Just American Wars

Ethical Dilemmas in U.S. Military History

Eric Patterson

• Editore: Routledge
• Anno: 2018
• ISBN:
  9780429854323
• Edizione: 1
• Argomento: History
• Categoria: Military & Maritime History

This book examines the moral choices faced by U.S. political and military leaders in deciding when and how to employ force, from the American Revolution to the present day.

Specifically, the book looks at discrete ethical dilemmas in various American conflicts from a just war perspective. For example, was the casus belli of the American Revolution just, and more specifically, was the Continental Congress a "legitimate" political authority? Was it just for Truman to drop the atomic bomb on Japan? How much of a role did the egos of Kennedy, Johnson and Nixon play in prolonging the Vietnam War? Often there are trade-offs that civilian and military leaders must take into account, such as General Scott's 1847 decision to bombard the city of Veracruz in order to quickly move his troops off the malarial Mexican coast. The book also considers the moral significance and policy practicalities of different motives and courses of action. The case studies provided highlight the nuances and even limits of just war principles, such as just cause, right intention, legitimate authority, last resort, likelihood of success, discrimination, and proportionality, and principles for ending war such as order, justice, and conciliation.

This book will be of interest for students of just war theory, ethics, philosophy, American history and military history more generally.

1

JUST AMERICAN WARS?

From Lieber’s Code to the Cold War and beyond

On November 13, 1862, a Columbia College professor wrote the following letter to Union General-in-Chief Henry Halleck:

My dear General,

Ever since the beginning of the present War, it has appeared clearer and clearer to me that the President ought to issue a set of rules and definitions providing for the most urgent issues occurring under the Law and usages of War, and on which our Articles of War are silent … My idea—I give it as a suggestion to you—that the President as Commander in Chief, through the Secretary of War, ought to appoint a committee, say of three, to draw up a code … in which certain acts and offences (under the Law of war) ought to be defined and, where necessary, the punishment be stated.

I do not know that any such thing as I design exists in any other country … I should propose that you, both as General-in-Chief and as a prominent writer on the Law of Nations, ought to be chairman …

Halleck, buried under administrative and political details of being recently promoted to General-in-Chief, did not dismiss the offer. After all, Halleck authored a tome on international law and he had previously asked Professor Lieber’s views on the problem of guerrilla warfare. Nonetheless, at first Halleck simply could not add one more thing to his burdened shoulders, writing back two days later, “I have no time at present to consider the subject.” Lieber, however, was not to be denied and wrote again on November 20, persuading General Halleck that it was in the best interests of the United States to formalize a better code for military conduct and expectations than what currently existed. What neither Lieber nor Halleck could have expected at the time was that Lieber’s Code was a turning point in applied just war thinking and international law, adopted by Great Britain, France, and Prussia just after the U.S. Civil War and the foundation for the subsequent Hague, Geneva, and other conventions restraining the resort to war and how war is fought.¹

The American way of war and Lieber’s Code

For at least the last half-century it has been said that there is an “American way of war” characterized by the massive mobilization of manpower, financial resources, and technology. Investment in technology leads to successive “next generations of warfare” and/or the next “revolution in military affairs.” In the concluding chapter, I will look further at these issues, agreeing that there is an American way of war.² However, I disagree that the best way to understand the “American way of war” is in terms of technology and material resources.

What makes the U.S. distinct, and characterizes the American way of war all the way back to colonial times, is ideas: the widespread discussion and debate about the morality of war among citizens and experts. Just war experts realize that this is true, but those discussions are largely left to the footnotes of American history. In fact, during every U.S. conflict there has been robust public debate about whether or not to go to war in the first place, and after the decision has been made, debate continues on the ethics of how the war is fought. Moreover, the U.S. is unique in the fact that even when it’s victorious, it prosecutes some of its own military personnel who have violated the laws of armed conflict. This simply was not the case in most polities over the past thousands of years.

