The Dark Side of Lieber’s Code (or, Cheneyite Jurisprudence)

The 150th Anniversary of Lieber’s Code was celebrated by the International Humanitarian Law (Law of War) community in 2013 for the embryonic role the Code played in the development of the law of war. But while issuing Lieber’s Code is often credited as the founding of the law of war, in fact, Lieber’s Code is more correctly to be seen as the martial law regulation governing all of the non-Confederate states, the Northern states, during the latter half of the Civil War. While it put into the form of a Military Order previously existing humanitarian customary law of war principles, that was not its primary purpose.

Lieber’s Code was issued as General Order No. 100 (G.O. 100) in 1863 by the War Department as “Instructions for the Government of Armies of the United States in the Field. Francis Lieber was tasked with preparing it by General Halleck, following the proclamation of martial law by President Lincoln on September 24, 1862.

G.O. 100 is described by The Judge Advocate General’s Legal Center and School Alumni Association as: “This directive, General Order No. 100, known as the ‘Lieber Code’, outlined the Federal army code of conduct during war, as well as the Institution of Martial Law. It would later become the basis for all international treaties, including the Hague Conventions in 1907 and the Geneva Accords of 1954 [sic].” (Emphasis added.)

The focus for the anniversary was on this embryonic role of Lieber’s Code in development of the international law of war. Most of Lieber’s Code, however, with its antiquated statement of the law of war, has been superseded by the Geneva Conventions and other international human rights and law of war treaties. Nevertheless, special events celebrating this anniversary were held, some sponsored by the U.S. Government.

That the US Government should be enthusiastic for Lieber’s Code is not remarkable in light of legal arguments the government has made since 2001, beginning with legal opinions issued by attorneys in the Office of Legal Counsel, such as John Yoo, Robert Delahunty, and Jay Bybee. The military arrests of civilians and the offenses charged in military commissions during the second half of the Civil War were governed by G.O. No. 100. But with few exceptions, they were offenses under the martial law that had been decreed, not “war crimes” in the modern use of the term or under international law. Even though these martial law practices of the Civil War were repudiated at the end of the war by the Supreme Court in Ex Parte Milligan, where they were described by Justice Field as “martial rule,” they have been idealized and argued as precedent by US government officials in current military commissions and even as authority for global drone attacks by the US

Brig. Gen. Mark Martins, Military Commissions Chief Prosecutor, takes pains to defend military commissions under what Justice Field termed “martial rule” as precedent for current military commissions and from charges that they are “un-American.” He and other military commissions’ prosecutors have even coined a phrase to describe these martial law cases as “US domestic common law of war.” According to commissions’ prosecutors, these Civil War martial law offenses are equally as applicable to civilians captured on the other side of the world from the US in the 21st Century as they were 150 years ago in US territory under Union Army martial law.

In making these arguments, US officials take a principle of the law of war that only applies to a nation’s domestic territory, within its own boundaries, and deceitfully misstate the legal principles undergirding martial law and the law of war as well, from commentators of Civil War times such as Col. William Winthrop. Instead of the principles themselves, stated correctly, prosecutors seem to prefer relying on Abraham Lincoln’s historical standing as well as our historical mystification of the Civil War to put this legal history, and their application of it, above any criticism or any analysis.

An example is that of one enthusiast for Civil War era law of war who put it this way on a website which routinely calls for a “tradeoff” of Constitutional Rights for National Security: “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.”

It might surprise the commentator above perhaps to know that 150 years of legal development has taken place since the Civil War, both in Human Rights Law and in International Humanitarian Law, the Law of War, but it probably wouldn’t alter his thought. He’s not alone in harkening back to the Civil War as a “hallowed” period of our history, which it was with the overthrow of slavery. But in every other regard, it was still the 1860’s and Lincoln presided over the ongoing ethnic cleansing of Native Americans with no thought being given to human rights or “humanitarianism” in our ongoing war against the Indian tribes. Nor were the Northern states free of racism either, both toward African-Americans but also toward Jewish-Americans as well as other minorities. So some caution may be in order before looking to the Civil War for legal precedents, regardless of who was President.

