108: G.O. 100, “The Water Cure,” & The Law of War in the Early-20th Century with Professor Ryan Vogel
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Welcome to History That Doesn't Suck. I'm your professor, Greg Jackson. And today we take a brief respite from our usual story-driven telling of American history to have a very interesting conversation with a dear friend of mine who happens to be an expert in

on the law of war. And given that we've recently discussed General Order 100 in the Philippines, I thought that this was the perfect time to bring Professor Ryan Vogel to History That Doesn't Suck. Ryan, do you mind saying hello to the good people? Hello there. Happy to be here. Ryan, let me get your impressive credentials out there so that everyone knows just what a pro you are.

You earned your law degrees, not degree, but degrees, as one does, from American University and Georgetown. After that, you spent a decade, roughly, in Washington, D.C., working for the federal government, where you advised the Secretary of Defense and spent several years bouncing mostly at the Department of Defense, but you did a year with Department of State, and you've been to Guantanamo. Yeah.

That's true. That's true. Many times, actually. And I'll just leave. No, you were there again in an advising role on legalities and detention. So you've had a very fascinating career before, of course, getting to your true pinnacle, which was becoming the founding director of the Center for National Security Studies at Utah Valley University and continued to teach courses on

the law of war, which you've done at other universities before coming here. And I understand you have amazing colleagues now. I've heard that. Yeah. Yeah. A few in particular. Right. Right. So all that said.

Professor Vogel. Yes. Thank you, sir. Thank you for joining me. Of course. All right. So as I queued up and as attentive listeners will know from the last episode, General Order 100 came up during the Philippine-American War or the Philippine War or the insurrection, all legal terms that we can kind of dive into at some point. But as that came up, General Order 100 came

Everyone listening should remember that it originates from the Civil War and it codified the rules of engagement. But let's go back a click even before that. Can you tell us why was this even needed? I mean, what was warfare like before this Abe Lincoln signed 1863 order? Right. And that's a great question because before that,

order number 100, there were no codified written down laws of war. What you had was customs and usages and norms that had existed and had developed over centuries. So you go way back and you have things like the just war doctrine or just war theory that originated in the Christian tradition, or you had the Sharia law that talked about different aspects of how prisoners should be treated and what

tactics can be used against certain types of people during warfare. You have what you see over time is a whole history of development of the law of war. And by the time you get to the 17, 1800s, you start to have more of a established custom and tradition there, but still no codified law, still no treaty out there like we have today. Right. As you say that, you know, I think through some of the courses I teach and things that we've, well, we've discussed as well at other times on campus, it's

My mind initially goes to, you mentioned Sharia, I think of Muhammad in 630 when he takes Mecca. And by the tribal laws that were essentially in effect at that time, he had the right to make everyone in the city his slave. And he chose not to do that. That's part of one of the big issues.

keystone aspects of the last few years of Muhammad's life. He dies two years after that. But it was a big deal because he broke from what was the norm and what by our thoughts today would not be okay, right? We wouldn't imagine an army that's winning, enslaving the city. And yet this was a very noteworthy, different thing for him to say, hey guys, you know what we're not going to do?

Enslave the people that we've defeated. Yeah. And the law that came from that tradition was in many ways more progressive than the European traditions that existed at the same time. The codes of chivalry, which were mostly codes that protected norms that protected knights fighting against other knights, but didn't protect...

Sure. And as you mentioned that, I do think about that.

part of the Crusades was actually wanting European monarchs wanting to get troublesome knights out of Europe. That was all part of the gig. And when they got to the Middle East, it was kind of a no holds bar.

Okay. So we've gotten norms. It's like the Pirates movies from Disney, right? Guidelines. Yeah. Right. Loose guidelines. Well, and importantly, and I think we'll cover this too.

the guidelines only covered certain classes of people. Even into the 17s, 1800s, there were whole classes of people that just were not protected by any sort of norm and custom. And that includes people that were not affiliated with a state, you know, a state actor. They weren't part of a state military. Sometimes that would even be people that didn't fight like a state military. So guerrillas and, you know, other insurgent type groups. Well, as you say that,

My thoughts go to the American Revolution. Right. Right. So we've got our colonial Minutemen and made famous, I guess you could say, in more in the last, what, a decade or two by Mel Gibson's film, The Patriot, which I'm going to go ahead and say is not the film you want to watch for historical accuracy. But they definitely make a big to do out of that. Mel Gibson single handedly wipes out a

You know, whole British unit as one does as one does. Yes. Just, you know, trees apparently are all you need and you can do that. So the British, I mean, they would have looked at they did. They looked at the colonists and said, you're you're not fighting fair. Right. Right. They viewed them as unshivalrous colonists.

