20 August 2007

Whatever did happen to clarity?

A fun thing happened when looking into Admiralty Courts, which is a fascinating topic I may get to in the near future, and that was looking up more and more of the various Treaties and such covering warfare, the view of the Admiralty Court to civil prosecution (yes it is a Civil Court for most things, that our government gives over to the Civil Courts... not all...) and the such like.

Now, today we have this question of 'what to do with the guys in Guantanamo' and, really, one would think that the US would have addressed this at some point. Really, is it so much to ask that brigands, bandits, robbers and pirates get addressed in a military way? Well, still searching through things but here is a lovely piece the Avalon Project holds and, really, if one must point to the erosion of clarity in the military it is quite succinct. I will warn you it is *not* a treaty... far, far worse than THAT:

Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.
Beautiful, isn't it? It describes TERRORISTS perfectly! And what they are, too. Absolutely dead-on accurate. This is just what you would *want* to deal with them! Ok, want to guess when this was put out?

Think of a year! 1977 perhaps? No, far too direct for then.... 1949 maybe? Geneva Conventions related? Nope! Neither?

1907 or 1899 Hague Convention related? Nuh-uh.


Try 1863.

And what is it?

Now the year is almost a give-away, isn't it?

The President was Lincoln.

The document:

Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.
Yes the US Army Field Manual!

Painful, huh?

The Armies of the Union could have dealt with 'terrorists' EASILY.

But not us!! Oh, my heavens NO!

We have to get all legalistic, don't we?

When I have been saying that our 19th century ancestors could have dealt with terrorists in a conceptual way, this is what I mean.


Pangloss said...

This is really a gem you have unearthed. Bravo!

A Jacksonian said...

Pangloss - My thanks!

It is a gem of clarity from a time when the law of nations was paramount and how to keep all Nations safe was a concern. Lincoln signed off on it, as that is the role of president: Head of State, Commander of the Armies and Navy of the Union, Head of Government which also gets the 'chief law enforcement officer'... he knew what to do and so did his successors for quite some time.

Perhaps we can regain that clarity of the law of nations before it is too late.

benning said...


A Jacksonian said...

Benning - Thank you!

I was shocked to see what we have forgotten as a Nation when I found this.

cprq said...

I find this very interesting. But we should consider it more precisely, or else it will become too falsely clear:

1. who were these interior enemies the Armies of the Union were so able to fight? WERE they American? What AMERICANS were they?

2. the expedient treatment an army may justifiably apply against enemies regards the fighting enemy, NOT the prisoners, be they terrorists, bandists, nazis ans so forth ...

A Jacksonian said...

cprq - This set of orders was maintained into the mid-1890's (a bit over 30 years) and would cover not only the westward expansion but conflicts with other Nations, like Mexico.

To better understand what is being achieved, I've written multiple pieces past this dealing with the activity that Lincoln, Jackson, Jefferson and Washington would know as Private war. This goes beyond terrorism or piracy and includes the category of warfare conducted by individuals without sovereign approval or who are not trying to set up a sovereign State. Thus the activities that Lincoln is adddressing are those that are not within bounds of sanctioned warfare.

Just after this are:
What is necessary to find terrorists to be Pirates?,
Piracy, terrorism and the wider view,
The nature of the enemy,
Where Angels fear to tread.

The last one goes through the time era from the late Bronze Age to the modern era tracing Private war (or predatory war, or depradation) as it is a hallmark of how human society comes to make governments and States and what is and is not allowed by those States. We see this clear distinction as far back as the Trojan war (and, indeed, further examining Egypt and China) and how these ideas are put forth for Roman Law and then incorporated into the basis of modern law via the Black Book of the Admiralty. From there you go to Grotius, de Vattel, and Blackstone, all examining and codifying what this form of activity is, how it takes place and why the treatment of those performing Private war is not part of normal procedures as it is a crime against everyone agreeing to civilized principles of States and Nations.

These were not unknown to the Founders who cite Grotius, Vattel, Blackstone and many others who wrote on this topic as part of the Laws of War and the Laws of Peace and the Law of Nations.

All such works are freely available, as are mine for thefting with attribution. "A Jacksonian" or "A Citizen of the Republic" work well for that, and I keep to the fine tradition that America has always kept to of throwing out ideas to have them judged on merit not personal qualities. Just as 'Publius', 'Cato', 'Brutus', 'Federal Farmer', 'A Gentleman from Georgia' and others have done in our past. Make something better and claim the glory or not as you will, while acknowledging those that came before.