Lincoln's Code

by John Fabian Witt

  Russian statesmen thought it imperative for the czar’s reputation that something concrete come out of the conference. And so, facing inability to get agreements on armaments or mandatory arbitration, the delegates turned to the laws of war. Over the course of the summer of 1899, the delegations took the Geneva Convention’s rules for wounded soldiers on land and adapted them for naval warfare. They debated limits on the means and methods of combat. And most important of all, they forged a general revision of the laws and customs of war. The Russian minister F. F. Martens, who had initiated the Brussels talks a quarter century before and who now headed the Hague committee charged with updating the laws of war, credited Lincoln and Lieber with creating a blueprint for the committee’s work. Martens adopted Lieber’s functional evaluation of prisoner of war status. But the Hague committee took the American example and built on it substantially. Even the American delegation described the work of the committee as a distinct advance on the Civil War code of 1863. Where Lincoln’s instructions had permitted the execution of prisoners when a commander found himself in “great straits,” the Hague Convention prohibited prisoner execution altogether and required humane treatment under all circumstances. (For one thing, the signatory states of Europe and North America now all had the administrative capacity to hold and maintain prisoners without being strategically disadvantaged.) There was a difference in the spirit of the two documents as well, though it was not clear whether or how this translated into differences in the law. In the 1863 rules, Lieber had set out a terrifying list of the kinds of violence that war admitted and had admonished that sharp wars were shorter and thus more humane. He had written that, above all, saving the country was the paramount consideration. The Hague Conference’s law of war convention, on the other hand, cautioned against destruction, observing in a clause usually attributed to Martens that even in the absence of a particular rule or prohibition, “populations and belligerents remain under the protection and empire of the principles of international law” in wartime.

  Nonetheless, the delegates proved to be sharply divided on critical questions, including the core question for humanitarian law. Were limits on war’s destructiveness really humanitarian at all? The conveners insisted that they were. The Russian president of a Second Hague Conference in 1907 would warn that while he had “heard the opinion expressed that it was an absolutely mistaken idea to seek to diminish the horrors of war,” it seemed to him “an absolutely specious opinion.” Yet that was precisely the opinion Mahan held. Indeed, the theorist of naval power held views closer to those of von Moltke and Lieber—and even Clausewitz—than to those of the humanitarian reformers. Mahan saw the world in bleak terms; Andrew White liked to say of Mahan that “when he speaks, the millennium fades.” But Mahan was not alone in his skepticism of humanitarian reform. Secretary Hay’s instructions to the American delegation approached legal limits for war with much the same caution. With respect to new forms of explosives, as well as to aerial projectiles launched from hot air balloons and new and more destructive technologies of naval warfare, Hay instructed the American delegates to the Hague Conference that it was “doubtful if wars are to be diminished by rendering them less destructive.” To the contrary, Hay warned, the “plain lesson of history” was that “periods of peace have been longer protracted as the cost and destructiveness of war have increased.” Moreover, as Hay saw it, limitations on new technologies of destruction were especially dangerous for the United States, since “the inventive genius” of entrepreneurial Americans was one of the nation’s great strategic advantages.

  Mahan ensured that the U.S. representatives would vindicate Hay’s skeptical view. Andrew White, who headed the U.S. delegation, was no lightweight. He had been president of Cornell University and minister to Germany and Russia. He was the sitting ambassador to Germany when the conference began. But he was no match for the forcible Mahan.

