The Code breakers

Lincoln signing General Order No. 100 (Mort Künstler)

In 1863, under the authority of Abraham Lincoln, the United States published Instructions for the Government of the Armies of the United States in the Field, General Order 100.  It was drawn up by a law professor at Columbia, Francis Lieber, and approved by a committee of Union officers, and sought to codify the practices of customary international law.  It was signed by Lincoln on 24 April 1863, and the full text is here.

The Lieber Code, as it became known (Lieber himself called it ‘Old Hundred’), continues to casts its spell over international law and its historians.  Its most recent incantation is John Fabian Witt‘s artfully titled Lincoln’s Code: the laws of war in American History (Free Press, 2012). It’s a superb historical monograph, beautifully written and richly illustrated, that travels from the American Revolution via the fulcrum of the Civil War to the eve of the First World War – Witt is both a professor of Law at Yale and a member of the History department – but, not surprisingly, it’s the book’s contemporary echoes that have resonated with many readers.  (Witt once hailed Lincoln as ‘probably our most important law-of-war president, having crafted the very rules that George W. Bush and his Justice Department tried to destroy’).

In an interview in today’s New York Times, however, Witt insists that the Bush administration – in its assault on the Geneva Conventions, its establishment of GITMO, and its elaborate parsing of what does and does not legally constitute torture – did not mark a departure from historical precedent:

“It’s not an aberration that American lawyers closely tied to the administration went to work on transforming the laws of war to suit the felt strategic imperatives of the moment,” he said. “That is the kind of thing we see going all the way back.”

The Lieber Code, he argues, was not a neutral instrument: it was ‘developed by a side for the purpose of helping it win a war.’  And so while Witt documents its role as what he calls a ‘humanitarian shield’ defending ‘civilized war’ – the Code enshrined a distinction between combatants and civilians (or ‘private citizens’), and proscribed assassination, torture and poisons – he argues that it was also designed to function offensively as ‘an instrument of justice.’  The Code itself proclaimed that ‘the more vigorously wars are pursued the better it is for for humanity.  Sharp wars are brief.’ (This was before the age of air power – though balloons were used during the Civil War – but it was exactly this belief in ‘sharpening’ war that underwrote the later faith in bombing as an alternative to the protracted carnage of the trenches).

Now ‘justice’ is a weasel-word,  especially in the mouths of weasels in the White House – it’s no surprise that Max Boot is such a fan of Witt’s cheerleading for ‘the United States’s long history of leadership in creating the laws of war’.  It turns out that among the practices that escaped the Lieber Code’s censure were the starvation of civilians and the bombardment of towns without warning (‘Surprise may be a necessity’), and most of its other provisions and protections could be set aside on grounds of ‘military necessity’.  Eric Posner provides an incisive dissection of those implications in relation to Sherman’s infamous march through Georgia and South Carolina and much more besides in Slate here.

The climax of the book is certainly not its epilogue but Witt’s discussion of the exemplary violence displayed by the United States during the Philippine War (1899-1902).  Here ‘Old Hundred’ was cited to justify extraordinarily brutal measures.  General James Bell made clear his preference for ‘a short and severe war’ over ‘a benevolent war infinitely prolonged’, and some – perhaps many – officers treated this as a declaration of open season on their prisoners of war.  The most shocking method of interrogation was the ‘water cure’ (shown below) – the contemporary resonances don’t need any amplification from me – and yet torture was expressly outlawed under the Lieber Code.  A number of commanders were successfully prosecuted for the offence, including Major Edwin Glenn, who openly prided himself on leading a mobile team of ‘water cure’ experts.

So does this mean that the Code’s ‘defensive shield’ tempered its aggressive sword? In 1914 Glenn was selected by the War Department to be the lead author to update its field manual on the laws of war, and it was that version of the Rules of Land Warfare that guided military operations in World War I and World War II and was cited time and time again at Nuremberg.  ‘No one noted that they had been crafted by a convicted torturer,’ Witt observes, ‘a man whom we would today … call a war criminal.’

Yet Witt is quick to strike down the low-hanging fruit, the easy conclusion that the laws of war are thus ‘shot through with hypocrisy’:

‘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….

‘Glenn adopted Lieber’s term “war crime”s 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.

A draft 2011 statement on ‘Lincoln’s Code’ prepared by Witt for a Harvard workshop is here, and you can access 70 images from his book (from which I took the image above) together with its bibliography here.  His February 2011 Inaugural Lecture as the Allen H. Duffy Class of 1960 Professor of Law at Yale – Lincoln’s Code: the puzzling history of the laws of war – is available on vimeo here.

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