Nevertheless, a University of St. Thomas law professor, Michael Stokes Paulsen, recently used Lincoln’s 1863 “Order of Retaliation” against Confederate soldiers, US citizens, to hypothesize that as Lincoln “thought it legally proper – within his constitutional power as president and commander in chief to wage war – to employ the war power of the United States against US citizens” and “felt it within his moral and constitutional authority to apply his interpretation of the law of war, as it then stood, against citizen-enemy war prisoners,” then, according to Paulsen, if “one judges Lincoln’s actions to be proper, much would seem to follow for today’s controversies.” This cannot be dismissed as the ignorance of 150 years of legal development by a law professor at a major Catholic law school but must be seen as a suggestive manner of making the illegal, legal, by association with Lincoln’s moral authority. Paulsen concludes, “we should at least ponder whether Lincoln’s actions were right or wrong, to identify precisely why, and to appropriate those principles for our public discourse and political ethos today, a century and a half later.” Or, we can look to current law for what is appropriate instead of fabricating a “Great Man” theory of the law, as Lincoln himself would have agreed.

But that is the use to which Lieber’s Code is being put to today; the mystification of current law of war by the substitution of Civil War cases decided under martial law, as regulated in Lieber’s Code, and its association with Abraham Lincoln, as in “Lincoln’s Code.” Brig. Gen. Mark Martins particularly emphasizes the association of Pres. Lincoln with the military commissions of the Civil War in speeches he frequently gives touting the military commissions.

But as Prof. Paulsen would seem to understand, the understanding of the law of war during the Civil War, as interpreted by Abraham Lincoln and summarized for troops in the field by Francis Lieber, was the legal framework for the exercise of “unitary executive” powers during the Civil War. That is the “well of Constitutional experience” to be drawn upon now by those like John Yoo who seek expansion of, and unconstrained, executive power. Yoo is particularly enthusiastic of this constitutional “well.” He wrote: “Lincoln consistently maintained that he had not sought the prerogative, but that the Constitution gave him unique war powers to respond to the threat to the nation’s security. Lincoln’s political rhetoric invoked Jefferson, but his constitutional logic followed Hamilton.” Little wonder this “well” has been so thoroughly plumbed by those with a Hamiltonian desire, if not more nefarious, for prerogative powers of the President.

G.O. No. 100 was the authority under martial law for the military arrests and military commission trials of “disloyal” civilians in the North, among its other purposes. Prior to its issuance, martial law was exercised by individual military commanders, acting on authority delegated by the President. Before nationwide martial law was declared and G.O. No. 100 was issued, military commissions and military arrests were taking place in some military commands such as in the corridor between New York and Washington, D.C., and the state of Missouri. But with the declaration of martial law for all of the northern states, even as far from the battlefield as Eugene, Oregon as newspaper editor Joaquin Miller found out, it was necessary to issue a nationwide order to enforce martial law, giving notice of what acts would subject one to military arrest and military trial.

The martial law proclamation over the non-Confederate United States of September 24, 1862, was contained in the “Proclamation Suspending the Writ of Habeas Corpus.” This stated, 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 the United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission . . . .”

In all the celebration of Lieber’s Code, or G.O. No. 100, with books written to celebrate its creation, it is somewhat remarkable that few if any commentators have taken notice that it was primarily the regulation for the one period of US history that the entire citizenry of the United States was subject to martial law. That does not include those citizens in the Confederate states who had their own variations of martial law under the Confederates, including that which enforced slavery, but that is not the subject here as those cases are not being used by the US government today as legal precedent. That there is this oversight is remarkable because the first section of G.O. No. 100, Section I, is entitled “Martial Law – Military jurisdiction – Military necessity,” which cannot be missed.

However, simply reading G.O. No. 100 will not convey what it meant in its effect, having been written at a different time, without reading other interpretive materials of the time. Apart from Section I, other sections of G.O. No. 100 state what was required and prohibited of residents in the Northern states, now subject to martial rule.

Critical to the changed legal relationship of the citizens to the government, now unbound by the Constitution, and to each other was Section V of the Order which addressed “war traitors.” Underlying the military logic of defining a war traitor was Article 86, which provided: “All intercourse between the territories occupied by belligerent armies, whether by traffic, by letter, by travel, or in any other way, ceases. This is the general rule, to be observed without special proclamation. . . . Contraventions of this rule are highly punishable.”

