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The Enduring Role of Law in the US Armed Forces

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The Enduring Role of Law in the US Armed Forces Strategy & Entailments: The Enduring Role of Law in the U.S. Armed Forces Laura Ford Savarese & John Fabian Witt Abstract: This essay aims to redescribe key moments in the history of American military engagements to Downloaded from http://direct.mit.edu/daed/article-pdf/146/1/11/1830851/daed_a_00419.pdf by guest on 01 October 2021 account for a persistent role that law has played in these conflicts. The law of war tradition has persisted since the War of Independence, we argue, because of an internal dynamic that makes it both strategically useful and costly for the United States to commit itself to rule-bound warfare. Invoking the laws of war to advance the strategic interests of the United States, American soldiers and statesmen have found, entails consequences beyond their control, making reversals in position more costly and enabling critiques in the language of the law. These entailments, we argue, are built into the enduring strategic value of the laws of war. The law has remained useful not because it can claim perfect neutrality, but because it has force independent of the interests for which it is mobilized. Law has had a central place in the American mili- tary since the War of Independence. But law’s per- sistence has been shadowed by an equally durable LAURA FORD SAVARESE is a critique. Time and again, from the eighteenth cen- J.D. and Ph.D. student at Yale Law tury to the present, critics have charged that Amer- School and the Yale Department of ican soldiers and statesmen invoke the law not as a History. She earned her A.B. from neutral adjudicator among the contending sides, but Harvard College and completed an as a tactic–a weapon, even–in the advancement M.St. as a Henry Fellow at Oxford of U.S. interests. And Americans have admitted as University. much. From George Washington’s strategic adop- JOHN FABIAN WITT, a Fellow tion of the legal standards that attached to indepen- of the American Academy since dent states to the use of law as a nonlethal weapons 2014, is the Allen H. Duffy Class of system in today’s counterinsurgency efforts to win 1960 Professor of Law at Yale Law hearts and minds, Americans have been remarkably School. He is the author of Lincoln’s candid about the strategic uses of law. Code: The Laws of War in American The difficulty with strategic deployment of the law History (2012), Patriots and Cosmo- to advance one’s interests, of course, is that it threat- politans: Hidden Histories of American Law (2007), and The Accidental Re- ens to undo the law’s value. When critics today talk public: Crippled Workingmen, Destitute about “lawfare,” for example, they suggest implicitly Widows, and the Remaking of American that the claims being made in the name of the law lack Law (2004). the neutral status on which the law’s legitimacy relies. © 2017 by the American Academy of Arts & Sciences doi:10.1162/DAED_a_00419 11 The Enduring But it is a mistake to think that strate- soldiers as traitors rather than prisoners Role of Law gic invocations of the law reveal it to be of war. (The British decision to treat the in the U.S. Armed Forces an empty vessel for the assertion of naked rebellion as a crime instead of as a war, he power, and it is a mistake to think that the complained to his British counterpart, de- law requires perfect neutrality for its legit- prived American officers of the “Benefit imacy. What is striking is not that the turn of those Military Rules” that, as he wrote, to law is based in strategic interests. Of “we have shewn on our part the Strongest course it is. We should expect nothing dif- Disposition to observe.”)3 Similarly, ev- ferent in the domain of armed conflict–or ery soldier under Washington’s command indeed, in any domain. People turn to law had to sign the Congress’s Articles of War.4 for the purpose of advancing projects. But Washington repeatedly issued orders pro- Downloaded from http://direct.mit.edu/daed/article-pdf/146/1/11/1830851/daed_a_00419.pdf by guest on 01 October 2021 as elsewhere, law in armed conflict is not hibiting “the infamous practice of Plun- undone by its inextricable entanglement dering” and urged the Congress to height- with power and interest. To the contrary, en punishments for the offense, for which what makes law strategically valuable is 194 soldiers were court-martialed and con- that it entails consequences beyond the victed during the war.5 It is not too much control of the parties that invoke it. Par- to say that law suffused Washington’s en- adoxically, this absence of control is criti- tire approach to waging war. cal to the utility of the law, for the gap be- Washington’s strategy on the