Lincoln, the Leiber Code, and Total War

March 19, 2007


AMERICAN EMPIRE

By Joseph E. Fallon

The American Civil
War was an unparalleled tragedy for the United States
and the world. For it ensured that, thereafter,
civilians everywhere were treated as "legitimate"
targets in time of war.


As in all wars,
the victor wrote the official history of the conflict to
extol its virtue and to demonize its opponent. Unlike in
earlier wars, however, the victorious North also
exonerated its conduct by successfully rewriting
international law governing warfare. This was achieved
through the adoption of the Leiber Code, which declared
total war—the deliberate targeting of civilians, women
and children, the sick and the elderly—"lawful,"
even justifiable on "humanitarian" grounds. The
Leiber Code was a repudiation of our civilization`s
traditional rules of engagement, developed over the
previous millennium, which limited the scope of war and
protected the life, liberty, and property of civilians.

Lincoln`s strategy
was to defeat the Confederacy by targeting Southern
civilians. One of his first acts of war was to order a
blockade of Southern ports on April 19, 1861, to deny
food and medicine, among other items, to civilians.
Because such acts violated traditional U.S. military
rules of conduct, Lincoln needed a new code to justify
this behavior. So he commissioned Francis Leiber, a
prominent Northern attorney and scholar, and a former
advisor to Otto von Bismarck, to write it.

Leiber was the
perfect choice. The Prussian immigrant was contemptuous
of the Constitution. He dismissed the federal order it
had established as a union of

"confederacies of petty sovereigns"
based on the
"obsolete ideas" of Thomas Jefferson. He shared
Lincoln`s drive to centralize political power in the
executive branch. Together, they alleged that, in
wartime, implied powers in the Constitution grant the
president authority to enact legislation as well as to
interpret the Constitution—to deny or suspend
constitutional rights as the chief executive sees fit.

The new military
code Leiber produced was entitled

"Instructions for the Government of Armies of the United
States in the Field."
A catalogue of 157
rules, it was promulgated by Lincoln on April 24, 1863,
as "General Orders No. 100." The code had two
functions. First, it provided the needed "rules"
to justify Lincoln`s conduct of the war. Second, it
further consolidated power in the office of the
president by usurping key constitutional prerogatives of
Congress.

According to
Article l, Section 8, of the Constitution, only Congress
can "make laws for the Government and Regulation of
land and naval Forces,"
and only Congress can
"provide for organizing, arming, and disciplining, the
Militia, and for governing such Part of them as may be
employed in the Service of the United States."

Lincoln had already usurped the powers to declare war
and to suspend habeas corpus—powers also reserved to
Congress.

Of his
"Instructions,"
Leiber claimed at the time that
"nothing of the kind exists in any language. I had no
guide, no ground-work, no text-book."
This assertion
is championed by many of his admirers, including PBS. A
section of its website devoted to the documentary Berga:
Soldiers of Another War includes a resource page
entitled "POWs
and the Laws of War,
" which states,


The Lieber Code broke
new ground in dictating military conduct during warfare.
Principally, it created a clear distinction between
permissible conduct towards combatants . . . and
non-combatants. Non-combatants—the civilian
population—were to receive fundamentally different
treatment during armed conflict, including protection
from the conflict.

Both claims are
false. Rules on warfare existed in Greek, Latin, and
French. They are derived from the works of Aristotle and
Cicero. The proper legal and moral grounds for going to
war and how to conduct war, including proportionality
and noncombatant immunity, had been extensively
described in the writings of Augustine, Aquinas,
Grotius, Suarez, Vattel, and Vitoria.

These writings
formed the legal foundation for national ordinances and
bilateral treaties, which became increasingly more
comprehensive in their scope and together constituted
what became customary international law on warfare.
Among such early laws were "Constitutions to be Made
in the Army of our Lord the King,"
by King John
(1214); the Durham Ordinances of War, by King Richard II
(1385); the Mantes Ordinances of War, by King Henry V
(1419); and "Prevent Pillage and Abuses by Soldiers,"
by King Charles VII (1439).

Until the Leiber
Code, the preeminent legal authority on war for the
government and the military of the United States was
Emmerich de Vattel`s Law of Nations (1758), which
declared:


Women, children,
feeble old men, and sick persons, come under the
description of enemies; and we have certain rights over
them, inasmuch as they belong to the nation with whom we
are at war . . . But these are enemies who make no
resistance; and consequently we have no right to
maltreat their persons or use any violence against them,
much less to take away their lives. This is so plain a
maxim of justice and humanity, that at present every
nation in the least degree civilized, acquiesces in it.
. . .

