I’m in the middle of reading Victor Davis Hanson’s “Soul of Battle” and, much like the phenomenon of buying a new car, I now see echoes of it everywhere I look. I was reading some of the comments in a thread (Mexi’s Dec. 31 links) and sure enough, the theme of the book popped up there in a discussion between Mojeaux and JarFlax (primarily) over the subject of how one should make war. Given my recent post (here) on the subject of the composition of the military, I thought this was a good follow-up on the related, and even more difficult subject, of how We, the Leaders of Libertopia, would ethically engage in the worst of all human endeavors, War. As I noted in that piece, the idea of the structure for a military necessarily has implications about one’s foreign policy that either enjoins or unleashes that military. Perhaps backing out one further step is a consideration of what kind or style of warfare one will allow its military to employ and under what circumstances.

There are entire degrees to be obtained in studying and arguing about theories of warfare, what constitutes sufficient causus belli, and under what circumstances nuclear and/or total warfare might even be considered. These are not merely academic matters, however. Most of us are… of a certain age and can remember during the 1970’s and 80’s adults, and even public figures, had discussions about exactly these kinds of issues because of the Cold War. (Given they were making kids get under the desks for air raid drills in public schools, it would have been a bit difficult to hide). I can remember the hysteria from democrats about what would happen if Reagan was elected; nuclear annihilation was certainly mentioned and the television event of the time was “The Day After.” More salient to my own life as a young lieutenant were Rules of Engagement briefs while we sat off the coast of Bosnia, just before the UN Enclaves fell and the horrors at Srebrenica followed.

The “most recent unpleasantness” of a certain September morning raised the issue right to the fore, but in the immediate aftermath, the American people were (generally) more than happy to “let slip the dogs of war” – and I must confess, I volunteered because I thought we had sufficient ‘causus belli’ to go hunt down the people who did it. Instead, we wound up with the Patriot Act, FISA courts, NSA mass surveillance, and a WHOLE LOT of debt, while our “allies” in the Musharaff government Pakistan took a ton of our money to occasionally deliver up the #4 guy in AQ whenever we threatened to stop sending guns and money. (For a very detailed look at that mess, you should read this CATO paper. I don’t have to agree with his thesis, but his explanation of the dysfunction that is Pakistan is illuminating and well-sourced.) As to the Law of War and how we – the United States – would conduct it, we set up renditions teams and snatched people from foreign countries, used ‘enhanced interrogation techniques,’ held people in secret prisons, and otherwise wiped our asses with most of the norms we had been screaming about other regimes violating over the prior decades. That doesn’t even cover the human rights abuses of experiments on our own troops that I’ve documented in the anthrax series in the years well-before 9/11.

Which brings me to Victor Davis Hanson’s brilliant introduction to “Soul of Battle,” in which he graphically describes our response to the attack on Pearl Harbor by Japan. The March 9, 1945, napalm incendiary bombing of Tokyo, Japan, was an act of incredible savagery.

Planes flew in small groups of three, a minute apart. Most were flying not more than 5,000 feet above Japan. Five-hundred-pound incendiary clusters fell every 50-feet. Within thirty minutes, a 28-mile-per-hour ground wind sent the flames roaring out of control. Temperatures approached 1800 degrees Fahrenheit…

He [Curtis LeMay] wished to destroy completely the material and psychological capital of the Japanese people, on the brutal theory that once civilians had tasted what their soldiers had done to others, only then might their murderous armies crack. Advocacy for a savage militarism from the rear, he thought, might dissipate when one’s house was in flames…

There was to be no public objection to LeMay burning down the industrial and residential center of the Japanese empire – too many stories about about Japanese atrocities toward subjugated peoples and prisoners of war had filtered back to the American people. To a democratic nation in arms, an enemy’s unwarranted aggression and murder are everything, the abject savagery of its own retaliatory response apparently nothing…

In revenge for the unprovoked but feeble attack at Pearl Harbor on their country, American farmers, college students, welders, and mechanics of a year past were now prepared – and quite able – to ignite all the islands of Japan.

The Soul of Battle, pp.2-3

I would argue that Hanson is vastly understating the strategic and global situation of the United States with regard to Pearl Harbor by selectively ignoring the Axis Powers, which included Japan, Germany, and Italy, and the situations of the U.S. Allies, including England, France, and the rest of Europe at various times. Regardless, however, his point remains and mine just adds contextual items that would only sharpen the debate: when is total warfare acceptable? Under which specific circumstances? And like the common law, the specific circumstances have to be held up to for elucidation of a principle under which a moral people could at least agree: yep, as a nation, we will unleash hell on enemies as, for example, in a matter of national survival.

Thankfully, Hanson doesn’t dodge the subject and, indeed, states the following as a thesis:

Democracy, and its twin of market capitalism, alone can instantaneously create lethal armies out of civilians, equip them with horrific engines of war, imbue them with near-messianic zeal within a set time and place to exterminate what they understand as evil, have them follow to their deaths the most ruthless of men, and then melt anonymously back into the culture that produced them. It is democracies, which in the right circumstances, can be imbued with the soul of battle, and thus turn the horror of killing to a higher purpose of savings lives and freeing the enslaved.

