arrests and torture. In the Philippine islands of Leyte and Samar, he led a mobile team of crack water cure experts who arrested community leaders (some called it kidnapping) to extract information about the insurgency. General Nelson Miles of Geronimo fame reported privately to Secretary of War Root that Glenn and his team had become notorious for moving around the islands and arresting men “for the purposes of extorting statements by means of torture.” Glenn soon became so well known as the chief administrator of torture in the Philippines that the torture squad was called “Glenn’s Brigade.”
Members of Glenn’s torture team did their work with little secrecy or shame. They thought their actions perfectly justifiable on the now familiar grounds that short wars were humanitarian wars. Glenn defended himself at his court-martial by conceding his acts and trying to justify them. “I am convinced that my action resulted in hastening the termination of hostilities and directly resulted in saving many human lives,” he told the court. His actions, he claimed, were justified by military necessity. Water torture, insisted another officer prosecuted by court-martial, was the humane thing to do. “Without firing a shot or shedding blood,” he had been able to uncover munitions stashes and, he believed, save lives.
Life magazine put the water cure on its cover in 1902, showing American soldiers administering the “cure” while European empires look on in delight.
Judge Advocate General George B. Davis, Norman Lieber’s successor, rejected Glenn’s justifications. “No modern state,” Davis concluded, could admit torture as a “usual practice” in wartime, even when “at war with a savage or semicivilized enemy.” Here was a forceful refutation of Glenn’s logic. Yet Davis’s reasoning contained a surprising caveat. Lincoln’s 1863 instructions had set torture outside the realm of necessity; it was never permitted. Davis, however, asked whether an emergency had existed that was“so instant and important as to justify the disobedience of the plain requirements of General Orders, No. 100.” No such necessity had existed sufficient to justify torture, he concluded. But by asking whether torture was permitted under the circumstances, he seemed to have changed the law to allow it in at least some dire situations. Davis’s recommendation to the president and the secretary of war urged approval of the conviction in Glenn’s case but opened a door that Lieber had held shut.22
In the end, Glenn was convicted and his conviction affirmed by President Roosevelt. But his sentence barely amounted to a proverbial slap on the wrist. Citing Filipino provocations to which he was said to have been responding, the court sentenced Glenn merely to be suspended from his command for one month and fined a grand total of $50. The sentence was typical of other officers convicted at courts-martial for similar offenses. Some were simply reprimanded. Others were acquitted altogether. Of the fifteen officers prosecuted by general courts-martial in the Philippines for offenses of any kind, only one received a prison sentence, and that was for five years for killing a prisoner of war. Even then, President Roosevelt commuted the sentence to loss of half-pay for nine months and a loss of thirty-five places on the officer promotion list. Filipinos accused of law of war violations fared considerably less well. One man Glenn had tortured, Tobeniamo Ealdama, was convicted of being a war traitor under Articles 90 and 91 of the 1863 code. For the crime of rising against an occupying army, Ealdama, the torture victim, was sentenced to ten years imprisonment at hard labor.
Lincoln’s fierce code seemed to have lost its way in the Philippines. A dubious war of empire had detached the code from the righteous cause that had produced it. It was as if questionable wars compelled the armies that fought them to go to ever more terrible lengths to defeat enemies whose own sense of righteousness drove them to ever stiffer forms of resistance. Senator George Frisbie Hoar of Massachusetts, the seventy-four-year-old lion of the anti-imperialist faction of Congress, believed that unscrupulous wars were precisely the kind of thing that empire would produce. Looking back on American conduct in the Philippine War, Hoar could only bemoan his country’s new direction: “We have been brought to the unexampled dishonor of disregarding our own rules,” he said, “for the conduct of armies in the field.”