Vattel continues,


At present, war is
carried on by regular troops: the people, the peasants,
the citizens, take no part in it, and generally have
nothing to fear from the sword of the enemy. Provided
the inhabitants submit to him who is master of the
country, pay the contributions imposed, and refrain from
all hostilities, they live in as perfect safety as if
they were friends: they even continue in possession of
what belongs to them: the country people come freely to
the camp to sell their provisions, and are protected, as
far as possible, from the calamities of war.

In his book
International Law, or, Rules Regulating the Intercourse
of States in Peace and War (1861), used by the faculty
of West Point in the classroom, America`s leading expert
in the field, Gen. Henry W. Halleck, reaffirmed Vattel`s
legal opinions.

But customary
international law was overthrown by the Leiber Code`s
advocacy of total war based on "military necessity."
Article 15 of the Leiber Code states that


Military necessity
admits of all direct destruction of life or limb of
armed enemies, and of other persons whose destruction is
incidentally unavoidable in the armed contests of the
war; it allows of the capturing of every armed enemy,
and every enemy of importance to the hostile government,
or of peculiar danger to the captor; it allows of all
destruction of property, and obstruction of the ways and
channels of traffic, travel, or communication, and of
all withholding of sustenance or means of life from the
enemy; of the appropriation of whatever an enemy`s
country affords necessary for the subsistence and safety
of the army . . .

To justify
total-war tactics, Article 29 claims that, "The more
vigorously wars are pursued, the better it is for
humanity. Sharp wars are brief."

In place of
Vattel`s "maxim of justice and humanity," the
Leiber Code declared (Article 17) that "It is lawful
to starve the hostile belligerent, armed or unarmed, so
that it leads to the speedier subjection of the enemy."

In addition,


When a commander of a
besieged place expels the noncombatants, in order to
lessen the number of those who consume his stock of
provisions, it is lawful, though an extreme measure, to
drive them back, so as to hasten on the surrender
[Article 18].


Commanders, whenever
admissible, inform the enemy of their intention to
bombard a place, so that the noncombatants, and
especially the women and children, may be removed before
the bombardment commences. But it is no infraction of
the common law of war to omit thus to inform the enemy.
Surprise may be a necessity [Article 19].


The citizen or native
of a hostile country is thus an enemy, as one of the
constituents of the hostile state or nation, and as such
is subjected to the hardships of the war [Article 21].


. . . The principle
has been more and more acknowledged that the unarmed
citizen is to be spared in person, property, and honor
as much as the exigencies of war will admit [from
Article 22].


The law of war can no
more wholly dispense with retaliation than can the law
of nations, of which it is a branch [Article 27].


. . . No body of
troops has the right to declare that it will not give,
and therefore will not expect, quarter; but a commander
is permitted to direct his troops to give no quarter, in
great straits, when his own salvation makes it
impossible to cumber himself with prisoners [from
Article 60].

The Leiber Code
schizophrenically claims to promote humanitarian
principles while deliberately undermining them with
qualifications and obfuscations. For instance, Article
16 states, "Military necessity does not admit of
cruelty—that is, the infliction of suffering for the
sake of suffering or for revenge . . . "
This
implies the infliction of suffering is permitted for
other reasons.

Article 38
proclaims, "Private property, unless forfeited by
crimes or by offenses of the owner, can be seized only
by way of military necessity, for the support or other
benefit of the army or of the United States."
Since
military necessity is effectively defined by the whim of
the commander in the field, there is, in fact, no
protection for private property.

In Article 44,
Leiber decrees that "all destruction of property not
commanded by the authorized officer"
is
"prohibited under the penalty of death."
Therefore,
destruction of any and all property is lawful, as long
as it is "commanded by the authorized officer."

Excerpts from two
letters written in 1864—one, by General Sherman; the
other, by General Sheridan—bear witness to the reality
of the Leiber Code. Sherman ordered a subordinate to
"burn ten or twelve houses"
and "kill a few at
random,"
and "let them know that it will be
repeated every time a train is fired upon."

Sheridan, in turn, wrote to Grant that his troops, whom
he described as "barn burners" and "destroyers
of homes,"
had already "destroyed over 2200 barns
. . . over 70 mills . . . have driven in front of the
army over 4000 head of stock, and have killed . . . not
less than 3000 sheep. . . Tomorrow I will continue the
destruction."

It is sad that the
statesmen who signed the Declaration of Independence and
authored the Constitution and the Federalist were
succeeded by the politicians who created and promulgated
the Leiber Code. And it is alarming that the concepts
propounded therein remain acceptable under international
law. As long as they are, no civilians are safe from the
terrors of "military necessity" and total war.

Joseph E. Fallon writes from
Rye, New York.

This article first appeared
in the


January 2007 issue
of
Chronicles: A Magazine of
American Culture.