The Gatling Gun patent drawing (1865). The gun was patented on May 9, 1865, and was officially adopted by the U.S. Army on August 21, 1866. Courtesy of the National Archives.

Rules of Engagement

Ethics in Warfare

This past week, a federal judge handed down lengthy prison terms to four former Blackwater security guards in the massacre of 14 unarmed men, women and children in Iraq in 2007 — a terrible reminder that not all is fair in war. Pope Francis meanwhile made headlines for labeling as “genocide” the mass killing of Armenians in Ottoman Turkey during World War I. And in recent years, America’s targeted drone strikes against terror suspects has raised questions about what is and isn’t an appropriate means of waging war.

So what are the “rules of war,” and who gets to decide them? In this episode, Brian, Ed and Peter look at how past generations have answered those questions. They explore the role the Civil War played in defining modern warfare, and, earlier, the violent battle tactics of European colonizers versus American Indian ways of war. And with the Syrian government facing accusations that it used toxic chemicals in a bombing raid on its own citizens, the hosts consider what made the use of chemical weapons taboo in the first place.

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This is a transcript from an earlier broadcast of this episode. There may be slight differences in wording and content.

ED: This is BackStory. I’m Ed Ayers. By some estimates, the Civil War in Syria has left more than 60,000 people dead. The US military has not intervened so far, but President Obama has said there is a red line that Syria must not cross.

BARACK OBAMA: The use of chemical weapons is and would be totally unacceptable.

ED: Now, when the Germans used chemical weapons in World War I, the line was not so red. Here’s how they justified it.

PETER: Why are we concerned about this anyway? This is actually a more humane method of warfare than bayoneting people or blowing them to pieces.

ED: So what changed? Today on BackStory, the laws of war. We’ll consider Indian massacres as well as the strategy once considered a great violation of the rules– emancipation.

BRIAN: The one thing that civilized states do not do in wartime is free enemy slaves.

ED: The Rules of Engagement– today on BackStory.

PETER: Major support for BackStory is provided by the National Endowment for the Humanities, the University of Virginia, and the Joseph and Robert Cornell Memorial Foundation.

BRIAN: From the Virginia Foundation for the Humanities, this is BackStory with the American Backstory hosts. Welcome to the show. I’m Brian Balogh, 20th century guy, here with Ed Ayers–

ED: The 19th century guy.

BRIAN: And Peter Onuf’s with us.

PETER: The 18th century guy. And today, we are taking on a touchy subject, the kind of subject that could press a few buttons.

CAROLINE FRANK: Oh, let’s press buttons. That sounds good. That’s what we should be doing.

PETER: Caroline Frank is a historian at Brown University, and she joined us to tell the story of two different wars fought by two groups of people following two different sets of rules.

ED: We’ll start with the first of these wars, what’s known as the Pequot War. In 1637, the Pequot Indians were a powerful tribe in southern New England. They controlled a lot of land and a lot of resources.

PETER: At this point, the English settlers in the area– that would be modern day Connecticut more or less– were vastly outnumbered by the Pequots. But the Indians see them as a threat, as growing in numbers and wanting more and more of their land all the time. As for the English, they see the Pequots as terrible stewards of that land and maybe in league with the devil, too.

BRIAN: So the Pequot and the English had been getting on each other’s nerves for some time– a skirmish here, a skirmish there. But eventually, the English decided enough was enough. They enlisted the help of another Indian tribe also enemies of the Pequot, the Narragansett. The Narragansett saw this as a great opportunity to move into Pequot territory. And so–

CAROLINE FRANK: They decided to advise the English on the best ways to approach a Native American tribe, militarily. And they said, the way we do things is we don’t march out in the field in the middle of the day in a big group. It’s better to get them at night when they’re not expecting you. So what happened was the English came together with the Narragansett and discussed a plan.

They decided to sail over to where the Pequots were living on the coastline by Mystic, rather than march, because it would be more quiet. And they would sail at night. They first sailed past the Pequot village and were spied by some Pequots, who thought, OK, good, they’re going away. As night fell, they turned around and came back and got off their ships and came off and came onto land and approached the village.

BRIAN: And this is where things take a strange turn.

CAROLINE FRANK: Now, the Narragansett understanding of what was going to happen at the time and the English understanding were different, and somehow they hadn’t realized how this was going to play out. In the Narragansetts’ minds, they would capture people. They had actually asked the English ahead of time to assure them that no women and children would be killed.

And as the battle started, as they went into the Pequot village, the goal was to scare people, the shock awe factor and get people to flee or lay down and surrender. And then given a surrender, the Narragansett would get what they wanted, which was hunting rights in the area, maybe some Pequot slaves. Instead, the English, who came from a very different background of warfare– and this is where we get into the really interesting aspect of the story– the English were shooting at people and fired the entire village.

The Narragansett saw the fire going up and were horrified. And people began to flee from the village. And as people were fleeing, the English would shoot them point blank with their firearms. At the end of the day, over 700 Pequot men, women, and children, young and old were massacred. And the Narragansett were absolutely horrified.