Thus, a major dimension of an American way of war, and the chief focus of this book, is a concern with the intersection of politics, military force, and morality. This book, rooted in the just war tradition, takes a twofold approach: it tells stories and does so to illuminate ethical challenges in those situations. More precisely, this book will look at specific American wars and tease out the ethical challenges, controversies, and possibilities faced by real people in conditions of stress, uncertainty, and combat. An indispensable pivot point in U.S. history is the contribution of Lieber’s Code to national and international law.

Francis J. Lieber was born in Berlin and fought at the Battle of Waterloo during the Napoleonic Wars. He also fought in the Greek War of Independence, in the meantime earning a doctorate in philosophy from the University of Jena in 1820. He immigrated to Boston in 1827 and subsequently found work as a university professor at South Carolina College, where he resided and raised a family for two decades. During this time Lieber was horrified by Southern slavery, and for years he tried to find academic employment elsewhere, but was consistently disappointed. In 1857 he finally was able to leave his post at South Carolina College and took a position at Columbia College (now Columbia University) in New York City.

Lieber taught and wrote about the law of armed conflict, which was largely based in customs that have developed slowly over the centuries and founded upon just war principles, such as legitimate authority and just cause, as well as pragmatic guidelines, such as the unwritten injunction that heads of state should not assassinate other heads of state. Lieber corresponded with many individuals, on both sides of the Atlantic, interested in these issues at the start of the U.S. Civil War. He had reason to care: two of his sons fought for the Union and a third fought for the Confederacy. One of Lieber’s many correspondents was an American businessman and warrior, General Henry Halleck. Halleck was a graduate of West Point who fought in the Mexican–American War. He was subsequently assigned to California, considered a post of no return, and ultimately left the U.S. Army (although holding rank in the California militia) and became a successful lawyer and businessman in mining and other fields. Halleck collected laws and policies, publishing a number of books including Report on the Means of National Defense and Elements of Military Art and Science, as well as translating Jomini’s Life of Napoleon and A Collection of Mining Laws of Spain and Mexico. By far the most important of Halleck’s works was his 970-page volume on international law published in 1861, International Law; or, Rules Regulating the Intercourse of States in Peace and War, which had large sections cataloging customary law on issues of war and peace.

While serving as the senior Union commander over the western theater, General Halleck began to correspond with Lieber after becoming aware of Lieber’s public talks in New York on international law and its application to the U.S. Civil War. These talks achieved some notoriety due to the many grey areas in the war. For instance, the Confederate States of America argued that it was a sovereign state seceding from a volitional compact; the Union saw the Confederacy as an illegal rebellion. Did Lincoln’s blockade of Southern ports constitute an act of war? Some said yes (if the South was an independent country); others said no (if the South was simply a criminal rebellion). The list of controversies and legal technicalities went on and on, compounded in the national press by wider moral discussions about a “crusade to end slavery” and the revolting behavior of bushwhackers and other partisans. Lieber’s lectures (October 1861–February 1862), many of which were reprinted in newspapers and distributed across the country, dealt with some of these issues and it was one such issue that caught the attention of General Halleck. That issue was guerrilla warfare.

On August 6, 1862, Halleck wrote to Lieber “particularly request[ing] his views on ‘the usages and customs of war’ regarding guerrilla warfare.”³ Lieber complied with a document that continues to this day to offer sophisticated analysis of the nuances of guerrilla warfare. Most importantly, Lieber distinguished between “partisan” fighters (e.g. Mosby’s Raiders) who could be considered to be formally connected, but detached, from a regular army and “guerrilla” fighters who were not formally connected and operated detached from the regular army (e.g. Quantrill’s bushwhackers). In his guerrilla pamphlet, of which thousands of copies were printed and distributed, Lieber defined a host of irregular forces, including marauders, freebooters, partisans, guerrillas, brigands, spies, “arming of peasants,” and the like, emphasizing that nearly all of them are illegitimate and deserving of the full extent of martial law.

It was this engagement between Lieber and Halleck that caused Lieber to write to Halleck in November 1862 about a code for the armies. What resulted, in very short order, was the establishment of a commission of three individuals to draft that code. Lieber did nearly all of the writing and it was completed within just a few months. Because there was a concern that making it an official part of U.S. code would require lengthy involvement with the U.S. Congress, President Lincoln used his executive authority to make this General Order No. 100 applicable to all Union troops on April 24, 1863. As it was disseminated widely, it quickly became known by Confederate forces as well, who typically followed much of “Lieber’s Code.”

