Unlike co-blogger Eric Posner, I do not support the Bush Administration's claims that the executive has virtually unlimited authority to take any wartime measures it believes might help promote national security [imprecise language from the original post has been amended here for purposes of clarity]. That said, I think that Eric is largely correct in suggesting that Bush's policies were more similar to those of Abraham Lincoln in the Civil War than John Fabian Witt is willing to admit. As Witt himself points out, Lincoln's 1863 Lieber Code was very permissive, allowing a wide range of practices that modern liberals and international law scholars would surely denounce:
As the code's Confederate critics noticed immediately, the laws of war Lincoln announced in 1863 were far tougher than the humanitarian rules McClellan had demanded a year earlier. The code allowed for the destruction of civilian property, the bombardment of civilians in besieged cities, the starving of noncombatants, and the emancipation of civilians' slaves. It permitted executing prisoners in cases of necessity or as retaliation. It condoned the summary executions of enemy guerillas. And in its most open-ended provision, the code authorized any measure necessary to secure the ends of war and defend the country. "To save the country," the code declared, "is paramount to all other considerations." Lincoln's code was a body of rules not for McClellan's gentleman's war but for Sherman's March to the Sea.
Several provisions of the Lieber Code sanction practices that go well beyond anything countenanced by Bush. For example, Article 52 states that "If . . . the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection." Under this provision, insurgents in Iraq and Afghanistan could be denied all protection under international law, at least after the US and its allies occupied their countries. Articles 82 and 85 allowed the summary execution of all irregular guerrillas and resistance fighters:
Art. 82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers; such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates [pirates could be summarily executed under 19th century law].
Art. 85. War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they if discovered and secured before their conspiracy has matured to an actual rising or armed violence.
Note that the Lieber Code allows summary execution of "war-rebels" even if they target only the occupying army's military forces and do not attack civilians (as Iraqi insurgents, the Taliban, and Al Qaeda do). Despite all its other excesses, the Bush Administration did not claim the right to summarily execute captured guerrillas and terrorists - even those who do target civilians.
It is true that the Lieber Code bans the torture and mistreatment of prisoners of war. However, these rights to do not extend to "war-rebels" and other insurgents who, as Article 82 points out, "are not entitled to the privileges of prisoners of war" and are generally denied any protection from the laws of war (Article 52).
Moreover, it's worth noting that the Lieber Code does not forbid the use of torture to acquire information, instead merely forbidding "infliction of suffering for the sake of suffering or for revenge, . . . maiming or wounding except in fight, ... [and] torture to extort confessions" (Article 16). The Bush Administration, of course, also claimed to forbid "infliction of suffering for the sake of suffering" and torture for the purpose of extorting confessions, but did claim that torture could sometimes be used to extract information from captured terrorists and insurgents (who,let us remember, under the Lieber Code were not entitled to any protection from the rules of international law).
Moreover, as Witt points out, even acts otherwise prohibited by the Lieber Code could potentially be justified if they are considered necessary to "save the nation" (Article 5). This point is consistent with Lincoln's famous claim that the President could violate one provision of the Constitution where doing so is necessary to save the Constitution as a whole.
Perhaps Witt merely means to suggest that even though Lincoln's code allowed substantive executive power as broad as Bush's position, it paid greater respect to the forms of obeying the law. But the Bush Administration also claimed to be bound by law. It just interpreted that law so broadly as to permit virtually any measure the president considered useful to the war effort.
Lincoln did differ from Bush on a number of important wartime legal issues. For example, he did not so clearly take the position that the President could disobey treaties and laws enacted by Congress whenever he concluded that doing so would further the war effort. The issues covered by the Lieber Code, however, reveal many more similarities between Lincoln and Bush than differences.
Ultimately, I think that the precedent of the Lieber Code is a poor justification for Bush's policies. In my view, several of the Lieber Code's provisions go too far, including most of the articles discussed above. The fact that Lincoln was a great president who won the Civil War and freed the slaves does not mean that everything he did was justified. Still, Bush's legal positions on the law of war were closer to those of Lincoln's Lieber Code than many would like to believe.