>> From the Library of Congress in Washington D.C.
[ Silence ]
>> John Cole: Well good afternoon and welcome
to the Library of Congress.   I'm John Cole.

I'm the Director of the Center for the Book in the Library of Congress
which is the Library's reading promotion arm.
The Center was created in 1977 by Daniel Boorstin
when we was Librarian of Congress, and he was searching for some way
to for the Library of Congress to reach out to the general public
to promote books and reading, and the Center
for the Book was his solution.
It was created by law which has advantages in our country.
It was created, however, as a public, private partnership,
and we rely on the Library of Congress
to pay our now six staff salaries but we also rely
on private contributions to help support our program,
which includes the development of programming here in Washington
such as this Books and Beyond series.
We, with the rest of the Library, also are deeply involved
in the National Book Festival, which is a privately supported activity.
This year it will be held on the Mall September 21st and 22nd
and I hope those of you who are visiting,
that come from this near area, will take advantage and come
up and look at our website.
We're just announcing our first list of authors today
but the website is going up
and you'll get further information from our website.
The Center for the Book also has a network of state Centers
for the Book, which we have helped create, to promote books and reading
and authors in the states, and many
of the states have state book festivals, state book awards,
which is a big thing in the states.
And we also have national reading promotion partners
which are non-profit organizations, and many of them are going
to be involved, I hope, one way or another
in the Center's latest project which is the creation of the first Library
of Congress Literacy Awards, which are being developed
with private funding from benefactor David Rubenstein.
So you can tell that we have a busy and a big but a wonderful program
that above all promotes the importance of books and reading.
All of our Books and Beyond programs are noontime programs that are done
in cooperation with other divisions and I'm very pleased that today,
for the very first time, we're co-sponsoring a program
with the Federal Research Division of the Library of Congress.
Like our other programs they will be taped for showing on the Library
of Congress's website and this program should be available
in a couple of weeks.
Actually the Book Festival programs are also available on the website.
So we have developed a wonderful treasury of really and slice
of contemporary American authorship and literature.
Today's speaker will be talking for about 40 minutes.
There will be a question and answer period
and since our program is being taped for our website,
I ask you to turn off all things electronic.
There will be a question and answer period
for about 20 minutes before a book signing, which will be held
in the foyer at around one o'clock.
We do ask that, remind you that if you ask questions as part
of the question and answer period you also are giving us permission
to perhaps use your image and your questions as part
of our webcast production.
I'm especially glad to welcome actually the people
from the JAG school.
I know that this has been a cooperative effort
in getting a wonderful audience for today's talk.
I'm also pleased to welcome Robert Warden, the former Chief
of the Federal Research Division, an old friend,
who was one of the Library's old timers until he retired
and now I'm one of the Library's old timers.
But for the introduction I'm pleased to present the current Chief
of the Federal Research Division, David Osborne,
who has been the Chief for roughly five
or six years ever since Robert left.
And I'd like you to join me in a round of applause for the Chief
that helped us get started in the Books and Beyond program
of the Center for the Book.   Thank you very much David.

[ Applause ]   >> David Osborne: Thank you John.