BRIAN: When it comes to fighting wars today, there are rules everyone is supposed to play by, like the Geneva Convention, dealing with the treatment of civilians and prisoners of war, or rules about invading sovereign nations. Many of these rules have been invoked in the current debate over the use of unmanned drones by the Obama administration. Hardly a day goes by without a headline questioning the legality of so-called targeted killings.

ED: Trying to figure out what is fair in war and why are questions that Americans have struggled with for centuries. But with each new war, those questions seem to take on new currency and new urgency as people try to fit new fighting technologies into the ethical frameworks of the past.

PETER: And so today on this show, we’re going to look at some of the answers Americans have come up with. What has been considered fair throughout history? And when have people simply bent the rules to suit their own ends? Let’s return to the Pequot War of 1637, which was really more like a series of skirmishes that boiled over into the massacre we just heard about.

To understand why the Indians on both sides of that massacre would have been so horrified by it, we need to consider what their version of war fighting had looked like up until then. Here’s Caroline Frank again.

CAROLINE FRANK: The firing of the village is not something the Indians would have done. In general, when they fought, they did fight in forests, highly decorated with warpaint. The goal was to frighten your enemy, but the intention was not generally to kill. Captain Underhill, who led the Pequot massacre for the English, was a professionally trained soldier in the Netherlands. And he made the comment that the Native Americans could fight for seven years and kill barely seven people.

Scornfully and sarcastically he made that comment. For Underhill, these men were unmanly. They were wimps, as we would say today. But their goal was never to kill people. And in fact, during a Native American ambush, during a battle, if there were one or two dead in the field or on the ground, fighting stopped. And people were allowed to collect their dead and take them off the field before fighting resumed.

PETER: You mentioned the experience in the Netherlands for Underhill and other English fighters. When Europeans made war on each other, there were lots of barbarities, of course. But there was an emerging idea for a limited war or a law of nations, a law of war covering war. And that is, indiscriminate killing, particularly of civilians, was increasingly not encouraged or discouraged.

Why didn’t that ethic apply in the new world?

CAROLINE FRANK: Well, it’s interesting. I think first of all, you have to look at who’s waging the war here. Often, the English crown was against these sorts of battles. Now, it’s easy for them sitting across the ocean, but they would have preferred a more harmonious relationship between the tribes and the English who were here. They wanted them to become subjects.

But one does think of the experience these English people had had fighting the Irish. The Irish were considered tribal people who did not deserve the respect of proper military protocols. The English fighting the French or the Holy Roman Emperor, it may have been a different story than the type of battles they conducted fighting the Irish. And the approach they took with the Native Americans was similar to the way they dealt with the Irish, where some of the rules dropped.

And they did horrible barbarities, horrible things.

PETER: What was the Indian perspective on this English way of making war?

CAROLINE FRANK: I think that it was a lesson for the Indians. They had to treat the English a little more carefully. They saw that the English knew no bounds in warfare.

PETER: Over the next 40 years, the Indians in southern New England learned in this lesson well. Lots of tribes, not just the Pequot, stepped up their fighting with the colonists and started making them more alliances with one another. They gained access to better weapons, like muskets and got quite good at using them.

And everything came to a head in 1675 in another war between the English settlers, their Native American allies, and other warring Indian tribes. This one was called King Phillip’s War.

CAROLINE FRANK: It lasted a year and covered the entire scope of New England, all the way up to Maine. And it was the bloodiest war in American history on American soil.

PETER: Proportioally.

CAROLINE FRANK: Proportionally to the population at the time. And I think that it shows the degree to which there had been injury done by the English to the Native Americans across the board at this point. These cultural misunderstandings had gone too far in a lot of places.

PETER: What’s the difference between the way Indians had traditionally made war and how they were making war now in King Phillip’s war?

CAROLINE FRANK: Yeah you do see a merging at this point of the techniques of battle. And you see the Native Americans, one thing that they did quite a lot was to sneak up on families and torch their homes and kill the women and children. And some of the horrible stories that circulated about the Indians and the beginning of the myths that we have about the barbaric Indians scalping people comes from the King Phillip’s War.

This attack on people’s homes did not have any part of Indian warfare before the English.

PETER: Carolyn Frank is a historian at Brown University.

ED: Peter, that’s a very powerful story about the 17th century. We know, however, the story didn’t end there, that even if the Pequots learned savagery from them, the battles of white Americans and American Indians took place across a vast continent and for centuries. So we know that this lesson, whatever it was, had to be learned over and over again. And somehow, a commonality across all that period of time and across all that space was the treaty, the opposite of slaughter and massacre.

How did we reconcile the story that we just heard with a larger story of American Indian relations with the United States?

PETER: Well, Ed, Caroline rightly emphasizes misunderstanding across cultural boundaries. What happens over the long term is evolving understandings, ways of coexisting. On the one hand, there’s a simple brute fact of the balance of power, that is can Indians effectively retaliate well? In King Phillip’s War, they retaliate.

But the second thing in addition to recognizing the capacity or power of indigenous people is a recognition of them as people. And the treaty, which is much derided in American history in American Indian law

BRIAN: Much violated.