They viewed them as even uncivilized for engaging in what we would call guerrilla warfare and other, again, in our modern language, we'd call them asymmetric approaches. Basically, the approaches that a weaker opponent would use in order to fight a more sophisticated and superior enemy, which is what the British Empire was compared to the American colonies back in the 1770s. All right.

All right. So clearly we're establishing what we're talking. We're talking tradition. We're talking. Yeah. Customs. Yes. Norms. Totally set in stone. Nope. And that is why Lincoln goes to Franz Lieber, who is a professor at Princeton University and says, hey,

We need something that is tangible. We need you to go out and collect these customs and norms that exist out there. He's not making these things up. He's gathering them and putting them in a single document. And Lincoln has a variety of reasons to do this. One, he wants some discipline and the upper hand, the moral authority.

high ground in the war against the South. But also it's something to show to the outside world, right? That we're a country that's ahead. You know, we're a country that's forging new ground. And this is something that exists out there in theory, but we're putting it into practice in our own military doctrine. Okay. Now I want to go deeper on that, but before we do, can we go a little bit deeper on our boy friends? Yeah. Professor Lieber. Yeah. Why is Lincoln going to this guy? Well,

Well, he comes from this tradition. He himself fought in the Napoleonic Wars. He had seen war up close and personal. He had sons that were engaged in the Civil War, one on the Union side, one on the South side, not terribly uncommon in those days. One of them was killed in action. The other one was gravely wounded. Another son goes on to become the judge advocate general for the U.S. Army. So he is steeped in war.

He's in the mix.

it would be more common. If you made war atrocious and horrific, then it would be less common. And whether that's true or not, this was a tradition that a lot of legal law of war theorists at the time espoused, and he was definitely one of them. Well, now, as you mentioned that,

It does draw my mind back to the Napoleonic Wars, which you mentioned that he fought in. And it's probably worth noting, I mean, these wars, they start with the French Revolution. And some of my listeners will remember the episode on the Statue of Liberty. And I indulged my French history a little bit. We did talk a titch about it. But those wars, which start with Europe, essentially, well, the monarchs of Europe descending on France, because the last thing they can let their own peasant population learn is that

French peasants could overthrow their monarch and establish a republic. And that's not a good look. That's a rascally model to allow. Exactly. So the monarchs of Europe, by and large, attacked France. And then, of course, France had a general who kind of got a little aggressive himself after the fact, Napoleon. And that bled into the Napoleonic War. So from the 1790s all the way up until 1815, Europe is just a battlefield. And so it is the total war that you're talking about. Right.

It's devastating. And that's where we have a very significant piece in 1815 in Vienna, where the five great powers of Europe, France, Britain, Prussia, Russia, and Austria. In fact, I will note briefly, the Holy Roman Empire has ceased to exist. Napoleon has...

stamped it out of existence. And that's, again, a dramatic... The Holy Roman Empire is neither holy nor Roman. Not really even an empire. That's kind of a longstanding joke amongst historians. Wish I could take credit for that one, but I feel I should own that. Point being, it's radically changed Europe. It's been absolutely devastating in terms of the total war that was waged. And

So Vienna is this great massive piece, partly to really never want to see that sort of war again. Everyone who's sitting down, there's no romanticized notions of what war is, and they redraw the map of Europe in such a way as to balance. This is their, we're talking, sorry, I don't want to get too far away from the legal stuff, but...

Just to kind of set up a little bit more where France is coming from, they set up a balance between the five great powers that, in theory, they hope will prevent any one empire from ever emerging as a superpower that can lead the continent into war again. Well, it's important history, too, because...

And usually when you get developments in the law of war, it's because there's been some horrific war or series of wars that really grabs the attention of people with exactly what you said, which is we can't have this happen again, right? I mean, most recently in the aftermath of World War II, you get the 1949 Geneva Conventions.

But well before that, the Hague regulations and the early versions of the Geneva Conventions and these other events, they come from the aftermath of conflicts that were deemed too horrific to allow to happen again. And so the Napoleonic Wars are part of that tradition. Right.

It's interesting for Americans when you when you talk about the beginning of the development of the law of war, it's order number 100, which is what we're talking about today. Yeah.

and was in Solferino during the time of a major skirmish there, it affected him in a profound way. And so he wrote a book about it and roughly equivalent, I guess, in just sheer influence on the European continent to Harriet Beecher Stowe's Uncle Tom's Cabin here in the United States. Everyone's read it. Everyone's aware of it.

The book is called In Memory of Solferino, and it kickstarts what would be called the International Committee of the Red Cross, the Committee of the Red Cross Movement.