Welcome everyone this afternoon to what I think is going
to be a very interesting lecture by our featured author.
It's a little unusual for the Federal Research Division to be
in this position but I think what I'm going to tell you
about this particular collection will explain why.
In November 1999 my predecessor, Robert Warden, and a colleague
from the Law Library of Congress, traveled to Charlottesville
to the U.S. Army Judge Advocates General's Legal Center and School
to meet with the school librarian, Mr. Daniel Lavering.
Mr. Lavering had contacted Robert a few weeks before the trip asking
whether FRD could digitize the personal library
of Francis J. Lieber.
The JAG School had been given Lieber's library
by a Lieber descendent and in the interest of preservation
and wider availability, Mr. Lavering suggested posting selected materials
on the Federal Research Division's website.
FRD ultimately took temporary custody of the Lieber collection,
but over the course of time and events,
other digitizing projects garnered priority.
In 2003 under the leadership of the Commanding General
of the U.S. Army Judge Advocate General's Legal Center and School,
and Mr. Lavering, FRD launched the Military Legal Sources webpage
on the FRD internet site.
From a rather modest beginning, the site now has
over 300,000 electronic pages and about 1700 posted documents,
and we receive well over 4 million site visits per month.
In addition to rare historical items and documents
of significant current interest, issues of Army Lawyer
and Military Law Review and the International Committee
of the Red Cross has provided its entire archive of issues
of its journal the International Review of Red Cross,
for digitizing and posting to the site.
About five years ago Professor Witt contacted FRD.
He told us that he was writing a book about Francis Lieber
and General Orders Number 100.
He asked whether he could examine Lieber's library in order
to see what items could lend additional insight into the genesis
of Lieber's ideas about the codification of laws of war.
I gave an enthusiastic affirmative to his visit
and my colleague Roberta Goldblatt agreed to host him
and present the collection for his viewing.
Now Professor Witt's book has been published
and reviewed to wide acclaim.
Named a notable book by the New York Times for 2012.
His prose is, I found, incredibly engaging and readable
and I think he composed one of the most captivating prefaces
to any book I've ever read.
Many scholars have praised the work for its deep scholarship
and insights into Lieber, the history of the law of war
in America and, perhaps as importantly,
perceptions of Abraham Lincoln.
However as many readers must have experienced, excuse me,
almost from the beginning I could not help referencing our own time
and the war against a new type of guerilla fighter,
whom we call terrorists, and our own government's approach
to these extra-legal actors.
He has discussed the crisis of, sadly, each generation's wars,
Spanish American, Philippines, World Wars one
and two and to the present day.
He has given us much new food for thought.
John Fabian Witt is the Alan H. Duffy class of 1960 Professor
of Law at the Yale law school.
In 2010 he was awarded a John Simon Guggenheim Memorial Foundation
Scholarship for his project on the laws of war in American History.
Professor Witt is a graduate of Yale Law School and Yale College
and he holds a PhD in History from Yale.
Prior to his return to that campus he was George Welwood Murray
Professor of Legal History at Columbia University,
where Lieber also was a professor of law.
Professor Witt served as law clerk to Judge Pierre Laval
on the United State Court of Appeals for the second circuit,
in addition to his scholarly activity and his academic vocation.
He's the author of two other books as well as numerous articles
and prestigious law journals, articles in the popular press
and many conference papers.
It is my great pleasure to introduce the author
of "Lincoln's Code", John Fabian Witt.
[ Applause ]
>> John Witt: Thank you David for that really warm welcome.
It's a real pleasure to be here.
The book that I've just really finished still feels new to me,
is one that was powerfully shaped by my experience
in the Federal Research Division five or six years ago.
I am very grateful to Roberta Goldblatt,
who is out there somewhere I think,
and to David for allowing that to happen.
It was really a fabulous collection of extraordinary materials
and I was really lucky to have early access to it.
I thought I'd talk a little bit about how I came
to this book project, so long as you promise not
to tell any historians what I say
because it's professionally embarrassing what I'm about to say.
You're not going to put this on the web or anything?
[Laughing] I lived in New York on 9-11.
I lived on Greenwich Street about a half mile north of the Trade Towers.
My wife and I watched the second plane hit from the street.
It was a big moment for us and for many millions of Americans,
and in the years after I watched our country come into contact
with something called the laws of war, the laws of armed conflict,
in a way that hadn't been salient to me or I think really many people
of my generation until then.
And so starting about six, seven years ago I set out to try
and make sense of this in the way that-the embarrassing part is
that I was motivated by some present problem.
It wasn't some deep historical pre-existing interest.
So I set out to try to make sense of the world that I found myself in
and do to so in a way that my training might help me make sense
of it, which was to do the thing about the history of the laws
of war in the United States.
And what I found was that the history of the laws
of war hasn't been written.
It's a very understudied area of the American experience
and we can talk later about why that might be.
I think some interesting reasons why historians haven't paid too much
attention to the history of the laws of war, really very much at all.
And in exploring that story I came across a character,
a character named Francis Lieber, who's a Prussian immigrant
to the United States, came to the United States in 1827,
and quickly became one of the United States' most garrulous
public intellectuals.
He's someone who visited the salons and living rooms all
across the east coast from South Carolina up to Boston
and became a prominent member of the public intellectual class.
Was a professor at the College of South Carolina for about two decades
until 1857 when he came to Columbia University
and became a professor there.
And what Lieber does in the middle of the Civil War,
in the winter of '62, '63, 1862, '63, is craft something
that the world had never seen before.
He crafted a pamphlet designed for the use by military officers
in the field that would condense the traditions of the laws
of armed conflict going back into the early modern period.
A tradition that had been captured before then only
in multi-volume treatises, principally in Latin and French,
some starting to be published in English at the later part
of the 18th century and into the 19th.
And he took this tradition, which is a tradition for jurists
and for diplomats and he crafted a pamphlet designed
for officers in the field.
It's the beginning of the wallet card tradition that we have today.
The soldiers have wallet cards to instruct them
on various key provisions of the Geneva Conventions
for prisoners of war for example.
And the first thing we see, first time we see anything like that is
in the American Civil War and it's in this pamphlet.
This is a pamphlet that includes rules for prisoners of war,
it has rules about torture and interrogations,
it has rules about legitimate targets and illegitimate targets,
it has the whole [inaudible] of rules and standards and principals
that we've come to think of as at the center of the laws
of armed conflict, appear in this pamphlet.
But the pamphlet posed a puzzle for me.
It's a puzzle I couldn't make sense of for a long time
and the puzzle goes a little bit like this, and I'd like to think
that the answer to this puzzle helped me make sense of the rule
of the laws of war in American history, to answer the question
that I came to the project with.   The puzzle is this.

The puzzle is what on earth was the Union Army doing in '62, '63?
He starts writing it in December.   Henry Halleck, the General and Chief

