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Bush, Torture and Lincoln’s Legacy

By James Ross

Published in America Magazine, August 1, 2005

Being the only superpower means never having to say you’re sorry. In the year since the first photos of humiliation and torture at Abu Ghraib prison were leaked, there has been a flurry of Pentagon studies, jump-started criminal investigations and disturbing new revelations in the media. Yet public attention has not translated into sustained public outcry. The Bush administration has been remarkably successful thus far in avoiding paying a political price for policies that are destined to endanger U.S. soldiers in future wars and harm America’s long-term foreign policy interests.

" Making the Geneva Conventions optional and failing to properly punish those responsible for war crimes will place captured American soldiers and civilians in future wars at greater risk. States that for nearly 150 years have looked to the United States as a source of inspiration for the treatment of prisoners in wartime have lost an important ally. "
James Ross, Senior Legal Advisor
An important reason for this muted outrage has been the administration’s skill in disparaging the laws of armed conflict -- that hoary body of international law that does not ban war, but seeks to minimize the suffering war invariably produces. The administration has sought to portray this law, particularly the Geneva Conventions of 1949, as harmful rather than helpful for protecting America’s security.  
When the first detainees arrived at Guantanamo Bay in January 2002, Defense Secretary Donald Rumsfeld declared them all to be unlawful combatants who “do not have any rights” under the Geneva Conventions. The U.S., he said, would “for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate.” Later that month, then White House counsel Alberto Gonzales wrote to President Bush that the Geneva Convention provisions on questioning enemy prisoners were “obsolete” and argued, among other things, that rejecting the applicability of the Geneva Convention “[s]ubstantially reduces the threat of domestic criminal prosecution” of U.S. officials for war crimes.  
Over the objections of then Secretary of State Colin Powell and military leaders, President Bush essentially adopted this line. On February 7, 2002, he announced that the Geneva Conventions did not apply in military operations against Al Qaeda. Rumsfeld told journalists that day: “The reality is the set of facts that exist today with the Al Qaeda and the Taliban were not necessarily the set of facts that were considered when the Geneva Convention was fashioned.”  
The administration’s rejection of the Geneva Conventions was unlawful, unnecessary and ultimately led to the abuses of prisoners in Afghanistan, Iraq and at Guantanamo Bay. Under the Geneva Conventions, captured members of armed groups such as Al Qaeda are not entitled to prisoner-of-war status. They are nonetheless entitled to the basic protections afforded all persons picked up in a battle zone, including protection from torture and other ill treatment, a fair trial should they be charged with a crime, and, in the case of civilian detainees, the periodic review of the security rationale for their detention.  
The administration’s policy opened the door for the bizarre legal theories put forward in the infamous “torture memos” drafted in 2002 and 2003. Besides nearly defining away the concept of torture, these memos claim that no law, international or domestic, bans the president as commander-in-chief from ordering torture (by this reasoning, Saddam Hussein could lawfully order torture too). Although the White House frequently repeated the mantra of “humane treatment” of detainees, the rejection of the Geneva Conventions and the torture memos’ encouragement of unlawful practices meant that the pragmatic and legally grounded U.S. military regulations on interrogations could safely be ignored.  
The Bush administration’s attitude towards the laws of war is a radical departure from longstanding U.S. military practice. During the Korean War, the United States treated enemy soldiers in accordance with the Geneva Conventions even though none of the protagonists had yet to ratify the treaties. In Vietnam, captured Viet Cong were held as prisoners-of-war even though the letter of the law did not require it. It’s an old and noble tradition: David Hackett Fischer in his recent book, Washington’s Crossing, describes how General George Washington made sure that captured British and Hessian solders were treated humanely even though the British often executed captured Continentals. Washington wasn’t just being generous: he understood that such treatment would over time best serve the interests of American soldiers.  
Surprisingly little attention has been paid to President Bush’s -- and everyone else’s -- most admired president, Abraham Lincoln, on the laws of war. Despite the grave threat the Civil War posed to the nation, Lincoln recognized the value of broadly recognized rules of war that promote restraint and humanistic principles.  
