Mr. Southmayd--
"Interesting" can on occasion be used to convey snarky and mean-spirited connotations, especially when used sarcastically. I intended it, however, quite literally--the evolution of contemporary military law is a fascinating subject, and one worthy of thoughtful discussion.
I also intended my email to be a direct response to what I took to be some important points you had earlier raised regarding the distinction between ethics and law, and the meaning of legal terms. So I wrote in effort to take seriously some of your earlier remarks. I should add that, at least to my perception, you often write in such a fashion as to make it difficult to take what you have to say seriously. My earlier post was an effort to get past your rhetoric and to address the underlying intellectual substance of some of your comments. By doing that, I was trying to treat you with civility and courtesy. I would very much appreciate it if you would make the same effort with me.
Your latest response does not strike me as especially useful. If I read you correctly, you seem to be implying that the only laws that military officers must respect are those that are written by persons who have themselves directly experienced combat. I find it hard to imagine that anyone who is actually a practicing lawyer would seriously intend to argue for such a proposition. You also seem to be implying that legitimate law can be equated with the theories of desk-bound bureaucrats, and that the respect we are obligated to give to the latter is equivalent to the respect we ought to give to the former. That seems to me to indicate a lack of respect for the rule of law that I find surprising to hear from a professional lawyer. I cannot believe that you intend to convey such an argument, which again raises the question of just how seriously you yourself intended your comment to be taken.
It seems to me that there are several issues in play here:
1. Did soldiers under Robert E. Lee's command commit atrocities--things that now would be considered criminal? The answer to this question, based on a wealth of historical evidence, is yes.
2. Did R.E. Lee know about it? Again, the answer here is clearly, yes.
Some of the remaining legally relevant issues are less clear:
3. Did what is now the legal doctrine of Command Responsibility apply to the army that Robert E. Lee led?
4. Were Southern soldiers legally bound by the Lieber Code?
These are legal and constitutional issues, and ones on which I would expect your professional training has some relevance and bearing.
All best wishes,
Kevin
___________________________
Kevin R. Hardwick
Associate Professor
Department of History, MSC 8001
James Madison University
Harrisonburg, Virginia 22807
________________________________________
From: Discussion of research and writing about Virginia history [[log in to unmask]] on behalf of Jeff Southmayd [[log in to unmask]]
Sent: Friday, December 14, 2012 10:44 PM
To: [log in to unmask]
Subject: Re: Was Lee legally responsible for the actions of his soldiers?
Interesting analysis. Those who have been in harms way in the heat of battle sometimes have to rely on their own concept of survival first ahead of statutes by beaurocarteswho think up these theories while sitting behind desks. I wonder if you have any experience in that regard that is part of your analysis?
JDS
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