John Fabian Witt’s Lincoln’s Code: The Laws of War in American History (Free Press, 498 pp., $32) is “a story about war in America, ” the author notes. “To be more specific, it is the story of an idea about war, an idea that Americans have sometimes nurtured and often scorned.” Said idea: “that the conduct of war can be constrained by law.”
Witt, a Yale University Law School professor who also is a Yale history professor and a Guggenheim Foundation fellow, traces that concept to the Lincoln administration’s adopting of a detailed code of law for the Union Army in late December of 1862. Written by Francis Lieber and approved by Lincoln, that code—which dealt with issues such as torture, POWs, the treatment civilians, spies, and slaves—became “the foundation of the modern laws of war, ” Witt notes.
Parts of the code, which consisted of 157 short sections (or “articles”), were adopted by other nations around the world; some were incorporated into the Geneva Conventions of the mid-twentieth century.
Witt deals mainly with American wars from the Revolution to the little-known Philippine War of 1899-1902. He barely touches the Vietnam War, except to note that that war had several things in common with the Philippine War, including the fact that in both cases American troops faced guerrilla-led insurgencies in the jungles of Southeast Asia.
In the Philippine War, Witt notes, American troops’ use of an interrogation method now known as water boarding “produced a law of war crisis like none to that point in American history, though it bore an eerie resemblance to the controversies that would arise in Vietnam in the 1960s and in Afghanistan and Iraq in the early 2000s.”