By late 1862 the bloody day at Antietam and the issuance of the Emancipation Proclamation had totally changed the nature of the war. In Bruce Catton’s words, “[t]he war now was a war to preserve the Union and to end slavery…. It could not stop until one side or the other was made incapable of fighting any longer; hence, by the standards of that day, it was going to be an all-out war – hard, ruthless, vicious….” Lincoln recognized that such a conflict required greater attention to war’s customary rules, not less.  
First was the problem of the legal status of captured Confederate soldiers. Lincoln did not want to recognize the rebellion of the southern states as legitimate, nor was it desirable or feasible to label all Johnny Rebs as traitors subject to execution. He needed a way to treat captured Confederate soldiers as prisoners of war without suggesting that the Confederate States of America was a lawful state.  
Second, the hyper-expansion of the U.S. military from a peacetime force of 13,000 professional soldiers to multiple armies of several hundred thousand volunteers and conscripts placed huge burdens on military discipline. In northern Virginia and other areas under federal occupation, vandalism by Union forces was rampant. Whereas the old army could slowly inculcate new recruits with the traditional laws of war, the Civil War army, whose officers were often as green as its foot soldiers, required a clearly written set of rules of practical value.  
Lincoln turned for advice to an émigré legal scholar, Francis Lieber, at Columbia College (now University) in New York City. Born in Berlin, Lieber as a teenager fought and was severely wounded during the Waterloo campaign. Prussian political repression brought him to the United States in 1827. He taught for many years in South Carolina, keeping quiet his strong abolitionist views until he transferred to Columbia’s faculty in 1857.  
More than his European upbringing, Lieber’s views on the laws of war reflected his life in America: two of his sons fought for the Union, one losing an arm at Fort Donelson. And his eldest son, raised in the South, joined the Confederate ranks and was mortally wounded at the Battle of Williamsburg in May 1862. In a letter to Senator Charles Sumner of Massachusetts, Lieber wrote: “I knew war as [a] soldier, as a wounded man in the hospital, as an observing citizen, but I had yet to learn it in the phase of a father searching for his wounded son, walking through the hospitals, peering in the ambulances.”  
Contrary to prevailing attitudes in the North, Lieber urged that Union forces on humanitarian grounds provide the privileges of belligerency to Confederate forces. This allowed Lincoln to dodge the thorny question of appearing to recognize the Confederacy while providing rebel soldiers the protections then normally due prisoners-of-war. (Bush appeared to be adopting this approach when he called for the humane treatment of Guantanamo detainees, but the practice never measured up to his words.)  
This humanistic strain runs through Lieber’s "Instructions for the Government of Armies of the United States in the Field," which President Lincoln approved on April 24, 1863 as General Orders No. 100. The Lieber code, as it is now known, was the first recognized codification of the laws of war. As Lieber noted at the time, “nothing of the kind exists in any language. I had no guide, no ground-work, no text-book.” Its 157 rules made a lasting place for Lieber -- and the United States -- in the development of the laws of war.  
Lieber was no softie when it came to warfare. While believing that the final aim of war was to reestablish the state of peace, he argued that the best way to achieve this was through short, decisive wars. As article 29 of Lieber’s code states, “the more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.” This thinking underlines U.S. war-fighting doctrine today.  
The Lieber code has been criticized for its reliance on the doctrine of “military necessity,” which permits often-egregious practices so long as a commander has a military justification, an all too handy escape clause. But Lieber’s conception of military necessity actually placed limits on an army’s actions where previously none existed: thus pre-Lieber code armies could loot and destroy civilian property at will, even when there was no military need for doing so. Other Lieber code provisions considered barbaric today – such as the starvation of besieged towns – were part and parcel of nineteenth century warfare and have since been prohibited.  
Such caveats aside, the Lieber code consolidated important humanizing elements of warfare. Of particular note are Lieber’s, and ultimately Lincoln’s, views on the treatment of prisoners. Article 16 of the code boldly states: "Military necessity does not admit of cruelty--that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.” All forms of cruelty against prisoners are prohibited. Even the code’s broad acceptance of military necessity does not provide a justification for torture.  
