There is a paradox, Columbia Professor John Witt argues, lying inside America's contribution to modern warfare. On the one hand, the United States has been the leading force in creating and promulgating the modern laws of war. And on the other hand, the United States has been pioneer in the use of ever-more destructive methods and materials of warfare.
What explains this tension? The common view is simple: hypocrisy. But Witt thinks there might be something more to this story, and presented an early draft of a chapter from his current book project, tentatively titled "Lincoln's Code: The Laws of War and the Dilemma of American History" to the University of Chicago's American Legal History Workshop.
Witt's core argument is that America's relationship with the laws of war is not accurately captured by a neat division between theoretical ideals and messy practice. Instead, the oscillation is between two different conceptulizations of moral warfare: just ends versus just means. The former was represented by the classic Augustian view that a war is just if the cause is just. Once this threshold was established, a prosecuting force could undertake whatever means necessary to attain victory. The latter, an Enlightenment reaction to Augustine, urged that nations contingently put aside their own view of their moral rightness, recognizing that (since both sides inevitably think they are in the right), the Augustinian view sanctioned a never-ending spiral of recrimination and escalation that could quickly spiral out of control.
The United States was torn between these two poles. America viewed itself as the epitome of enlightenment ideals, and so was instinctively drawn to the idea that warfare must come constrained by moral limits. General George Washington took pains to enforce this view upon his army, refusing to sanction bloodlust and barbarism and demanding that his British counterparts impress similar norms on their soldiers. Yet, at the same time, American exceptionalism rendered the nation vulnerable to the idea that its causes really were honestly and truly just, and thus could support more extreme measures under the mantle of military necessity. It is the struggle between these two competing views -- American englightenment and American exceptionalism -- that explain America's often conflicted relationship with military practice.
And yet, there is a third factor in play that Witt also devotes attention to: Self-interest. When President Lincoln asked Francis Lieber to draft a new code of war in the midst of the Civil War, it might have seemed a triumph of the enlightenment. The problem was that Lieber's code, upon reflection, seems to be quite draconian, perhaps more so than the norms it replaced, and thus meshed quite well with Lincoln's concurrant expansion of military aggressiveness against the South. The American rules of war are, by and large, rules that make it easier for Americans to win wars. And several participants in the workshop wondered if that wasn't all there was to it. America promulgates restrictions on certain military proceedings because it does not need those proceedings to attain victory (and, indeed, can be more effective when those types of tactics are forbidden). But when the rules seem to threaten American interests, they can be abandoned just quickly.
Still, there are less cynical ways of incorporating self-interest into Prof. Witt's model. One participant wondered if Lincoln commissioned Lieber's code precisely to avoid a collapse into the spiral of retaliations that the Enlightenment scholars feared would result from an Augustianian view. The Lieber code was a signal to the South that, while the Union was going to be more aggressive than it had previously, it was not simply throwing out all the old rules in favor of savage anarchy. That the United States had a material interest in keeping the violence under control does not negate the fact that the rules of war that Lieber propounded, and their descendents in modern conventions such as Geneva, have real and substantive restraining force. The expressive function of these codes alone demonstrate that the Enlightenment view has a real and true pull on American military policy. Even if it is a facade, it is a facade many American's seem to truly believe in -- and that's worth examining in its own right.
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