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Crafting the Rules for Hell

The Union, on the other hand, has an excruciatingly more difficult choice: to decide whether the law of war is relevant at all. Then, as the second year of the war gets under way, and the failures of the first year become clear and that excruciating choice becomes even more difficult because the Union has decided two things: to step up the aggressiveness of the war effort, which raised real questions about humanitarian obligations in wartime, and second it raised the question of emancipation. Since 1775, American soldiers and statesmen announced again and again that emancipating any slaves was an uncivilized act of warfare that no civilized army could lawfully engage in.

The real challenge in late 1862 as emancipation is pending is to figure out how to make the law of war tradition in the United States consistent with the Union’s posture on emancipation and the war strategy.

You outline how slavery and emancipation shaped the American law of war.

The modern laws of war we have today are really a legacy of the American emancipation experience. That’s not a story I planned to tell, and not one I guessed I would be telling when I thought of this book.

Lincoln is a brilliant just war theorist. In August and September 1862, before he makes emancipation public, he had long deliberations where he reflected on the fact that he and hundreds of thousands of Union soldiers were convinced of the righteousness of their cause. On the other hand, there are hundreds of thousands of Confederate soldiers who are just as convinced of the righteousness of their cause.

That’s the fundamental tenet of the laws of war: that both sides are convinced that they’re right, and in those cases some kind of moral modesty is required. If we can get each side to suspend its conviction of self-righteousness for just the purpose of regulating war, we might be able to get a more humane conflict. You don’t execute the prisoner because you think he’s a criminal. Be modest about the righteousness of your side. That’s the fundamental premise of the laws of war.

But Lincoln makes a further observation, and this is where he’s pioneering. There’s a flaw here. Lincoln says to himself, I’ve already committed these men to battle. Tens of thousands of these men have already died by August of 1862. I have to be committed to the righteousness of my side. Otherwise I have no account of why I’m here in the first place. And so that led him a view that there were two imperatives. One was to act forcefully when more forceful action was morally required but, two, to act with modesty because one could never be sure that one was fighting on the side of righteousness. So he said we no longer live in the age of miracles. I can’t be sure that there will be a divine revelation that will reveal which of these two sides is right.

Then, after [the Union victory at] Antietam, he decided that Antietam was the miracle or revelation -- the only kind of grim miracle the modern world recognized that allows Lincoln to go forward publically with the emancipation policy.

And Frances Lieber comes into the story after Antietam when he’s called on by the Lincoln Administration to draft rules of war.

Dr. John Fabian Witt: Yes. This is one of the great forgotten characters of American history. He’s an enthusiastic, sometimes garrulous participant in the public intellectual culture of antebellum America.

He was a Prussian immigrant who left reactionary, post-Napoleonic Europe because he was too liberal for the conservative political climate of the times and got in trouble with the Prussian authorities. He travelled first to Greece and fought for Greek independence against the Turks with Lord Byron and the Romantic enthusiasts for Greek independence. Then he spent time in England and eventually came to the United States.

He couldn’t get a job at a northern university. He spent some time in Boston and Philadelphia and New York. Eventually, he ends up in South Carolina where he spent two decades on the little faculty of the College of South Carolina -- now the University of South Carolina in Columbia. He experiences himself in a backwater in those twenty years, rightly or wrongly, but far away from the intellectual elite in the Northwest on the Atlantic seaboard.

He eventually made his way to Columbia College in 1856. On the eve of the war, he was a man with connections both North and South. He was trained in war with experiences as a veteran in European warfare. So he has this strange experience and sons fighting for North and South. He’s always been against slavery, but in South Carolina, he owned slaves who worked as domestics. He was in this extraordinary position to craft a set of rules to govern a conflict between these two sections of the country.

In the winter of 1861-62, he gives a set of lectures [on laws of war] at Columbia Law School. Not that much had happened when he started lecturing in October 1861. There had been the first battle of Bull Run, but not too much else.

That winter, every student at the Columbia Law School enrolled in his lectures and there were reporters in the audience. The New York Times covered them. They’re of great interest in a country that doesn’t know much about these rules, but for which these rules are suddenly of considerable public moment.

Because those lectures are reprinted in the Times, they bring him to the attention of American military leaders, some of whom had known him for many years as a public intellectual, especially Henry Halleck who, in the fall of 1862, became general-in-chief of the Union army.

How did Lieber come to Lincoln’s attention?

He was a prolific and active correspondent with Halleck, Attorney General Edward Bates, and Secretary of War Edwin Stanton. He meets Lincoln on several occasions during the first two years of the war. He’s even a figure in the extended circle of the Lincoln administration from the very beginning of Lincoln’s presidency.

He got back in personal touch with Halleck because his second son, Hamilton Lieber, was badly wounded at Fort Donelson and lost his right arm. Lieber, like many Civil War fathers, raced across the country to help his son. Civil War battlefield medicine being what it was, fathers tried to get their sons out of there as fast as possible. In the course of looking for Hamilton -- there are no centralized records of where these wounded men are sent -- he finds his way to Halleck to identify where his son was. In 1862, with emancipation on the way, Halleck as general-in-chief realized he must transform the law of war tradition, and Lieber is the first person he calls on.

And you describe in detail Lieber’s work on these new rules. Weren’t they issued in the spring of 1863?

The date on them is April 24, 1863, but I can’t find any evidence that anyone knew much about them until the middle of May 1863. Some parts of them were issued earlier -- parts that were most pressing but less controversial. The most controversial parts were on slave organizations. There were rules in there ranging from torture to poison to prisoners of war to military necessity and prescribed prisoner paroles and prisoner exchanges. But the most important rules and most original rules that make the document distinctive in the law of war tradition were on slavery and black soldiers.

