Grant JonesJames Ross's
article "Bush, Torture and Lincoln's Legacy" published in the August
issue of America Magazine has been making the rounds on the internet.
Human Rights Watch has reposted it, along with
BBS News and Amnesty International's
blog links to it. So I must assume that Ross's essay is of some significance within "human rights" circles.
This essay is about the Bush administration's alleged abandonment of the Geneva Convention and the treatment of prisoners at Guantanamo Bay, Abu Ghraib and elsewhere. With references to the "torture memos" and "unlawful practices," there is not much new here. What is of interest to me is that Ross invokes Abraham Lincoln as a contrast to the Bush Administration's treatment of prisoners:
Surprisingly little attention has been paid to President Bush's -- and everyone else's -- most admired president, Abraham Lincoln, on the laws of war. Despite the grave threat the Civil War posed to the nation, Lincoln recognized the value of broadly recognized rules of war that promote restraint and humanistic principles.
Ross notes that in order to codify the legal issues resulting from the Civil War, and the large number of Union prisoners both Confederate military and civilians from North and South, Lincoln turned to legal Scholar Francis Lieber of Columbia College. The result of Lieber's work was Lincoln's promulgation of General Orders 100, "Instructions for the Government of the Armies of the United States in the Field" on April 24, 1863. Ross quotes Article 16 of what became called the Lieber Code:
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.
This does not mean, of course, that these Articles where followed either in the field, in Union prisons or in areas experiencing guerrilla warfare such as Missouri. For example, the famous response to William Quantrill's murderous raid upon Lawrence, Kansas was General Order 11 issued on August 25, 1863. This
order was the most extreme example of "total war" during the Civil War:
Issued August 25, 1863, by Brigadier General Thomas Ewing, Jr., commander of the District of the Border, with headquarters at Kansas City, Order No. 11 required all the inhabitants of the Western Missouri counties of Jackson, Cass, and Bates not living within one mile of specified military posts to vacate their homes by September 9. Those who by that date established their loyalty to the United States government with the commanding officer of the military station nearest their place of residence would be permitted to remove to any military station in the District of the Border or to any part of Kansas except the counties on the eastern border of that state. Persons failing to establish their loyalty were to move out of the district completely or be subject to military punishment.
In a
letter to General John Schofield commanding in Missouri, Lincoln wrote "I am not now interfering, but am leaving to your own discretion." As has been noted, Abraham Lincoln was not a constitutional scholar. In cases of military, political or practical necessity he could be quite ruthless in suppressing the rebellion.
On the relative conditions of present day prisons at Guantanamo, Abu Ghraib and those in Afghanistan compared to Union
prisons such as
Elmira, I don't think much elaboration is required.
Last year when the Abu Ghraib prison torture scandal erupted, endlessly, on the front pages several leftists chimed in by invoking Lincoln. Michael Berube
titled an entry on his blog "Once the party of Lincoln, now the party of torture." A Nation Magazine
article ended "Kim Scheppele, a University of Pennsylvania law professor, argues that the Bush Administration has turned Abraham Lincoln on his head."
In the context of Lincoln, the Lieber Code and Abu Ghraib Ross writes:
George W. Bush has a long way to go before he can claim Abraham Lincoln's legacy to a humane articulation of the laws of war. It is a legacy that has long served the interests of the United States and for which Americans can genuinely be proud. It is a legacy that with each feckless Pentagon investigation and half-hearted war crimes prosecution becomes forever imperiled. [Emphasis added]
There is a difference between articulating a policy and carrying it out. Ross uses this strange qualifier because, unlike the Nation and Michael Berube, he has actually studied this subject.
In 1991 Mark E. Neely published his
landmark work
The Fate of Liberty: Abraham Lincoln and Civil Liberties. In it there is an interesting section titled "Torture," Neely recounts what appears to be a widespread practice in Union prisons:
Handcuffs and hanging by wrists were rare, but in the summer of 1863 [after General Orders 100 was promulgated], the army had developed a water torture that came to be used routinely...
As Neely relates when this practice was discovered:
No one exploded in indignation or horror. No one issued a special order demanding that such practices cease. No one requested investigation or study. No one asked whether other prisoners than the one Lyons [British foreign minister] inquired aboutreceivedd such treatment. No one, except Lord Lyons, asked what law governed such cases. No one expressed any personal outrage or personal feeling at all, including Lincoln's secretary of state. [Pg. 109-112]
No one, except for
fringe kooks, compares Lincoln to Hitler or calls him a fascist. Although, that the Bush administration's treatment of prisoners is far superior to that of the Lincoln administration's is a matter of historical record.
I should add at this point that I take a backseat to nobody in my admiration of Lincoln. However, I do not let that blind me to his faults or pretend that he was a plaster saint. For example, while Ross mentions Lincoln's most famous
Proclamation, he neglects to note that Lincoln believed its success required another one, which he issued two days later.
The Proclamation Suspending the Writ of Habeas Corpus
reads in part:
Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission...
Lincoln ably defends his resort to such measures, largely designed to prevent agitation against the draft, in his
letter to Erastus Corning. This letter is a must read as a summation of Lincoln's views of the constitutional issues involved.Characteristically, Lincoln also makes his argument from the perspective of necessity:
I understand the meeting, whose resolutions I am considering, to be in favor of suppressing the rebellion by military force by armies. Long experience has shown that armies can not be maintained unless desertion shall be punished by the severe penalty of death. The case requires, and the law and the constitution, sanction this punishment. Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?
Like many of his contemporaries, Lincoln over estimated the size of the Copperhead element in the North. In the letter he explains his reasons for supported the arrest of the North's most famous traitor:
Mr. Vallandigham avows his hostility to the war on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. He was not arrested because he was damaging the political prospects of the administration, or the personal interests of the commanding general; but because he was damaging the army, upon the existence, and vigor of which, the life of the nation depends.
This is the "other" Lincoln who should not be forgotten. Lincoln was facing a very different war than the one the United States is waging today. Nevertheless, it is fair to say that Lincoln would qualify war far harsher than George Bush.
Update: Ahistoricality has commented on this post
here.
.