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also weighing on his personal positions was the fact that all three of his sons were fighting in the Civil War. Hamilton Lieber fought for the Union and lost an arm at the battle of Fort Donelson. Norman Lieber, also a Union soldier, fought against his rebel brother, Oscar Lieber, at the battle of Williamsburg (May 1862), where Oscar was killed, cursing his father and the North as he lay dying.
    Lieber completed his work in April 1863, noting in a letter to Henry Halleck, “I had no guide, no groundwork no textbook.... Usage, history, reason, and conscientiousness, and a sincere love of truth, justice, and civilization have been my guides.” Lincoln approved the document immediately and distributed it to his commanders as General Orders No. 100.
    The manifest object of Lieber’s Code was to limit the abuses of total war described generally as “savagery.” The reason for laws of war, Lieber recognized, was moral: “Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.” Offenses of “wanton violence against persons in the invaded country,” wrote Lieber, “all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense.” While conceding that “the citizen or native of a hostile country is thus an enemy ... and as such is subjected to the hardships of war,” it was also advisable that “the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.” 1
    But all this attempt at humane treatment was undermined by the higher duty to win the struggle no matter what the cost. By identifying the national cause with the war and valuing the survival of the nation over all competing considerations, anything could ultimately be justified under the rubric of what Lieber termed “military necessity”:
    Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war.... Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war.... [I]t allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy, of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the Army.
    What Lieber contributed to restraint under the duty of humane treatment and protection of private life on the one hand, he removed with the other as “military necessity” Lieber’s Code effectively gave commanders a blank check for operations in the field. As the ethicist James Turner Johnson recognizes: “Where the difference between private and public is hard to discern, or where the aims of war are so broadly defined as to do away with that difference, then it is difficult to see how Lieber’s argument for protection of noncombatants can have any restraining force at all.” 2 Lincoln could not have asked for any more.
    “Military necessity” supplied the moral cloak permitting war on civilian populations. In effect, civilians were transformed from “noncombatants” to “the enemy” of the nation state. The code protected American officers and soldiers from virtually any reprisal. While a few soldiers were tried and executed for rape during the war, there would be no trials for destruction of civilian property or lives. 3
    Union generals showed scant interest in the code and soldiers none. Confederates probably studied it more closely for its vagueness