battlefield tween law and interest leaves the law in a was to lay claim to the nation-state sta- position to legitimate and empower those tus that the laws of warfare helped to con- who can successfully mobilize it. In turn, struct. Washington’s mission, and formi- this gap has given law an enduring appeal dable challenge, was to create a disciplined, for American soldiers and statesmen in professional force of long-term regulars, of- some of their most important endeavors. ficered by gentlemen trained in the Euro- pean canons of military science, and capa- Engagement with the law was apparent ble of outclassing its British counterpart in in the very first days of an American mili- pitched battle. Washington self-consciously tary. The Second Continental Congress, in sought out set-piece battles, the archetype its first steps after the outbreak of hostili- of eighteenth-century rule-bound warfare.6 ties in 1775, cited the laws of civilized war- The Continental Army won few of these en- fare as a cause for war against Great Brit- gagements. But in the struggle to gain rec- ain and as a binding code for the belliger- ognition in the family of civilized nations, ents’ conduct.1 The Congress then asserted Washington’s commitment to rule-bound its control over the armed forces by enact- warfare paid dividends. The Americans, ing the Articles of War to govern the newly William Pitt told the House of Lords in 1777, created Continental Army. In commission- proved they were “not a wild and lawless ing General George Washington as com- banditti.”7 mander-in-chief, the Congress instructed Rules of war also governed the Ameri- him to “regulate [his] conduct in every re- cans’ administration of justice against the spect by the rules and discipline of war.”2 enemy. The trial and execution of Major Washington, in turn, relied on the law both John André, the British officer who famous- to set the terms of his engagements with ly conspired with Benedict Arnold to deliv- the British and to articulate and enforce er West Point to the British, demonstrated the obligations of subordinates under his Washington’s commitment to the sterner command. He protested the British com- dictates of the laws of war. A Board of Gen- mand’s treatment of captured American eral Officers convened by Washington de- 12 Dædalus, the Journal of the American Academy of Arts & Sciences cided that André “ought to be considered enemy ships and goods in wartime–dictat- Laura Ford as a spy from the enemy,” and therefore, ed important decisions made by naval cap- Savarese & 15 John Fabian “agreeable to the law and usage of nations tains. As Justice Joseph Story of the U.S. Witt . he ought to suffer death.”8 André’s case Supreme Court noted in an 1814 prize case, marked an early instance of military tribu- irregular conduct at sea could easily “in- nals being tasked with enforcing the laws volve the nation . in serious controversies of war. André was one of at least twenty not only with public enemies, but also with British and Loyalist spies tried and execut- neutrals and allies.”16 The federal judiciary ed during the Revolutionary War, most of policed the actions of naval commanders whom were convicted by courts-martial.9 and privateers for violations of U.S. policy 17 The Revolutionary War also laid the ba- and international law, applying the inter- Downloaded from http://direct.mit.edu/daed/article-pdf/146/1/11/1830851/daed_a_00419.pdf by guest on 01 October 2021 sis for a system of formal training in the national law of prize directly as a rule of laws and science of war. Reliance on for- decision without deference to a captain’s eign engineers, artillerists, and tacticians judgment and holding captains personally during the war convinced men like Wash- liable for illegal seizures.18 ington, Henry Knox, Alexander Hamilton, The military’s commitment to rule- and Thomas Jefferson of the need for a na- bound warfare did not, however, go un- tional institution to train “a body of sci- tested. The laws of war, by some accounts, entific officers and engineers, adequate to ceased to apply in frontier conflicts with any emergency.”10 In 1802, Congress au- Native Americans.19 Yet even here, the thorized President Jefferson to establish laws of war were not foreign to conflicts a military academy for engineers at West with Indians. To the contrary, the laws of Point.11 Sylvanus Thayer, who became su- war supplied a rationale for campaigns of perintendent in 1817, designed a curricu- destruction against enemies whose own lum premised upon the Enlightenment mode of warfare diverged from the rules theory of warfare as a rational science.12 In accepted by European nations.20 Even An- the 1820s, Thayer added international law drew Jackson (though hardly an embodi- to the curriculum.
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