This definition was pertinent to Article 90, which provided: “A traitor under the law of war, or a war-traitor, is a person in a place or district under Martial Law who, unauthorized by the military commander, gives information of any kind to the enemy, or holds intercourse with him.” Furthermore, as provided in Article 91, “The war-traitor is always severely punished.” While that punishment could include death if the offense consisted in betraying troops to the enemy, the offense itself, as will be seen, didn’t necessarily consist of betrayal. For example, Article 98 provided that “an unauthorized or secret communication with the enemy is considered treasonable by the law of war.” But an “enemy” in a Civil War could be friends, family, neighbors, and other close associates. Consequently, in one case, a father was found guilty of having communicated with the “enemy” by sending a letter, to his own son.

But, in spite of the supposed traitorous conduct addressed in the foregoing articles, Article 104 provided, not out of magnanimity but because it was provided for under the international common law of war, that “A successful spy or war-traitor, safely returned to his own army, and afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor, but he may be held in closer custody as a person individually dangerous.”

Why does this matter? Prosecutors representing the US government in 21st Century Military Commissions’ cases charging Guantanamo detainees with “war crimes” have argued that the Guantanamo cases are exactly the same as those cases coming out of the Civil War. They fail to note that the Civil War cases all fell under martial law, which is only legitimate in a nation’s domestic territory, as was regulated under G.O. No. 100. Nor do they take note of Article 104 and its declaration that spies and "war-traitors" cannot be charged unless captured in US territory.

While Military Commissions’ Prosecutors frequently quote Col. William Winthrop in making their arguments, it is more accurate to say they selectively misquote Col. Winthrop, even to the Courts. In doing so, they have failed to note the underlying basis in the law of war for holding such “offenses” as sending a letter to one’s son, an actual offense, an “offence against the laws and usages of war.”

What Col. Winthrop, who was an authority on the law of war as it existed in the 19th Century, wrote in referring to offences cognizable by military commission was: “Of that class, the second class, of offences in violation of the laws and usages of war, those principally, in the experience of our wars, made the subject of charges and trial, have been-breaches of the law of non-intercourse with the enemy.” (Emphasis added.)

According to Winthrop, that class of cases made up the greatest number of individuals who were brought to trial before the military commissions during the Civil War. Those offenses, the second class in how he listed them, were such offenses as, in pertinent part: “running or attempting to run a blockade; . . . conveying to or from them dispatches, letters, or other communications, passing the lines for any purpose without a permit, or coming back after being sent through the lines and ordered not to return; aiding the enemy by harboring his spies, emissaries, &c., assisting his people or friends to cross the lines into his country, acting as guide to his troops, aiding the escape of his soldiers held as prisoners of war, . . . hostile or disloyal acts, or publications or declarations calculated to excite opposition to the federal government or sympathy with the enemy, &c.; engaging in illegal warfare as a guerilla, or by the deliberate burning, or other destruction of boats, trains, bridges, buildings, &c.; acting as a spy, taking life or obtaining any advantage by means of treachery; abuse or violation of a flag of truce; violation of a parole or of an oath of allegiance or amnesty, breach of bond given for loyal behavior, good conduct, &c.; resistance to the constituted military authority, . . . kidnapping or returning persons to slavery in disregard of the President’s proclamation of freedom to the slaves, of January 1, 1863.

COL Winthrop explained that the law of non-intercourse was that the “principle here to be noticed is simply that of the absolute non-intercourse of enemies in war. As frequently reiterated in the rulings of the Supreme Court, not merely the opposed military forces but all the inhabitants of the belligerent nations or districts become, upon the declaration or initiation ‘of a foreign war, or of a civil war, (such as was the late war of the rebellion,) the enemies both of the adverse government and of each other,” and all intercourse between them is terminated and interdicted.”

This means that under this ancient customary principle of war, the law of non-intercourse, when a nation goes to war, an absolute duty of loyalty to the sovereign inheres to all residents of each belligerent’s territory, citizen or not. In the language of the 1860’s, any departure from this absolute loyalty was therefore deemed a “violation of the law of war.” Violations of the law of non-intercourse, as provided under Article 86 of G.O.No.100, according to Winthrop, were “more or less grave in proportion as they render material aid or information to the enemy or attempt to do so, and, as will hereafter be illustrated, are among the most frequent of the offenses triable and punishable by military commission.”