of the Union Army commissions the code in the second week of December
of 1862, and what on earth is the Union doing at that moment,
crafting a code of rules.
This is the moment when the Union has decided
to throw off the Rosewater strategy
of the first year and a half of the war.
It's the moment when the hard hand of war is being put into action.
It's the moment when emancipation is symbolic of that new,
much more aggressive, stepped up war campaign
and it's this strategic moment that calls
into question why you produce a code of constraining rules.
Why would the strong side, the side with strength in terms of resources
and manpower decide to issue rules that purport to constrain itself?
We don't see this in history very often.
The Geneva Conventions of 1949 come, as is usually the case,
in the dismayed aftermath of conflict, not in the middle of it.
It's usually after some horrific campaign, some horrific war has come
to a close that the laws of war, a set of in some ways hopeful limits
on the horrors of combat, get promulgated
as some desperate attempt to hold of horrors the next time.
So why is the Union doing this in late 1862 and into early 1863?
This code which Halleck commissions will be approved by Lincoln
and issued as general orders number 100 in April and May of 1863.
The solution to the puzzle that I've come to think makes sense
of this moment and I think helps to animate the history of the laws
of war in our country much more generally,
is that the code is commissioned because of the looming crisis
for the laws of war that's about to come upon the United States,
and that's the looming crisis of emancipation.
So emancipation is in the second week of December,
just three weeks off, on September 22nd shortly after the Battle
of Antietam, Abraham Lincoln announces to the world
that he's going to issue a final Emancipation Proclamation
on January 1st, 100 days [inaudible],
so long as the Confederacy stays in rebellion.
It does stay in rebellion and so on January 1st,
Lincoln issues the Emancipation Proclamation.
But in doing so, what we've long known that Lincoln relies
on the war power to issue that Emancipation Proclamation.
There's a wonderful new book by Jim Oaks at [inaudible]
that describes the way in which anti-slavery lawyers
in the years leading up to the Civil War, think that the only,
really only two ways, two ways to end slavery in the United States.
One is to cordon it off because the federal government can't go
into the southern states and end slavery
under the Antebellum American Constitution,
so it can be cordon off and left to wither and die over time,
or in the event of war it might be interrupted through the war power.
So this is military necessity is the source of Lincoln's authority
to emancipate slaves in rebel occupied areas.
But the problem with the military necessity idea,
and this is the challenge that Lincoln faces, is that for 90 years
until that moment the principal American tradition on slavery
in wartime was one that held
that civilized states do not free enemy slaves in wartime.
It is a cardinal violation of the laws of war to do so
and it's a cardinal violation for at least two reasons.
One is that slaves are private property.
As private property they are not a legitimate target in of themselves.
As a form of collateral damage, some slave property was damaged
or removed from the plantation, that would be one thing
but to attack private property is something
that many early American jurists had been at great pains
to try to create rules against.
In fact American jurists, people like Henry Wheaton
and Chancellor Kemp, James Kemp from New York, were among,
were at the forefront of articulating hard and fast rules
against the destruction of private property in wartime.
But there was a second reason
and I think a more powerful reason why American jurists, diplomats
and statesman had articulated rules against freeing enemy slaves
in wartime and that was the palpable risk of slave insurrection
in the event of interference with the slave economy.
From the early modern period onward one of the principal justifications
for slavery was the idea that slaves could be legitimately held
if they'd been captured in wartime and since the captor had the power,
in the early modern period, to execute the prisoner of war,
he must have the lesser included, so the theory went,
the lesser included power to enslave the prisoner of war.
So the theory of slavery is in some sense a form of suppressed warfare.
The plantations were in this kind of space of cold war between master
and slave, in which the war had been suspended by this capture,
but the fear was that that cold war, that suppressed warfare
of the plantation, might become a hot war if Union forces or forces
in any war, set free the pent up violence of the slave relationship.
There were examples that Americans thought about.
Lord Dunmore in 1775, the last British World Governor in Virginia,
made a proclamation of his own, and his proclamation was
that American slaves reaching his lines would be freed if they turned
against their Virginia rebel owners.
This produced outrage among Virginia planters and slave holders.
Produced outrage throughout the American colonies.
American statesmen like Washington watched with anger
as British vessels leave New York
in 1783 carrying thousands of American slaves.
That's Washington's view, the British view is
that they're not slaves at all anymore, but watched with anger
in 1783 as British slaves leave New York Harbor.
The pattern repeated itself in the war of 1812.
One of John Quincy Adam's great ways of reaching
out to future southern constituents was as negotiator of the Treaty
of Ghent's, in which he argued to his British counterparts
that it was unlawful, under the laws of war, for civilized states
like the British to seize American slaves in the Chesapeake
and then take them back
to the British West Indies or to British Canada.
And in negotiating the treaty and them in arguing
about the treaty's terms for a decade and a half after that,
John Quincy Adams made the argument time and time again
that it was unlawful, under the laws of war,
for the British to carry off slaves.
So when Lincoln in late 1862, in the second half of 1862,
turns to emancipation the Lincoln administration has a challenge,
and the challenge is to overturn some 90 years
of American tradition on this point.
And the deep concern is not only a private property violation
as an illegitimate target in wartime, but also a deep fear
of a humanitarian nightmare that will ensue
if slave insurrection should follow from emancipation.
And what is produced as an effort to legitimate and contain the risks
of emancipation, is this code of war.
The code of war, famously for international lawyers
and military lawyers has provisions that resonate today.
It has provisions about torture and prisoners of war
and prisoner exchange and the like, but it also has as many
as a dozen provisions, a dozen articles, about slavery
and the arming of black soldiers.
And it's those provisions that attracted most of the attention
in the drafting process, internal to the small committee
of people working with Francis Lieber to produce the text
of the code, and it's those provisions that were
at the heart of the code.
I think they are often times thought of as a side show or as a kind
of inexplicable and no longer relevant certainly a set
of passages in the code.   I think they were its cause.