PETER: What are treaties after all? Treaties are just a scam, a fig leaf over the acquisition of conquest of an entire continent. I think we tend to overstate that in a sense of collective guilt about taking the land. But those treaties have consequences. And you can see it in the courts today in the disposition of cases on Indian claims, in recognitions of Indian sovereignty.

All that is the legacy of all the treaties that were made. That’s a legacy of, in fact, the way wars were conducted over the long course of American Indian history. That doesn’t mean that they were good wars. It doesn’t mean they were fought well or decently. But it does mean that you saw the enemy, that is, if you’re the Americans or the English before them, you saw the enemy as worthy of treating with.

Start off with the English settlers thinking that they are civilized, they are Christian, and they’re facing savages in the wilderness. Making war and then ended war, making peace, is a civilizing process on both sides. It’s the way that you resolve conflicts that establish precedents that, in their accumulative force, lead to something we might recognize as civilization.

BRIAN: We’re going to take a short break. When we come back, what do you do when the current rules of war restrict your tactics? Easy– change the rules.

PETER: You’re listening to BackStory, and we’ll be back in a minute.

NARRATOR: Hey podcast listeners, just wanted to let you know that with the Academy Awards coming up, we’re tackling an episode about history at the movies. Lincoln, Argo, Django Unchained– there’s been plenty of history playing in theaters this year, and we want to hear your thoughts. Go to our website,, and let us know.

What movies have made you rethink history? Does Titanic make you yearn for a simpler time before GPS navigation? Ever wonder how they research accents for period films? Let us know what’s on your mind at And thanks.

BRIAN: We’re back with BackStory. I’m Brain Balogh here with friends and co-hosts, Ed Ayers–

ED: Hello.

BRIAN: And Peter Onuf.

PETER: Hey, Brian.

BRIAN: Today, we’re talking about the rules of war in American history– who makes them, who breaks them, how do we even decide what’s fair in the first place?

ED: Today, the Geneva Conventions are the gold standard for international humanitarian law. They say what can and cannot be done to prisoners of war, to civilians, and to the injured during wartime. What you may not realize is that these laws took their modern shape in the American Civil War. It was during this war that Francis Lieber, a Prussian immigrant with ties to both the North and the South, was asked to draft a comprehensive code.

Eric Mennel has the story.

FEMALE SPEAKER: Article 79– every captured wounded enemy shall be medically treated according to the ability of the medical staff.

ERIC MENNEL: When Francis Lieber was 17, he was shot through the neck. He was from Prussia, modern day Germany. And he was fighting against Napoleon’s armies in Belgium.

MALE SPEAKER: I suddenly experienced a sensation, as if my whole body were compressed in my head. And this, like a ball, were quivering in the air. I could feel the existence of nothing else. It was a most painful sensation.

ERIC MENNEL: Lieber then asked a fellow soldier to put him out of his misery, to shoot him dead. But the soldier wouldn’t. A few minutes later, that soldier was shot in both kneecaps. He died, while somehow Lieber survived. Lieber spent the next several years studying politics and philosophy in Europe.

He hoped to get a big city university job in the United States, but the market for Prussian theorists with revolutionary tendencies was slim. And so in 1835, after a few years in Boston and Philly, he had to take a job at the New South Carolina college in the then small town of Columbia. He hated it.

He referred to it as his exile.

MALE SPEAKER: I live in the South, it is true. But with respect to culture and intellectual life, I might as well be in Siberia.

ERIC MENNEL: But over the next 20 years, the years leading up to the Civil War, it would become increasingly clear that a man longing for the North but laying down roots in the south, that was exactly the kind of man you’d want writing the laws of war.

FEMALE SPEAKER: Article 42– slavery, complicating and confounding the ideas of property and of personality exists according to municipal or local law only. The law of nature and nations has never acknowledged it.

ERIC MENNEL: Francis Lieber owned and rented slaves to work in his home. He wrote about them in his diary.

MALE SPEAKER: Today Tom, as we call him, entered our service. He is about 14 years old, and we pay his master $4.50 a month.

ERIC MENNEL: But as the entry continues, it becomes clear that Lieber’s dealings with slavery are complicated.

MALE SPEAKER: The little boy brings with him a blanket, which is all he ever had to sleep upon. He has but one shirt. Slavery is abominable in every respect. It is a dirty, fowl thing.

ERIC MENNEL: In all of his writings to himself and his friends in the North, Liebers seems to find slavery repulsive. And yet he participated. Perhaps he felt he needed to fit in. He was a prominent professor at a prominent school in a state where slavery was a given. And he had political ambitions. He wanted to be the president of the university.

So for the 20 years he spent in South Carolina, he paid for slaves, all the while cursing the act under his breath. Though for Lieber’s oldest son, Oscar, life in the South was less complicated. He grew up there. And so in 1856, when Francis Lieber was finally asked to come back north to take a job at Columbia University, the family split. Lieber, his wife, and two younger sons moved, while Oscar, the oldest, stayed behind.

FEMALE SPEAKER: Article 21– the citizen or native of a hostile country is thus an enemy and as such is subjected to the hardships of the war.