The Soul of Battle, p. 4.

The first thing that pops into my mind is that all revolutionaries believe they have a ‘higher purpose’ of ‘saving lives and freeing the enslaved;’ it’s practically a mantra for every socialist ever. We’ll come back to this issue in a bit.

Hanson’s book is broken into three parts, with each one analyzing the circumstances of a particular general that Hanson believes personified the necessary traits to lead such democratic armies: the Theban general Epaminondas against the Spartans from 372-362 B.C.; William Tecumseh Sherman and his (in)famous March to the Sea from late 1864 to June of 1865; and Patton’s command of the Third Army from its creation on August 1, 1944, until his crossing the Rhine into Germany 10 months later.

Now if I seem to have marshalled the case for Hanson’s view of the justifications for some tactics of total war, such as the massive – and rather indiscriminate – killing via aerial bombing, I should add to the mix Giles Milton’s excellent book, Churchill’s Ministry of Ungentlemanly Warfare as an antagonist to that notion. In the late 1930’s, as Hitler’s Reich romped through Europe, Great Britain faced a very real crisis, both of identity and survival.

In villages across the realm, well-spoken youths in whites and flannels spent their Sundays playing cricket, a game with so many rules that only the British were equipped to master it. Even more violent sports like boxing came with a book of regulations. In 1867, the 9th Marquess of Queensbury (though hardly a gentleman) had put his name to a set of rules that ensured boxing was fought in a spirit of decency. No longer could you hit a man when he was down: that was deemed to be underhand…

As international relations grew increasingly strained in the late 1930s, the question of what constituted gentlemanly combat became a subject of heated debate on the letters pages of The Times. A certain Dr L.P. Jacks of Oxfordshire fired the opening salvo when he wrote to the editor expressing his belief that the sword alone was a ‘gentleman’s weapon.’ His reasoning was quintessentially British. Attacking someone with a sword ‘was more likely to give the other fellow a chance, and so make it more of a sporting affair between him and me.’

CMoUW, p. 20.

The letters that followed played out the argument in all of the usual forms and even spilled into the House of Commons. There, the Conservative MP Robert Bower of Cleveland, who had once used a racist epithet at a Jewish colleague that resulted in him receiving a rather ungentlemanly punch in the face on the floor of the House, berated his softer, more squeamish, and more gentlemanly colleagues who were unwilling to consider what methods must be considered as a matter of national survival. ‘When you are fighting for your life against a ruthless opponent, you cannot be governed by the Queensbury rules.’ Bower’s view did not necessarily carry the day and many were appalled when he added that ‘We must have a government which will be ruthless, relentless, remorseless. In short, we want a few more cads in government.’ CMoUW, p. 22.

The Irish and many other colonial subjects might well have argued that the British government was already quite ruthless enough and needed little coaching or encouragement in that regard, but in one of the great ironies, it was a British officer who had served in ‘the Troubles,’ one Colin Gubbins, who would become the driving force behind the UK’s systematic use of ‘ungentlemanly warfare’ on the Continent against Hitler. Gubbins was recruited into Section ‘D’ and literally wrote the manuals “The Art of Guerrilla Warfare” and “The Partisan Leaders’ Handbook” that would become the template for all of the trainees that came out of what would eventually come to be known as “Bletchley Park.” Gubbins drew inspiration from the Irish tactics against the British, as well as Al Capone’s gangsters in Chicago during Prohibition, and T.E. Lawrence in Arabia.

Unlike Curtis LeMay, however, Gubbins and his colleagues Joe Holland and Lawrence Grand, believed that targeted operations on the ground were far preferable to carpet-bombing from 30,000 feet. It was an issue that would plague their operations for years as they fought for British and Allied air support to drop supplies behind enemy lines or parachute in specially trained spies and saboteurs to manage resistance operations everywhere from France to Egypt to Eastern Europe and even as far afield as the Middle East. Gubbins believed that Hitler’s Axis War Machine must have sand thrown in its gears everywhere it went, but that was far preferable – and far more successful, and even moral – than what LeMay envisioned doing to Japan. Milton makes an equally compelling case for Gubbins’ point of view over LeMay’s, but neither Milton nor Hanson would likely disagree about the need for tactics that would normally be ‘out of bounds’ but for certain factors that each believes demanded and justified such actions. I now resurface the question about all revolutionaries needing to operate outside of what are acceptable norms in order to fight ‘existential threats’ and will let the readers argue about where FARC, narco-traffickers, and even bin Laden and AQ fall on the list.

Before that debate begins, however, I remind the reader of Professor Hanson’s admonition that these kinds of academic debates are “the easy anxieties of the deskbound class.” Even the vast majority of military members never see up close and personal engagements with the enemy and so I caution against giving their opinions special status in these debates. Additionally, consider that Harvard professor Alan Dershowitz has openly advocated the sue of “torture warrants.’ I have always wondered if Dershowitz himself was really willing to torture another human being for the “ticking time bomb” hypothetical or if his argument would be different if he had that actual experience. Would he really pull someone else’s fingernails off, one by one, for an (relatively mild) example? Use a power drill and put a bit through someone’s kneecap?

