Published by Harvard University Press (2010)
Reviewed by Alan G. Kaufman
The American Civil War remains – perhaps surprisingly, perhaps even astonishingly – a well of Constitutional experience informing this nation’s sense of law and legitimacy throughout the conflicts set off by 9/11. It is the deeper well to which this country returns again and again in seeking to marry security and law, notwithstanding that it took place 150 years ago, on American and not foreign soil, and spilled the blood only of Americans and not also of foreigners in faraway places in Central Asia or the Middle East. Its invocation in debates over law and conflict today is not merely the ritual of calling upon the nation’s icons, but is instead a live source of law, legal precedents, state practice, and custom.
This is so largely because the American Civil War, much like the armed conflicts in which the United States remains involved since the events of 9/11, required that national security strategy and decision making operate “in the dual spheres of criminal law and belligerency.” Today’s questions of combatant status and the fate of unlawful belligerents, debates over executive powers, controversial habeas litigation, struggles over restraints on civil liberties, executive detentions, trials of civilians before military commissions, questions of whether and when to apply domestic criminal law or the international law of war, and, of course, when does the war end and what are the attendant legal consequences – all these questions figured into the law of the Civil War.
Justice in Blue and Gray, A Legal History of the Civil War, by the eminent historian of public international law and the law of war, Stephen C. Neff, is intended as “primarily a case study of the myriad ways in which law plays an important role in a crisis of giant political and military dimensions.” This is a work of serious history by a leading legal historian, not a thinly-veiled parable or historical roman-a-clef for the present; it offers no direct connection to our world today, except by the reader’s own inferences. Still, this legal history offers a not-so distant mirror. Clear and elegant in its language, understandable to the layman as well as to the lawyer, Justice in Blue and Gray shows how law in war can be used – indeed, was used – to accomplish strategic and operational war fighting objectives in a vast and bloody conflict. To use a word Neff does not use (and a somewhat controversial word in today’s parlance), this is a study of law in the Civil War as lawfare. It would be something of an understatement to say that these understandings – both as icon from the past but also source of live legal precedent – are entirely in play in the most recent round of speeches by the Administration’s senior legal officials seeking to explain itself and its justifications in Guantanamo detention, trials, targeted killing, and the targeted killing of Americans. The recent speeches by Attorney General Eric Holder, DOD General Counsel Jeh Johnson, DOS Legal Adviser Harold Koh, and others can profitably be read with this book to hand.
At the level of grand strategy, all lawfare is a battle for legitimacy. To be sure, other objectives – operational and tactical -- may flow from that source, but legitimacy is always the underlying and fundamental legal objective. Thus, for the nascent Confederacy, a key initial strategic objective was recognition as a sovereign nation state, and the potentially decisive foreign alliances, particularly with Britain, that could flow from the establishment of that legitimacy. For the Union, an initial strategic objective was to prevent any such recognition and concomitant legitimacy. And so the first and richest chapter of Justice in Blue and Gray discusses the legal arguments surrounding the act of secession by the southern states. Upon the answer to these fundamental legal questions would depend not only whether the secession and a fight either to maintain it by one or to stop it by the other could be held legitimate, but also whether what followed would be law enforcement or war – and thus what measure of violence could legitimately and lawfully be taken by either side to suppress or perfect the secession.
The questions of law and the legitimacy of resorting to force to effect secession or, alternatively, to suppress it run to jus ad bellum; law and legitimacy are equally at issue in the how that force is used, that is, to the conduct questions of jus in bello. But this points to a definitional observation about lawfare as such. David Kennedy, in his 2006 book-length essay Of War and Law, remarked that law in war can impede or slow operations. When law slows or impedes operations, it acts as what Clausewitz called friction. But law, Kennedy points out, can also act to reduce friction in war. Law becomes a strategic partner – a lubricating oil smoothing accomplishment of national security objectives - when it produces a perception that military operations are, or even that the war itself, is legitimate and therefore righteous and supportable. Law becomes the enemy’s strategic partner, however – that is, creates friction in the other direction -- when it produces the opposite result. This is so because law in war operates on, against and within all three aspects of what Clausewitz once called the “paradoxical trinity” of which war is composed: the people, the commander and his army, and the government. Any one of these pistons powering the engines of war will grind to a halt in the absence of belief in the legitimacy of the war effort, and the loss of power from any one piston deformed by friction’s heat will bring the entire engine to a sputtering stop. Undermining legitimacy thus produces very effective friction, equivalent to draining an engine of its oil. But each piston provides power when bathed in legitimacy refined from law, and so legitimacy extracted from law can oil the engines of war. This describes the strategic topography over, upon and within which lawfare at the strategic level is always waged, and this is the lawfare battlespace described in the first sections of Justice in Blue and Gray.
