Alan G. Kaufman Reviews Stephen C. Neff’s ‘Justice in Blue and Gray’

by Kenneth Anderson

Alan Kaufman, a career national security lawyer and retired Navy JAG, has a fine review-essay of Stephen C. Neff’s Justice in Blue and Gray: A Legal History of the Civil War over at Lawfare.  Alan, who is a former student of mine a really long time ago at Harvard Law School as well as an occasional commenter here at OJ, observes in the essay how the law of the Civil War continues to reverberate in the US approach to its conflicts and counterterrorism today.  The book is excellent and likewise the essay reviewing it.

[T]he American Civil War, much like the armed conflicts in which the United States remains involved since the events of 9/11, required that national security strategy and decision making operate “in the dual spheres of criminal law and belligerency.”  Today’s questions of combatant status and the fate of unlawful belligerents, debates over executive powers, controversial habeas litigation, struggles over restraints on civil liberties, executive detentions, trials of civilians before military commissions, questions of whether and when to apply domestic criminal law or the international law of war, and, of course, when does the war end and what are the attendant legal consequences – all these questions figured into the law of the Civil War.

Justice in Blue and Gray, A Legal History of the Civil War, by the eminent historian of public international law and the law of war, Stephen C. Neff, is intended as “primarily a case study of the myriad ways in which law plays an important role in a crisis of giant political and military dimensions.”  This is a work of serious history by a leading legal historian, not a thinly-veiled parable or historical roman-a-clef for the present; it offers no direct connection to our world today, except by the reader’s own inferences.  Still, this legal history offers a not-so distant mirror.  Clear and elegant in its language, understandable to the layman as well as to the lawyer, Justice in Blue and Gray shows how law in war can be used – indeed, was used – to accomplish strategic and operational war fighting objectives in a vast and bloody conflict.  To use a word Neff does not use (and a somewhat controversial word in today’s parlance), this is a study of law in the Civil War as lawfare.  It would be something of an understatement to say that these understandings – both as icon from the past but also source of live legal precedent – are entirely in play in the most recent round of speeches by the Administration’s senior legal officials seeking to explain itself and its justifications in Guantanamo detention, trials, targeted killing, and the targeted killing of Americans.  The recent speeches by Attorney General Eric Holder, DOD General Counsel Jeh Johnson, DOS Legal Adviser Harold Koh, and others can profitably be read with this book to hand.

At the level of grand strategy, all lawfare is a battle for legitimacy.  To be sure, other objectives – operational and tactical — may flow from that source, but legitimacy is always the underlying and fundamental legal objective.  Thus, for the nascent Confederacy, a key initial strategic objective was recognition as a sovereign nation state, and the potentially decisive foreign alliances, particularly with Britain, that could flow from the establishment of that legitimacy.  For the Union, an initial strategic objective was to prevent any such recognition and concomitant legitimacy.  And so the first and richest chapter of Justice in Blue and Gray discusses the legal arguments surrounding the act of secession by the southern states.  Upon the answer to these fundamental legal questions would depend not only whether the secession and a fight either to maintain it by one or to stop it by the other could be held legitimate, but also whether what followed would be law enforcement or war – and thus what measure of violence could legitimately and lawfully be taken by either side to suppress or perfect the secession.

3 Responses

  1. Response…
    If this is an attempt to compare the Civil War between the United States and the Confederate States of America (CSA) with a so-called “war” with al-Qaeda, such a comparison does not make sense under the laws of war, since al-Qaeda has never met the traditional criteria for insurgent status much less that for belligerent status.  The CSA, however, had the semblance of a government, had organized military forces, was able to field organized military forces in sustained hostilities, controlled significant territory of the United States as its own, and had outside recognition by England and a few other states as a “belligerent,” but not a state.  Eventually, the U.S. also recognized that the CSA was a belligerent (e.g., in the 1862 Prize Cases) and applied the 1863 Lieber Code with respect to the customary laws of war — all of which apply once the status of a belligerency is achieved and/or today a state, for example, is in an armed coflict with another state, nation (e.g., U.S. wars with Indian nations), peoples.
    Perhaps the writer(s) had in mind the U.S. armed conflict with the Taliban.

  2. I don’t think the point is to say one is like the other – only that the US has had to address many of the questions of lawful or unlawful use of force, choices between the criminal and war paradigm, and lots of other things in the Civil War.  It’s not a claim of some point for point comparison.

  3. I guess I would say that whether or not Al Qaeda can or should be considered a belligerent or an insurgent under contemporary law is not the issue that I wanted to get at….but it  does get at the point of what I wanted to suggest is one the book’s most interesting aspects:  the way this book describes the legal history of the Civil War as a mash up of law enforcement and war fighting law ….and how law and legal issues were sorted out in that environment, to decide which was which and why and where — in other words, which law applies, and why? As Neff said in his book:

    [I]n a case of rebellion by its own citizens, a government acts in a sovereign capacity, as the enforcer of its own national laws. Against enemies, in contrast, a government acts in a belligerent capacity…When acting in a sovereign mode, a government wields whatever coercive weapons are given to it by its own constitution or domestic law.  When acting in a belligerent capacity, the government’s powers are determined by international law – specifically by the portion of it known (for obvious reasons) as the laws of war.  This fundamental question of whether the Confederates were rebels (i.e. criminals) or enemies – and by the same token whether the Union government was operating in a sovereign or a belligerent mode – would pervade the entire legal history of the struggle.

    Seems to me that it’s fair to say that similar fundamental questions remain in play today.

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