ERIC MENNEL: When the Civil War began in 1861, all three of Lieber’s sons decided to fight, his two youngest for the North, and Oscar for the south. Meanwhile, Francis Lieber started lecturing at Columbia. His series for that fall? The laws of war.

It’s something he had been thinking about since his time fighting Napoleon, and people were fascinated. The New York Times published the lectures as they were delivered. The Civil War was posing all sorts of new legal problems, and Lieber was offering a fresh take on how to solve those problems. The Lincoln administration took notice.

They ask Lieber to consult on the issue of guerrilla warfare in Missouri. Lots of men dressed as civilians were attacking Union soldiers and wreaking havoc across the state. The Confederacy had given its blessing to these gorillas, which put the Union in a bind. Should they treat these men as legitimate soldiers or as criminals?

The old way of thinking was that all you needed to be considered legitimate was the blessing of a real army. Francis Lieber said no. If you want to be treated as a soldier, you need to look like one. You need a uniform and a command structure.

Shortly after this, Lieber received devastating news. His son, Oscar, who had been fighting for the Confederacy, had been killed in the Battle of Williamsburg. One of Lieber’s other sons, Hamilton, had been badly wounded earlier in the year. The conflict was consuming his family.

MALE SPEAKER: Behold in me the symbol of civil war.

ERIC MENNEL: And then in December, the Lincoln administration reached out again. They wanted Lieber to pull together a more comprehensive code of conduct, a law of war that would deal with all sorts of issues, a new framework for a new era of warfare. Lieber obliged.

Four months later, the Union Army issued general orders number 100– the code. It was Lieber’s magnum opus. It was groundbreaking. It covered topics ranging from torture to prisoners of war to the looting of cultural artifacts. It set the stage for the next century of humanitarian law.

We like to think that laws are decided by neutral parties, that the people who write the rules don’t have a horse in the race. But in war, it’s just the opposite. A father writing the rules for his sons seems the most logical, the most humane of authors. Lieber understood war could destroy.

In many ways, his code actually sanctions destruction. But he also understood that when it’s all over, we have to pick up the pieces. War Lieber thought, isn’t just about tearing things down. It’s about pulling them back together.

FEMALE SPEAKER: Article 16– 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. And in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

PETER: Eric Mennel is one of our producers.

ED: Now, when talk about the Lieber Code’s influence on today’s law of war, what we generally have in mind are its prohibitions against things like torture and assassination. But the thing that comes up in the code more than any of those things is actually slavery. In no uncertain terms, the code declares that slaves who have escaped to Union lines are quote, “immediately entitled to the rights and privileges of a free man.”

Another provision, one that would prove highly controversial, says that quote, “the law of nations knows no distinction of color with regards to prisoners of war.” John Fabian Witt, an historian at Yale, has just written the definitive book on the Lieber Code. According to Witt, the code, aside from regulating Army activities, was also intended to help justify Lincoln’s Emancipation Proclamation, a proclamation that could easily be viewed as a violation of the laws of war.

JOHN FABIAN WITT: Since 1775, when Lord Dunmore, last royal governor of Virginia, announces to the slaves of Virginia that if come to his side, he’ll free them. American statesmen and soldiers have been committed to the idea that the one thing that civilized states do not do in wartime is free enemy slaves. We see that from the Continental Congress.

We see it in Washington’s reaction to the carrying off of slaves from New York in 1783. And when the Union decides to move to emancipation in the fall of ’62, there’s a real threat that they are hereby violating the cardinal principle of the American laws of war. And so the Emancipation Proclamation calls forth this code to reverse that tradition and to reversed the longstanding view that emancipation is a violation of laws of war.

ED: Why would they have thought that in the first place?

JOHN FABIAN WITT: There’s two different things going on. One is the idea that slaves are private property of the enemy. So it’s not a legitimate military target. It would be like shooting at civilians to free enemy property, or destroying private property. The second side, though, is the real fear that freeing slaves in wartime will produce a service insurrection and nightmarish humanitarian atrocities.

Many white Southerners and some white Northerners looked to the Haitian revolution as an example of that.

ED: It’s so hard for us to see this clearly, it seems, because it seems that emancipation is such an obvious good that adjusting the code of war in order to accommodate it seems like a reasonable thing to do. I’m assuming that people at the time, not the least among them the Confederates, would have disagreed.

JOHN FABIAN WITT: The South was outraged when the code is issued in the spring of ’63. Jefferson Davis calls it barbaric. Secretary of war James Seddon describes it as an outrage. And they are responding to two things in it. One, they’re responding to the emancipation justifications that are in the code.

They’re also responding with outrage to the defense of the use of armed black soldiers. The South had committed itself from as early as the fall of ’62 to treating as criminals any blacks they found in Union uniforms upon being captured. And so one of the things the code does is intervene in that dispute, even as it’s arising. The code announces that there can be no discrimination on the basis of color in the treatment of enemy prisoners.

ED: Now, if we were trying to force ourselves to be completely evenhanded in all this, that sounds a little bit like changing the rules after the game has begun to advantage the Union cause, that they are, in some ways, inventing whole new categories of law that increased their odds of winning. Would that be a legitimate way of thinking of this?

