Tuesday, December 26, 2006

Should we have executed Jefferson Davis and Robert E. Lee?

Sandy Levinson

The New York Times has just indicated that an Iraqi appeals court has upheld the death sentence for Sadam Hussein "in a decision that clears the way for his execution within 30 days, Iraqi officials said."

So the question is this: Should the victorious Union in 1865 have tried, convicted, and then executed Jefferson Davis and Robert E. Lee for the treason they undoubtedly (as a legal matter) engaged in? Indeed, though the term is obviously anachronistic vis-a-vis 1865, should they have been tried for "crimes against humanity" with regard to their collaboration, to the point of secession, with slavery?

I suspect that most Americans, rightly or wrongly, believe the answer is no, that the wisdom of Lincoln's Second Inaugural was precisely to avoid "malice" toward the defeated South, including its leaders. From a more realpolitik perspective, the answer is surely no, unless one is willing at the same time to support a far, far more rigorous and bloody "reconstruction" (also known as "regime change") against the insurrection that would surely have been multiplied had Davis and Lee swumg from the gallows.

So why should anyone cheer the imminent execution of Saddam Hussein, however much one may believe that if capital punishment is ever justified, then he surely qualifies? Can any sane person believe that his execution will in any manner whatsoever serve to bring any further stability to Iraq? The United States is without the slightest authority, moral or political, to intervene in this "self-inflicted wound" (to quote Charles Evans Hughes's description of some notable Supreme Court fiascoes). Can anyone, or are we doomed, as in a Greek tragedy to the execution of the tyrant followed by ever-increasing retaliation against Shi'ites and so on. Does any sane person believe that a "surge" in US forces, coupled with Saddam's execution, makes the slightest bit of sense, unless we want to declare ourselves unequivocal partisans of the Shi'ites (and, indirectly, of increased Iranian influence?).

And so on to a New Year. And is anyone going to be celebrating the fact that on New Year's Day, thanks to our Constitution, there will be 751 days to look forward to of the Bush-Cheney Administration?


Well, I'm opposed to the death penalty, so no, we shouldn't have executed them. But trying them (and sentencing them to prison) was probably a perfectly sane thing to do in retrospect-- it would have rubbed it in the face of racist fans of the Confederacy that these guys were proven traitors, not the noble patriots who have so many things named after them in the American South even to this day.

Professor Levinson:

If I were to use a historical comparison for the Saddam trials, it would be the Nuremberg trials of Nazi mass murderers rather than Lincoln's decision not to prosecute Davis and Lee for treason. Given that slavery was legal at the time of secession, I do not see the prosecution of Davis or Lee for human rights violations in that era.

Apart from bringing a mass murderer to justice, executing Hussein would serve one other critical purpose - to convince the Sunni terrorists that they cannot regain power.

Hussein played to his Sunni base during the televised trials by repeatedly declaring himself the proper leader of the government of Iraq and saying that he would regain his authority from the US occupiers. When the Sunni also watch on our media that the US thinks it has lost in Iraq and will withdraw in the near future, the terrorists can be forgiven for thinking that their terrorism is working and Saddam can be returned to power.

Executing Saddam will put an end to the dream of regaining power through terror. An execution means that there is no going back.

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First off, the comparison doesn't wash. Davis and Lee were not guilty of similar crimes against humanity.

I do think that the Civil War reminds us how messy it is for "foreign" forces to interfere with local communities, even to promote human rights. The U.S. didn't want the U.K. and France coming in to "solve" things for them. etc.

The basic point of the post is true and dilan has a point, though I think the rebellion was settled on the battlefied.

Also, sentencing them would likely result in more thought of martyrdom. Also, Lee -- unlike Davis and a few others -- at least knew when it was over.

I doubt any local jury would convict them in a civil trial unless it was stacked via disqualifications.