As it happens, when Military Commissions’ prosecutors have frequently quoted Col. William Winthrop, they quote him as follows: “In identifying the class of offenses cognizable as ‘[v]iolations of the laws and usages of war,’ Winthrop explained that such offenses are ‘those principally , in the experience of our wars, made the subject of charges and trial,’" but then they omit the final clause, which is: have been-breaches of the law of non-intercourse with the enemy. Needless to say, this is a critical omission in a document submitted to a court but their intent would seem to be to obfuscate the true meaning of Winthrop’s words and to perniciously turn violations of the law of non-intercourse into "war crimes" in the 21st Century meaning.

The character of martial law, the US domestic common law of war if government prosecutors have their way, may best be seen in Secretary of War Edwin Stanton’s orders. While martial law had been declared and enforced in various areas of the North from the beginning of the war; just prior to Lincoln’s proclamation, Secretary of War Edwin Stanton had begun to expand martial law through a series of orders “to prevent evasion of military duty and for the suppression of disloyal practices” beginning on August 8, 1862. On that day an order was issued directing the arrest and imprisonment of “any person or persons who may be engaged, by act, speech, or writing, in discouraging volunteer enlistments, or in any way giving aid and comfort to the enemy, or in any other disloyal practice against the United States.” Those arrested were to be reported immediately to the Judge Advocate “in order that such persons may be tried before a military commission.”

While Lieber wrote G.O. No. 100 largely in general terms, not specific, a sound source for how it was interpreted and applied was War Department Solicitor General William Whiting. Whiting explained: “Martial Law is the Law of War,” so any violation of martial law would be an “offence against the laws and usages of war,” under the Civil War terminology of Lieber’s Code.

Whiting provided interpretive guidance to Union Commanders for what constituted “military crimes” under martial law as proclaimed. He wrote: “Military crimes, or crimes of war, include all acts of hostility to the country, to the government, or to any department or officer thereof; to the army or navy, or to any person employed therein: provided that such acts of hostility have the effect of opposing, embarrassing, defeating, or even of interfering with our military or naval operations in carrying on the war, or of aiding, encouraging, or supporting the enemy.” It’s not hard to see how this is violative of the US Constitution!

Predictably, this often resulted in false accusations of disloyalty for a variety of reasons, including partisan political purposes against pro-Union Democrats. Historian and Lincoln scholar, Mark Neely has pointed out that many false accusations of “conspiracies” were made, of which there were obviously some but not to the exaggerated degree that were charged at the time. But it must be noted, even in the case of an actual conspiracy, the actual violation of the law of war would have been a violation of the “law of non-intercourse,” a breach of loyalty to the sovereign of the territory, whether it was conspiring to burn bridges or sharing gossip “embarrassing” to the military.

That the Executive branch, under the Commander in Chief as some prefer to call the President today, found “authority” to criminalize speech as a “military crime” in violation of the First Amendment was through the proclamation of martial law as regulated by G.O. No. 100, Lieber’s Code. General Henry W. Halleck, Union Army Chief of Staff, explained: “Martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions is in truth and reality no law, but something indulged rather than allowed as a law.” This understanding of the law of war, or martial law, was echoed by US Supreme Court Justice Field, who wrote: “It may be true, also, that on the actual theatre of military operations what is termed martial law, but which would be better called martial rule, for it is little else than the will of the commanding general, applies to all persons, whether in the military service or civilians. . . . The ordinary laws of the land are there superseded by the laws of war. . . .”

But Justice Field added, writing in Ex Parte Milligan where the Supreme Court in 1866 repudiated the military practices of the Civil War: “This martial rule-in other words, this will of the commanding general . . . . is limited to the field of military operations. In a country not hostile, at a distance from the movements of the army, where they cannot be immediately and directly interfered with, and the courts are open, it has no existence.”

Yet 21st Century US government prosecutors are adopting, albeit taking them out of context, these Civil War martial law cases in arguing there is a “US domestic common law of war,” which is applicable globally, notwithstanding international law. One needn’t go back far to find similar arguments. The 20th Century is replete with similar claims of a domestic common law of war; standing above international law, such as were made in Germany, Chile, the U.S.S.R., and South Africa when under apartheid.