The opening chapter is perhaps too elegant for the reader’s own good; its fluidity organizes complex and critical questions perhaps too well. For example, was secession a constitutional and therefore lawful and legitimate act, or instead, an act of unlawful and illegitimate insurrection? Second, was the federal government of the United States a sovereign in its own right, independently of the states, with, crucially, the "right to defend and enforce its sovereign rights…against anyone who attempted to subvert them” – or was it instead merely a creature of contract, with no existence in the face of contract termination by the parties thereto, i.e. the states? The answers to these legal questions would define, for the paradoxical trinity of people, army and government, whether the use of coercive measures to prevent secession was lawful and legitimate and supportable, or not. The answers were thus not without tangible significance.
Although not discussed by Neff, those familiar with the related history will recall that President Buchanan, as the months between Lincoln’s election and inauguration passed by, waited in a state of paralyzed inaction as one southern state after another declared secession. This was largely because he was unpersuaded that the federal government had any legal authority under the Constitution either to recognize secession or to use coercive measures to force any state to remain in the Union. Southern legal arguments – lawfare – had acted on Buchanan as a strategic weapon to render him effectively hors de combat. Lincoln, like Andrew Jackson before him, however, suffered from no such legal disability. Neff’s clean writing and neat exposition of these somewhat arcane but fundamental – in the strategic sense - legal arguments merits an admonition: This first chapter deserves savoring and study; it is the very best part of the book. The central theme is the dualistic nature of this war and, of course, echoes today:
[I]n a case of rebellion by its own citizens, a government acts in a sovereign capacity, as the enforcer of its own national laws. Against enemies, in contrast, a government acts in a belligerent capacity…When acting in a sovereign mode, a government wields whatever coercive weapons are given to it by its own constitution or domestic law. When acting in a belligerent capacity, the government’s powers are determined by international law – specifically by the portion of it known (for obvious reasons) as the laws of war. This fundamental question of whether the Confederates were rebels (i.e. criminals) or enemies – and by the same token whether the Union government was operating in a sovereign or a belligerent mode – would pervade the entire legal history of the struggle.
The distinction comes into play a few pages on in the famous Prize Cases – cases in which, it is worth noting for the American reader – the Supreme Court of the United States acted as a court of international law. In these cases, the federal Supreme Court was "called on to determine the legal character of the ongoing conflict – whether it amounted to a war, or instead had some lesser status.” In a section of telling relevance to the 21st century strategist wrestling with the legal challenges of armed conflict with international non-state actors, Neff explains how the Court
carefully distinguished between the two great categories of public right and power: belligerent and sovereign. Sovereign rights and powers belong only to independent nation-states. Belligerent rights and powers, in contrast, can be wielded by lesser entities, such as rebellious regions within established states…. An important consequence of this state of affairs is that civil conflicts are, in an important sense, asymmetrical…in that the government side is permitted to employ both sovereign and belligerent powers in the suppression of the rebellion. The rebels, in contrast, possess only belligerent rights.
If the test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time (as F. Scott Fitzgerald suggested), and still retain the ability to function, then here Neff draws us to see how Lincoln and the Union took the legal positions they did. “The Union government,” Neff says, “did not hesitate to take advantage of what it saw as its legally privileged position…it employed a complex and somewhat untidy mix of sovereign-right and belligerent-right measures… On the field of battle, it acted as a belligerent. Off that field, however, it acted as a sovereign.”
This legal pattern occurred also in the Union’s lower and state courts. A Massachusetts state court acting as a prize court, for example, held that the "Confederates ‘are at the same time belligerents and traitors, and subject to the liabilities of both.’ By the same token, it was stated, the United States has ‘the double character of belligerent and sovereign, and has the rights of both. These rights co-exist, and may be exercised at pleasure’.” Substitute the words “Al Qaeda affiliates” for “Confederates,” and “terrorists” for “traitors,” and we cannot fail to see a reflection of our own times as we peer through this looking-glass back into history. Elaborating this theme in a later chapter titled “Taking Liberties on the Home Front,” Neff describes a “dualistic system for the maintenance of law and order, consisting on the one hand of ordinary law enforcement, under the auspices of the attorney general, and on the other hand of executive detentions by the War Department.” Again, though Neff does not address the present, we cannot help but see ourselves.
