Sept. 11, 2001, represented the start of a new type of war for the United States: an armed conflict beyond the purview of the existing rules of conventional warfare.
It was not, however, the first time that America had to rethink its positions on the rules of war, according to Thomas H. Lee, the Leitner Family Professor of International Humanitarian Law.
A similar situation arose during the Civil War, Lee said. At the outset, the rules of engagement were designed for naval and land conflicts between powerful European nation states.
“Both 9/11 and the Civil War were instances in which you had armed conflicts that were odd fits to the prevailing rules of warfare,” he said. “Part of what the Bush administration did [in the war on terror]was they proffered interpretations of how the old rules fit the new conflict that were not very plausible.”
Lee is uniquely qualified to comment on the subject. After graduating from Harvard College in 1991, he was stationed in East and South Asia as a U.S. naval cryptology officer for four years. His service included four submarine deployments.
He presently holds three directorships, as the head of Fordham’s international and graduate legal studies, the Fordham-SKKU Summer Institute in International Law in Seoul, Korea, and the Center for International Security and Humanitarian Law at the Leitner Center for International Justice.
Well versed in the law as well as military history and culture, Lee has harnessed his knowledge of the national judiciary’s involvement in foreign affairs and focused in on the rules of war.
His recent work includes a chapter in an anthology about presidential powers, titled, “The Prize Cases: Executive Action and Judicial Review in Wartime.” It is an examination of an 1863 Supreme Court decision about President Abraham Lincoln’s unilateral proclamation of a naval blockade of Southern ports.
During an upcoming sabbatical, Lee plans to complete a book, The International Laws of War and the American Civil War, which will feature his analysis of the Prize Cases and other case studies of the laws of war during the Civil War.
“It’s such a strange world, the laws of war in the mid-19th century,” he said. “Some of the judicial opinions of the time are impenetrable to read, especially when dealing with maritime warfare, because they involve virtually extinct legal questions such as the conditions under which you can take prizes and the rules of blockade.”
Lee said it is worth understanding how Civil War-era American military and political leaders—both of the Union and the Confederacy—thought about the laws of war and applied them to the conflict. He suggested that this thinking is different from today’s.
“Right now, I’m working on a part of the book about prisoner-of-war camps. It’s interesting to read firsthand accounts and see the extent to which the laws of war were considered seriously. These prisoners have one dog-eared international law book, and they’re peering at it, trying to figure out if there’s any legal argument that they must be released, or they must get things,” he said.
“The lawyers, soldiers, and politicians of the time took the laws of war a lot more seriously, in an innocent, naïve kind of way. I guess today, since the legal realist revolution, the typical politician or scholar’s view is that a lot of law is politics,” Lee said. “Those guys weren’t so cynical. They might have believed it on some level, but they also seemed to believe the law was much more of a serious external constraint.”
The most important point, he said, is that the Civil War presented truly vexing legal questions for everyone involved. When Union leaders decided to enact a naval blockade of the Confederacy, one consequence they had to consider was that, according to laws at that time, a blockade could only be staged against a sovereign entity. Therefore, to enact the blockade might be an implicit acknowledgement of the Confederate States’ sovereignty. Since the South could use this to gain treaties with France and England, the North took this action very seriously.
“The United States did think that there was a lot of room to massage such laws, to construe them in a way that was within their military interests. But leaders did take them seriously in a way that’s different from today,” Lee said.
All of this ties into Lee’s work on the Supreme Court’s role in international affairs. Today, the nation’s foreign affairs are generally thought of as the president’s prerogative, in consultation with Congress. But the Supreme Court wasn’t always the domestic, civil rights-focused institution that it is now, Lee said.
“The [founders]intended the Supreme Court and the federal courts to be big foreign policy players, diplomatic courts, so to speak.” he said.
One need only look at the roster of Supreme Court justices to see how the court’s focus has changed. Lee notes that three of the first four chief justices of the United States—John Jay, Oliver Ellsworth and John Marshall—held positions in the state department or as foreign ministers of the United States.
Today, candidates for the highest court in the land are typically appellate lawyers, judges or academics.
“If we started picking people like James Baker or Bill Richardson to be Supreme Court justices, that would be consistent with the way the court was intended to operate at the founding,” Lee said. “Hillary Clinton, for example, after she finishes as secretary of state, would be the sort of Supreme Court justice the framers envisioned, regardless of whether you agree with her politics.”