Posted by Ilya Somin:
Bush and Lincoln's Laws of War:
http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1234824811
Unlike co-blogger Eric Posner, [1]I do not support the Bush
Administration's claims of virtually unlimited executive power in
wartime. That said, I think that [2]Eric is largely correct in
suggesting that Bush's policies were more similar to those of Abraham
Lincoln in the Civil War than [3]John Fabian Witt is willing to admit.
As Witt himself points out,[4] Lincoln's 1863 Lieber Code was very
permissive, allowing a wide range of practices that modern liberals
and international law scholars would surely denounce:
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.
Several provisions of the Lieber Code sanction practices that go well
beyond anything countenanced by Bush. for example, Article 52 holds
that "If . . . the people of a country, or any portion of the same,
already occupied by an army, rise against it, they are violators of
the laws of war, and are not entitled to their protection." Under this
provision, insurgents in Iraq and Afghanistan could be denied all
protection under international law, at least after the US and its
allies occupied their countries. Articles 82 and 85 allow the summary
execution of all irregular guerrillas and resistance fighters:
Art. 82. Men, or squads of men, who commit hostilities, whether by
fighting, or inroads for destruction or plunder, or by raids of any
kind, without commission, without being part and portion of the
organized hostile army, and without sharing continuously in the
war, but who do so with intermitting returns to their homes and
avocations, or with the occasional assumption of the semblance of
peaceful pursuits, divesting themselves of the character or
appearance of soldiers -- such men, or squads of men, are not
public enemies, and, therefore, if captured, are not entitled to
the privileges of prisoners of war, but shall be treated summarily
as highway robbers or pirates [who could be summarily executed
under 19th century law].
Art. 85. War-rebels are persons within an occupied territory who
rise in arms against the occupying or conquering army, or against
the authorities established by the same. If captured, they may
suffer death, whether they rise singly, in small or large bands,
and whether called upon to do so by their own, but expelled,
government or not. They are not prisoners of war; nor are they if
discovered and secured before their conspiracy has matured to an
actual rising or armed violence.
[emphasis added].
Note that the Lieber Code allows summary execution of "war-rebels"
even if they target only the occupying army's military forces and do
not attack civilians (as Iraqi insurgents, the Taliban, and Al Qaeda
do). Despite all its other excesses, the Bush Administration did not
claim the right to summarily execute captured guerrillas and
terrorists - even those who do target civilians.
It is true that the Lieber Code bans the torture and mistreatment of
prisoners of war. However, these rights to do not extend to
"war-rebels" and other insurgents who, as Article 82 points out, "are
not entitled to the privileges of prisoners of war" and are generally
denied any protection from the laws of war (Article 52).
Moreover, it's worth noting that the Lieber Code does not forbid the
use of torture to acquire information, instead merely forbidding
"infliction of suffering for the sake of suffering or for revenge, . .
. maiming or wounding except in fight, ... [and] torture to extort
confessions" (Article 16). The Bush Administration, of course, also
claimed to forbid "infliction of suffering for the sake of suffering"
and torture for the purpose of extorting confessions, but did claim
that torture could sometimes be used to extract information from
captured terrorists and insurgents (who,let us remember, under the
Lieber Code were not entitled to any protection from the rules of
international law).
Moreover, as Witt points out, even acts otherwise prohibited by the
Lieber Code could potentially be justified if they are considered
necessary to "save the nation" (Article 5). This point is consistent
with [5]Lincoln's famous claim that the President could violate one
provision of the Constitution where doing so is necessary to save the
Constitution as a whole.
Perhaps Witt merely means to suggest that even though Lincoln's code
allowed substantive executive power as broad as Bush's position, it
paid greater respect to the forms of obeying the law. But the Bush
Administration also claimed to be bound by law. It just interpreted
that law so broadly as to permit virtually any measure the president
considered necessary to win the war.
Lincoln did differ from Bush on a number of important wartime legal
issues. For example, he did not so clearly take the position that the
President could disobey treaties and laws enacted by Congress whenever
he concluded that doing so would further the war effort. The issues
covered by the Lieber Code, however, reveal many more similarities
between Lincoln and Bush than differences.
Ultimately, I think that the precedent of the Lieber Code is a poor
justification for Bush's policies. In my view, several of the Lieber
Code's provisions go too far, including most of the articles discussed
above. The fact that Lincoln was a great president who won the Civil
War and freed the slaves does not mean that everything he did was
justified. Still, Bush's legal positions on the law of war were closer
to those of Lincoln's Lieber Code than many would like to believe.
References
1. http://volokh.com/archives/archive_2007_08_19-2007_08_25.shtml#1187914017
2. http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1234760098
3. http://www.slate.com/id/2210918/pagenum/all/#p2
4. http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument
5. http://www.scienceviews.com/parks/habeascorpus.html
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