JOHN FABIAN WITT: Yeah. And this opens up the puzzle of, what the heck are the laws of war in the first place? Why is it that we see strong countries around the world from Lincoln and Lieber’s time to this day, adopting rules that seem to constrain them? And one longstanding hypothesis that I take very seriously is the idea that these rules are just designed to serve the interests of those strong states in moments of crisis.

The Lincoln administration is not trying to tie its hands behind its back. It’s not trying to constraints itself. It’s trying to issue these rules in an effort to win the war. On the other hand, upon issuing these kinds of rules, they have feedback effects, that is, their unanticipated consequences that come back to bind the Union army in any number of ways.

ED: Perhaps you could tell us some of those.

JOHN FABIAN WITT: The first year and a half of the wars sees regular prisoner exchanges, which were a regular feature of warfare in Western Europe and North America. There were prisoner of war exchanges in the American Revolution. We see prisoner or war exchanges in the War of 1812. And they continue in the Civil War and then break down once the Union decides on emancipation and the arming of black soldiers.

And that breakdown helps to produce the acute prisoner of war crisis at places like Andersonville.

ED: And this breakdown occurs because President Lincoln is in a box. He wants to continue to exchange prisoners because that’s better for his own soldiers. But the Confederate will not recognize African American men as legitimate prisoners of war. And so the exchange system breaks down. Can you give us a sense of the extent of this crisis?

JOHN FABIAN WITT: There are about 55,000 deaths, both sides combined in prisoner of war camps during the Civil War. And almost all those deaths happen after the breakdown of prisoner exchanges.

ED: Certainly something the Confederates would have said is that these deaths in Andersonville are entirely on your shoulders, President Lincoln, that it’s you changing the rules halfway through. And this inhumane policy of saying that formerly enslaved men can pick up guns and shoot their masters, your reckless playing with the threat of servile insurrection, this is your doing, because you think yourself above the established European civilized rules of war and are trying to rewrite the book. Is that right, and what would he have said as a result?

JOHN FABIAN WITT: Well, that was the Southern position. And one of Lincoln’s problems is that there were people in the North who held a similar view. Even people like Walt Whitman were outraged by the decision not to engage in prisoner exchanges just on the behalf of a relatively smaller number of black soldiers.

ED: So in some ways, it seems like the South says, yes, we are a civilized Western nation. We are playing by the rules of the great Christian powers. It’s just that we do not accept that slavery is wrong, and therefore, anything that damages slavery is a violation of a higher law. Would that be a fair way of characterizing their response?

JOHN FABIAN WITT: I think that’s right. The South doesn’t innovate in the laws of war. They insist on a longstanding tradition. Seddon and Davis sound time and again like Washington corresponding with his British counterparts during the American Revolution. They are insisting on a longstanding tradition.

And that’s why it’s the Union order in the spring of ’63 that transforms the laws of war for the modern world. It’s the Union that has to innovate in the middle of the war. And it’s why Lincoln’s order becomes the basis for the international laws of war that we have today.

ED: John Fabian Witt is the author of Lincoln’s Code: The Laws of War in American History. One provision of the Lieber code that doesn’t get a lot of attention is its prohibition against sexual assault. The code made it punishable by death. This may have been overlooked, because historians have not tended to see rape as a big problem in the Civil War.

PETER: Current research is challenging this view. It’s becoming more and more clear that there was a culture of rape among both Confederate and Union soldiers. Some of it can be seen through official Army documents. One Union order declared that women in New Orleans would be considered prostitutes if they mouthed off to occupying Union soldiers. Another advised women in Tennessee to sew up the bottoms of their petticoats.

BRIAN: But even there, the picture is incomplete, because the women most affected by those orders tended to be elite whites. And historian Crystal Feimster has found that most sexual violence during the war was committed against poor white women and even more so against black women.

CRYSTAL FEIMSTER: We have overlooked black women, particularly because we’ve been committed to a narrative of the Civil War as a gentleman’s war between brothers. There’s this understanding that the Union, in some ways, was coming down, and they were allies of black folk, which actually wasn’t always the case, particularly for everyday soldiers who saw black slaves as unworthy of freedom, in a sense. And what the Lieber codes do is that it creates a pathway for black women to make claims for legal protection or to seek legal justice when they become victims of sexual assault.

BRIAN: And do you think the authors of the Lieber Codes had this in mind?

CRYSTAL FEIMSTER: I don’t think that when the Lieber Codes were written that they were necessarily thinking about black civilians. But we can’t underestimate what it meant for African Americans. White soldiers understood that prior to the Civil War, black folk couldn’t testify against white people in a court of law. And that didn’t matter if you were in the South or in the North.

And for the first time, you have black women testifying. You have a black mean testifying as witnesses of sexual assault. And so you’ll have a case, and a soldier will say, well, actually, she’s a black person or a mulatto. She can’t testify against me because I’m white.

And the court will adjourn. And you’ll see in the court martial notes– court adjourned to discuss whether witness could testify. They always come back and say, she can testify. She has a right to testify. So this is huge, not just for black women, but black folk, generally.