Some claims, such as General Augusto Pinochet’s, were that their country was at war and therefore, martial law was justified for threats from their internal enemies, as under Lieber’s Code. But more analogous was the claim made by Field Marshall Keitel to justify what was done under German military government, martial law, in occupied Europe during World War II, reaching into almost all of the European countries. Under the Germans, when a country was invaded, they would arrest natives even for their pre-invasion anti-Nazi speech, notwithstanding no duty of loyalty had yet become due the Germans as an occupying power. But neither of those claims were as breathtakingly expansive as claiming a “domestic common law of war” could be applied globally, beyond a country’s own borders or in territory unoccupied by their military, outside of their “lines.”

In fact, Field Marshall Keitel sounded eerily similar to John Yoo in his view of the law of war. In the case of Keitel, the law of war in the 1940’s hadn’t developed much beyond how Francis Lieber saw it. It was the horrendous misuse of the law of war as it existed pre-Geneva that resulted in the Nuremberg Tribunal and the Geneva Conventions. For John Yoo and current US government prosecutors, however, going back in time now to principles of Lieber’s Code for their law of war authority is tantamount to incitement to commit war crimes, as it was for Field Marshall Keitel.

In language similar to John Yoo’s, Keitel, in testimony at his Nuremberg Trial said: “As to these methods, this way of conducting illegal warfare kept on increasing, and individual parachutists grew into small Commando units . . . . These incidents in all sectors caused the Fuehrer to demand other methods, vigorous measures, to combat this activity, which he characterized as “terrorism” and said that the only method that could be used to combat it was severe countermeasures. . . .” These activities, in the Fuehrer’s words “were against the Hague Convention and illegal, that it was a method of waging war not foreseen in the Hague Convention and which could not be foreseen. He said that this was a new war with which we had to, contend, in which new methods were needed,” words that Dick Cheney would later echo. As a result of that “terrorist” threat came Hitler’s Commando Order and the Night and Fog Decree, as Germany’s "domestic common law of war." But the carrying out of these orders, even though constituting Germany’s "domestic common law of war," resulted in war crime prosecutions of German military and Gestapo officers at Nuremberg after the war.

German officials fell back on their “domestic common law of war” in defending themselves at Nuremberg. As Field Marshall Keitel put it: “It is correct that there are a large number of orders, instructions, and directives with which my name is connected, and it must also be admitted that such orders often contain deviations from existing international law.” But, he pointed out, “On the other hand, there are a group of directives and orders based not on military inspiration but on an ideological foundation and point of view.” Those deviations from international law and their ideological foundation was Germany’s “domestic common law of war.” It is difficult to see any difference from Office of Legal Counsel attorneys John Yoo’s and Robert Delahunty’s many legal opinions, with their ideological foundation of “unitary executive theory,” justifying violations of international law when the “unitary executive” directs it, whether that executive is referred to as the President or the Fuehrer

So why should Americans care? As Ernst Fraenkel, the German Jewish political scientist and attorney put it in the opening sentence of “The Dual State,” his analysis of the German legal system as of 1939, “Martial Law provides the Constitution of the Third Reich.” Just as martial law in Germany and occupied Europe provided the pretext for criminalizing speech such as that “embarrassing” to the military, so it did during our own Civil War. Germany established a system of “National Security” courts, the so-called People’s Court’s, for the offense of treason of the sort that was called “war treason” during the Civil War. This frequently meant, in both the U.S. and Germany , that a “hostile act” might be just critical speech directed toward the government or its leader. That criticism would be in violation of the absolute duty of loyalty demanded by the law of non-intercourse and therefore a “military crime,” as defined during the Civil War under the principles of Lieber’s Code. While Nazi Germany took that principle much further than was done during the Civil War, Nazi Germany did not establish the minimum threshold for a violation of human rights.

Unfortunately, too many First Amendment commentators in the US have a blind spot to the suppression of free speech and dissent during the Civil War. In an otherwise excellent book on the discovery of free speech principles by Justice Holmes written by a US law professor recently, the author wrote: “The greatest danger to robust political dissent during the Civil War came not from Lincoln, who exercised considerable restraint, but from his military commanders, who too often acted on the assumption that war substitutes the rule of force for the rule of law.” This is clearly contradicted by facts but, regardless, the point is the same; during the Civil War, the rule of force was substituted for the rule of law, particularly constitutional law and the Bill of Rights.

