Lincoln's Code Read online

  Praise for Lincoln’s Code

  Winner of the Bancroft Prize

  Winner of the Law and Society Association’s Willard Hurst Book Prize

  Finalist for the Pulitzer Prize in History

  Finalist for the American Bar Association Silver Gavel Award

  The New York Times 100 Notable Books of 2012

  Kirkus Reviews Best of 2012: The Top 25 Nonfiction of the Year

  “Magnificent. . . . Lincoln’s Code is both a celebratory chronicle of American lawmaking and a gruesome record of American wartime cruelty. . . . This monumental book, resting on colossal archival research and packed with memorable stories and arguments, is a major contribution to making sense of ours.”

  —Gary J. Bass, The New York Times Book Review

  “Enthralling. . . . [A] deep moral sense . . . shines, in all its complexity and eloquence of tongue and heart, through this important book.”

  —Charles Fried, The New Republic

  “Well-written and fascinating. . . . The value of Witt’s account is that it shows how the answer to [where we draw lines] has changed over the centuries—and how, whether in the Civil War or the War on Terror, our political leaders have struggled to reconcile the sometimes competing demands of humanitarianism and justice.”

  —Max Boot, Commentary Magazine

  “[A] sweeping history of American engagement with the idea that the brutality of war should be constrained by humanitarian rules.”

  —Jennifer Schuessler, The New York Times

  “Artfully mixing law, history, and sharp analysis, a Yale law professor examines the persistent struggle to reconcile justice and humanitarianism in America’s conduct of war. . . . Truly remarkable, composed with all the precision and insight you expect from a law professor, marked by all the elegance and sparkling readability you don’t.”

  —Kirkus Reviews, Starred Review

  “[A] significant work. . . . Witt establishes and supports a provocative case that the [law of war] reflects two competing, fundamental American ideals: humanitarianism and justice.”

  —Publishers Weekly

  “Exhaustive, authoritative, written with drama and flair, Lincoln’s Code is a remarkable work about remarkable men. Witt examines the attitudes and actions that characterized military conduct prior to the Civil War, and then traces the impact of the Lieber Code on world affairs in the century and more that followed, all demonstrating what a genuinely unique and revolutionary act it was for Lincoln, his war leaders, and Lieber, to rise above their temporal conflict by attempting to make some sense out of chaos, and some humanity from inhumanity.”

  —History Book-of-the-Month Club

  “[Lincoln’s Code] will please Civil War buffs, legal and military historians, and international lawyers alike. Witt’s research on letters, drafts, and other documents written by Lieber and the other major figures is impressive, and he presents it lucidly, fairly, and comprehensively, enabling the reader to draw his own conclusions.”

  —Slate

  “Vivid anecdotes . . . Witt encourages politicians and scholars alike to deliberate on the true nature of ‘just’ wars.”

  —Harvard Law Review

  “Witt explores a central notion of the American historical narrative: the idea that the law can regulate conduct in war.”

  —Yale Daily News

  “Reverberate[s] from 19th-century Appomattox to 21st-century Afghanistan.”

  —New Haven Register

  “A gripping narrative of the struggle to maintain the aspiration to honor, decency and common humanity amidst the brutal imperatives of war—from our war for independence, through the Civil War to the suppression of the insurrection in the Philippines. At the center John Witt places the first code for the conduct of war, promulgated by Lincoln during the darkest days of the Civil War: harsh, relentless, realistic, yet placing firm limits forbidding torture, the abuse of prisoners, treachery and purposeful harm to civilians. This book is an important addition to the ever-growing monument to our greatest and most complex national leader.”

  —Charles Fried, author, with Gregory Fried, of Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror

  “Lincoln’s Code is a rich, subtle, and honest book that uncovers the deep impact of the laws of war in American history. It is chock full of truly novel insights. I learned a ton from it and will continue to learn a ton on rereading. It is a great book, one that will last forever.”

  —Jack Goldsmith, Harvard University, author of Power and Constraint: The Accountable Presidency after 9/11

  “As bitter disputes still fester about how far Americans should submit to international legal rules, John Fabian Witt offers a dispassionate historical perspective and an insightful truth. From the beginning, Witt shows, America has proclaimed moral rules and deployed military force, no more paradoxically in combination than during our Civil War, in which Francis Lieber first codified the law of war for the world. Witt’s book is deeply researched and beautifully written: an indispensable masterpiece for anyone who cares about how America’s past bears on our present and future.”

  —Samuel Moyn, Columbia University, author of The Last Utopia: Human Rights in History

  “In this splendid and readable narrative, John Fabian Witt shows how Americans from the Founding Fathers to Abraham Lincoln argued, and sometimes agonized, over the elusive and indistinct boundary between the legitimate application of military force on behalf of the nation and crimes against humanity. Here is an original and important synthesis that helps illuminate our nation’s moral and political underpinnings, and establishes a context for modern considerations of the laws of war.”

  —Craig L. Symonds, author of Lincoln and His Admirals and winner of the Lincoln Prize

  “If there was ever a time for this book, it is now. As the war on terror continues unabated and controversy continues over the use of military commissions, detention, interrogation, due process and civil liberties, this extraordinary and well written account about the laws of war in America is a primer and road map for our citizens and those who are, or should be, trying to comprehend and prepare the legal and military processes for all present and future.”

  —Frank J. Williams, Chief Justice (ret.), Supreme Court of Rhode Island, and founding Chair, The Lincoln Forum

  ALSO BY JOHN FABIAN WITT

  The Accidental Republic

  Patriots and Cosmopolitans

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  For Gus and Teddy

  and for

  Private John C. Crowe

  74th New York Infantry and

  40th New York Infantry,

  October 1861–June 1865

  Contents

  Prologue

  Part I: You Have Brought Me into Hell!

  1. The Rights of Humanity

  Washington and the Moral Logic of War

  Jefferson’s Savage Enlightenment

  Franklin and the Mythology of the Revolution

  2. The Rules of Civilized Warfare

  The Art of Neutrality

  A Path to War

  American War, American Slavery

  3. A False Feeling of Mercy

  Lawyers, Soldiers, and Seamen

  The God of Scalps

  Andrew Jackson and the Militia Tradition

  4. Rules of Wrong

  Canada

  Mexico

  Par
is

  Part II: A Few Things Barbarous or Cruel

  5. We Don’t Practise the Law of Nations

  A Strange Inconsistency

  Dog Eat Dog

  Hero of the Hour

  6. Blood Is the Rich Dew of History

  Would to God, I, Too, Could Act!

  Clausewitz in New York

  Guerrillas in Missouri

  7. Act of Justice

  Worse Than Savages

  The Highest Principles Known to Christian Civilization

  Abstain from All Violence

  8. To Save the Country

  Simply as Men

  Responsible to God

  No Distinction of Color

  9. Smashing Things to the Sea

  A Most Solemn Obligation

  Holt’s Bright Young Men

  Which Party Can Whip

  10. Soldiers and Gentlemen

  To Assassinate Everybody

  A Citizen of Indiana

  Combatants in Open War

  Part III: The Howling Desert

  11. Glenn’s Brigade

  Stay the Hand of Retribution

  The House in the Wood

  To the Philippines and Back Again

  Epilogue

  Appendix: Instructions for the Government of Armies of the United States in the Field

  Acknowledgments

  Abbreviations Used in the Notes

  Photographs

  Notes

  Illustration Credits

  Index

  Prologue

  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 the great 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 blow against 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.”