  The imposing Navy man also completely dominated Captain William R. Crozier, the American military delegate. Crozier was better known as an inventor of artillery devices than as a diplomat or strategist. He could claim credit for the Buffington-Crozier disappearing gun carriage, but he turned out to be out of his depth at the conference. Once Mahan got to him, however, Crozier served as a perfectly adequate mouthpiece for Mahan’s views. In committees on which he represented the United States, Crozier first voted in favor of prohibitions on projectiles from hot air balloons and on so-called dumdum bullets that tumbled or expanded inside their target. But after Crozier consulted with Mahan, he changed his views on both questions. New technologies, Mahan admonished, might well improve navigation and make it possible for balloons to deliver decisive firepower to the battlefield without undue risk to noncombatants. In the long run, aerial warfare might thereby become the favored humanitarian way of war, reducing war’s death toll and shortening its duration. In the right circumstances, the dumdum bullet might similarly turn out to be more humane than any alternative. British major general Sir John Ardagh, for example, contended that in combat in Africa or India, dumdum bullets could stop an onrushing savage when ordinary bullets would not. Crozier offered a substitute provision that would have prohibited the use of bullets inflicting “wounds of useless cruelty.” When the conference rejected his substitute, Crozier and the British delegate cast the only two votes against the dumdum bullet ban. No other country joined them.21

  Mahan himself took the lead role for the United States in discussing a proposed prohibition on the use of projectiles designed to spread asphyxiating gases, and here too he took a position against the weight of the conference. As White later recounted, Mahan believed that a ban on poison gas “would prove to be rather harmful than helpful to the cause of peace.” Mahan announced that it was illogical and inhumane to be “tender about asphyxiating men with gas, when all were prepared to admit that it was allowable to blow the bottom out of an ironclad at midnight,” thus causing 400 or 500 men to drown. Mahan’s logic was the same with gas as it had been with balloons. Who was to say that under certain circumstances, gas might not be more humane than the gruesome destructive force of traditional military ordinance and explosive charges? It was the same logic, moreover, that Francis Lieber had brought to the laws of war and that had initially inclined him to oppose a ban on the use of poisons when he gave his public lectures on the laws of war at Columbia Law School in the winter of 1861–62. Though White initially opposed Mahan on the asphyxiating gas rule, he soon gave way to his colleague. At the end of the conference, the United States would vote against the prohibition on dumdum bullets, against the ban on asphyxiating gases, and would insist on a sunset provision limiting the prohibition on projectiles from hot air balloons to five years.

  Even then, Mahan was not done. Secretary Hay had instructed White to push for the immunity of private property at sea. Few ideas were nearer to the heart of the American law of war tradition. Ben Franklin had promoted the idea in the 1770s and 1780s. So had John Quincy Adams in the 1820s. William Marcy and Franklin Pierce had advocated the immunity of private property as an alternative to the privateering prohibition of the Declaration of Paris in 1856. But privately Mahan was violently opposed to any attempt to exempt private property from seizure in wartime. Indeed, he even resisted the old American position that free ships made free goods, the rule under which neutral ships’ cargoes were to be immune from seizure at sea. Stopping commerce on the high seas had been a critical factor in Britain’s defeat of Napoleon, and the anglophilic Mahan was loath to let that power slip out of the hands of the American and British navies now. The Russian conveners kept the issue off the agenda in 1899; but when delegations returned to The Hague in 1907 for a follow-up conference, Mahan persuaded President Theodore Roosevelt, Secretary of State Elihu Root, and a new U.S. delegation to torpedo any movement to exempt private property, even though such an exemption was still officially part of the American program at the conference. Echoing Mahan, Secretary Root told the British foreign secretary Sir Edward Grey and the U.S. de
legation that the threat of losing property in sharp wars at sea would incline the world toward peace. Indeed, the risk of losing their property would turn merchants around the world into a permanent lobby for peace. Grey agreed; “limited liability” wars, he said, were dangerous. The immunity of private property at sea would have to await another day.

  FOR ALL THE Peace Conference’s limits, the law of war convention at The Hague was a considerable success. Mahan may have helped to reign in the conference’s most ambitious initiatives for controlling the means and methods of war. But relying in large part on American contributions from the Civil War onward, The Hague conference had produced a treaty for the law of war on which a large share of the world’s sovereign states could agree. The Hague Convention even endorsed the form of the 1863 pamphlet. It required its signatory states to issue instructions to their armed forces, instructions to be drawn up in the image of Lincoln’s instruction manual for the Union armies.