Sandy's post asks some good questions. In the interest of a bit more thorough historical development, however (this is a topic I have been scribbling away on for several months now), we should note that Speed, Bates and Stanton were all in favor of putting Confederate leaders on trial, and President Johnson seemed at least prepared to entertain the idea. The project seems to have been very active from roughly July 1865 through mid-Spring 1866. Francis Lieber was appointed the head of a commission of investigation to examine the question. Lieber and his team came to a quick focus on a series of war crimes abuses, including the practice of hostage taking and mistreatment of prisoners. After Davis' records were seized and scoured and those of the Confederate war office, however, no concrete evidence was found to support the idea that Jefferson Davis had authorized summary executions and prisoner abuse (notwithstanding the fact that several Confederate political leaders leveled just this charge against him). Also on the issue of hostage taking, the records showed at least as much by the Union as by the Confederacy. For this reason, Lieber concluded in the report he submitted at the end of January 1866 that although there was a sufficient predicate to bring a charge against Davis, there was insufficient convincing and clear evidence to secure a conviction - and that bringing charges would not be in the best interests of the Republic. Lieber also argued strongly that not all war crimes should be charged, but only those involving extreme "moral turpitude," which is to say grave breaches. Lieber also argued strongly against charges against Robert E. Lee and the captain of the Alabama. I think Lieber's judgment on all these points has withstood the test of time. He was plainly correct. In the end the only charges that resulted from the process were the detainee abuse charges out of Andersonville - a case in which the evidence was overpowering and the public demands for action insurmountable.

Saddam Hussein is a heinous criminal and the evidence against him is overwhelming. If there is a case to be made for the death penalty, then it is for individuals like Saddam Hussein. But there is plenty of reason to be concerned about the concluded trial and that left pending. Neither comes anywhere close to a Nuremberg standard, much less the more evolved standards of the ICT for Yugoslavia or Rwanda. At this point the major concern has to be not for Saddam's well deserved and certain fate, but for the interest in truth and justice for the victims of his genocidal campaigns against the Kurds, and other victims. They have a right to closure, and that includes a right to see the pending trial carried to its conclusion - and this in turn is reason to put off the execution of the death sentence until the second trial can be concluded. This is a very big deal in my book.

Mr. Horton's additional points are illuminating, but my understanding is that "case in which the evidence was overpowering" respecting Andersonville very well might be disputed by some serious scholars.

[see, e.g., James M. McPherson stating the point, not making any conclusion, in "Battle Cry of Freedom" also Louis Fisher in "Military Tribunals & Presidential Power," which supplies some evidence Captain Wirtz was a scapegoat, a questionable one perhaps at that.]

My argument is as much "political" as "legal." That is, it is an ever-present dilemma as to whether one should exact "justice," including just retribution from evildoers, or decide that the attainment of some reasonably stable future order requires placing "justice" secondary to more pragmatic considerations. This dilemma was faced by South Africa, for example. To be sure, the ANC would almost certainly have preferred to try and punish the former Natinalist leaders. But a political decision was made to accept a Truth and Reconciliation Commission basically in lieu of just punishment, and it's hard to argue, from the perspective of a decade later, that that wasn't the right choice. Similarly, US leaders decided, almost certainly rightly, that killing the leadership of the Confederacy (or even jailing them for extended terms) would have proved dysfunctional to restoring "the Union." If one opposes that decision, it is because one prefers "justice" to "Union" (a choice that was, of course, rejected in 1787-88, when the fatal compromises with slavery were made.

Nuremberg is different, I believe. Never has a ruling leadership been so decisively defeated and discredited. But, note well, the US left Hirohito on his throne, even though, juridically, he was responsible for the systematic aggression of the Japanese in China and then at Pearl Harbor. That was a blatantly political decision.

Saddam is a terrible, terrible, person, in tons of ways. But I'm not sure how precisely one demonstrates that he is really worse than those who fought to maintain a system of chattel slavery or an emperor whose regime engaged in vicious--as only fitfully acknowledged, unto this very day--atrocities against its enemies.

Incidentally, what happens the day after Hussein is executed? Will his family be allowed possession of the body, so that it can buried in a "proper" ceremony? Or will it be secreted away, to be buried at a secret site that, therefore, cannot become a place of pilgramage for the Sunnis who continue to respect him as their protector. I wish I could agree with Bart that "Executing Saddam will put an end to the dream of regaining power through terror. An execution means that there is no going back." But, as we have discovered with the death of Zarqawi, Saddam in death would still have the power of a semi-sacred symbol of humiliation and, therefore, the need for revenge. The Pandora's Box opened by Bush and his neo-conservative fantasists will continue to wreak havoc for generations. (Consider that the Shi'ite hatred of the Sunnis is based on events that occurred, I believe, in the 8th century.)

I wish I could agree with Bart that "Executing Saddam will put an end to the dream of regaining power through terror. An execution means that there is no going back." But, as we have discovered with the death of Zarqawi, Saddam in death would still have the power of a semi-sacred symbol of humiliation and, therefore, the need for revenge.