There were more rules on slavery and black soldiers in the code than on any other subject such as torture or prisoners of war. What called forth the code was the need to overturn the longstanding American tradition of resistance to the idea of emancipation in wartime and to deal with the problem of the Southern reaction to the arming of black soldiers.

Jefferson Davis and the Confederate leadership announce early on that black soldiers, even in Union uniform, will be treated as slaves engaged in uprising or as men trying to instigate a slave uprising. They’ll be treated as criminals subject to the criminal laws of Southern states, and not treated as soldiers. Eventually, they’ll be executed or re-enslaved instead of imprisoned on the same terms as white soldiers.

By late 1862 and early 1863, this is a real problem for the Lincoln administration. The [Union] turned decisively toward recruiting free blacks in the North and hoped to recruit former slaves in the South. By the end of the war, more than 200,000 blacks participated in the Union armed forces. For the Lincoln administration to recruit them, they were promised a commitment to have them treated as soldiers and not just as wanton criminals.

And you recount the horrific response of the Confederacy with re-enslavement and massacres of black soldiers, such as the massacre by Nathan Bedford Forrest’s troop of more than 200 captured black soldiers at Fort Pillow.

The Fort Pillow massacre turned out to be just one of the most famous examples of a widespread Confederate policy. The policy of summary execution was never officially approved at the top of the Confederate leadership, but it was much talked about. It appears that some Confederate officers adopted a policy of summary execution because public trials and executions would tempt Union retaliation, but simple execution away from public scrutiny could be done in ways that might not produce retaliation because the Union would never know.

Readers may be surprised that Lieber believed that “short, sharp wars” -- more devastating wars -- were more humane in the long run than wars where the military conformed to rules to make war more civil.

Yes. Lieber is both the creator of the modern law of war tradition and one of its toughest critics. The laws of war he creates that Lincoln issues as an order are laws of war that have humanitarian restraints, but also license and warrant terrible violence. One of the central things I wanted to bring out in the book was the ambiguity and ambivalences in this fraught legal tradition.

Sherman’s March to the Sea captures the real ambivalences of the laws of war that run through the nineteenth century, especially among a generation of people who couldn’t imagine the fire bombing of Dresden and Tokyo, and atomic weapons at Hiroshima and Nagasaki -- that there was a real logic to this “short and sharp” conflict as the more humane conflict. It’s the same logic that Curtis Lemay and Henry Stimson adopt in Japan in the summer of 1945.

Didn’t Sherman’s relentless campaign in the South, as some argue, show that military necessity trumped any restraints imposed by Lieber’s laws of war?

Historians have paid little attention to Lieber and this text. It’s interesting to puzzle out why. My impression is that historians, thinking that the laws of war must be a body of humanitarian limits, have looked at the conflict as it was fought and concluded that it cannot be that the laws of war played much of a role in this conflict. This is a war that some historians -- and I think wrongly -- call a “total war,” the forerunner of the horrific conflicts in the world wars of the twentieth century.

This conclusion, that the laws of war have been a sideshow, is a misunderstanding of what the laws of war do. They legitimate conflict as much as they try to restrain it. They are a vehicle for establishing some limited cooperation between enemies. They were vehicles for signaling internationally to other nations, like Britain and France that were key audiences for the Lincoln administration for all of its international law and law of war.

If we look more closely, we can see that the law of war is saturated by the black prisoner of war problem. It powerfully shaped the military commissions. There were more than four thousand military commissions during the course of the war. As many as a thousand of them, by my count, were law of war military commissions charging law of war violations. And the Lieber text and the law of war tradition were the blueprint for those military commissions.

The laws of war aren’t contradicted so much by Sherman’s March so much as they culminated in Sherman’s March. That’s the terrible ambiguity of the laws of war. It’s not a story about laws of war being irrelevant. To the contrary, it’s a story about the complicated social function of the rules.

You write of two trends now with the laws of war: a humanitarian trend and a war crimes trend. Did the Lieber code affect Henri Dunant’s humanitarian rules he set out in the Geneva Convention of 1864?

These are parallel tracks. Dunant in Switzerland created a set of rules for the sick and wounded on the field. Lieber’s rules are more ambitious. The sick and wounded on the field are the low-hanging fruit for humanitarians. There’s not much of a stake that any army in the world has in the people who are no longer available to fight.

Lieber’s rules are not adopted into an international convention until thirty-five years later, at the Hague in 1899. When they are adopted, it’s a treaty that the United States signs onto with all of the states of Europe. It’s a treaty powerfully modeled on the rules Lincoln issued in 1863.

There’s a great irony in the American observance of the rules during the Philippine insurrection as Edwin Glenn commanded troops who tortured insurgents and, a few years later, wrote the rules that American troops would be instructed to follow in both world wars.

Glenn embodies the hypocrisy of this law of war tradition. He was a self-acknowledged torture expert and led the American tactical torture team in the Philippines conflict. But when it comes time for him to produce the update of the Lieber Code -- the update that will follow American soldiers across the Atlantic twice in the first half of the twentieth century -- [Glenn] writes a code with rules that squarely make illegal what he did in the Philippines and they have a hopeful humanitarian dimension along with the inevitable fierce violence that they legitimate.

This is another story, among many you tell, that I had never heard about before.

Your audience may be interested that this field -- the laws of war in American history and international history -- is ripe for a lot of writing. I hope that my book is just the first in a series that will come.

Would you like to say anything else about the legacy of the Lieber Code -- Lincoln’s Code -- and how it guides us now?

The laws of war rarely if ever have delivered crisp answers that tell us what to do in crisis situations, but they’ve created a conversational frame that has allowed us to keep ourselves in touch with our ideals and cooperate with our friends and sometimes even our enemies in grave times of national crisis. That’s been their limit and that’s been their values across more than two centuries of American history.

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