They were its origin.
They are the reason the code comes into being.
It wasn't just emancipation as a law of war problem,
it was also the arming of black soldiers, which comes hand in hand
with emancipation in the fall of 1862.
And the danger with the arming of black soldiers was that the south,
Jefferson Davis taking the lead on this,
had announced in no uncertain terms
that he would not treat black soldiers
in Union uniform as soldiers.
If captured they'd be treated as criminals, as slaves engaged
in insurrection and they'd be treated
in exactly the way southern states would have treated slaves
insurrection before the war had begun.
They would be sent back to states for trial and execution.
The punitive owner would have considerable discretion
in deciding what he wanted to happen to the punitive slave,
who's a black soldier in a Union uniform,
and this produces a grave crisis as emancipation comes near.
So one of the key moves that Lieber code aims to make is
to claim an equally, in uncertain terms, an equally of certain terms,
that black soldiers in uniform are civilized soldiers entitled
to all the privileges and all the rights of prisoners
of war should they be captured.
Those are the two, the twin projects of the code I think,
the things that call it forth.
There are also two other interesting features of the code.
There are all sorts of law of war crisis and difficulties
that are arising during the course of the war but it's this crisis
that is an unparalleled, unprecedented crisis
that produces a new need for a restatement of the laws of war
that will include emancipation and include black soldiers as central
to the tradition, not as dangerous aberrations
from this course of civilized conflict.
Now historians have long left the code out of their narrative
of the history of the Civil War.   Francis Lieber is, I think,

one of the Civil War's great forgotten characters
and it's a puzzle to think of why it would be that historians have paid
so little attention to Lieber.
I think one of the reasons is that when historians watch, or imagine,
Sherman marching to the sea in 1864 or think about the hard hand of war
in the second half of the conflict,
or think about the controversy among historians that has broken
out in the last couple of decades,
about whether the American Civil War was the first total war.
They imagine that it can't be then that this code
of ostensively humanitarian constraints had much of any effect.
This must have been a minor, bit part of the war
if it should even be thought of as part of the war experience at all.
The code as I've come to think of it though should be central
to the history of the war.
I've told you one reason, that is to say that it's responding
to this emancipation crisis, the central moral pivot
of the conflict produces a law of war problem,
which this code attends to.
But it should also be central to our thinking about the way
in which the second half of the war plays out,
as important strands of it play out.
So take for example the problem of the black soldier.
The problem of the black soldier famously brings an end
to prisoner exchanges in the second half of the war.
The prisoner exchanges end
because the south will not trade black soldiers in prisoner exchanges
because they continue to be committed
to the black soldier's criminal model, and they refuse to engage
in prisoner exchanges with black soldiers.
The Union position is unless black soldiers are included no exchanges
will happen.
Now there are a variety of explanations
for why the Union adopts that position but we know
that the Union time and time again offers to make exchanges so long
as the south will enter into them
with black soldiers treated equally to white soldiers.
And the south will not agree to that.
They're committed to the idea that black soldiers
in uniform aren't soldiers at all.
Was the code doing, well the code by announcing
that the international laws of war don't recognize discrimination
on the basis of race, that they legitimate black soldiers
as soldiers as such, help bolster what becomes
of highly unpopular Union policy on refusing
to engage in these exchanges.
The northern white constituents look at the refusal
to engage in prisoner exchanges.
They see it rightly as the reason for things
like the Andersonville prison in Georgia, the population
of which [inaudible] in the absence of exchanges
to send Union soldiers back to Union lines.
And it's observed by people like no less than Walt Whitman,
that this means that a relatively small number
of black soldiers are being protected at the cost of the deaths
of eventually 55,000 soldiers north and south combined
in Civil War prison camps.
Now what this means is that the Lieber text is a participant
in this fierce, cultural controversy about black soldiers in the midst
of the war, and I think we understand
that controversy better once we integrate Lieber's text into it.
When Lincoln, on July 31st of 1863,
responds to this growing acute problem
by issuing a retaliation order,
he promises to execute southern soldiers held in Union hands
for any Union soldier held in southern hands who is executed
and to put to hard labor any southern soldiers in Union hands
in retaliation for a black soldiers re-enslaved
or enslaved in the south.
When he issues that order on July 31st of 1863,
he's drawing the language precisely from the text
that Lieber had drafted and that Lincoln himself had approved just a
couple months before.
So the Lieber code is central, once we re-understand it, as being a part
of the emancipation of black soldier's experience.
It's participating powerfully in that,
in that grave and acute moral crisis.
Now, one side note to observe about that.
International lawyers today would like to think of the Lieber code
as having made the Civil War, terrible as it was,
just a little bit more humane.
It's some progress in what's hopefully
in some international lawyer's visions, beginning the restoring
of humanitarian progress over time that might continue
if we're lucky to this day.
This story I've just told you complicates that a little bit.
The Lieber code actually is part of a Union project that may have been
in the name of justice, giving black soldiers what they're entitled to,
but it may have produced the worst humanitarian crisis of the war.
It didn't make humanitarian conditions better,
it helped make them worse by producing the prison camps in places
like Andersonville in the south or Elmira in the north for that matter,
where tens of thousands of soldiers molder and die
in the absence of prisoner exchanges.
So there's another was in which this code of war
and the legal rules behind it, helped to shape the course
of the second half of the war.
Another instance where I found powerful and important effects is
in the origins of the military commission.
So the military commission is well known to us today,
thanks to Guantanamo and its continuing travails
of the military commissions there, but there are thousands
of military commissions in the American Civil War.
And what I was able to find in the National Archives just
down the street, is that something like 1000 of those,
about 4,000 total, and something like 1000 of them involve law
of war violation charges.
That is to say that 1000 of them are essentially charge what we would
think of today as war crimes, violations of the laws of war,
although the war crime language comes later,
that isn't on the ground in the early 1860s.
And so those 1000 military commissions are themselves a product
of this law of war experience.   Lieber's code becomes a blueprint