So that happens at the same time that across the sea, you're getting order number 100 and the American Civil War. And so you have these two traditions that are largely concerned with the same thing, which is governing warfare, right? How do we make warfare more humane, more respectful of not only the combatants, but the civilians that are affected by it? And you have these two traditions happening or starting at the same time on both sides of the pond.

Okay, that's all fascinating to me. The Battle of Solferino, you know, we're now tapping into the, well, the movement towards Italian unification. That doesn't happen until 1870. But what I find fascinating about all of this is the piece that I'd mentioned a little bit earlier in 1815, Vienna. That's the start of the Concert of Europe. And 19th century Europe is...

Well, it's considered by and large to be a century of peace, more or less. Wars here and there. But for Europe, for war-torn Europe, this is a century of peace until World War I. But nationalism is driving war.

A few wars here and there as Italy is cobbling itself from small principalities and kingdoms into what will eventually become the nation state. Same thing's happening with a number of small little Germanic principalities and the kingdom of Prussia. It's going to turn into what we now know is the state of Germany. But it's fascinating to see that even in this lull of total war, the intellectual development, I guess, it's there. It's on both sides of the Atlantic. Yeah.

And here we go toward this greater codification. And the galvanizing thing here is that Henri Dunant, who's the one who writes this book, this Swiss businessman, writes it in such graphic detail. I would commend it to your audience. You know, it's a pretty brief description, but it is graphic. And I think it jarred a lot of Europeans from thinking that war is glorious, war is, you

It jars them from that thinking into, my gosh, this is really terrible and we need to do something about it. And really, the Red Cross movement starts mostly as kind of a relief society, right? Like they put together these groups to go to the battlefield after the fact and tend to the injured soldiers and bring them relief.

Later on, the Geneva Conventions that come from that tradition will focus more on constraints or restraints during warfare. It has its origins in just this desire to bring relief to the suffering soldiers and those left behind on the battlefield. Fascinating.

And the timing on all that for me, I'm again just thinking it's been a few decades since Napoleon. We're back to where, I mean, that's the pattern that I see as a historian. You have these massive, brutal, awful wars. And then you have a generation of people who, you know, whether they personally fought in it or not, they know someone who's been devastated. They have been devastated by loss. But you get a few decades away and...

People forget. People forget. And they start thinking, you know, we can solve all of our problems with things that go boom. Right. Okay. So we see the codification happening. We see its value. I think it's time for us to maybe shift into the late 19th century here. Let's head towards the Philippines, shall we? Okay. So we get the significance of General Order 100.

It's clearly laudable. It's noteworthy in its step of building an actual law of war, not just guidelines. Right. Yet, when we get to the Philippines, the Philippine War at the end of the 19th century, General Order 100 comes up not in the context of regulating war, but of increased harshness and, frankly, even death aimed at Filipino fighters. That feels a little quirky, a little odd. Yeah, a little inconsistent.

Let's dig in here, shall we? Yeah. The thing that you have to understand about order number 100 is that much like the rest of the custom and norms and traditions that are out there, and this is where we started at the beginning.

This protects certain people from certain groups, but it's not a blanket protection. So when the United States goes to war in the Philippines, it does not view them as an equal opponent. It views them as the same category that the British viewed us in some sense, except that we don't have that familial connection, right? The Filipinos are a different people on the other side of the planet.

And we are not giving them the status of equals in warfare. What we would call it is they're not given belligerent status. They're not given combatant status. They're treated as insurgents, as guerrillas, as non-state actors. And those people are not protected. So order number 100 is not really going to matter in that context. It's certainly not going to restrain American forces from using the kind of intelligence

techniques or, you know, imprisonment techniques that, you know, they deemed necessary. So General Order 100, it does state limitations as to things that are permitted to be done to civilians, to the opponent, to the foe, the enemy. I found interesting as I was writing episode 107 on the Philippines and reading through General Order 100 that

Right. Right.

Were there any other groups beyond that that would really be kind of targeted? Or is this kind of still falling under the guise of where we would think of like spies traditionally, which today's spies have more protection, but earlier on, no protection. Right. I mean, Nathan Hale, to go back to the revolution, this famous American hero killed because he's a spy. Right. But we don't even need to look that far back anymore.

You know, we don't even need to look for analogies to other state actors. We treated American Indians the exact same way in the wars conquering the Western part of the United States. We treated them as insurgents. We treated them as not equal combatants. Again, inconsistently, because there are a few court cases that were covered over the last hundred years that did treat them with state-like status. You have a famous case where

One of the American Indian fighters that kills an American soldier is apprehended and brought to court. And the court finds that this is a war. This is a war between state actors. There was a treaty between those two, and we recognized them as a separate nation. But that was the exception to the broader rule, which was that American Indians were treated much like Filipinos were as unequals on the battlefield.