In these military courts, they get to testify against white people for the first time. And I argue that this is, in many ways, a rehearsal for Reconstruction in the ways that black people began to understand their citizenship and that they have legal rights and what those rights look like. They move through the Freedman’s Bureau during Reconstruction, but they start exercising those rights through the military court.

BRIAN: Crystal Feimster is an historian at Yale.

PETER: It’s time for another break. When we come back, we’ll consider the red line between conventional and unconventional weapons. How did that line get so red, anyway?

BRIAN: You’re listening to BackStory. We’ll be back in a minute.

TONY FIELD: Hello again, podcasters, Tony Field here, senior producer of the show. If you happen to visit our website this week, you may notice a slight change there. We’re now using the SoundCloud audio player to stream new content we add to the site. Besides the changed look, we don’t anticipate any major differences on your end, though the new player will make it much easier for you to share our shows with your friends.

Just click on the Share icon within the player, and you’ll be able to post the audio directly to your Facebook page or embed it on your own site. The only small hiccup created by this changeover is that if you’re subscribed to our podcast, you may have received duplicates of last week’s show on the history of guns. We beg your forgiveness for that and promise it won’t happen again.

As always, thanks so much for listening. Talk to you next week.

BRIAN: We’re back with BackStory. I’m Brain Balogh.

ED: I’m Ed Ayers.

PETER: And I’m Peter Onuf. Today on the show, how Americans have sorted through what’s legitimate and illegitimate when it comes to fighting wars.

BARACK OBAMA: And on Syria, let me just say this. We will continue to support the legitimate aspirations–

BRIAN: This is President Obama in December, addressing reports that Syrian president Bashir Assad was on the verge of using chemical weapons against rebels in his country.

BARACK OBAMA: And today, I want to make it absolutely clear to Assad and those under his command, the world is watching. The use of chemical weapons is and would be totally unacceptable. And if you make the tragic mistake of using these weapons, there will be consequences. And you will be held accountable.

PETER: When Obama made this speech, the civil war in Syria had been raging for more than a year and a half. And an estimated 60,000 Syrians had been killed, which got us wondering– what is it about chemical weapons that conjures up threats of retaliation in a way that the deaths of 60,000 people by so-called conventional means do not? Why is it that they so obviously cross a red line?

BRIAN: For those answers, we turn to Richard Price, a political scientist at the University of British Columbia, who wrote a book called The Chemical Weapons Taboo. His story begins in 1899, when delegates from the world’s most powerful nations got together in the Hague and hashed out a list of things that would make war fighting more humane, like banning bullets that expand on impact and explosives fired from balloons. and yes, the use of projectiles designed to spread asphyxiating gases. Here’s Price.

RICHARD PRICE: It would be a mistake to single out what we now know as chemical weapons as being a highlight of that conference. My stance was it was a decidedly minor issue, almost a throwaway, because the delegates said, well, nobody has this anyway. So sure, it’s not going to harm any of us to go ahead and come up with this ban.

BRIAN: So they’re banning something that had never been used before? Isn’t that kind of the opposite of what usually happens here?

RICHARD PRICE: That’s exactly right. Typically what you see is the introduction of a new weapon in warfare. And whether it was the crossbow or the first firearms, submarines, you almost always see reactions that, oh, this is a new horrible thing. Surely we can’t go there. What was different about this one was, before you got there, you had people saying we shouldn’t go there.

Right from the get go of this weapon, it was tagged as having this moral sensibility around it.

ED: A little over a decade later, World War I, then called the Great War, broke out in Europe. And while that moral sensibility may have been the thing that kept chemical weapons from being used against civilians, it didn’t keep them off the battlefield. By the war’s end, some estimate that 40% of artillery shells were being deployed with chemical rounds.

BRIAN: Again, people worried about how this now very real weapon might be used in the future. And sure enough, we get another international agreement banning chemical weapons, the Geneva Protocol of 1925, a protocol that was greeted with a whole lot of scepticism.

RICHARD PRICE: Everybody expects World War II is going to be a chemical war. The curious thing, though, is because of this ban, there are these thresholds and these lines that were drawn that didn’t apply to other weapons. So you make allocation requests.

Well, President Roosevelt in the US said, we’re not supposed to use these things. So you don’t get appropriations. So then you feel well, we can’t really initiate this kind of war, because we’re probably not as well equipped as our opponent. Ironically, that’s what the Germans felt.

They thought the exact same thing. So this really precarious threshold somehow survived, even as virtually every other boundary in World War II was exploded.

ED: 35 years after World War II had ended, that threshold was crossed. Throughout the 1980s, Iraq used chemical weapons in its war with Iran, mostly against enemy soldiers, but also against civilians in the Kurdish region of Iraq. But Price argues that even this outbreak of chemical warfare underscored the power of the taboo against it.

RICHARD PRICE: When the Germans first used chemical weapons during World War I, what they eventually argued was, why are we concerned about this anyway? This is actually a more humane method of warfare than bayoneting people or blowing them to pieces with shells. Fast forward to the Iran-Iraq war and now to Syria. Nobody argues that.

In fact, in the Iran-Iraq war, the Iraqis refused to admit that they had used chemical weapons, even as abundant evidence emerged to the contrary. They wouldn’t acknowledge it. So they actually contributed in a curious way to the notion that the use of these weapons is aberrant, even as they used them.

