Ye Olde Gitmo
When Americans were unlawful combatants.
What Burrows wants us to see is that the laws of war and its humanitarian protections were once rallying points for American patriotism, not obstacles to its realization. Virtually every one of the founding fathers—George Washington, Benjamin Franklin, and Thomas Jefferson most of all—cited the humanitarian imperatives of what was then known as the Law of Nations and excoriated the British for their treatment of American captives.
Burrows declines to draw the obvious comparisons to today's controversies, but in the Founding generation, he suggests, American values were clear. Our enemies were the global pariahs, while we were the champions of humanitarian ideals and the international rule of law. Journalists such as Jane Mayer and lawyers such as Philippe Sands and David Cole have drawn these conclusions more explicitly, though without Burrows' thorough historical research. Burrows' book is part of a quickly snowballing movement to redescribe the Bush administration's post-9/11 policies as an embarrassing aberration in an otherwise exceptional history of respect for the rule of law in times of national crisis.
This earnest attempt to recapture humanity for the flag is misleading; the legend of the "New York prison ships" has long been caught up in feel-good history and political mythmaking. Burrows avoids the worst mistakes of the genre, but he cedes too much to the patriotic fantasy of American exceptionalism in our commitment to the rule of law and humanitarian ideals.
Burrows' fatality estimates, for example, rely on the most extravagant available claims and then use them to extrapolate still further deaths. (Among other things, Burrows makes the implausible assumption that fatality rates were as high on land as they were in the prison ships.) Most historians believe that the number of prisoner fatalities among American soldiers was far lower than Burrows would have it, somewhere in the neighborhood of 8,500. The number is still startling. It is higher than the number of battle deaths in the war (estimated at upward of 6,000). But given that the British held few prisoners in New York (or anywhere else outside of Charleston, for that matter) after 1778, the lower estimate (less than half the size of Burrows' figure) is almost certainly much closer to the truth than Burrows' highball number.
Conditions in the British camps and ships in and around New York were what one would expect in the era before modern medicine and modern military logistics. Even if the official policy of King George III designated American prisoners as traitors and criminals, in practice the British treated them as de facto prisoners of war. French and Spanish prisoners of war—whose legal status was unambiguous—faced the same conditions as their American allies in the war with Great Britain. American prisoners regularly corresponded with family and friends outside New York. Wives and mothers were often permitted to come into British lines to visit their loved ones, and sometimes even successfully agitated for their release. Death rates were high, but so were death rates among British seamen aboard British ships. Rations were the same as those provided to British soldiers during their trans-Atlantic voyage. Even Burrows disclaims the view that the deaths resulted from the intentional infliction of cruel treatment. The main killer of prisoners (indeed, a main killer of soldiers on all sides, prisoners or not) was an epidemic of smallpox that swept through New York and then raced up and down the Eastern Seaboard in 1776 and 1777.
While British soldiers typically fared better in American hands than their American counterparts did, that was partly because American forces could send them into the interior to western towns where food and shelter were in good supply. Revolutionary Americans adopted the standards of civilized warfare. But they did so not just out of humanitarian selflessness but in pursuit of their strategic aims. To be recognized as a civilized state entitled to make war according to the Law of Nations was precisely what the Revolution was being fought for. The American commitment to the laws of war and to humanitarian ideals was supported by that ambition. For the revolutionaries, the claims of humanity ran together with American interests, not headlong into them.
From the nation's founding moment forward, humanitarian motives have mixed with strategic interests. The danger of an imagined American history of selfless humanitarianism is that it holds American leaders to an impossible standard. A standard that no nation has ever lived up to—such a history invites our leaders to abandon our ideals when crisis strikes.
Great Britain dismantled the prison camps of old New York in 1783 when it abandoned its war effort. But in our world of terrorism and weapons of mass destruction, abandoning the fight is not possible. Obama will have to close Guantanamo while waging the battle Guantanamo was meant to help us win. To succeed, he will have to reunite the twin American traditions of interest and idealism. They are traditions his predecessor tore apart, but they are the true legacy of the Revolution.
John Fabian Witt is a professor of legal history at Columbia University and the author of Patriots and Cosmopolitans: Hidden Histories of American Law.