So what you're saying, it's consistent with Silby's book. I actually cited that one in the last episode on the Philippine-American War, where he basically said or suggested that the U.S. military cut its teeth more or less on how to fight in the Philippines through manifest destiny and fighting. Right.

the indigenous peoples of the Americas. Absolutely. And not just in terms of military operations, in terms of legal status and legal theory, how we conceptualize. At the beginning of this episode, you noted that, what do we call this? Do we call this the Philippine insurrection? We do call it the US-Philippines war or something like that. Those terms matter because if it is a war between the US and the Philippines,

And that we think of the Philippines as a separate country, then they're deserving of a higher status, you know, of the status as equals on the battlefield as combatants. If we think of it as an insurrection, you have a whole different thing. Well, and the military leaders back to D.C., President McKinley said,

They all insisted insurgent. That was the word to be used. You did not just, those writing their reports, they were not to describe. And that was very purposeful. Yes. Right. Yeah. And with legal purpose, specifically as you're pointing out here. It provides a lot more flexibility when it comes to detention, when it comes to interrogation, when it comes to trial, you know, targeting. I mean, all the kinds of things that you would want flexibility on. Yeah.

from the military perspective, especially in an age where there's not, you know, even into the late 1800s, early 1900s, there's still quite a bit of flexibility with the rules governing armed conflict. And especially when it comes to parties that are not of equal status. Well, as you were talking, that was the, I mean, I feel like I know the answer here, but I would love to hear you say it. I mean, General Order 100 being as groundbreaking as it was in the 1860s. I

In the development of world history, we really don't have anything beyond General Order 100 that would apply in this situation, right? There's not much by way of... No. We haven't created even the League of Nations to fail yet, right? These larger global organizations that we know of and think of today that might rein in what a nation's doing here, there,

Here's the crazy thing, though, and we're not going to get into more modern history, at least not yet. No, no. In a future episode. But we still have not figured that out completely. I mean, the law still has...

major gaps when it comes to non-state actors. So even today in 2022, we've got all these wars behind us fought with terrorist groups and insurgents and insurrectionists and other non-state actor type groups. We still don't have the same kind of legal tradition that matches what we have for wars with state actors. So

Far from having our act together today, we're still kind of floundering around trying to figure out what's appropriate and what analogies we should use and what's the right way of balancing necessity and humanitarianism and all these kinds of things, right? The real grappling, we're still in it. Well, in 200, 300 years from now, historians will look back and say, man, can you believe they still didn't know what they were doing? Yeah.

You know, I'd like to, because I know people want to better understand this. I think we need to talk about the water cure. But let's go ahead and take a quick break. And right when we come back, we'll pick up there. Every day, Chenier Energy is hard at work in the state of Louisiana and the Gulf Coast region, where we've created thousands of jobs and help make a difference in the communities where we live and work.

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And we're back. Professor Vogel, you haven't left my little dungeon recording studio here. Thank you for still being here. The water cure or waterboarding to use the more up-to-date term. Up-to-date term. Yeah.

Well, that's the most lighthearted way I can lead into that one. So, well, I'll go ahead and lay the ground here a little bit. The water cure, as it's described in a letter home from a U.S. serviceman, they would take water.

Right.

And do this until they were convinced they were getting the information that they wanted. Which I should note, the water cure as practiced in that day and age was a much more physical thing.

interrogation technique than waterboarding would be a century later. And the major difference there is waterboarding, which is similarly a form of torture. So let's not, you know, let's not mistake that. Yeah, I didn't think you were here to say, no, no, no, no, but you know, waterboarding's totally fine, guys. That's, yeah, I didn't see you going there. It's more of a mental thing

form of torture because it's a simulated drowning. Typically with waterboarding, you're going to have a cloth over the mouth and you're going to bore buckets of water so that the person

feels like they're drowning not that they're actually filling up with water the way that the water cure was practiced back you know 100 years before it so similar there are similarities between them and like I said both would be forms of torture and highly illegal under any sort of prisoner of war interrogation technique but different a little bit

Well, I think that alone is quite the interesting bit. So we definitely have torture on our hands here. That's what the primary sources themselves say, the soldiers riding home say this is a horrific torture. So when is this, as we talk about the codification of the law of war, when is this starting to sink in more with the U.S. population to think this or other forms of behavior? Because there are also...

you know, instances of beatings and things to that nature to try and get detainees to talk. When does more of this start to really, you know, enter into the discussion about the conduct of war?

Yeah. And again, the answer is a bit mixed here because there had been recognition that combatants, that state actors, state military, especially officers, you know, as opposed to enlisted folks were due respect and honor, you know, that they were instruments of their state. They had done nothing wrong themselves. So they were supposed to be protected and respected given all kind of recognition of their, their status. Yeah.

