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Security or Freedom? Why Laws Change During Wartime

by Jacob Hillesheim
March 22, 2017 | I ❤️ PBS

“Inter arma enim silent leges.” This quote from the Greek statesman Cicero roughly translates to “in times of war, the law falls silent.” It's a handy phrase for thinking about the tension between security and freedom during times of war.

PBS’s three-part series “Dead Reckoning” explores the development of international wartime law, specifically “crimes against humanity.”

Societies throughout history have struggled with wartime justice and the United States is no exception. So how does U.S. law compare to international law?

The answer is complicated. That's why Rewire called in a history teacher (that's me) to break down the cloudy story of U.S. war crimes told in the "Dead Reckoning" series.

Leaders are responsible for their troops' actions

In 1945, a U.S. military commission tried Japanese General Tomoyuki Yamashita, whose troops committed horrific atrocities against Filipinos near the end of World War II, for war crimes. The trial was the first of its kind. Why? Yamashita did not give those orders to his troops, nor was he aware the atrocities were occurring.

He appealed his conviction to the U.S. Supreme Court, which maintained the original ruling and blessed the concept of “command responsibility.” In short, military leaders are responsible for their troops’ actions at all times.

Do citizens have civil rights during wartime?

The American Civil War was the first time U.S. courts ruled on wartime cases of civil rights violations. President Abraham Lincoln suspended habeas corpus (which keeps prisoners from being held by the state indefinitely without clear cause) during the conflict, allowing dissenters to be held without charge as long as the government saw fit.

Eventually, after his death, the Supreme Court took Lincoln's actions to task, ruling that military courts do not have jurisdiction where civilian courts were available. The dissenters eventually regained their constitutional right to a civilian court.

Combatants must follow the rules of war

Wartime pbs rewire
Benjamin Ferencz was a prosecutor on the Nuremberg trials, a series of military tribunals carried out after World War II against Nazi leadership. Photo courtesy of Robert Caccamise.

During World War II, when President Franklin Delano Roosevelt and the Supreme Court tested the question of whether or not U.S. citizens could be tried by a military court, the outcome was very different.

In 1942, Germany landed eight saboteurs on U.S. soil, two of whom were American citizens. All eight were eventually captured and FDR created a special military commission to try them. Although the men were unquestionably guilty, the trial seemed neither fair nor impartial.

The Court appeared to bend over backward to accommodate F.D.R., avoiding the Lincoln-era precedent by distinguishing between “lawful” and “unlawful” combatants. The commandos ditched their uniforms once they made it ashore, meaning they violated the Hague Convention’s mandate that belligerents “have a fixed distinctive emblem recognizable at a distance” and “carry arms openly.” The idea is that you should be able to tell if someone is an enemy soldier from a distance.

Because of that distinction, the saboteurs were not covered by international law.

Only the lawful get full due process

The Geneva Conventions, the international standards for humane treatment during war, adopted that same distinction in 1949, meaning that both American and international law recognized the difference between lawful and unlawful combatants.

More than 50 years later, after September 11, 2001, the George W. Bush administration cited the FDR case in order to detain suspected terrorists at Guantanamo Bay. Surprisingly, the Supreme Court was unwilling to defer to Bush.

The cases Rasul v. Bush and Hamdi v. Rumsfeld established that Guantanamo detainees could ask federal courts to review the legality of their detention. Two years later, Hamdi v. Rumsfeld shot down Guantanamo’s military commissions for violating the due process protections of both U.S. law and the Geneva Conventions.

The Court, however, did support some limits on unlawful combatants in the Hamdi case, specifically recognizing the government’s power to detain them, even U.S. citizens. But none of these decisions spelled out the exact procedures the government needed to have in place to deal with them.

All war crimes are not equal

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Former U.S. Army photographer Ronald Haeberle chronicled the My Lai massacre. Photo courtesy of Jonathan Silvers.

Although the United States took the lead in promoting international law and prosecuting crimes against humanity after World War II, the country has not always lived up to its ideals.

When hundreds of Vietnamese civilians were massacred near My Lai in 1968, a lieutenant was the highest-ranking officer convicted. When the media released photographs of “enhanced interrogation techniques” at Abu Ghraib Prison in Iraq, only the prison’s guards and one low-ranking general were punished. By the standards of the Yamashita trial, American theater commanders should have been prosecuted.

Historically, U.S. Supreme Court justices have been influenced by the passions of the times and political pressure as much as anyone else. For example, the Court waited until the Civil War was over and Lincoln was dead before it ruled against his wartime policies. It upheld the constitutionality of Japanese-American internment camps during World War II. It also rubber-stamped the Cold War Red Scare for most of the 1950s.

Our ongoing "War on Terror" begs many questions that international law is not prepared to answer, but the U.S. Constitution and Geneva Conventions still contain clear standards that are applicable even in wartime. Now it's up to us to ensure that those standards are honored.

"Dead Reckoning" premieres Tuesday, March 28. Check your local PBS station's schedule for broadcast dates and times, or watch online at

Jacob Hillesheim
Jacob Hillesheim is a Minnesota educator, historian and ice cream enthusiast with master’s degrees in teaching and learning and in history.
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