This following is a reply from Guest Author John Fabian Witt in response to a book review published earlier today by David Luban on Witt’s new book Lincoln’s Code: The Laws of War in American History

David Luban’s review is the kind of review every book author dreams of: a close reading by a distinguished figure in the field.  Even better: he likes it!

I am grateful to Professor Luban and Just Security for publishing a review of Lincoln’s Code.  I am also grateful for the opportunity to offer a short response.  For I think it’s worth pointing to a disagreement that Professor Luban and I have about Francis Lieber’s approach to military necessity.  In one sense, ours is a modest disagreement arising out of a small ambiguity in the text of a now 150-year-old military order.  Nonetheless, I think the disagreement over this bit of text is worth pursuing because it reflects a very difficult underlying problem for the laws of war, one that is still pressing in the 21st century and that the history helps us see more clearly.

Here is the nub of the disagreement: Luban says that Lieber’s definition of military necessity limited military measures to those that “are indispensable for securing the ends of war.”  Luban has good evidence for his assertion: the words are Lieber’s own!  They appear in article 14 of the code.  The difficulty is that Lieber couldn’t possibly have meant this.  He couldn’t possibly have meant – and we know he did not in fact mean — to limit militaries to acts that are (as Luban paraphrases) “genuinely indispensable.”

To see why, consider the constitutional law analogue: the Necessary and Proper Clause, authorizing the Congress to make laws that are “necessary and proper” for carrying out the powers enumerated in Article I, section 8.  It is constitutional law 101 that the word “necessary” in the clause has to be read as meaning something other than, well, “necessary.”  Why?  Because there is very rarely – if ever — only one path for accomplishing some legitimate governmental power.  Instead, there are many ways to carry into execution the powers that the Constitution confers on the federal government, and if the Necessary and Proper Clause really precluded the Congress from enacting only those laws that were strictly necessary in so doing, it would undo most of the powers so conferred.  No one really thinks that’s what the Necessary and Proper Clause means – and no one should think that Lieber’s code limits armies to this impossible standard either (see McCulloch v. Maryland, 17 U.S. 316, 411-15 (1819); Akhil Reed Amar, America’s Unwritten Constitution 24 (2012)).

So why does Lieber use the language of indispensability?  Partly the answer is that some of the code is just plain sloppy.  General Orders No. 100 was drafted under circumstances far less conducive to effective draftsmanship than those under which the U.S. Constitution was cobbled together in the summer of 1787.  Lieber did the work almost entirely by himself, and outside a few clauses on hot-button issues, his code was barely reviewed before it was issued.  Lieber was not even a lawyer – his advanced training was in mathematics in Prussia.  He was notoriously wordy (many remarked that he never seemed to shut up!), and he worked very fast.  Mistakes were not entirely his fault, to be sure: the drafting was done without the benefit of today’s interagency reviews by teams of lawyers.

Consider two examples.  The first involves one of the most enigmatic clauses in the code, a clause that appears early in the code, in a stand-alone sentence appended to article 5 of the code’s section on martial law.  “To save the country,” the clause says, “is paramount to all other considerations.”  What does this mean?  Is it merely a qualification to the other provisions of article 5 on fully occupied territories versus territories that are still contested?  Is it a caveat attaching only to the provisions in the code’s section on martial law?  Or is it an omnibus carve-out to all the other provisions in the code’s 157 articles?  If it’s the latter, then most efforts of humanitarian lawyers today to read Lieber as anticipating humanitarian norms will fail.  But why would such a terrifyingly destructive principle appear so inconspicuously buried at the bottom of an obscure article in a specific section of the code?  There are no good answers here, only questions.  I think we should chalk up the provision as a sloppy expression of the fierce side of Lieber’s complicated thinking about the laws of war.

The second example arises out of the code’s ban on torture.  Assuming that torture is not subject to the “save the country” exception in article 5 (in the best reading, I think it is not), then the code’s provisions against torture are hard and fast and without qualification.  Warring states may not torture.  Ever.  Or so says Lieber’s code.  But the code advances this rule very awkwardly.  Article 16 provides that “military necessity does not admit of . . . torture to extort confessions.”  But this clause only relates to interrogations aiming to produce confessions.  It says nothing about any other kind of torture, including torture to extract strategic information. Only when combined with a later provision in the code’s section on prisoners is it clear that the rule against torture extends to using violence to extort information.