That did not exist, though, for the people that we're talking about here. So the important question always goes back to how do we qualify or characterize the status of the conflict? How do we characterize the status of the groups that are fighting it? If you say you're fighting an insurrection against an insurgent group, you are blanket insurrection.

characterizing them in a way that's not going to protect them as prisoners of war, right? So that's one part. I mean, certainly, even those that were kept as prisoners of war, we've had lots of abuses over the years. You probably talked a bit about Andersonville during the Civil War and just the rampant

and the consequent deaths of soldiers that were in prisoner of war camps. But by the 1800s and into the 1900s, there's certainly a movement toward protecting and having even mechanisms to ensure the protection of prisoners of war that are being held by the opposite side. It's just that those don't apply to groups that we don't characterize as equals on the battlefield. So what do we make then of...

of Howling Wilderness Smith. If you recall, General Jacob H. Smith, he's the commander of the 6th Brigade, and he goes to an old haunt of yours, in fact. Right. Right? The I.M.R. Yes. Yeah. Which I didn't mention in your biography. I mean, fun side note, you just

Happen to speak Tagalog and have lived in the Philippines. That's right. Yeah, no biggie. Been to a lot of the places that you talked about in your last episode. And you definitely helped my pronunciation on a number of those places. And I thank you again. So he does.

get pulled before a court-martial and he is found guilty of, you know, of having abused power, of having gone beyond what's acceptable. Right. And where does, I realize, look, I'm the historian. It's fine. You know, you're the legal counsel here. What are your thoughts as we think through how General Order 100 really does not provide protection against

to the Filipinos in this context. And yet here we have a court-martial and he is found guilty of. The important distinction here is that it does not protect the combatants, but it does still protect civilians, right? So the general civilian population in the Philippines is going to be broadly protected by General Order Number 100. The fighters, on the other hand, will not be protected, at least not protected in the same way, right? They're not going to be given prisoner of war protections. They're not going to be given the opportunity

honor and the status of equal combatants on the battlefield. So that is not going to happen. But what you happen here in the incident that you're bringing up is the order to kill all

all the people above a certain age and those 10 years old, 10 years old. So they're still in minor status, right? There's, there's no question. It's not like 16, you know, where you might have people that are in their culture, you know, are part of the fighting force, right? You're, you're not, there's no blurriness there. 10 years old, you know, you're talking about children here and under order number 100, civilians are protected. They cannot be made the object of attack. So,

That tradition continues through this day in a more codified form. But that is one of the fundamental protections under the law of war is that you do not target civilians and children are especially protected civilians. Now, I know you've come across this scenario, not asking you to name names or talk about specific instances, but.

As Howling Wilderness Smith called that for having said, turn the island Samar into a howling wilderness. He was very quick to say during his court martial that he was following orders, that he was given the indication from General Chafee that this is what Samar was doing.

what General Chafee wanted. That is the same claim that the defendants in the Nuremberg trial claimed, right? They claimed we were only following orders. And what we learned from Nuremberg, which is what we knew before, is that

claiming that you're following orders is not a defense to war crimes and targeting civilians is one of the most fundamental types of war crimes. We saw the same thing in the Vietnam context where you had a number of cases. The most noteworthy was Lieutenant Calley, who's part of the My Lai Massacre, who also claimed the same thing. I was following orders and, you know, it's not a defense, not a defense to war crimes. He also was convicted of

And you fast forward even to the most recent wars, the Abu Ghraib scandal, and it's the same kind of thing. The fact that there are those above the people that are actually prosecuted that were part of the plan or guilty in some way, even if it's a culture of lack of discipline or something like that, does not negate the accountability for the person in question, right? So we're certainly not saying that those people

Should not be held accountable in some way, but we're just saying that you cannot use following orders as a defense to committing war crimes or it all breaks down. The whole system breaks down that you do as an officer have an obligation to stand by morals and frankly reject an order if that is right. And that's partly why you have things like order number 100 is it's there.

You are beholden to that order. When you are in the military today, you are aware of what the Geneva Conventions require. You're aware of the law of war. You get training on that. Typically, you'll get training above and beyond that because the rules of engagement will always be stricter than our legal obligations. So when soldiers or other members of the military are engaging in military operations, they're very aware of

the guidelines, you know, the rules that govern it. So they are required to follow those, even if an order comes in contrary to it. They're still required to follow the law and follow the regulations that they've been given. Okay. Now I want to be, I'm going to use my scalpel here with this next line of questioning, sir. I think it's important to note the historiography, which is the historian's term for the history of history.

writing about a moment. It's a little meta. But where the historiography is at for the Philippine-American War currently is that you have some excellent historians who are pointing out that

Yes, the narrative of the compassionate imperialist power of the United States helping its quote unquote little brown brother to use Taft's term for the Filipino people. That's bunk. That's BS. And at the same time, what they've been noting of late is that the pendulum has kind of swung a little bit to where there's

And this is where, you know, I always want to be very careful on what we're saying here. It's not to dismiss these atrocities, but that sometimes it's lost that these atrocities are, in fact, more widespread.

in this era than, well, then I think we're all comfortable acknowledging. That's definitely true. So within that context, you know, I'm by no means looking to paint a broad brush and say that the actions of Smith, of Howling Wilderness Smith reflects all the servicemen as my fellow historians are also, you know, noting of late. All that said, okay, I've laid my groundwork.

