Lieber's Code

David Bosco has a terrific piece in the newest issue of The American Scholar about the first American attempt to codify the proper treatment of captured insurgents. It occurred in 1863, during the Civil War, and it was written by Francis Lieber, a Prussian immigrant, military veteran, and college professor. The whole thing is worth reading, but what I find most admirable about it is its acknowledgment of modern complications. On the torture issue, I agree with those like Andrew Sullivan who argue forcefully that it's necessary for the U.S. to return to the high ground, from which Rumsfeld, Cheney, and Bush have sent us scurrying. But, whereas Sullivan once tempered his passionate dissent by arguing for the unique nature of current conflicts, he's mostly given that up. (And I can understand that.) Bosco grants the subject more complexity, though he reaches similar conclusions. Lieber was a fevered supporter of the Union, but this didn't cause him to lose "his critical eye":

"I am indeed against all dainty treatment of the prisoners in our hands," (Lieber) wrote Sumner, "but for the love of our country and the great destiny of our people, do not sink, even in single cases, to the level of our unhappy, shameful enemy."

But Lieber drew a line at those who adopted guerilla tactics:

Those Southerners who engaged in hit-and-run attacks on Union forces and then blended back into civilian life could be treated like "highway robbers or pirates," he wrote. They deserved none of the benefits of prisoners of war, and they could be summarily executed.

Lieber's thoughts, if sometimes vague (though you wouldn't know it from summarily executed), were taken seriously:

Lieber's Code had immediate credibility with politicians and warriors, in no small part because it was written by a man who knew war, understood its occasional necessity, and believed deeply in the justness of his cause. Today, by contrast, the task of monitoring and developing the law of war has often fallen to—or been taken up by—a host of nongovernmental organizations. Many of these activists believe that the use of force has little place in world affairs and hope to legislate it out of existence. As the legal scholar Kenneth Anderson has argued, "The pendulum shift toward [nongovernmental organizations] has gone further than is useful, and the ownership of the laws of war needs to give much greater weight to the state practices of leading countries."

To point out the growing chasm between those who are draw up military policy and those who draw up the rules for military policy is the first step in Bosco's complex view. The second is the simple -- and, I think, far too often overlooked -- question of what it means to lose mutuality in the rules of war (italics mine):

Not only has enthusiasm for the regulation of warfare passed into new and nonofficial hands, but the realities of today's conflict have further reduced official incentives to engage in the task Lieber embraced. The brigands, thieves, and insurgents whose status Lieber struggled to define were at least operating on the edge of a classic war between organized armies. America's struggles in Iraq and Afghanistan offer no such order. Insurgents are now the heart of the matter, not a nettlesome complication. The disappearance of organized opponents undercuts reciprocity, the law of war's most valuable ally. American troops are now rarely taken captive, and when they are, there is little expectation that they will be treated humanely. The moral calculus that led regular armies toward mutual moderation, at least in how they treated prisoners, has been upset. "The legal framework for regulating war," contends Syracuse University professor William Banks, "does not contemplate asymmetric warfare waged by non-state actors and thus fails to regulate perhaps the dominant form of warfare for the 21st century."

None of this -- none -- is an apology for the Bush administration. As Bosco writes in the end:

The prospect today of amending the international rules governing warfare via negotiations with dozens of countries—some of them hostile—is daunting. ... Bush officials have sometimes grumbled about the inadequacy of the existing framework but have proffered little to take its place. ... Lieber and Lincoln proudly published their code, flawed and ambiguous though it was. The nation's current leadership has preferred secret memoranda and strained interpretations. Too often now, the noble effort to expand and codify the international law that Lieber gloried in no longer appeals to the world's most powerful state. For the good of international law and of the United States, that must change.