for the Judge Advocates during Civil War military commissions.
They correspond with them quite frequently
about interpreting its terms and it is an essential feature
to these military commissions.
There's a myth that's widespread now that there's one war crime trial
in the American Civil War.
It's Wirz from Andersonville, right down the street here,
right after the war, but I think we should understand there
to have been something close to 1000 of them, none quite as prominent
as Wirz's but many producing executions and some
of them happening after the war, roughly the same time as Wirz's
from Andersonville right here on Capitol Hill.
One last example of the way in which the Lieber text helps
to shape the course of the Civil War, and here I want to go
to the hard case for the person who wants the laws of war
to have been salient and important, who wants to describe the laws
of war having been salient or important
in the Civil War experience, and that's Sherman's march to the sea
or starting with Sherman's bombardment of Atlanta at the end
of the summer of '64, and then through the rest of the year.
Historians looking at Sherman to the sea have imagined,
as I suggested earlier, that the law of war must be a side show.
But if we come back to Lieber and think about the project
that the unions engaged in, in the winters of '62, '63,
when it issues these rules, I think that the Sherman
to the March experience doesn't have to look nearly as anomalous.
And here's what I have in mind.
I've told you so far that emancipation was central
to the code's problication and to its content.
Emancipation itself was an act of vast military force and it purported
to eliminate, with the stroke of a pen,
the private property relationships of slave holders and slaves
across the rebel held south.
And what this means is that emancipation and the code
that sought to legitimate it were acts of force and acts of violence.
They may have been justified, they were justified,
but they were nonetheless acts of force.
They were, in other words, not about constraints and humanitarian limits,
they were about the execution of force.
And it turns out that if we look closer into Lieber himself,
we find a person who doesn't sit easily in a humanitarian tradition
of limits and constraints.
Lieber refers to the enlightenments great prophet
of humanitarian limits, a Swiss jurist named Vattel.
He refers to Vattel as "father namby pamby".
Mid-19th century, I would have thought
that namby pamby comes later.
No father namby pamby from the early 1860s in Lieber.
Lieber is as a Prussian a student and close reader
of Karl Von Clausewitz, who is the prophet of modern total warfare.
Lieber is really the United States' chief expert on Clausewitz.
Clausewitz won't get translated into English until 1873.
Clausewitz is known to some military strategists in the 1830s
and 40s principally because he's disgusts by Jomini,
a French military strategist who is translated into English,
but Clausewitz is, the core of Clausewitz's work is unknown
to American readers but it's very well known to Lieber
and Lieber takes it to heart.
Clausewitz comes into our time as one of the great critics
of humanitarian limits in wartime.
He describes it is not worth thinking
about as foolish limitations that aren't core to the experience of war
and Lieber stands in between the law of war tradition
from the enlightenment and Clausewitz.
Liber thinks things like short and sharp wars are better
than humanitarian constrained wars
because they'll happen less frequently
and they'll be shorter once they do.   Now this is a deeply subversive idea