To what extent, and I realize we're getting a little bit speculative, but I think this is a space that you've probably had to engage in and think through in your career. To what extent might we consider or be concerned that his court-martial was, well, potentially more of a scapegoat situation of we're going to let him be the fall man and kind of sweep away

other big players under the rug or, you know, would conversely, would you say the U S military is actually pretty good at really pinpointing bad actors and bringing them to bear? Yeah. Take, take of that, do what, what you will with it. I think that's a really interesting question. It's also a very difficult question. I know. Sorry. And, and only because, um,

You're always going to have, I think, instances where you select cases that you actually want to fight, right?

when cases are brought to trial, it's typically because there's more evidence for a prosecution, for a successful prosecution. And so it doesn't always mean that these are all the cases of abuse. These are the ones that we think we can prosecute successfully. You also have just a general kind of tradition of, and not just in this country, but just in general, of highlanders

higher ranking officials, especially on the civilian side, that are not held accountable in the same way that military officers are. I think the U.S. military is actually very good at holding their military members accountable in military courts. I think we have a very strong legal system in the U.S. military where

I'm not expert on whether that same tradition existed back in the late 1800s or early 1900s, but I can say that having seen it very up close, I think we're good at it. We are not perfect at it. That's for sure. And again, civilians tend to not be swept in the same way because there just aren't the same kind of mechanisms for accountability that exist in the military. Well, and it's not that you ever want to say that

Any of this is okay. But you will always be disappointed if you're looking for perfection. Oh, yeah. Yeah. Well, anything, but especially something as messy as... As warfare. Yeah. And it is very difficult. And I know it's unsatisfactory to a lot of people, and I totally understand that. But you have to...

You have to understand how difficult it is just to collect evidence, you know, just that one aspect, evidentiary collection on the battlefield. You know, if someone has done something that, you know, prompts questions, it's a difficult thing to establish that. And again, you know, we're both saying the same thing. That's not to excuse or anything. It's just to help, I think, people understand that, you know,

It's a much more difficult context than civilian life, you know, where there's more normalcy, there's the ability to go after, usually, after the fact and collect evidence and, you know, interview witnesses and things like that. And, you know, that doesn't always exist in this context. Sure. And it's only that much more difficult when you think about the...

of technology compared to what we have today. Right. There are no cameras capturing anything. Right. In the Philippines. No, what you have is, and you've referenced this a few times, you have people that will self-incriminate. And sometimes that's the easiest, you know, those easiest cases is when people write home and describe the things that they've done. You know, these are firsthand accounts in some ways, self-incriminating accounts of the abuses or, you know,

you know, other illegalities that they've committed. Is that ever, and just tell me if this is beyond your experience, it's fine, but is that, well, not ever, but should I say often lost on the self-incriminating? I mean, when they send these things, is it more, do you see people who

who don't realize like they're so deep into what they're doing that they're not thinking about how awful it is? Or is it that they just genuinely think that they're writing to somebody and it's going to stay close hold? I think it's a little of both. You still see it in the same, you know, you still, you still see it today. Sure. People will post videos, photographs, they'll photograph, you know, all of those pictures. In fact, the way that we really found out what's happening in Abu Ghraib in Iraq is

was that people were taking pictures and they were swapping them and sharing them around. A lot of the abuse that happened there, we documented because they documented themselves doing it. I mean, we could talk all day about the Nazis documenting their own abuses during World War II. But a lot of times it's because of this perception that they will be

or they won't be held accountable for the kinds of things that are happening. And sometimes that's a cultural, you know, disciplinary problem within a unit or, you know, the larger organization. And sometimes it's bad apples and, you know, sometimes it's a mix of both. Jeez. Okay. I want to get into a few of the lessons that should really be taken from the Philippine-American War, but let's go ahead and take one more break and then we'll come back. ♪

And welcome back. Still here with my dear friend, Professor Vogel. Thank you again. Of course. So, all right, Ryan. We've kind of touched here and there, well, on all sorts of centuries. Yeah. We've pressed well beyond the Philippine War. But that said, let's, on a more formal note, and not to get...

too far ahead of things as HTDS has the whole 20th century yet to come. But does the Philippine War inspire any further evolution of the law of war, be that immediately or down the road? Does the U.S. learn important lessons here or does it fail to learn the lessons it should have? What are your thoughts on these things? It's a mixed bag. In some ways, I think we see the law of war continue to develop.

in a way that protects more people. And the U.S. is definitely in a leadership position on that development. I'm not sure that it was this war that inspired it. I think it was later wars, especially the world wars, that really starts to push that forward.