IN THE YEARS following the Philippine War, international lawyers, statesmen, and military men in the United States began to develop a law of war that would no longer rest on the fifty-year-old rules that Francis Lieber had drafted. William Tecumseh Sherman had praised General Orders No. 100 while serving as commander of the Army in the 1880s. As secretary of state in 1913, Elihu Root celebrated the occasion of the code’s fiftieth anniversary with a public address praising Lincoln’s order. The Army’s chief of staff called the code “almost sacred.” Yet even as early as 1898, when Norman Lieber had distributed his father’s code at the outset of the Spanish-American War, long sections of it must have struck him and his readers as odd. A dozen of its articles dealt with questions arising out of slavery in wartime. There were provisions for the status of captured and fugitive slaves, for slave insurrections in wartime, and for the enlistment of an enemy’s slaves in the armed forces. Lincoln’s order prohibited the outlawry of black soldiers and declared the sale of enemy prisoners of war unlawful. It was no wonder, then, that when European lawyers like Bluntschli and Martens adapted Lieber’s work to their own conflicts, they quietly excised a number of irrelevant passages that made no sense out of their original context.
The new conventions and treaties of the postwar period also left the Civil War instructions badly incomplete. Privately published compilations stitched together the 1863 rules with the Geneva Convention of 1864 and the Hague Convention of 1899 to produce comprehensive but awkward treatments of the rules of engagement. In the Judge Advocate General’s office, an internal concordance literally constructed with scissors and glue tried to patch together a reconciliation of the Lieber Code of 1863 with the Hague Convention. It was increasingly clear that a new departure was necessary.
But who was to produce such a document? Who would be the Francis Lieber for the twentieth century? The task would be a delicate one; in 1904, an ill-conceived code for naval warfare (designed, as Yale’s Theodore Woolsey wrote in 1900, to be “comparable in all particulars with the land code of thirty-seven years ago”) had to be revoked when Navy men concluded it put restraints on American conduct that were not likely to be reciprocated by the country’s future enemies. The job thus required someone with knowledge of the international law questions at issue, ideally someone who also knew how the Judge Advocate General’s corps worked. Even better would be someone who could bring to the task experience in wars of empire, which seemed likely to be the kinds of wars that would occupy the U.S. military in the twentieth century.
The man the Army chose was none other than Edwin F. Glenn. If not for the torture conviction, Glenn would have been a natural choice for the job. He had a law degree and had served as a judge advocate. He had published a treatise on international law. And he had considerable experience with courts-martial, though not all of it good. After his command of the torture squad in the Philippines, Glenn had been exiled for years to a series of backwater posts in upstate New York, Ohio, and Indiana. Having served a second stint in the Philippines in 1908, however, Glenn’s sins had been forgotten. (The Army apparently viewed them as venal rather than mortal.) He was promoted to colonel in 1911. Two years later, he was detailed to the Army War College, then in Washington, D.C., which charged him with updating the old Civil War instructions.
In 1914, the War Department issued Glenn’s field manual on the laws of war in a sturdy, yellow-bound, pocket-sized manual titled Rules of Land Warfare. The rules did not bear his name; they were ostensibly the product of the War Department as an institution, not of any one officer. But it was Glenn who was their primary author. Glenn described the new rules as retaining “everything vital” from Lincoln’s Instructions for the Government of Armies of the United States in the Field, while shedding the anachronisms. Gone were the rules about slaves. But Glenn still filled his text with long passages taken verbatim from its 1863 predecessor. And Glenn’s field manual would prove to have almost as long a life as Lieber’s. After a few insignificant editorial alterations, Glenn’s 1914Rules accompanied American soldiers across the Atlantic to fight on the Western Front in World War I. A substantial update in 1934 retained the basic logic and structure of Glenn’s text. With a few cosmetic changes in 1940, it was his manual that went to war again in Europe and the Pacific in 1941 and 1942. At the war crimes trials of Nazis in American-occupied Germany from 1946 to 1949, provisions of the laws of war that Glenn had written would be cited and argued about at length by prosecutors and defense lawyers alike. No one noted that they had been crafted by a convicted torturer, a man whom we would today (following Lieber and Bluntschli) call a war criminal.