I am cognizant that my own experience with these issues as a former judge advocate and combat arms officer is perhaps somewhere between the “deskbound” academic and the shooter. How it plays out for the individual soldier charged with violating these ‘norms’ has been how I made my living, however. In 2006 I was brought back to active duty to defend one each of the Haditha and Hamdiniyah murder trials, where squads (essentially) of Marines were each charged with murder, war crimes, and various other offenses for actions that resulted in deaths that were judged to be “out of bounds.” While I was conflicted off of the Haditha case, I was a part of Corporal Trent Thomas‘ defense team. I also later defended an Army officer on murder and war crimes in Iraq; we tried the case in the same courtroom where Saddam Hussein was convicted and sentenced to die for his crimes against the Iraqi people. My client was acquitted of everything except for a Law of War violation for setting a field expedient boobytrap on an insurgent weapons’ cache that locals had pointed out to his team. He received a Letter of Reprimand in the end, but it still cost him a promising career in the Army.

This is hardly a new phenomenon or debate and I believe some historical perspective can be helpful in untangling these rather twisted skeins. Tom Hanks’ Captain John Miller struggles with this issue throughout “Saving Private Ryan.” It wasn’t the slaughter of the landing at D-Day that stuck with me, but the immediate aftermath where we see U.S. soldiers “crossing that line” after finally breaking through the German defenses at the beach. It happens in the ‘background,’ but it’s clear that Spielberg is trying to show us that our WW2 “heroes” might have engaged in what would be pretty clear violations of the Law of War. The theme comes up repeatedly throughout the movie, from Tom Hanks’ decision to either kill or let a captured German soldier go, to Private Mellish’s death that leads to another blatant LoAC violation when Upham executes the Waffen SS soldier that he previously could not shoot during combat.

When I was brought back to active duty, I was stashed at the Naval Justice School in Newport, RI, and by sheer coincidence an article was submitted for publication in the Naval Law Review that was an intimate look at this issue by a former Marine judge advocate who had defended a Marine on murder/war crimes for slitting the throat of a Vietnamese villager and dumping his body in a well, all in plain view of a number of witnesses. I was in the middle of defending my own client and didn’t have time to do the grunt-work necessary to make the original into a scholarly article, so I did what every good Major does: I gave it to a trusted Marine Captain, in this case, Joe Markel, and I commend it to you as essential reading on a very difficult subject. It is entitled “Reflections on Murder in War” by Edward F. Fogarty, Naval L. Rev., No. 54, p. 105.

The questions present themselves. Can we reach a consensus on murder in war: defining it, investigating it, prosecuting it, defending it, and punishing it? Must we all scream at the top of our voices? Can military law achieve just results in the midst of a sometimes irrational uproar?

Id., p. 105.

Mr. Fogarty does an exception job, in my view, of offering up what may be a way “through” this morass by describing what he calls a”diminished moral capacity” defense during war. In other words, once one acknowledges the need – indeed, perhaps the essentiality of putting limits on the conduct of war – he recognizes that any standards, regardless of what one advocates, will necessarily require some mechanism for investigating and adjudicating violations of them. And that means putting some members of the desk-bound class – lawyers, worst of all – in charge of prosecuting those who are engaged in the “improper” kind of murder… during War.

And to put what may be a slightly positive spin on the entire (depressing, yet fascinating) subject, I will add that Americans have typically been reluctant to demonize citizen-soldiers for acts done in war, even the ones that violate all norms of behavior. While the most egregious examples get the most press – like almost all divisive issues – the American people as a rule seem to understand that war is a most horrible place to expect people to kill in only the “proper military fashion.” We see this in the recent media coverage of Trump’s pardon of Navy SEAL Eddie Gallagher (bias alert: he was defended by an NJS classmate and personal friend of mine), although the media ignores that even Lieutenant Calley of My Lai infamy only served 4 or so years of his original life sentence before appeals, political influence, and widespread public outcry limited his sentence.

A final anecdote for consideration: as a brand new, young second lieutenant fresh from Basic School, I was back in South Boston awaiting orders to flight school when the former Mrs. Mandias was working at a nursing home. She had two patients who were both former WW2 Marines and after learning their young caregiver was married to a “green second john,”I accepted the invitation to visit with them. Dressed in freshly pressed Service Charlies, I was regaled with firsthand accounts of battles that I had studied from the Marine Corps’ island-hopping campaign in the Pacific. The most interesting to me, however, was their account of waiting in Australia to be a part of the invasion force of “Fortress Japan.” You never found two more devoted fans of Harry Truman‘s decision to drop not just one, but two big ones, on ’em. And in one of the strange ironies that only war can produce, both men spent significant time in Japan as part of the occupation force and spoke lovingly of Japan, the Japanese, and their culture. They also had some good laughs about the change in US Military propaganda they were fed before and after the war.

“They spent all this time showing us videos of what brutal savages the Japanese were, how they were subhuman butchers, and then a few months later we were getting lectures on the wonders of such an ancient, advanced, and venerable civilization and how we should respect their culture and be careful about what we say and do.”

But that’s a subject that’s best left to another day and another article.