Such is the surprising albeit unintended message of John Fabian Witt's piece in Slate. A president learns that the measures that he believes necessary for addressing a crisis violate international law. Rather than bowing to the law, he disregards it. He even fires a subordinate who stands in his way and finds a replacement more amenable to his way of thinking. That is what Lincoln did; who does it remind you of?
Not Bush!, says Witt. Conforming as he must to the current intellectual fashion that Obama will rekindle Lincoln's legacy which Bush has snuffed out, Witt hints that Obama will inherit the mantle of Lincoln's internationalism. But to make Lincoln's stance a suitable precursor to Obama's (actually, tepid) commitment to international law, Witt argues that the military code that Lincoln endorsed in defiance of the prevailing norms of international law would lay the groundwork for the law of war conventions at the Hague and Geneva. This gift to the international rule of law would be repudiated by Bush.
The story doesn't work. As Witt observes, Lincoln had no use for a war code that would stand in the way of victory. Lieber acquiesced, and so the laws of war bequeathed to the future were ungenerous. For many historians of the laws of war, Lincoln was no hero. It was under Lincoln, and with his approval, that the modern concept of total war was invented—this was Sherman's march through Georgia. It would be perfected by the Nazis and reach its apotheosis at Hiroshima. The modern codification of the laws of war in treaty instruments began before Lincoln's time in office, at the Paris Peace Conference of 1856. Lincoln's contribution was inadvertent, greatly overshadowed by the plumes of smoke towering over Atlanta. The laws of war would have developed as they did, Lieber Code or no.
Bush followed Lincoln in other respects as well. As Witt explains, the international law of war in Lincoln's time was based on the principle of reciprocity. The laws of war applied to you only so far as your enemy complied with them as well. Otherwise, they don't advance your interest and hence you have no reason to respect them. Although most international lawyers believe today that the principle of reciprocity does not apply to the Geneva Conventions, under Bush the United States took the Lincolnian view that the laws of war should not apply to Al Qaida and the Taliban because they did not observe them themselves. Like Lincoln, Bush selectively interpreted the laws of war to suit the national interest as he perceived it—using them one way in Iraq and another way in Afghanistan.
Lincoln was a pragmatist; he did not make a fetish of the rule of law. He disregarded the constitutional limits on executive power just as he disregarded international law, believing both would have to bow to his big idea—the preservation of the union. Bush took a similar view, albeit with a different big idea—the war on terror. His presidency did not fail because he neglected Lincoln's legacy for the rule of law. Bush's presidency failed despite the fact—or because—he honored that legacy.