Today is Lincoln's birthday and my birthday. I shared my thoughts about the film Lincoln in an earlier diary, I saw Lincoln and wept. This diary explores another part of the 16th President's legacy: Codification of the banning of torture.
I consider Lincoln to be my "spiritual ancestor," and not (only) because of our shared birthday. I believe that Lincoln and this community are part of a multi-century continuum of progress toward a better country and a better world, and we are willing to work, struggle and persevere to keep going in that direction. We are often reminded that the continuum is not a straight line -- that malign forces are always trying to roll back the gains, whether it's brazen attempts at disenfranchisement or use and rationalization of torture.
Below is an edited version of a diary I wrote in July 2009 about the Code of Military Conduct that first prohibited torture.
Necessity does not admit of Cruelty
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In April 1863, just a few months after the Emancipation Proclamation, 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 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.
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. 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.
Of course, we know that Lincoln's record on civil liberties is far from perfect because of actions like suspension of
habeus corpus. In that sense, there's some comparison to President Obama, based on his use of drones and indefinite detention policy (and repudiation of torture).
There's been plenty of debate about drones here and it's not my intent to have this diary as host to another one. My point is that torture should be beyond debate. Beginning with Lincoln it became beyond debate, until the last administration, in panic, cynicism and sadism, made it acceptable. It should not be. Under any circumstances.
Necessity does not admit of Cruelty
.