I would agree that the example of Zarqawi is apt, but not for the reasons you put forward. Rather than fortifying al Qaeda, killing Zarqawi was instrumental in crippling the organization in Iraq.

The military and intelligence agencies have noted a drop off in foreign al Qaeda flowing into Iraq. Most of the current violence is Iraqi on Iraqi sectarian violence.

More importantly, the Iraqi Sunni have been emboldened to turn on the decapitated al Qaeda in Iraq.

We should avoid attributing super human characteristics to the enemy. Arab culture subscribes to following the strong man. If you take down that man, the group falls apart.

In Afghanistan and Pakistan, we have largely killed or captured the entire al Qeada leadership apart from bin Laden and Zawahiri, who are hiding and reduced to making propaganda tapes. As a result, there is no longer any appreciable al Qaeda combat presence in Afghanistan despite the availability of recruits around the Middle East.

In Iraq, the war will last until the Sunni realize they have been defeated. Executing Saddam will not single handedly stop the sectarian violence, but it will remove a major motivation for the Sunni to continue fighting.

There is good reason to doubt whether the "Saddam Hussein" on trial is the real person and not one of his body doubles. Pictures have been published showing the presumably real Saddam Hussein with a magnificent set of teeth, and the pictures of the guy on trial has horrible-looking teeth, and may be just a peasant stand-in double.

Although the real Saddam Hussein was a despicable despot, I don't think he is half as guilty of horrendous crimes as many respectable political figures in our own country -- namely George W. and George H. W. Bush. Hussein was reportedly groomed for his dictatorship by our own CIA 30 years ago or more. He is a product of our own decadent culture and the unrepetent and yet-to-be-exposed felons who run our country. If Saddam Hussein deserves the death penalty, I can provide a list of many American candidates who are much more deserving.

I've always thought the argument that Confederate leaders were guilty of treason was very dubious, legally. After all, in order to to guilty of treason, you have to be an American, and they'd already seceeded.

The Constitution, after all, is silent on the subject, save for the 10th amendment's declaration that all powers not delegated to the federal government were reserved for the states. Including, one may presume, the power to withdraw from the federation.

And what was the contrary argument, that the states couldn'd seceed? Oh, yeah: "We'll kill you if you try it!" Somewhat persuasive, I'll grant, but not in a logical sense.

To answer address one of Sandy's questions, a "sane" person could believe it is politically worthwhile to execute Saddam.

- I doubt Saddam's death would spark any sort of "martyr" reaction. First, despite a few acknowledgments of religion, Saddam was primarily seen as a secular ruler and a man. Second, his support was based primarily upon his secular authority (not some religious appeal or authority). Third, his supporters did and do support him for primarily non-religious reasons. (Neither was his support based upon some grand ideological appeal like Communism). So, killing him is unlikely to cause a martyr effect (which is the typical concern with such situations).

- Saddam's death, if anything, is more likely to diminish the residual support among the Sunni's or Iraq as a whole. As Bart mentioned, Saddam was the "strongman" ruler. People only supported him for the benefits and privileges he provided for them (indead of from some religious or ideoligical affinity). As such, his removal removes the impetus for acting in support of him (resisting the Iraqi government and/or Americans). Of course, this does not mean that everyone will just give up fighting. What it does mean is that it removes one more reason TO fight (without providing an additional reason to fight, for example, if Saddam was seen as a religious martyr.)

There are more things I can cover, but those two reasons (how Saddam's death won't provoke some backlack, and why we should remove Saddam) illustrate how a "sane" person could support executing Saddam.

Bart Depalma writes:If I were to use a historical comparison for the Saddam trials, it would be the Nuremberg trials of Nazi mass murderers rather than Lincoln's decision not to prosecute Davis and Lee for treason.

I agree that the Nuremberg trials are a better fit historically. The authority for Nuremberg came from outside Germany via the london charter signed by the military powers that invaded and defeated Germany. The judges and lawyers all came from outside Germany as well. Nuremburg is a much better fit that the than the defeat of the the confederacy in that it was an actual trial of individuals from a defeated regime and the south hadn't established a regime in the same sense that Nazi Germany or Sadam had done. Interesting that the Bush admin is in standing violation of a number of the Nuremberg principles.