  Yet there was a difficulty haunting the laws of war even at the moment of their apparent success. Would the conduct that had once seemed morally permissible for the world-historic ends of abolition also prove justified in wars of empire? The conceit of the Enlightenment’s customs and usages of warfare had been that the permissible means and methods of war could be understood independently of the justice of the cause in which they were deployed. The Civil War code had called that premise into question. But at the turn of the twentieth century, wars of empire sundered the connection between the new laws of war and the moral force of the antislavery effort that had precipitated their birth. Therein loomed a crisis for the law.

  To the Philippines and Back Again

  THE UNITED STATES went to war with Spain in 1898 deeply divided over its place in the world. A generation of aggressive imperialists, including Assistant Secretary of the Navy Theodore Roosevelt, saw the American overthrow of tottering Spanish imperial outposts in Cuba, Puerto Rico, Guam, and the Philippines as ratification of the kinds of global power that Mahan had imagined for the fast-growing republic. Missionary statesmen like the Congregationalist leader Josiah Strong thought that the United States was “divinely commissioned” to help the backward peoples of the world and to spread the blessings of American civilization. Roosevelt called the American campaign “a war for liberty and human rights.” But many anti-imperialist critics worried that American traditions of liberty would be at risk in a republic turned into an empire. Others decried the incorporation of millions of nonwhite people into what they imagined was an Anglo-Saxon country. The controversy was especially acute with respect to the Philippines. Advocates of naval power longed for a coaling station and foothold in the western Pacific. Critics viewed the peoples of the Philippines as irredeemable savages whose annexation would degrade the American character and corrupt its institutions.

  One result of the sharp domestic disagreements over the war was that no one really knew what would happen when the conflict arrived in the Pacific islands. For years, Filipino independence forces led by the handsome and charismatic Emilio Aguinaldo had been fighting against Spain and claiming (much as Washington and Jefferson had in the 1770s) the privileges of “a civilized” and “peace-loving” independent state. Now, in the summer of 1898, American forces under Commodore George Dewey, commander of the American fleet at Manila, forged an uneasy alliance with Aguinaldo’s fighters in their common cause against Spain. Officials of the American State Department in the Pacific assured the Filipino leader of the United States’ intent to cooperate with his independence efforts. But the truth of U.S. intentions was more ambiguous; and as President William McKinley dithered about whether to retain the Philippines after peace with Spain, tensions quickly heightened. For six months after Spain’s defeat in August, the United States managed by a combination of untruths and misunderstandings to keep Aguinaldo guessing about American postwar plans for the archipelago. When it became clear that the United States had no intention of leaving, hostilities broke out in a war that proved far more difficult and deadly than the one Americans had fought with Spain.

  The Philippine War of 1899–1902 produced a law of war crisis like none to that point in American history, though it bore an eerie resemblance to the controversies that would arise in Vietnam in the 1960s and in Afghanistan and Iraq in the early 2000s. After months of losing conventional battles against U.S. forces, Aguinaldo followed the Mexican example from 1847 and turned to guerrilla warfare. Among his advisers were men who admired the combat tactics of the American Indians; others adapted tactics drawn from the Cuban resistance to Spain and the Boer War against the British in South Africa. The violence of their campaign was often horrific. Corpses were mutilated; bodies were cut open and stuffed with food to attract voracious tropical ants. The insurgents executed prisoners, especially natives who collaborated with the American forces. Noncombatants were executed, too. The insurgents used poison and killed men under the protection of truce flags. American accounts of insurgent atrocities were often self-serving, but a Senate committee on the Philippines had no trouble filling reports with hundreds of credible episodes of brutal violence by insurgents.

  Filipino leaders conceded that their tactics were harsh. But they also insisted that Americans unfairly tilted the standards in their favor. Aguinaldo’s principal adviser Apolinario Mabini (widely known as “the brains of the revolution”) told American general James Bell that the so-called rules of civilized combat that purported to require Filipinos to fight in uniforms in the open were designed simply to promote the power of strong armies at the expense of powerless peoples. Guerrilla warfare was the weapon of the weak, Mabini contended, and “when it comes to defending their homes and their freedoms against an invasion,” Mabini made clear that he would be willing to resort to extraordinary means. In 1863, Francis Lieber had written that saving the country was paramount to all other considerations. Mabini now insisted that it was precisely a mark of the Filipinos’ status as a civilized people that they would fight doggedly to save theirs.

