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(Now cross-posted on Kos)
We all know that in January 1863, Lincoln issued the Emancipation Proclamation, transforming the Civil War by adding the abolition of slavery to the goal of preserving the Union.
But just a few months later, on April 24, 1863, Lincoln issued another, lesser-known proclamation, putting into effect a Code of Military Conduct for the Union Armies, known as General Orders No. 100. The author of the Code was Francis Lieber, a German immigrant who had been wounded at the Battle of Waterloo.
Article 16 of the General Orders leaps out as dramatically relevant today. It states in part:
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.
“Necessity does not admit of cruelty.” Think about that for a moment. No matter how serious the circumstances, no matter how dangerous the threat, there is no justification for cruelty, and its savage partner, torture.
In April 1863, the outcome of the Civil War was still very much in doubt. In December 1862, the Union Army was defeated at Fredericksburg, with the loss of nearly 13,000 men. In March 1863, Congress enacted a draft, leading to deadly riots later that year. Over one hundred thousand Union soldiers had already been killed in two years of war, and survival of the Union was still very uncertain. The Battle of Gettysburg, which would finally turn the tide of the war irrevocably toward the Union, was more than two months in the future. And now that the Emancipation Proclamation threatened the existence of slavery, the Confederate armies were likely to fight even more desperately and ruthlessly.
And yet, at this most threatening and dangerous time, Lincoln proclaimed “Necessity does not admit of cruelty.” When the very fate of this country was on the line, when everything to which Lincoln had dedicated himself was in jeopardy, the President reaffirmed his commitment to the basic principle that some behavior is intolerable under any circumstances.
Let’s compare that to recent history.
Our lives were all changed on September 11, 2001. The trauma and shock of the attacks gave way to daily anxiety, heightened by new, frightening events like the anthrax attacks. It was the most troubling time many of us had lived through.
Was it comparable to the cataclysm of the Civil War, which in the end claimed more than 600,000 lives, and threatened the very existence of this country? Was it even comparable to the threat of nuclear war that shadowed the 1950’s and 1960’s, or the early days of World War II, when Japan and Germany appeared unstoppable.
But let’s assume that the post-9/11 threat was as grave as the threat that existed in 1863. How did the actions of our leaders compare with those of Lincoln? Our elected leaders abandoned or ignored Lincoln’s dictum that “Necessity does not admit of cruelty . . . nor of torture to extort confessions.” Discarded were principles of international law and justice that evolved after the 1863 Code of Military Justice and were codified in conventions ratified and signed into law by Presidents, up to and including President Reagan.
Instead, there were fraudulent memos drawn up to justify the unjustifiable; to twist and turn the law on its head to immunize the planners and perpetrators from prosecution. There were acts of great cruelty and horror planned at the highest level, and perpetrated at places like Abu Ghraib, with the consequences falling only on those at the lowest levels.
And now, we’re told that we should not revisit the past; that those who planned, justified and committed these acts were acting in “good faith”; that prosecution, or even investigation, would be vindictive and politicized.
Again, we can learn from Lincoln, who expressed a deep commitment to the rule of law early in his career. In January 1838, the not yet 29 year-old Illinois State legislator spoke at the Springfield, Illinois Young Men’s Lyceum. The speech was a reaction to waves of mob violence that had recently led to lynchings in Mississippi and St. Louis. Lincoln said that anarchy and chaos can best be confronted by application of the rule of law throughout society – that “a reverence for the Constitution and laws” must be taught and permeate all institutions, from the family to the highest levels of government. Let reverence for the law, he said,
become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.
Are we following that instruction today? At the moment, 1.6 million inmates are in prisons all over this country. 640,000 of them were convicted of non-violent offenses, overwhelming drug-related crimes. How are they and their families and friends supposed to react if a blind eye is turned toward the admitted perpetrators of the serious crime of torture – a violent crime clearly set forth in criminal statutes and treaties. What should a drug offender serving 5-15 years for the sale of marijuana think about the likes of Cheney and his conspirators, they who have admitted their complicity in much greater crimes without consequences thus far?
Is that honoring “a reverence for the constitution and laws?” Is this the justice that the young Lincoln spoke of when he asked us to “sacrifice unceasingly” upon the altars of the law.
Lincoln would have been appalled at the evisceration of the law that has led many to accept and rationalize torture today. We now hear that torture is justified because it may have been “effective,” or because the “other side” does worse, as though we judge ourselves by the worst rather than the best. These wither in the face of Lincoln’s simple and powerful proclamation at the time of this country’s greatest danger:
Necessity does not admit of Cruelty