Bart:Given that slavery was legal at the time of secession, I do not see the prosecution of Davis or Lee for human rights violations in that era.

Much of what happened during the holocaust was legal in Nazi Germany. Nazi war criminals weren't prosecuted based on what was legal in Nazi Germany at the time, IIRC.

If what constitutes a human rights violation is limited to only what is illegal in a country at a given point in time, then there is logically little reason to coin the term at all, and no reason for US forces to be in Iraq at all.

The Reconstruction would indeed have been bloodier, if Iraq is any kind of analogue (which it is, in a "realpolitik" sense, leaving aside comparisons of the deposed leaders). CNN Article (A "fifth of the displaced have fled during the last four weeks.").

The Iraq government has apparently done its best to increase violence with this execution. They could have tried to set an example for the more violent and retributive elements in their society.

I disagree with the claims of several commenters that there was a weak legal basis for charges against Davis or Lee. Aside from the treason charge, which I think would have had good grounds, there was also war crimes in the treatment of black Union soldiers.

The confederacy declared by law that such soldiers were to be treated as escaped slaves and hung if captured, but a belligerent hardly has the right to tell its enemy who they may recruit to service.

Lee understood that the hanging of prisoners was unacceptable, but his army seems to have adopted the solution of simply shooting blacks on the battlefield even if they attempted to surrender, not much of an improvement. Deliberately shooting men who have given up their arms is a war crime by standards that were understood and accepted in 1865 and should have been treated as such.

It's ironic, but not surprising, that these men who committed war cirmes against American servicemen are still regarded as heroes by the same folks who demand that no American military personel be subject to the ICC.

More on the choice between retribution and reconciliation. From Reuters:

Saddam's Baath party threatened to retaliate if the ousted leader was executed: "Our party warns again of the results of carrying out such a verdict, on the situation in Iraq and America in particular," read a statement posted on the Internet.

"It is the most dangerous red line that the American administration should not cross," said the statement, which could not be independently verified.

"It's ironic, but not surprising, that these men who committed war cirmes against American servicemen are still regarded as heroes"

Heroes? Hardly, the leaders of neither side of the civil war qualify for that in my book. Neither the people who seceeded to preserve an evil institution, nor the people who slaughtered the people they proclaimed to be their "countrymen" by the millions to keep them from leaving a federation they no longer wanted to be part of.

I think it's funny how the American left so hates George Bush, that they are driven to defend Saddam Hussein.

I don't visit this blog often, but every time I do, I remember why I throw those fund-raising solicitations from Yale straight into the garbage.

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@Sean: I think it's funny that people can be so partisan that they fail to recognize a substansive discussion when the see one: is it in the best interest of the US to execute Hussein?

Agreed, you have to look past Levinson's comment on the number of days left of Bush's presidency. But in this thread there was only one commenter whining about Bush jr. and Bush sr. and he was discredited directly. As much as I am writing now to say that you are a pompous ass: no one is defending Hoessein.

By the way, I do not see any use for a comparison with Davis and Lee. Who cares for one second whether to leaders of the American succession should have been executed? Where is the relevance? I don'see the similarity between the US in the 18th century and Iraq now at all. In Iraq there are religious factions fighting each other without a clear dividing line. Equating whether or not holding slave is right and who was the real heir to Mohammed, does not seem like a fair shake to me.

The question for me is: will the execution of Hussein ameliorate or worsen the situation in Iraq in the short term and in the long run?

Saddam is a Sunni. The Sunnis were in power and are now a minority. I don't see how executing Saddam helps: it gets the majority the revenge they want, but it doesn't get the minority what it wants: a guaranteed position

"Would you consider that a defensible ground for his fighting the war?"

I thought I was clear about that. The Confederates were fighting to preserve a terrible injustice, and Lincoln was a despot killing Americans in order to keep people in a federation they no longer wanted to be part of. I admire neither side in that bloodbath.

I appreciate a good mental exercise as much as the next guy. But comparing Robert E. Lee to Saddam Hussein is simply offensive.

The two are not comparable; the logic is deliberately obtuse.

Brett thinks the constitution is silent on secession, but one writer at the time thought it was clearly prohibited.

