Witt: A Declaration The President Ignores

John Fabian Witt (Columbia - Law) has published A Declaration The President Ignores on the Washington Post op-ed page. Here it is:

As we gather around picnic tables and backyard barbecues today, we should pause to consider a forgotten dimension of the occasion - one that is as important now as it was on July 4, 1776.

We all know that the Declaration of Independence announced the United States' freedom from the British Empire. We all remember that it declared certain truths to be self-evident. But what you probably haven't heard is that the declaration also advanced an idea about war. The idea was that war ought to be governed by law.

In late June 1776, as the first detachments of what was to become a sizable British force were landing 90 miles away in New York, Thomas Jefferson and the Continental Congress in Philadelphia drew up charges denouncing King George III to the world. The accusations were to serve as the core of the declaration. The climactic final charges, for which the rest were prologue, indicted the king for war crimes.

Britain's navy, wrote Jefferson and the Congress, had "plundered our Seas," while its armies had "ravaged our Coasts, burnt our Towns, and destroyed the Lives of our People." Jefferson accused the British of employing legions of foreign mercenaries to commit acts of death and desolation "scarcely paralleled in the most barbarous Ages," acts unworthy of civilized nations. He charged British forces with taking Americans hostage and compelling them to bear arms against their own country. He and the Congress concluded their litany of war crimes by condemning the king's two most fiendish offenses against the laws of war: inciting slave insurrections and encouraging attacks by "merciless Indian Savages, whose known Rule of Warfare, is an undistinguished Destruction, of all Ages, Sexes and Conditions."

Jefferson's original draft added a further war crime allegation that did not make it into Congress's final version: the "piratical warfare" of the English slave trade, which was a "cruel war against human nature itself." Delegates from Georgia and South Carolina insisted that the passage be removed. But as Jefferson conceived it, the slave trade was akin to piracy, the most treacherous violation of the 18th-century laws of war.

The declaration was the beginning of a remarkable but now little-remembered American tradition in the laws of war. In the 1780s, a treaty with Prussia committed the United States to follow European rules of warfare. During the Civil War, Abraham Lincoln published a code for the Union Army that serves to this day as the foundation for the law of war around the globe.

In the 20th century, Americans took a lead role in establishing the modern law of war. Franklin Roosevelt directed the creation of the Nuremberg tribunal for high-ranking German war criminals, and his aides wrote the U.N. charter's rules for the use of force. In this century we can see traces of Jefferson's charges in the law of naval warfare, in the distinction between combatants and civilians, in international law restricting the use of mercenaries and in the Third Geneva Convention's rules on prisoners of war.

Today, of course, much of the world thinks that the United States has traded places with George III's British Empire. We are the global hegemon, and since Sept. 11, 2001, we have become infamous the world over for eschewing the law of war in the name of patriotic self-defense. At Guantanamo, in shadowy secret CIA prisons, at Abu Ghraib, and elsewhere, leaders in the White House, the Justice Department, and the intelligence agencies have disowned the laws of war as unacceptable constraints on the pursuit of national security.

The tragedy of the post-Sept. 11 American assault on the laws of war is that it seems to have been not only shameful but self-defeating. Disrespect for what the declaration called "the Opinions of Mankind" has fueled anti-American sentiment and spurred terrorist recruitment in North Africa, Europe and the Middle East. Illegal interrogation tactics seem to have produced disappointingly little intelligence. And extraordinary renditions to secret prisons have disrupted the cooperation of many of our most important allies in the war on terrorism, producing arrest warrants against U.S. intelligence agents in Germany and Italy. Patriotism at the expense of the laws of war seems to have gone badly awry.

For the delegates to the Continental Congress in 1776 - as for Lincoln and Roosevelt in subsequent centuries - patriotism and the laws of war went hand in hand. Since the revolution, Americans have helped shape a law of war that advanced the nation's interests. In moments of great crisis, our finest leaders have forged a powerful union between the security of the nation and the laws of war. It's a lesson from the first July 4 that we could sorely use again this year.