Instead, law school commentators, not historians, seem to attribute blame to overzealous commanders for the thousands of military arrests in the north and suppression of northern newspapers which took place, according to historians and Col. William Winthrop. Placing the blame disproportionately on the military commanders serves to camouflage the legal basis claimed and arguments that had been used by the executive branch to justify these extra-constitutional acts, and thereby forfeiting the counter-arguments made by Justice Fields and like-minded jurists of his day. This blind spot by current legal commentators has left a gaping hole in understanding anti-constitutional arguments made for evading the Constitution by Lincoln administration attorneys, and thereby leaving these same arguments available for today’s authoritarian minded government attorneys.

While Lincoln’s commanders accepted their role in suppressing dissent, understanding the “law of non-intercourse” as they did, which is still within federal law today as part of the Uniformed Code of Military Justice, they were following legal guidance provided by the executive branch and its attorneys. Lincoln’s proclaiming of martial law was for the purpose of providing a legal gloss to what was self-evidently violations of the Constitution, which were coming under increasing criticism. Failing to see that opens the door to similar arguments being accepted today, wrapped up in “battle flags” and the “law of war,” as provided under Section 1021 of the 2012 NDAA.

But the purpose here isn’t to demonize Lincoln or to reopen Civil War debates but to propose a clear-eyed assessment of our own history so as not to repeat it. In addition to slavery, the Confederates adopted their own authoritarian legal practices to address dissent. But US government prosecutors aren’t citing those precedents for today, except for one.

That was the practice of the Confederates to declare as “outlaws,” outside any protection of the law of war even though Union Army combatants, African-American soldiers. Consequently, captured African-Americans were sometimes summarily executed or placed into slavery or re-slavery, indefinite detention, when captured by Confederate forces. This declaration of outlawry and denial of prisoner of war status was a violation of the law of war under Lieber’s Code. This was identical to the Nazi practice during World War II regarding the “terrorists” they were confronted with, guerillas and parachutists in the occupied territories. Declaring outlawry was, and remains, a violation of the law of war.

Nevertheless, this practice of declaring outlawry was adopted by the United States when the Department of Justice declared on February 7, 2002 that “the Taliban forces do not fall within the legal definition of POW.” In this, not only were all Taliban forces declared outlaw but anyone else captured and sent to Guantanamo Bay, or otherwise captured and deemed by the US an “unlawful combatant.” How blatant this practice of declaring outlawry by the US government was on public display when a Military Commissions Prosecutor argued in a court that a Guantanamo prisoner was a “savage,” just like those “savages” whom General Andrew Jackson had summarily executed during the Seminole War in Florida. This practice today is a war crime for which more than a few Nazi military commanders, and their legal advisors, were convicted and sentenced to death for.

US government lawyers since 2001 have accepted the legal argument of War Department Solicitor General William Whiting, John Yoo, and others that, as the “war powers” clause is within the Constitution, therefore, any violation of the Constitution by the President, if done in the name of the war powers, is not a violation of the Constitution. Just as Justice Fields did, it is critical to the survival of constitutional government to push back against authoritarian arguments under the ploy that we are at war so therefore we must rebalance our constitutional rights in favor of “national security,” as some authoritarian commentators call for.

Nor can we allow the mystification of our history and former leaders to blind us to errors of our past that should not be used as precedent today. Lincoln was confronted with a nationwide Civil War. He didn’t deny that much of what he was doing was unconstitutional. Regardless of whether that was justified, we are not confronted with the existential threat to the government today as he was during his presidency. But authoritarians today, such as John Yoo, seek to exploit Lincoln’s moral authority, and his martial law regulation, Lieber’s Code, to justify extra-constitutional measures by our government today. The Civil War, and the law of war it was fought under, was never intended by Lincoln to become the means to destroy the Constitution.

Todd E. Pierce retired as a Major in the U.S. Army Judge Advocate General (JAG) Corps in November 2012. His most recent assignment was defense counsel in the Office of Chief Defense Counsel, Office of Military Commissions. In the course of that assignment, he researched and reviewed the complete records of military commissions held during the Civil War and stored at the National Archives in Washington, D.C.