In 1861, he wrote:

But I can anticipate no greater calamity for the country than a dissolution of the Union. It would be an accumulation of all the evils we complain of, and I am willing to sacrifice everything but honor for its preservation. I hope, therefore, that all constitutional means will be exhausted before there is a resort to force. Secession is nothing but revolution. The framers of our Constitution never exhausted so much labor, wisdom and forbearance in its formation, and surrounded it with so many guards and securities, if it was intended to be broken by every member of the Confederacy at will. It was intended for “perpetual union,” so expressed in the preamble, and for the establishment of a government, not a compact, which can only be dissolved by revolution, or the consent of all the people in convention assembled. It is idle to talk of secession. Anarchy would have been established, and not a government, by Washington, Hamilton, Jefferson, Madison, and the other patriots of the Revolution.

This was written on January 23, 1861.

The author was Robert E. Lee.

The source is the book by Allan T. Nolan, Lee Considered, General Robert E. Lee and Civil War History, Chapel Hill, 1991, pages 34-35 and note 10.

"If [Lee] hadn't done so, and no one else had stepped up to take his place, then those 620,000 would not have died when they did, and slavery might have ended non-violently (albeit probably not as soon)"

Lee was not the commander-in-chief of the Confederacy, or some comparable position, until 1865. Lee did not even take control of what became the Army of Northern VA until Johnson got hurt in 1862. Putting all these deaths on his back is wrong. He probably helped to extend the war, but many would have died all the same.

As to constitutionality of secession, it was ultimately the judgment of the age, who split on it. The war de facto decided the matter. The fact a historian disagrees with the President is somewhat besides the point. It's like suggesting Taney's reasoning was dumb, ignoring a chunk of the country accepted it as sound.

It seems to me the ultimate "sin" of the Confederacy was the rejection of the rules of republican government. They lost an election and went to war. SL and others focus on slavery, but many at the time was more concered about that.

Partially because treason, so assumed, was illegal, even though slavery was not.

Henry / Anne:

Presumably about 30% of the population has some respect for George W. Bush judging by the most recent opinion polls. He is the monster in office right now which declared war illegally on another nation based upon a pack of outrageous lies. However, you seem to be naive or very forgetful about the sins of his father.

If you should probe a little deeper to find the truth beyond what the corporate news media feed us, you will see there is substantial reason to believe Bush Sr. is every bit as bad if not more so than the son. At the very least GHWB is more cunning and a more polished liar. Recall, for instance, GHWB's involvement in the Iran-Contra scandal. His claim that he was "out of the loop" is certainly bogus if you look into the evidence provided in the files of Special Prosecutor Lawrence Walsh and by investigative journalists like Robert Parry in his well researched stories and books Lost History and Secrecy and Privilege, and this entry on the wikipedia about GHW Bush's Zapata Petroleum Corporation. There is lots of credible evidence that GHWB had some involvement in the assassination of JFK. How many people know that John Hinckley, Jr.'s father was a friend of GHWB and fellow Texas oilman, and probably also had CIA ties (through World Vision, a notorious alleged CIA-front evangelical Christian-oriented NGO)? Neil Bush and Scott Hinckley, the brother of the man who attempted to assasssinate Reagan, had scheduled a lunch or dinner meeting to occur just a couple days after the assassination attempt. That meeting was even covered by the mainstream news media, but not for very long or with any prominence. It quickly got squelched at the insistence of GHWB. Just a "bizarre coincidence" that the man to ascend to presidency would be aided by the psychologically troubled son of another Texas oilman/CIA friend? I think not.

The wikipedia entry cited above points out that the CIA HQ in Langley is named after GHWB even though officially he was only employed as its director (supposedly with no past intel background) for 10 days less than a year during the caretaker presidency of Gerald Ford! That was a time CIA scandals were in the headlines and a subject of Congressional investigations for all sorts of crimes and horrors.

Folks need to educate themselves to the deep political intrigues which are already well documented, but not well known or prominently featured in the mainstream news media which you may be relying on way too heavily for your information.

Make no mistake, despotic and ruthless dictators like Saddam Hussein and Ferdinand Marcos are/were bad people, and by international standards, may deserve capital punishment for committing war crimes. But many of you fail to recognize to what extent these dictators have been created and deliberately propped up in their place by own political leaders to advance the economic interests and power of an elite within our own country. Time to wake up to reality, folks.....

sean, I agree with you completely. I think you should stick it to the folks at Yale by sending a fat check to the University of Texas law school. A good God fearing law school.

on the "for" line, you should write in big letters, TAKE THAT, SANFORD LEVINSON!!!

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