ED: Today, all but six of the world’s nations have signed the latest ban, the chemical weapons convention. But for Price, the strength of the taboo is more a product of history than of international law. Over the course of the 20th century, he says, we never got accustomed to images of civilians choking on poison gas the way we did, unfortunately, to images of civilians killed by aerial bombardment.

The longer chemical weapons existed but were not used, the more people believed they should never be used. What started as a kind of dotted line at the turn of the 20th century had by the turn of the 21st century coalesced into a solid red line.

BRIAN: Richard, you’ve obviously thought about this a great deal. In your mind, is there anything about chemical weapons that makes them worse– substantively, inherently?

RICHARD PRICE: It’s really fascinating just on a very personal level. After I had written my book on the subject, it was only after I had finished the book that my mother informed me that her father, my grandfather, had in fact been gassed at Ypres in the trenches in World War I and somehow survived the attack.

BRIAN: And you then went on to explain, don’t worry, it’s no different than any other weapon.

RICHARD PRICE: Well, exactly. So I delve into this material, they say, well, how can I say this? But I read the diaries. I read the popular novels of the time. And All Quiet in the Western Front, did they single out gas? No.

Actually, what they singled out were the tanks. They said, oh, my goodness, this is this new mechanized monster. What kind of era have we entered into? And so there were different reactions to this. And that just led me just say, it’s not that people don’t feel horrified by this weapon. What’s really fascinating to me is how other things that we ought to also feel horrified at are put into this category we call conventional weapons, which is sort of soothing.

It’s OK if you get blown up.

BRIAN: It sounds kinder and gentler, doesn’t it?

RICHARD PRICE: Exactly. So the whole point of this project was less to say, these aren’t horrible. It’s to say, these other things are horrible, but we’ve put them in this category of so-called conventional weapons, which means it’s OK to get burnt to death, to get blown up to death, all these other horrible ways is which warfare is conducted. So I actually turned that around.

And I hope that that’s the message, is to get people to think, wow, why is it that we accept it’s OK to blow people up or burn them to death?

BRIAN: Richard Price is a professor of political science at University of British Columbia. He is the author of The Chemical Weapons Taboo. Thanks so much for joining us today, Richard.

RICHARD PRICE: My pleasure.

BRIAN: If you’re just joining us, this is BackStory. And we’re talking today about the rules of war in American history. We’ve reached the point in our show where we turn to our listeners for their questions and their stories on the topic.

PETER: Hey guys, gather around. We got a call from the west coast from L.A. It’s Robert. Robert, welcome to BackStory.

ROBERT: Thanks so much. After watching the US forces conduct an operation into Pakistan to kill Bin Laden and basically or essentially invade one of our allies, I was wondering if there had been other instances where we have invaded or attacked our allies and how we have justified it.

PETER: I think the status of nations we engage with or the wars we fight, it’s unclear given the way Americans have thought about their place on this continent, for instance, what kinds of claims they have to the hinterland. And there’s always been an assumption– and this is suggested by the idea of Manifest Destiny in the 19th century– that other powers all over the hemisphere, for instance, Spain, are there only temporarily.

They must recede because old empires must give way to the New Republic. And it’s that way of thinking about the world that I think has fudged the distinction between friends and enemies, because you’re inevitably going to be the dominant power in the hemisphere. And that’s a powerful American idea going back into your century, Ed.

ED: It’s not really that we’re the dominant power. We’re on the side of universal rights and justice, right?

PETER: Oh, yes. Yes. Exactly right.

ED: Especially in our hemisphere. And you think about back in the 19th century, it’s OK for us to go into Panama. It’s OK for us to go into Nicaragua. It’s OK for us to go into Mexico, because we’re not doing it out of any selfish purposes. We’re doing it to, say, open an international shipping lane.

Or we’re doing it in order to create a new home for the expansion of slavery. Or we’re doing it to free people from the yoke of the archaic Spanish. So I think there’s actually a pretty deep tradition of this that is based on an idea that we are the agents of a more universal kind of freedom and autonomy.

So I think that actually ties into the bin Laden story, which is that this is not really about Pakistani, American relations. This is about making the world safe for democracy. What do you think, Robert?

ROBERT: Actually, I think there is a really interesting link that you guys bring up that we are fighting the just war. And it’s interesting. We don’t really look at it as we’re invading Pakistan. We’re going after bin Laden, an evil guy.

PETER: You know that old phrase, might makes right? You might say that the mighty are blinded by their conception of their right.

ED: But what American policymakers would say, this is not really our right. It’s our obligation. And it’s a burden, not an opportunity that we have the capacity to get rid of Osama bin Laden and therefore we must. And even if that has the unfortunate cost of alienating our allies, that’s a short term cost for a long term benefit.

BRIAN: Thanks, a lot Robert.

ROBERT: Thank you so much. I love the show.

BRIAN: Thank you very much.

PETER: We got another call, and it’s Randolph from San Francisco. Welcome to BackStory.