  The U.S. Army responded with a retaliatory campaign of startling violence and destruction. Reports of exceptionally harsh treatment of Filipino prisoners began to trickle back to the United States as early as May 1899. Over the next two years, American officers ordered or condoned dozens of prisoner executions, and perhaps more. Mass incarcerations put between 1,500 and 2,000 Filipinos in prison. Concentration camps moved civilians out of their homes and killed thousands when epidemics struck the overcrowded facilities. American troops destroyed large amounts of property and food supplies in the name of denying resources to the insurgents. In March 1901, when brigadier general and Congressional Medal of Honor winner Frederick Funston acquired evidence (possibly by torture) of Aguinaldo’s whereabouts, he sent a band of American soldiers and Filipino scouts disguised as insurgents to capture him. President Roosevelt quietly asked the international law expert Theodore Woolsey of Yale University to defend the legality of the ruse in the pages of the popular press, but the use of enemy garb was clearly unlawful. Lieber’s General Orders No. 100 had said so unequivocally, and in other contexts American officials said as much themselves. Funston’s daring gambit was an impetuous breach of the basic laws of war.

  Funston’s ruse looked positively tame in comparison to some of the tactics American commanders were adopting. In the fall of 1901, General Jacob Smith reacted to the massacre of fifty-nine American soldiers in the town of Balangiga by ordering his men to retaliate against the entire island. Smith ordered his men “to kill and burn all persons who are capable of bearing arms in actual hostilities against the United States.” Who was so capable? Any person over ten years old, Smith explained. The interior of the island of Samar, he instructed his men, “must be made a howling wilderness.”

  Most strikingly, American forces in the Philippines resorted to a systematic and widespread campaign of torture unlike anything in more than a century of American history. Officers hanged Filipino prisoners by the neck until they agreed to talk. They lowered prison
ers headfirst in water to threaten drowning. The torture they employed most often was known as the water cure. The practice was designed to cause the perception—indeed, the reality—of drowning. While three or four soldiers held a man down, a carbine barrel would be shoved into his mouth making it impossible for him to close his jaws. With his head held back, water was poured into his mouth and nostrils until he became unconscious, at which point the torturers rolled him over or struck him in the stomach to expel the water. Sometimes American torturers used salt water, which made it worse, or a syringe to inject the water directly into the nostrils or throat. When a victim came to his senses, he was given the choice to divulge the wanted information about the location of insurrectionists or to endure the process again. In at least one well-established case, the water cure resulted in the death of its victim.

  We can document with certainty fourteen instances in which United States forces administered the water cure. But that figure is almost surely a small fraction of the total. One enlisted man in 1902 said that he alone had administered the water cure to 160 Filipinos. Funston bitterly denied the man’s claim, but when Lieutenant General Nelson A. Miles (the man who had captured Geronimo in 1886) toured the Philippines in late 1902, he heard complaints about torture from residents in the village of Lipa on the island of Cebu, from the people of Laoag on the island of Luzon, and from the inhabitants of Calbayog on Samar. Officers and enlisted men alike testified to having seen the water cure administered on multiple occasions. Cavalrymen composed songs celebrating torture and set them to the tune of the Battle Hymn of the Republic. (“Get the good old syringe boys and fill it to the brim / We’ve caught another nigger and we’ll operate on him.”) The future president William Howard Taft, who served as civilian governor of the Philippines beginning in 1900, conceded to a Senate committee investigating war atrocities that the “so called water cure” was employed “on some occasions to extract information,” though Taft implausibly claimed to believe that prisoners asked to be tortured so as to avoid retaliation by Aguinaldo’s insurgents for having divulged information to the Americans.