for the international humanitarian law tradition even to this day.
Even to this day the humanitarian project is to create limits
and constraints on what it is that armies can do in combat,
and Lieber sees grounds for eliminating limits and constraints.
For Lieber the principal standard for the law
of war is what he calls the military necessity standard.
It's not just him calling it, he's drawing it
from a long tradition going back
into medieval just war Catholic thought.
A tradition that had been revived
in Lincoln's Emancipation Proclamation starting
in September '62 and carrying through to January of '63.
So Liber himself is actually an advocate of fierce war efforts.
War efforts that he thought were critical to the maintenance
and preservation of civilized society as the union knew it,
and because he was convinced that slavery was wrong
and that defeating slavery was a justified end, he was willing
to engage in fierce forms of violence and to allow fierce forms
of violence in the code that he produced.
Now once we understand Lieber that way
and once we understand the project of this code in '62, '63,
all of a sudden Sherman's March to the sea doesn't look nearly
as anomalous as it might have otherwise.
What looks at first to be a violation of all
of that humanitarian lawyers might hope for,
is in this way a vindication, and embodiment, of Lieber's project
to draft a set of rules that won't stop war but will keep it
within civilized, civilized constraints.
The thing that Liber found distressing about Sherman's March
to the sea wasn't anything in Sherman's strategy.
It was rather the stragglers.
The stragglers were deeply troubling to Lieber and he was
in constant contact with officers on Sherman's command
and he expresses concern in his correspondence
about what's happening with the stragglers.
And the reason the stragglers are concerning, Sherman's bummers,
are concerning to Lieber is that his worry is that irrational violence,
wanton and cruel violence, will get out of control
and produce humanitarian disasters,
could even produce a disorganized army
that might be politically dangerous in the union.
He's thinking, as a Prussian, he's worried about Napoleon and the way
in which a General of an army can become an Emperor
through the political power of an army,
and its dangerously democratic features.
So when force is rationally instrumental towards the end sought
by the state using it, Lieber thinks of it as the kind of thing
that civilized war ought to consist of.
Now, this is a morally complicated idea from the laws of war.
This is not a story of a set of glorious humanitarian limits
that imposed as in from outside constraints
on what it was the Union army could do, this is a set of rules
that emerged from Union army strategy, but it's not a story
about a set of rules that have no effect,
or at just at the phenomenal to, or to the sort of froth
on a wave driven by Union strategy.
These rules are rules that do come back to constrain
and shape Union strategy in all sorts of interesting ways.
And I started to describe some of them to you already,
the military commissions, the way
in which the international law once promulgated,
helps to shape the prisoner exchange problem, and then the embodiment
of a particular form of violence in things
like Sherman's March to the sea.
This morally difficult law of war is, I think, the way we should think
about the history of the law of war.
Not as a set of ideals outside of our strategic goals,
but as a product of strategic goals that include moral ideals.
And that's what the law of war does.
It brings, it embodies the moral goals that are internal
to the strategies of the armies that fight the wars
that are governed by them.
Now, this moral ambiguity isn't just an accidental feature of the law
of war that we have today.
It's the moral ambiguity of the code that Liber produces
and that Lincoln approves that makes it a powerful part
of the modern world.
In the 1860s Francis Lieber wasn't the only person thinking
about the law of war in the western world.
The International Committee of the Red Cross is being created
at almost exactly the same time.
The first Geneva Convention is 1864, and this is a parallel tradition
and many historians and international lawyers have thought
of these as parallel traditions that suggest there was something
in the air in the 1860's, and there might well have been.
Things new to the 1860s include the War Correspondent.
The War Correspondent we see first in the 1850s, in the Crimean War,
and then we see again in 1859 in a battle called Solferino,
which is critical in the history of the International Committee
of the Red Cross, and then we see again in the American Civil War.
We see battlefield photographs,
or at least shortly post-battlefield photographs,
and the new ways the humanitarian crisis of warfare was being brought
to newly literate populations.
So, all of these things might be features
of the historical experience
that were producing new agitation around the laws of war.
But there was a problem in the European tradition,
the International Committee
of the Red Cross tradition, or maybe two problems.
One problem was that the first Geneva Convention was less ambitious
about the kinds of things that it could purport to govern.
Far less ambitious than the Lieber text
at Lincoln and Lieber promulgate.
The first Geneva Convention only governs people who have been removed
from the strategic context.
It's the sick and wounded on the field.
That is to say the soldiers who are no longer part
of the strategic balance of power of mid-19th century Europe.
It was going after low hanging fruit.
The second problem for the European tradition was
that any more aggressive, or ambitious proposal on the continent,
produced immediate suspicions.
That any proposal made by the Belgians was really an effort
to hold off the Prussians from the next occupation.
Any proposal by the Russians was really a proposal designed
to mask the fact that the Czar was running out of funds
and couldn't keep up with the arms race.
There was no way out of this
since that any proposal put forward was really masking some underlying
strategic ambition by one of the European players.
And so when a code comes from across the Atlantic Ocean,
outside of the diplomatic intrigue of the European diplomacy,
all of a sudden that code is a platform
on which European treaties can be built, because there's no risk
that Abraham Lincoln's law of war is really secretly advancing the
Russian project, or that Francis Lieber's law
of war is secretly advancing the Belgium project.
And the Lieber text then becomes a central move for European jurists
in the second half of the 19th century.
And it doesn't hurt, if you are a Prussian thinking about whether
or not in 1899, for example, to enter into a multi-lateral treaty
that contains law of war terms.
It doesn't hurt that Abraham Lincoln managed to win his war
after signing on to these terms.
So they're the influence of the code is precisely rooted
in the moral ambiguity and the way in which it licenses stark
and sometimes truly terrifying forms of violence.
Anything else wouldn't have been something
that powerful states would have been willing to sign
onto in the later part of the 19th century.
So thinking about where I came into this project, trying to make sense
of what the law of war is, how it functions, I came to think of it
as something that's not, as it often seems I think
in our conventional takes on it, it's not a set
of purely humanitarian constraints designed as if from Switzerland,
with sometimes it's even the purpose
of constraining powerful states like the United States.
The laws of war, quite to the contrary,
are a product of the American experience,
a product of our royally wrenching Civil War and they strike a balance
between two critical goals, two twin imperatives to the fighting,
to two twin imperatives in armed conflict.
And one imperative is to fight for the side of justice,
to do the right thing, to fight for an end that's worth fighting for.
But that's a terrifying, that's a terrifying idea
because if you're fighting for an end worth fighting
for you might run rough shot over humanitarian limits.
And so the other imperative is to balance that sense of conviction
and righteousness with humility and modesty about our capacity
to know the ends that we pursue and to know
that they are the right ends, and those twin imperatives,
moral righteousness and moral modesty, are the things that make
up the laws of war, and they're the things that make it such a contested
and totally fascinating tradition.
I'd love to answer questions and talk more
but I think we'll leave it at that for now.
[ Applause ]   This gentleman here, yeah.

>> Good talk.   >> John Witt: Thank you.

>> I wanted to make a couple comments, very short
and you can comment on them if you wish.
I don't think Sherman's total war was anything [inaudible] compel it
to what we had been doing to [inaudible],
such as what Sullivan did to [inaudible].
He doesn't reserve that title I don't think.
I wonder if you wanted to comment briefly on the Confederate code
of war, which of course you did comment in a way [inaudible].
One other comment, I think that this is the first time that any part
of the federal government, ever, came out in favor of equal rights,
fully equal rights for black folks and it must have played some role
in the passage of the fourteenth amendment
because that was a revolutionary concept in 1863,
that by 1866 we might have been started doing that.
>> John Witt: So reverse order.
The language of the code on no discrimination,
on banning discrimination, is startlingly modern.
I mean the idea of no discrimination is not a widespread idea
in the winter of 1862, '63.   It's a startlingly modern idea.