There is even one flat out mistake in the code: Lieber accidentally misstated the Union’s position on enemy obligations to paroled prisoner.  The Confederacy in early 1863 had begun releasing Union prisoners on an oath – their “parole” — not to take up arms until exchanged.  This freed Confederate resources that would otherwise have been taken up feeding, transporting, housing, and guarding Union prisoners.  But the Union insisted that its soldiers were not free to take such oaths, and that parole oaths made without the authorization of the prisoner’s own government were null and void.  In article 131 of the code Lieber asserted prisoners given such unlawful paroles were obliged to make their way back to the capturing party’s lines: “to return into captivity.”  This played right into the hands of the Confederate practice.  All through the Gettysburg campaign, Confederate officers gleefully issued unlawful paroles, relying on the Union’s own statement that such paroles obligated the prisoner himself to report to his captor’s lines.  Even as the battle raged on the third day at Gettysburg, embarrassed Union high officials were forced to issue an awkward amendment, insisting that illegally paroled soldiers were actually free to resume fighting.

All this is by way of saying that in my view, the “indispensability” requirement in the definition of military necessity is another mistake in the code.  Professor Luban’s interpretation to the contrary is incompatible with Lieber’s fierce views about what military necessity does allow, which are set out in article 15 of the code.  Moreover, it cannot explain Lieber’s troubling claim (one that Luban focuses on) that sharp wars are more humanitarian in the long run because they produce less humanitarian fall-out and, ultimately, fewer wars.

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Which brings us at last to the underlying theoretical point about the necessity standard, one that I have spent some time describing in a forthcoming chapter.

Professor Luban attributes his preferred alternative to Lieber’s necessity test to Justice Barak and the Israeli Supreme Court.  But the alternative is not actually a necessity standard at all.  It is (as Luban frankly states in his writings elsewhere) a proportionality standard, which balances the military advantage to be gained by some course of conduct against the humanitarian suffering it will cause.   Such a proportionality standard is a radically different creature than a necessity test.  Most obviously, the proportionality approach introduces humanitarian suffering into the analysis.  But proportionality and necessity are also different because they adopt different postures as to the significance of ends in the analysis of military means.

Modern proportionality analysis – which is shockingly new, as Sam Moyn has pointed out – seeks to evade the question of ends altogether (see Samuel Moyn, “From Antiwar Politics to Antitorture Politics,” in Austin Sarat, et al., eds., Law and War (Stanford: Stanford University Press, 2014)).  Ever since the middle of the eighteenth century, since at least Vattel, leading jurists in the western law of nations tradition have rejected inclusion of ends in the analysis of means.  They have insisted that thinking about ends is the mistake that medieval just war theory made, a mistake that produced downward spirals of violence as each side in a conflict insisted that it was in the right and that its enemy’s aims were unjust and criminal.  Proportionality participates in this effort by marginalizing ultimate ends and trying to confine the analysis to particulars: the direct military advantage to be gained by going up one hill rather than another, or shelling one area as opposed to another.

Necessity analysis, by contrast, is a much older standard, rooted in the medieval just war tradition.  As such, it embraces ends.  Military conduct, the necessity standard asserts, is permissible if it advances a legitimate war aim, and (as Lieber wisely added) is otherwise permitted by the laws of war.  By thus pegging the legality of military conduct to the legitimacy of the underlying war aim, the necessity inquiry doesn’t eschew ends, it welcomes them.  Necessity invites the reintroduction of precisely the questions of just and unjust wars that every modern IHL lawyer knows the field is designed to evade.

There are few better examples of the influence of the exclusion of ends from the IHL analysis than the spread and influence of modern proportionality analysis in the past four decades.  But – and here at last is the point – the exclusion of an inquiry into the justice of underlying causes has been exceedingly costly to IHL even as it has formed the basis of the field.  It has been costly because excluding underlying questions about ends and justice leaves IHL without any account of why one would ever want to fight at all.  If the theoretical basis of IHL is to minimize suffering in war, then pacifism is the logical end of IHL, because the best way to minimize suffering in war is to stop war altogether.  IHL becomes under this approach a body of law confined to reducing the suffering in war, but with no account of why suffering in war might be more important than whatever wrong or suffering warranted the sides to go to war in the first place.