Book Review: Justice in Blue and Grey: A Legal History of the Civil War

[Valin]

 

Lawfare

 

Alan G. Kaufman

Wednesday, March 7, 2012

 

The American Civil War remains – perhaps surprisingly, perhaps even astonishingly – a well of Constitutional experience informing this nation’s sense of law and legitimacy throughout the conflicts set off by 9/11. It is the deeper well to which this country returns again and again in seeking to marry security and law, notwithstanding that it took place 150 years ago, on American and not foreign soil, and spilled the blood only of Americans and not also of foreigners in faraway places in Central Asia or the Middle East. Its invocation in debates over law and conflict today is not merely the ritual of calling upon the nation’s icons, but is instead a live source of law, legal precedents, state practice, and custom.

 

This is so largely because the 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.

 

(Snip)

 

Justice in Blue and Gray: A Legal History of the Civil War

Stephen C. Neff