General Orders No. 100 was distributed to the Union armies in the field and the standards set by the code seem to have been generally observed by both sides. At the close of the war, the code’s precepts figured in the debate over Sherman’s destructive “March to the Sea,” and the trial and conviction of Captain Henry Wirtz, commandant of the notorious Confederate prison camp at Andersonville in Georgia.  
The major powers of Europe quickly recognized the value of codified laws of war and Lieber’s code became the model for Prussia and other armies on the continent. Ultimately this American vision of warfare and the treatment of prisoners became the basis for the major international treaties, namely the Hague Regulations at the turn of the nineteenth century and the Geneva Conventions. Geneva’s strict prohibitions on torture and other cruel treatment can be traced through Lieber’s own uncompromising language.  
The Bush administration, through its open disregard for the laws of war in its treatment of detainees, has undermined an important American tradition. Even after the publication of the Abu Ghraib photos, Secretary Rumsfeld continued to pooh-pooh the Geneva Conventions. He told NBC’s “Today” on May 5, 2004 that the conventions “did not apply precisely” but were “basic rules” for handling prisoners. Visiting Abu Ghraib a week later, Rumsfeld remarked: “Geneva doesn’t say what you do when you get up in the morning.” Actually, the U.S. armed forces have devoted considerable energy over the years to making the Geneva Conventions fully operational by military personnel. Various U.S. military field manuals and operational handbooks provide the means for implementing Geneva Convention provisions, even where those provisions are unclear.  
While the media often still refer to the “Abu Ghraib scandal,” we now know serious crimes were committed in several dozen detention centers in Iraq, Afghanistan and at Guantanamo Bay. At last Pentagon count, no less than twenty-seven detainee deaths were criminal homicides. The CIA has admitted to using “water boarding” (near drowning), unmistakably a form of torture. And documents newly released under the Freedom of Information Act have confirmed some of the more outrageous accounts of detainee abuse. In the meantime, one suspects those Abu Ghraib photos are being used by Al Qaeda and others as recruiting posters.  
The White House has treated these crimes in the manner of a tin-pot dictatorship. It has engaged in pseudo hand wringing, dog-and-pony investigations and lackluster criminal prosecutions that have concentrated on the “bad apples” at the bottom of the barrel and ignored those at the top. The connection between the official policies and the unofficial practices has yet to be fully investigated. Administration officials most responsible have gotten promotions and praise rather than the boot.  
One top official, now out of office, fully understood where the administration was leading us. The day after Alberto Gonzales sent his January 2002 memo to the president, Colin Powell submitted a stinging rebuke. He wrote that declaring the Geneva Conventions inapplicable to the Afghan conflict would “reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.” And he warned that it would have “a high cost in terms of negative international reaction, with immediate adverse consequences for our conduct of foreign policy.”  
Other dissenters are beginning to come out of the woodwork. Shortly after stepping down from his post as State Department legal advisor, William H. Taft IV told an audience at American University in March this year: “It has been a continuing source of amazement and, I may add, considerable disappointment to me that… lawyers at the Department of Justice thought it was important to decide at that time that the Conventions did not apply to al Qaeda as a matter of law.…. This unsought conclusion unhinged those responsible for the treatment of the detainees in Guantanamo from the legal guidelines for interrogation of detainees reflected in the Conventions and embodied in the Army Field Manual for decades.”  
Making the Geneva Conventions optional and failing to properly punish those responsible for war crimes will place captured American soldiers and civilians in future wars at greater risk. States that for nearly 150 years have looked to the United States as a source of inspiration for the treatment of prisoners in wartime have lost an important ally. And the difficult task of promoting decent conduct in the world’s myriad vicious little wars – wars that often affect U.S. interests – has now become even harder.  
George W. Bush has a long way to go before he can claim Abraham Lincoln’s legacy to a humane articulation of the laws of war. It is a legacy that has long served the interests of the United States and for which Americans can genuinely be proud. It is a legacy that with each feckless Pentagon investigation and half-hearted war crimes prosecution becomes forever imperiled.  

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