Cracking the Code

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

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.