Neither side in this war stuck consistently either to one view or to the other. Both operated dualistically, opportunistically and pragmatically in their legal approach to the strategic challenges of the war. When it suited their strategic or operational interests and objectives, for example, the Confederates and southern sympathizers in Union controlled areas would attempt to bind the Union by application of its own domestic law, forcing the Union to be limited by the constraints of law imposed upon a sovereign acting in a law enforcement capacity. In Chapter Six, for example, Neff describes and analyzes “habeas corpus issues, the widespread employment of loyalty oaths, military arrests [and executive detentions] and the trial of civilians before military commissions.” And the author concludes this analysis by suggesting that the body of “judicial decisions that arose from challenges on normal liberties by the Lincoln administration marked, for all practical purposes, the inception of constitutional law relating to civil liberties.” From a lawfare perspective, however, it is not difficult to see how these legal maneuverings were designed by the south to create friction in the engines of the northern war machine. In a famous and oft quoted line, Lincoln himself gets at the heart of the matter in his defense of his executive action to suspend habeas corpus, disputing the reasoning of an unsupportive Chief Justice of the Supreme Court and putting the question rhetorically to Congress this way: “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”
Examples abound in the text of strategic and warfighting issues affected by legal challenges of relevance to us still today as each side (but particularly the north) wrestled with an armed conflict that was an exercise in both law enforcement and warfare at the same time: The application of martial law or of habeas corpus suspension as affected by matters of geography. Challenges of “technological developments (in this case, land mines); disputes about combatant (or belligerent) status; and the fate of civilians and civilian infrastructure in war.” Law governing seizure of territory and of personal property – whether, for example, occupation of Confederate territories should be held as conquest or instead as belligerent occupation, or rather simply as a “straight resumption of the presecession situation.” Jus ad bellum lawfare, as each side attempts to use law to gird its legitimacy with the strategic objective, for the Union, of keeping Britain out of the war and, for the Confederacy, of bringing Britain in on its side. Neff recounts how Lincoln, at the strategic inflection point (and, really, with the decisive lawfare stroke of the war), used the Emancipation Proclamation as a law of war measure to keep Britain sidelined. The Union’s fear, of course, was that Britain might enter into a war on the side of the south – ironically and indeed tragically, given the depth of anti-slavery feeling in Britain – to the illegitimate end of the preservation of chattel slavery. The south, for its part, failed to pull Britain in on its side, notwithstanding efforts to use the international law of neutrality so as to induce Britain to perceive its interests as counseling diplomatic recognition of the Confederacy.
Neff also considers matters of international law respecting operations at sea, including Union lawfare innovations designed to provide legitimacy to its blockade of southern ports. In wrapping up the book’s narrative with two final chapters considering war termination and aftermath, Neff says, inevitably reminiscent of today’s wars, it “became difficult to say, with the precision so obsessively demanded by lawyers, exactly when the state of war actually terminated. This posed a number of practical problems, since various legal matters depended on the fixing of a termination date, including such matters as…the release of prisoners.” And whether, in the “wake of hostilities,” the preferable legal policy was to be prosecution, clemency or, somehow, both.
Law operates to reduce or create friction in war, in operational as well as strategic ways, and Neff’s history of law in the American Civil War well illustrates how, as Kennedy puts it in Of War and Law, law is a “strategic partner…when it structures logistics, command and control, and smoothes the interface with all the institutions, public and private, that must be coordinated for military operations to succeed. It is a strategic partner for those who would restrict the military’s options when it does not.” Justice in Blue and Gray is profound reading for any student of lawfare. Its relevance is timeless, including implications pertinent for war and law of any historical age, including the present day. Sun Tzu, after all, tells us in The Art of War that the first of the five fundamental factors of war is “moral influence,” by which he means “that which causes the people to be in harmony with their leaders, so that they will accompany them in life and unto death without fear of mortal peril.” Not just in ancient China: moral influence largely derives in the 21st century, as it did in the 19th, from legitimacy. Neff observes in the opening sentence of this book that Americans are “notoriously, the most legalistic of peoples.” He could not be more correct and the consequence is that legitimacy for Americans comes largely from law. And law thus becomes a strategic partner in war when it provides a foundation for legitimacy. This book provides an illuminating case study of the matter, and is well worth review with today’s legal and strategic challenges held firmly in the front of the mind.
(Alan G. Kaufman, a retired United States Navy JAG Corps Captain, is currently the General Counsel of the Defense Media Activity, which is a Field Activity of the Department of Defense. The views expressed are his personal views.)