In some ways it also misrepresents Francis Lieber who actually thought
about the world deeply in racial categories.
He chopped up the human race into so many different races.
He was convinced that the Latins, the French,
were a different race from the Prussians.
This is his explanation for why the French could have gone
so awry with Napoleon.
>> [Inaudible] Jefferson Building has 36 races of mankind [inaudible]
>> John Witt: Exactly, that's, that's, that's the world
of Francis Lieber's thinking on this.
So in some ways Lieber carries a set of prejudices about race
that don't show up here because he's committed to the idea
that once a civilized state, and that encodes much of his ideas
about race and that idea of a civilized state,
but once a civilized state has put a uniform
on someone he thinks then there's no discrimination, that that's enough
for prisoner of war privileges.
The, now I'm going to flip to the first thing that you asked
which is a very interesting comment about Indian warfare.
You know the story I've told here is at the heart of the book,
but the book spends a time looking at a century and more
of American history and one of the most fascinating sets
of questions I got into was Indian warfare, warfare between settlers
and Indians, colonists and Indians
and then the early American armies and Native Americans.
And one striking feature of this is that there's a whole law
of war internal to Indian tribes, which we know far too little about.
Whites fighting against Indians often thought they were encountering
lawless fighters, but it's just
because the rules were different and so unrecognizable.
Sometimes the rules were truly terrifying by our modern rights
and some ways they were much more effective in constraining violence
than the rules that the Europeans came with.
So that was a really fascinating part of the book
and a good learning process for me.
Now your middle question I'm forgetting.
What was the?   >> I forgot.

>> John Witt: Okay we'll come back to it.
So sorry. Yeah.   >> Total warfare.

>> John Witt: Total warfare, yes this is, I agree it's a misnomer.
Oh the Confederates, yes, so one of the clues that led me
to the conclusion that slavery played
such an important role here was the absence
of any comparable project on the Confederate side.
And the reason was the Confederates didn't have to innovate
on the law of war and slavery.
The Confederates adopted the position
that American states would have been adopting since 1775.
It was not a novel position.
It was the Union side that had to innovate.
You might expect the side with less manpower and less industrial might
to be the ones to say hey, there are rules, but it was quite the opposite
and that was one of the early clues for me on just this point.

[Silence] Yeah?
>> Legally speaking I know that there's a bit of a problem
for the Union with some of these things
because Lincoln never acknowledged that there was a war,
that is was an insurrection, yet we have a blockade
which indicates you know belligerent nation.
So with the Lieber code is there any taking into account
that this is not actually a declare of war,
is it just the code acknowledge belligerency status
or insurrectionary status as well as legal warfare?
>> John Witt: Right, well this is a great question.
Why is it that we are even talking about the law of war given
that the official position of Lincoln administration is
that this is not a war at all?   It's a kind of insurgency

that warrants the criminal treatment rather than war treatment.
There's a clue here to how it is that the Lincoln administration,
and Lincoln himself, comes to think about the laws of war.
They come to think of the laws of war as a useful tool
for accomplishing things.
It's not that they feel that they are forced by law to adopt the law
of war in this conflict, it's rather that once, once the first Battle
of Bull Run is over and once there are lots of Union soldiers
and a Union Congressman, at least one, in Confederate hands,
it's a useful way to manage the coordination project
of handling two different warring sides,
each of which is trying to advance its project.
And the law of war provides a way of coordinating and cooperating.
So prisoner exchanges can begin if the law
of war provides the basic terms of those prisoner exchanges.
So we see, we see Lincoln
in the blockade is a great example adopting the law of war not
because he feels that he's required as a matter of law
but because it's useful prudentially to do so,
without ever abandoning the claim
that at the end it might be treated once again as a crime.
And so the very last sections of the Liber text announced that nothing,
you know hundreds [inaudible] articles
and essentially article 157 says nothing
in the foregoing 156 articles precludes us from treating you
like traders once the war is over.
You might think this undoes all of the work in the first 156 articles
but it shows the way in which the Union project is to think
of the laws of war as a pragmatic tool for accomplishing things.
Now there's a risk in saying
that that the Union might have turned the law of war,
what might have eliminated its usefulness.
If it's just a pragmatic tool, if it's just a way
of accomplishing things, well then it might lose its moral legitimacy
and so it's a fine line to walk, to respect the ways in which the law
of war carries autonomous traditions of its own that have integrity,
that can't just be toyed with and changed willy nilly,
but at the same time using it to advance the Union project.
That's the fine line that using the law of war as a tool ends
up sending the Union down.   More thoughts, questions?

Yeah, here.   >> I have two questions.

So to shift forward a little bit to your original [inaudible]
and ask you so how did it impact [inaudible] wars
and do you think the Lieber code has built within it flexibility to work
with very different cultures?   >> John Witt: Yeah.

So there are two myths that circulate, I think,
today about the history of the laws of war two narrative
and one is that, and these are now associated I think only accidently.
It was a short term association but you hear stories
from the right which go like this.
The laws of the war never interfered with the founders.
They made wise strategic decisions and it's only recently that a set
of pointy headed European lawyers have started to mess
with the strategic wisdom of American policy makers.
These are crude versions of the story.
The second story from the left, equally crude,
is since the founding fathers,
America has respected international law, respected the laws of war,
has treated it as an end in of itself
and only recently have we abandoned that long and glorious tradition.
Those are the two stock narratives that one can still encounter
about the history of the laws of war.
And the story that I've told is neither one of those.
It's a story of fierce engagement and contestation over this tradition
in which very few American statesmen have ever tried to get outside
of the law of war tradition.
That is our, even in the midst of the Union's decision
to throw off the gloves and to fight a much fiercer war
in the second half of the war.
There's an engagement with the laws of war, not a decision
to throw the laws of war aside.
So when I think of the post-9-11 controversies about the laws of war,
I think actually we're engaged in a story
with a whole lot of continuity.
In our controversies about the laws of war, are reproducing
in new forms, always in new forms, many of the controversies
that have happened for every generation of American combat.
So that's how I've come to think about the law
of war controversies in our own time.
I mean the last point that you make is a very important one.
One of the myths of our current controversies is that it's only now
that we've encountered the liminal combatant that is the combatant
who is ununiformed outside the legitimate systems
of traditional war.
The story goes that once upon a time armies came in uniform,
it was easy to distinguish combatant from non-combatant and it turns
out that for centuries now the law of war has been propelled forward
by the liminal case, by the hard problem of guerrillas in places
like Missouri, by black soldiers who the south used
as their unlawful combatants on much the same theory that we hear today,
and that problem is actually at the core of the laws of war
and has been for a very long time.   Down here, yeah.

