2.14 Alan Dershowitz, excerpts, Introduction Part V, The Civil War, and The Trial of Captain Henry Wirz in America on Trial, Inside the Legal Battles that Transformed our Nation, New York, Boston, 2004, p.133 – 138 and p. 146 – 151
This text has to be read in conjunction with text 2.15 the Court Martial of Henri Wirz under military criminal law, text 2.12 James Hutson Swiss and the American Civil War and 2.13 Heinz K. Meier, The period of the Civil War.
In the making of this Anthology on Swiss law and legal culture it became obvious, that the history of the United States is deeply marked by its own law and legal culture and that the relationship between Switzerland and the United States is surprisingly often marked by events of law and legal culture. This seems to be the case even in extreme historic conditions of war, and even of civil wars. The case of the capital punishment of Henri Wirz after the Civil War is such an event making history in the legal relationship between the two countries.
We use a short text by Alan M. Dershowitz of his book America on Trial – Inside the Legal Battles that Transformed our Nation, who has chosen the case of Henry Wirz as one of three cases occurring in the context of the Civil War in his recount of “the legal battles that transformed our nation”. In the respective chapter Alan Dershowitz argues, that war time trials are rarely typical of a nations legal system, but that they often tell us something interesting about the capacity of its institutions to deal with the past. According to Alan Dershowitz the period of the Civil War is marked by the three great trials. The Savannah case, the piracy trial of privateers operating on behalf of the Confederacy, marked the beginning of the war. The trial of the commander Henri Wirz of a notorious Confederate prisoners – camp represents the brutality of the war itself. The third case is the trial of Lincolns assassins signalling the end of the Civil War and the birth of Reconstruction. According to Alan Dershowitz the prisoner of war issue became prominent because as according to official reports, the Confederacy captured 211’000 Union soldiers and took 195’000 prisoners, while the Union captured 247’000 Confederates and took 215’000 prisoners. Prisoner of war camps, according to Alan Dershowitz, were certainly an undesirable venue in either North or South but the shortage of resources and decimated supplysystem in the South contributed to the harsh conditions endured by prisoners there. Particularly notorious was Andersonville Prison in southwestern Georgia, there “moskito-infected tents, a contaminated water supply, unbaked rations, inadequate hospital facilities and lack of sanitation led to high death rates. When the Union prisoners attempted to escape by tunnelling the prison, according to Dershowitz, officials sent blood hounds to hunt them down. In the first six months of 1864, there were 100’000 prisoners at Andersonville, in one month, 3000 prisoners had reportedly died, a rate of hundred per day. In total 13’000 prisoners are believed to have died there. Henri Wirz, commander of Andersonville, was later convicted of war crimes and hanged. According to Dershowitz historians disagree as to whether Wirz’s conviction and execution were warranted or rather a “miscarriage of justice resulting from the Norths need for a scapegoat”.
Alan Morton Dershowitz, born September 1st 1938 is an American lawyer, jurist and political commentator, scholar on United States constitutional law and criminal law. He spent most of his career at Harvard Law School, where in 1967, at the age of 28 he became the youngest full professor in its history. He has held the Felix Frank further professorship there since. Dershowitz is known for his involvement in several high profile legal cases as a defense attorney and as a commentator in the Arab-Israeli conflict. Politically liberal he is the author of a number of books about politics and legal culture. The book just published is Taking the Stand, My Life in the Law (2013)
The short text at hand is the summary of Alan Dershowitz in his book America on Trial, – Inside the Legal Battles that Transformed our Nation, of the trial on captain Henri Wirz. The date of the case is 1865, the location is the District of Columbia, the defendant is Confederate Captain Henri Wirz, the charges are murder, battery, torture, the verdict is guilty and the sentence is hanging. Dershowitz puts the case in a broader perspective on law and crimes commited in times of war. Throughout the ages there have been attempts to rewrite history, especially the history of astrocities. Not surprisingly, there have been repeated attempts to “revise” the history of the American Civil War. According to Dershowitz, the American Civil War was one of the most brutal struggles in history. The savagery of the war is difficult to understand. Combattants were, if not brothers, certainly cousins. They shared a common religion, national origin, language and race. They also shared a common destiny and future, yet they killed with ferocity. According to Dershowitz the most inexplicable manifestation of this fraternal hatred was the treatment of prisoners of war, particularly by the Confederacy and especially in the “rebel prison” of Andersonville, Georgia.
The short text contains a description of the behaviours of Captain Henry Wirz in the camp.
Dershowitz briefly describes the Court Marshal proceeding in Washington DC.
As a sophisticated participating observer, who fights for justice under any and under most difficult situations, Dershowitz looks beyond the death sentence of Henry Wirz. The short text ends as follows: “Yet the totality of the evidence speaks for itself, and it speaks convincingly of Wirz’s moral and legal guilt. We must never forget, of course, that military history is generally written by the victors rather than the vanquished. This is even truer of post-war military trials. No Union camp commander was placed on trial for the killing of Confederate prisoners, nor was any Union general tried for the destruction of civilian cites.”
“The trial, conviction, and execution of Captain Wirz make up an important episode in the development of the laws of warfare. Tragically, it did not prevent other atrocities in subsequent wars.”
You can find a scan (PDF) of the original text here:
A_2.14_DERSHOWITZ_America on trial