Interestingly, it really is the more modern wars against terrorist groups that forces us to look backward legally on this conflict in particular. And that's because we're starting to think through how do we treat terrorists? How do we conceptualize what they are? Are they states? Do we treat them like states?

In Vietnam, we treated the Viet Cong as an equal on the battlefield. We treated them with combatant status, gave them prisoner of war protections.

But we don't do that for terrorists. In a lot of ways, we go back to the language and the concepts and theories that we used during the Philippines. So really, it's one of those things where we look backward to see how have we done this in the past? You know, we went to a foreign country, fought an insurrection. At least that's, you know, what we called it. That was the narrative. Yep. And we have all these, you know, cases and legal doctrines that we'd used in the military to...

navigate that kind of new environment. And so even the terms that we used, unprivileged belligerence or unlawful combatants, they largely come from that tradition. So I'm not sure that's a positive development in some ways. I think in other ways, it does help us to understand what we're dealing with, but- It helps us to understand where we're at, even if it's not necessarily-

Right. And this is what I said a few minutes ago, which is we're still grappling with this kind of stuff. You know, we're still trying to figure out on the one hand, how do we treat combatants that fight as non-state actors, no affiliation with a state military? Right.

How do we treat them in a protected way without incentivizing their participation in the hostilities? Because ultimately, that's what we want to do with the law of wars. We want to...

Keep people from fighting on the battlefield. So in some ways, states wrote the law, states gave themselves protections, and they said to all the non-state actors, past, present, future, don't do this, right? Don't engage in warfare because you won't be protected. We're not going to give you the same level of protections as we're going to give our fellow states, you know, that are writing this law with us. Which also makes sense in terms of, well, wanting to...

States wanting to ensure their power as states. Right. Right. The

if you don't put up barriers to entry, essentially, if I can go ahead and borrow from our friends in econ for a second, you're not protecting the status of already established states. Right. Right. So then the difficult questions come with, well, what about places like the Philippines? Is that a state in the late 1800s? Is this a state? I mean, I think you would argue, yes, that it is, but we don't conceive of it as a state back then, and we don't afford them the kind of protections. Fast forward,

you know, 100 years later. And we also make that same determination with the Taliban. You know, we decide that the Taliban is not a state, even though they are acting as the government of Afghanistan. Yeah, there are some weird things about that. Only three countries in the world recognize the Taliban as the existing government of Afghanistan. And yet they're the de facto government of Afghanistan when we invade in 2001, 2002. So, yeah,

We go back to that time. In some ways, we use the lessons that we learned there. In other ways, we don't. It's a mixed bag. But we do definitely continue the tradition of development, development of the law of war. And it becomes much more humanitarian. It becomes much more focused on the regulations that would make

warfare more humane uh maybe not what franz lieber wanted right and and franz is rolling over in his grave right he he may not have you guys liked what resulted yeah but but the tradition definitely goes that direction and and you know today i think uh people back then would not recognize the law of war today it's it's been so codified so developed and

And in many ways, you know, so progressive beyond what those early norms and traditions began. Oh, I will say as a historian, it's my sense as I think about the students that we teach the reality of how brief we have really cared about, even on any level and even to the level that we now do in the present human rights, civil rights, right?

It's frankly quite new in the history of humanity. Right? Yeah. It's a blip. It's a blip on the radar. It's frankly, it's terrifyingly right. Very short of a blip. But as you've mentioned, it's,

still in progress. Because when we talk about law of war protections or human rights protections, we're talking about things that are still contested. We're talking about things that are still interpreted or applied in widely varied ways. I mean, look at the conflicts that we look at today. There's targeting of civilians. And of course, the parties that do that are claiming that they're not. And, you know, so there's so much variance in

in both interpretation and then the actual application of the law that we've made a lot of progress and we are in that, you know, that blip right there, but still a lot of room to go. I hope I'm not asking you the same question over. That's not my intention. And just say pass if you feel that way. But as I think about, and, you know, I also don't want to get into, I want to keep our focus just on what you do, law of war here.