SURELY HERE IS REASON to see the laws of war as shot through with hypocrisy. If the work of Lieber and Lincoln comes down to us through the dirty hands of a torturer, is this not irrefutable evidence that Cicero was right when he said that law was silent among arms? Or that Cervantes knew best when he said that all was fair in love and war? There is much to this view, of course. It would be feckless to dismiss it out of hand.
But the critics’ view is too glib. For the most striking thing about Glenn’s Rules of Land Warfare is not the identity of its author, but the restraint of its terms. The manual bore few traces of its author’s terrible past. Judge Advocate General George B. Davis took to the pages of the official journal of the American Society of International Law to argue that the very man whose conviction for torture he had recommended the president uphold just twelve years before had “done his work exceedingly well.” Reviewing the Philippines torture cases in 1902, Davis had condemned Glenn’s necessity justification for torture in strong terms. Now, reviewing Glenn’s Rules of Land Warfare, he wrote that Glenn’s text could not “fail to be of the greatest assistance in following the course of the great war now in progress in continental Europe.”
Indeed, the 1914 rules went considerably further than Mahan and the American delegates at The Hague had been willing to go in 1899. The new field manual prohibited the use of poisons, contagious diseases, and any weapon “of a nature to cause unnecessary injury,” including “lances with barbed heads, irregular-shaped bullets, projectiles filled with glass,” and “soft-nosed and explosive bullets.” It banned the contamination of water supplies. Glenn gave the close reader a glimpse into his internal struggle when he observed Field Marshal von Moltke’s bleak critique of the very idea of humanitarian limits (“the greatest kindness of war is to bring it to a speedy conclusion”). But Rules of Land Warfare also paid conspicuous homage to Fedor Fedorovich Martens’s clause in the Hague Convention embracing the protections of the “laws of humanity.” Glenn adopted Lieber’s term “war crimes” for the first time in an official American document. And as for torture, Glenn faithfully reproduced precisely the section of the 1863 code that Judge Advocate General Davis had cited when he recommended that the president uphold Glenn’s own conviction and sentence. “Military necessity,” the Rules of Land Warfare stated, “does not admit of . . . torture to extort confessions.” Following Lieber’s Old Hundred, the Rules banned coercive means to obtain information from prisoners of war.
Glenn’s 1914 Rules of Land Warfare marked a symbolic victory for a law that has often counted its successes in symbols. But symbols matter, and they matter because they shape the world in ways big and small. The laws of war have rarely if ever functioned like a beat cop or a stop sign. Rarely is there an impartial and stern judge standing at the ready to enforce them. Yet the laws of war shaped the way men talked about war. The entire Philippine controversy had played out in a moral vocabulary made up of terms from the laws of war. It was a venerable language, to be sure. It was one that spoke with tacit approval of terrifying acts of violence even as it denounced horrible cruelties. And it was a language that Abraham Lincoln, without quite knowing he was doing so, had transformed. Only a few years removed from the exclusion of non-European peoples from the law’s protections, Secretary of War Root and President Roosevelt felt compelled in 1902 to initiate trials of the American officers accused of violating its terms. A controversy rooted in the laws of war had forced statesmen to spend valuable political capital. A decade later, Edwin Glenn—the man who had conducted a campaign of torture and expressed disdain for the law’s core rules—would find himself speaking in the law’s terms and extending its moral language to armed conflicts in the twentieth century and into the twenty-first.
The moral mandate of Lincoln’s Civil War had crafted a common vocabulary, a way of talking about war’s grave moral stakes that could be shared by war’s fiercest defenders and its most uncompromising humanitarian critics alike. It was a language about the courage to act in a dangerous world and about the moral modesty that our weaknesses and frailties inevitably require. It was a language balanced, as Lincoln and Lieber had been, on a knife’s edge between humility and justice.