DID HE READ HIS OWN ESSAY?:

Lincoln's Laws of War: How he built the code that Bush attempted to destroy. (John Fabian Witt, Feb. 11, 2009, Slate)

One of Abraham Lincoln's little-noted accomplishments has become his most unlikely legacy. He helped create the modern international rules that protect civilians, prevent torture, and limit the horrors of combat, the body of law known as the laws of war. Indeed, he was probably our most important law-of-war president, having crafted the very rules that George W. Bush and his Justice Department tried to destroy. [...]

Most of all, Lincoln's increasingly firm conviction that the war needed to be brought home to the people of the South—and to the slave system on which they depended—cried out for new rules. After meeting with McClellan, Lincoln began to think about what advantages new laws of war might offer the Union effort.

The first stage of Lincoln's re-evaluation came in the Emancipation Proclamation. Less than a week after meeting with McClellan, Lincoln confided for the first time to members of his Cabinet that he intended to issue his controversial emancipation order. The proclamation was an utter rejection of McClellan's limited war model. But as Lincoln later explained it, his new view was that the laws of war authorized armies to do virtually "all in their power to help themselves, or hurt the enemy." Lincoln insisted that there were "a few things regarded as barbarous or cruel" that were beyond the pale. But there could be little doubt that Lincoln's Emancipation Proclamation would extend the war effort beyond the battlefield and into plantations across the South.

The second stage came that winter, soon after Lincoln finally fired the slow-moving McClellan. After appalling casualties on both sides at Antietam in September 1862 and in the midst of a devastating defeat at Fredericksburg, Va., in early December, Lincoln commissioned a new compilation of the rules for war. Written by a committee of veteran Union officers led by a professor at Columbia College named Francis Lieber, the code aimed to update the laws of war for modern conditions. It would enable the new, more aggressive war that Lincoln wanted to wage in the spring campaigns of 1863 while preventing aggressive modern warfare from sliding into total destruction.

The code reduced the international laws of war into a simple pamphlet for wide distribution to the amateur soldiers of the Union army. It prohibited torture, poisons, wanton destruction, and cruelty. It protected prisoners and forbade assassinations. It announced a sharp distinction between soldiers and noncombatants. And it forbade attacks motivated by revenge and the infliction of suffering for its own sake. Most significantly, the code sought to protect channels of communication between warring armies. And it elevated the truce flag to a level of sacred honor.

In the spring of 1863, Lincoln's code was given not just to the armies of the Union but to the armies of the Confederacy. The code set out the rules the Union would follow—and that the Union would expect the South to follow, too. For the next two years, prisoner-exchange negotiations relied on the code to set the rules for identifying those who were entitled to prisoner-of-war status. Trials of Southern guerilla fighters and other violators of the laws of war leaned on the code's rules for support. The Union war effort became far more aggressive than it had been under McClellan's rules. As the Union's fierce Gen. William Tecumseh Sherman put it, Lincoln brought the "hard hand of war" to the population of the South. But this more aggressive posture was not at odds with Lincoln's new code. It was the code's fulfillment.

As the code's Confederate critics noticed immediately, the laws of war Lincoln announced in 1863 were far tougher than the humanitarian rules McClellan had demanded a year earlier. The code allowed for the destruction of civilian property, the bombardment of civilians in besieged cities, the starving of noncombatants, and the emancipation of civilians' slaves. It permitted executing prisoners in cases of necessity or as retaliation. It condoned the summary executions of enemy guerillas. 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," the code declared, "is paramount to all other considerations." Lincoln's code was a body of rules not for McClellan's gentleman's war but for Sherman's March to the Sea.

Got that? Lincoln took an existing code that he felt constrained by and rewrote it to allow nearly any means necessary. But W departed from that standard when he rewrote some laws to make the WoT more effective. Here are two things Lincoln did that W could have restored: no trails for the enemy and a 24% death rate at Guantanamo, like Lincoln oversaw at Camp Douglas.

Posted by Orrin Judd at February 11, 2009 2:26 PM