In your years in D.C., you know, as a civilian, I don't really recall the Philippine-American War coming up much within these 21st century contexts that we've discussed a bit, you know, as a touchstone, as a point of reference. Did that happen a little bit more behind, you know, the... Oh, certainly not. Oh, okay. Yeah. All right. I mean, I think there's a small group of people...

Well, and I think there are people that might care about it for different reasons. So if you are a military historian, you're going to know more about it. If you are a tactician and someone that studies military strategy, you might look back at that as an example of military operations that you can glean some lesson from. For law of war people, I think most law of war people,

experts never really looked backward until these most recent wars. So the past 20 years, I think, has brought the Philippine-American War back into perspective. But no, one of the things that's always shocking to me is how little, I think, people both in government, out of government, you know, people that are familiar with American history, how little they know about this period of our history. In fact, there's kind of like a

a gap there. I think at the end of the 19th century, where a lot of Americans, they, they go from the civil war and they fast forward to world war one, you know, and there's, if that, right. Sometimes it's world war two. Yeah, yeah, exactly. You have 60 to 80 years that are kind of overlooked, you know, and there's some really important things there. The Philippine American war is really in some ways, America's major dalliance with imperialism and colonialism, just a tradition that's totally, totally,

in conflict with our fundamental values and principles. Something that in the 1770s, I think we could probably never have imagined. I mean, you'd say that with a little bit of reservation because, you know, we did fight the Manifest Destiny Wars throughout our history. But a foreign war, like going abroad in order to subjugate a separate people was just so out of

for the United States. We just didn't even conceive of ourselves that way. We weren't those people. We were the people that that happened to. And those are the very arguments that are being had as the Philippine-American War is raging. And even before, well, I mean, a hot second before that, the Spanish-American War, you know, is only the year prior. Right.

The day prior. Right. But I mean, precisely to your point, you have Americans going this, how on earth is this happening? Yeah.

when did this happen? This is not who we are. In fact, it's the opposite of who we are. It's almost like acting in complete conflict with your very identity. And I think so for a lot of Americans, it's maybe a moment of history that we like to forget and just gloss over because it's a little inconvenient. It's one of those things where I think Americans just prefer to look at more of the highlights. But I think it's important. I think it's important for Americans

you know, Americans of all stripes to understand the detours in American history, you know, and the imperfections in order to improve. Well, you know, it's been, it's been interesting and fulfilling last year

Well, over a year now, getting past the Civil War. I remember starting to get some emails from listeners who were really excited to get into the progressive era and then right into World War I as we finished the Civil War. Yeah. You know, I'd write back, oh, actually, we're...

We're going to be a little while before we get to that. Some things that happened in those years. Yeah. And, you know, I also think I think you're absolutely right on the desire to kind of forget a few few things here and there. But I'd also say, I mean, it's.

you know, my own experience in the classroom, man, when you're told you've got to somehow cover all of US history in like a few months. Yeah. Yeah. You hit the highlights. You hit the highlights. Yeah. And you don't do America's gawky teenage years. No, no, you don't. I mean, and how do you, how do you skip the civil war in favor of, you know, some of these other things when so much death and anyhow. So there's a curriculum. Yeah. Issue there as well. And yet,

in some ways, they'll learn about the Civil War, you know? In some ways, this period of our history, 1880s into the 1910s,

is so formative and so important because of the choices that we're making, you know, and then unmaking. I mean, we're doing both of those things. I think it's really critical that Americans understand that. Well, Brian, thank you again. You know, it's interesting sitting with you doing this interview. As you will recall,

And in case any of the listeners haven't put this together, we are colleagues. Our offices are next to each other. Right next door. Right next door. Though this wasn't the case a few years ago. But I remember sitting in your office. We were just chatting. We're hanging out and saying, hey, I'm thinking about this podcast. I might want to start. Yeah.

And I thought it was a great idea. And now look at it. Look at it. You know, I, it's been so rewarding for me to watch this become what it has become from this idea that, you know, we had talked about into this, you know, this incredibly successful and really influential thing that it's become. And, and I, I mean, it's an honor for me to be on it and to, you know, discuss this with you.

We would talk about it in the office anyway, but might as well do it for an audience. Well, sure. We'll just continue this conversation over probably some ramen tomorrow. That's right. Exactly. But you've built something great here and it really is an honor to be a part of it. Well, thank you, sir. I'm, of course, just digging for compliments. No, any time, though. Thank you.

All right, man, we'll go ahead and call that a wrap. Thanks so much. Thank you everyone for listening. Hope you enjoyed getting a little deeper on the law of war and join me in two weeks when I'd like to tell you a story. HTVS is supported by fans at patreon.com forward slash history that doesn't suck. My gratitude to Kind Souls providing funding to help us keep going. Thank you. And a special thanks to our patrons whose monthly gift puts them on producer status.

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