Historian Richard Shelly Hartigan writes,

the Code was the first instance in Western history in which the government of a sovereign nation established formal guidelines for its army’s conduct toward its enemies … never before had a government set down in clear, explicit, formal terms not only the rights and obligations of its own army, but of its enemy’s army and civil population as well.⁴

As mentioned previously, the document was quickly translated and spread across Europe. The intelligence, sophistication, and yet simplicity of Lieber’s Code made it applicable across the Western world and it acted synergistically with another turning point of 1863: the establishment of the International Committee for Relief to the Wounded (later International Committee of the Red Cross) by Henri Dunant and four of his friends. These two developments were crucial, alongside the horrors of modern warfare witnessed in the Crimea and on U.S. Civil War battlefields, for the establishment of formal laws of armed conflict over the next few decades, such as the 1868 Petersburg Declaration and the later Hague and Geneva Conventions. Moreover, Lieber’s work has continued to provide a backbone for subsequent U.S. Army manuals to this day.

Military ethics, foreign policy, and just war thinking

The purist might say that military ethics and the law of armed conflict, particularly as elaborated in Lieber’s Code, are narrowly defined rules for battlefield behavior. Soldiers either follow the rules or they do not and that is all there is to it. Francis Lieber would disagree. The fifteenth article of his Code states, “Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.” This comports with U.S. history. As a democracy with intellectual and moral roots in classical and Judeo-Christian thought, the American public and its institutions have long engaged in contentious deliberation about the morality of warfare.

This book utilizes just war thinking as the lens for considering the morality of the policies, achievements, and failures of past U.S. wars. The just war tradition is a Western philosophical school of thought with roots in the Greco-Roman world (e.g. Cicero) and early Christianity (e.g. Romans 13, Augustine). The classical just war framework provides the foundation for individual behavior, customary international law, and the formal laws of armed conflict, in addition to ethical reflection on issues of war and peace.⁵ It is the foundation from which numerous Western political principles, such as sovereignty, political legitimacy, and just cause in war, are derived, with all of these being firmly rooted today both in international conventions and foreign policy practice. Just war thinking begins with three deontological criteria for the just decision (jus ad bellum) to use military force: legitimate authority acting on a just cause with right intent. Practical—or better, prudential⁶—secondary jus ad bellum considerations include: likelihood of success, proportionality of ends, and last resort. Just war thinking also has criteria regarding how war is conducted (jus in bello): using means and tactics proportionate (proportionality) to battlefield objectives and which limit harm to civilians, other non-combatants, and property (discrimination).

More specifically, political actors should carefully examine the following principles when considering the implementation of military force:

Jus ad Bellum

•Legitimate authority: Supreme political authorities are morally responsible for the security of their constituents, and therefore are obligated to make decisions about war and peace.

•Just cause: Self-defense of citizens’ lives, livelihoods, and way of life are typically just causes; more generally speaking, the cause is likely just if it rights a past wrong, punishes wrongdoers, or prevents further wrongful acts.⁷

•Right intent: Political motivations are subject to ethical scrutiny; violence intended for the purpose of order, justice, and ultimate conciliation is just, whereas violence for the sake of hatred, revenge, and destruction is not just.

•Likelihood of success: Political leaders should consider whether or not their action will make a difference in real-world outcomes. This principle is subject to context and judgment, because it may be appropriate to act despite a low likelihood of success (e.g. against local genocide). Conversely, it may be inappropriate to act due to low efficacy despite the compelling nature of the case.

•Proportionality of ends: Does the preferred outcome justify, in terms of the cost in lives and material resources, this course of action?

•Last resort: Have traditional diplomatic and other efforts been reasonably employed in order to avoid outright bloodshed?

Jus in Bello

•Proportionality: Are the battlefield tools and tactics employed proportionate to battlefield objectives?

•Discrimination: Has care been taken to reasonably protect the lives and property of legitimat...