>> Could you speculate a little bit about the implications of the law
of war under the Civil War and the American Revolution
for the gun control debate that we are facing today?
The right of the government to regulate the guns.
>> John Witt: So in some ways one of the,
it's a really interesting strand of it, late 18th century thinking,
which holds that democracy is really dangerous for war.
The wars, the limited wars, of the second half of, the limited wars
of the 18th century fought on the European continent.
Fought as dynastic conflicts among Princes, managed to contain
and limit the horrors of warfare remarkably well.
I don't want to diminish the horrors that no doubt came
with those conflicts, but it stands out to military historians as one
of the striking features of 18th century European warfare,
but it was limited and constrained successfully so,
to a remarkable degree.
Now those were not democratic conflicts.
They were conflicts from essentially top down regimes that were able
to control professional armies.
Now the democratic army might be a much more dangerous thing.
The democratic army will have to be mobilized not
as a professional cohort, but mobilized through a sense
of the righteousness of its cause.
You'll have to deliver it an ideological motivation
and these nationalist democratic armies might be much more dangerous.
Now, why do I raise this?
The Second Amendment is in some sense the American version
of the French [inaudible] in the midst of the French Revolution,
so the [inaudible] is when in the midst
of the French Revolution the French Revolutionary state calls
on the people to rise up and to fight wars on behalf
of the French Revolutionary state.
This is a decision to bring the democratic, the mob,
onto the battlefield and strikes terror in the hearts
of traditional European soldiers,
who think that this will bring an end to the nice distinctions
between combatant and non-combatant on which the laws of war rest.
So what's the Second Amendment?
The Second Amendment is a promise that the militia,
the citizen militia, will be central to American self-defense.
That is to say our kind of American living [inaudible].
But I think of the Second Amendment as representing a real,
one of the risks of democratic self-government
for this European law of war tradition that Americans inherit.
And inherit in as, I hope is clear now, a really complicated way.
Embracing it on the one hand but also problematizing it
through things like slavery, through things like the Second Amendment.
Yeah, another question.
>> You presented Lieber's code of war and the Geneva Convention
as two separate parallel streams.
One born of well one as a tool, the other born as a response to war.
[Inaudible]
>> John Witt: Yeah, this is a great question.
So the, they do meet, in fact international lawyers have now
for a century described the meeting
of these two streams in the 20th Century.
The Geneva Conventions of 1949, for example, contain rules that spread
across the original Geneva tradition and the Lieber tradition.
Lieber and Lincoln's code becomes the foundation
for the Hague Conventions of 1899, which were then renewed in 1907
and then subsequent Geneva Conventions,
subsequent Geneva accords, bring the Hague-Lieber tradition into contact
with the International Committee of the Red Cross tradition.
So they're no longer distinct.
There's now a field of international humanitarian law
which encompasses both of these, both of these strands.
The thing that I want to communicate in this book, well one of the things
on this question, is that Lieber and Henry Dunant is the founder
of International Committee of the Red Cross tradition,
are radically different people, radically different people.
Dunant, as some described him and his projects,
essentially a secret pacifist.
That is the humanitarian constraints he's talking
about are what he can do now, in 1864, for the project
of bring an end to war altogether.
The idea is that by bringing a care to the wounded and sick
on the field he can reveal that we are all brothers,
that all nations share some deep commonality
and he can bring an end to war altogether.
Lieber has no interest in bringing an end to war.
He's not a war monger.
He thinks it's a very serious problem but he thinks it's necessary
and when important stakes
and important questions of justice warrant it.
And that means that internal to our law
of war tradition are these two strands
that are actually at war with one another.
>> John Cole: We have time for one more question and that will be it.
Did I scare it off?   This is my purpose.

Thank you.   [ Applause ]

>> John Cole: Well we can't end without a quick footnote
to the Library of Congress history and Francis Lieber.
When I did an early history of the Library of Congress I ran
across educator Francis Lieber, who's described in my chronology
on May 20th, 1870, Lieber donated three volumes to the Library
of Congress, which was then in the Capitol, and he had donated them
to a Librarian of Congress, Ainsworth Rand Spofford,
and he inscribed them to the National Library and explained
to Spofford, "It is not the official name but I take the liberty.
It is the name you have come to.
The Library of Congress was good enough in Jeffersonian times
but it is not now after the war and for the current age.",
which was an early recognition of the new role
that Spofford was advocating with the help of Francis Lieber,
that remarkable gentleman, for the Library of Congress.
This was a terrific talk as it has been noted.
John, thank you so much.
It's been an education for many of us who are not as familiar
with the field as some of the people from the JAG School,
but we have to have the book signing because our speaker is
on a schedule, not to stay for a while for the book signing,
but to leave later this afternoon.
The book is on sale and the Library of Congress discount of $3 out back.
I hope that you will buy a copy, get it signed, continue the conversation
and let's conclude with another round
of applause for Professor John Witt.   [Applause]

>> This has been a presentation of the Library of Congress.