RANDOLPH: Hi, and thank you very much. So I’m kind of a student of American colonialism in the Philippines. And I know that during the Philippine American War when the Filipino soldiers who fought against the Spanish turned around and fought against the Americans. And it changed into a guerrilla war. The combatants from the Philippines side, the Filipino fighters, didn’t wear a uniform.

They could blend into the population very easily. And it sort of spooked the American military. And so I was wondering, did the rules of engagement change as a result of this encounter with a guerrilla style warfare?

PETER: What Randolph is getting at is when you can’t distinguish combatants from civilian population, then it seems like it’s very hard to follow the laws of war. American soldiers were shown to have been committing atrocities or cruelties, something like our modern water boarding, pouring water into people that were being interrogated. What was the impact of all that?

ED: I think a striking things looking back on the American occupation of the Philippines is how racialized is was. They made up any kind of name that they could think of. Racist slang that’s usually applied to black people. They called them Indians– just anything that justified behaving toward them in ways that the military felt was necessary to triumph.

BRIAN: Randolph, if you ask a question– this is Brian, 20th century guy– you ask a question at the beginning of my century, I’m left with no alternative but to move forward rather than back in history. And to move forward, we declared victory shortly after this started in July 4, I think, of 1902. And the problem became one of the Philippine government fighting these indigenous brigands, as we put it.

And the reason I talked about moving forward is I think that this foreshadows the central strategy for Americans dealing with what we consider to be unconventional war. And that was to make it the war of the proxy governments that we supported. And what I have in mind specifically is Vietnamization in Vietnam.

We simply never came up with a terribly effective set of rules of engagement to deal with those tactics. And what we did come up with was withdrawing, Vietnamizing, if that is a verb, the war in Vietnam and pulling out. We also take advantage today of our global alliances. And in the global war on terror against a global enemy, as we put it, we use techniques like rendition, sending prisoners in the war on terror to foreign countries and letting countries that are not as burdened by constitutional niceties deal with getting information.

If there are things that we are uncomfortable doing that don’t quite fit within the Geneva protocols, well, then let’s contract out.

RANDOLPH: The point about rendition and having the other guys do the dirty work, that’s what’s striking about the American military action in the Philippines at the turn of the 20th century. And that it was done by Americans. And in particular, there’s this one guy that stands out. His name was Army General Jacob Smith.

They called him Howling Jake. He gave a command, which, to my mind, is one of the most atrocious commands made by a US military officer. And that’s he told his troops after 48 American soldiers were massacred, in retaliation, he ordered his troops to kill everyone over the age of 10. He also said, the more you kill and the more you burn, the more you’ll please me. So he was eventually court marshaled for that command, but it ended up being like a slap on the wrist.

And I was kind of curious how why that wasn’t more of a big deal, because it was clearly a violation of the rules of engagement even for that time period.

BRIAN: Well, Randolph, we haven’t talked about public attention to all of this. And in the case of the Philippines, we do know that is was letters from American soldiers themselves back to their family and loved ones, who, sometimes in passing and sometimes because they were concerned, mentioned the cruelties is to the indigenous people there. And a lot of people back home got pretty stirred up about this.

Some even protested. That’s, from my opinion, the good news. The bad news is that the attention to that, the ability to sustain interest in those folks halfway around the world really was very limited. But the key variable is the degree to which the public puts pressure on its government in order to comply with the rules of law.

PETER: Yeah, but that pressure works two ways, Brian, as you well know. And that is the mantra, support our troops. This is a test for patriots. Are you going to support them, or not? Of course, the savageries start with the other guys. So public opinion is a many splintered thing.

I think you’re right. It’s the glare of public opinion in the long term that brings atrocities to our collective consciousness. And some rule-making may result from that. I don’t think that the Philippines constitute a big learning experience, however. It’s a complicated thing when you extend your power and your rule across the oceans.

And as Americans discovered, it was a kind of loss of innocence, though there wasn’t much innocence to be lost after the history of the Indian Wars of the 19th century. On that exceedingly gloomy note, we thank you for stirring the pot.

BRIAN: Thank you, Randolph.

RANDOLPH: Thanks a lot, guys.

BRIAN: That’s our show for today. We have a bunch of links to source material and all sorts of legal documents about the laws of war at our website, You’ll find all our old shows there, as well as descriptions of the shows we have in the works.

PETER: Don’t be a stranger.

BRIAN: Today’s episode of BackStory was produced by Jess Engebretson, Chioke I’Anson, and Eric Mennel.

PETER: Jamal Millner is our technical director. Allen Chen is our intern. Our senior producer is Tony Field. BackStory’s executive producer is Andrew Wyndham.

BRIAN: Special thanks to Patrick Malone, Paul Kramer, Bill Kissel, and Kelley Libby.

PETER: Major support for Backstory is provided by the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, the University of Virginia, Weinstein Properties, the WL Lyons Brown, Junior Charitable Foundation, an anonymous donor, and the History Channel– history made everyday.

FEMALE SPEAKER: Pete Onuf and Brian Balogh are professors in the University of Virginia’s Corcoran Department of History. Ed Ayers is president and professor of history at the University of Richmond. BackStory was created by Andrew Wyndham for the Virginia Foundation for the Humanities.