"Execute against Japan": The U.S. Decision to Conduct Unrestricted Submarine Warfare

by Joel Ira Holwitt


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“ . . . until now how the Navy managed to instantaneously move from the overt legal restrictions of the naval arms treaties that bound submarines to the cruiser rules of the eighteenth century to a declaration of unrestricted submarine warfare against Japan immediately after the attack on Pearl Harbor has never been explained. Lieutenant Holwitt has dissected this process and has created a compelling story of who did what, when, and to whom.”—The Submarine Review

“Execute against Japan should be required reading for naval officers (especially in submarine wardrooms), as well as for anyone interested in history, policy, or international law.”—Adm. James P. Wisecup, President, US Naval War College (for Naval War College Review)

“Although the policy of unrestricted air and submarine warfare proved critical to the Pacific war’s course, this splendid work is the first comprehensive account of its origins—illustrating that historians have by no means exhausted questions about this conflict.”—World War II Magazine

“US Navy submarine officer Joel Ira Holwitt has performed an impressive feat with this book. . . . Holwitt is to be commended for not shying away from moral judgments . . . This is a superb book that fully explains how the United States came to adopt a strategy regarded by many as illegal and tantamount to ‘terror’.”—Military Review

Product Details

ISBN-13: 9781623490614
Publisher: Texas A&M University Press
Publication date: 12/06/2013
Series: Williams-Ford Texas A&M University Military History Series , #121
Edition description: Reprint
Pages: 262
Product dimensions: 6.00(w) x 8.90(h) x 0.80(d)

About the Author

JOEL IRA HOLWITT earned his PhD in history from Ohio State University in 2005. His work has also been published in the US Naval Institute Proceedings magazine, Naval History magazine, the Journal of Military History, Military History of the West, the Submarine Review, and US Naval Academy textbooks. A graduate of the US Naval Academy, he is an active duty submarine officer in the US Navy.

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"Execute Against Japan"

The U.S. Decision to Conduct Unrestricted Submarine Warfare

By Joel Ira Holwitt

Texas A&M University Press

Copyright © 2008 Joel Ira Holwitt
All rights reserved.
ISBN: 978-1-60344-255-8


Freedom of the Seas, the Submarine, and the First World War

The U.S. decision to conduct unrestricted warfare was intimately tied up with a change in conception regarding a parallel concept—freedom of the seas. Unrestricted warfare deliberately targeted noncombatant merchant ships, leaving survivors of an attack to the mercy of the elements and the sea. This was diametrically opposed to the Wilsonian view of freedom of the seas, which called for the protection of merchant sailors and their passengers. To understand why the U.S. decision to conduct unrestricted warfare was such a monumental change in American policy, one needs to follow the evolution of the concept of freedom of the seas from its inception through the First World War.


Freedom of the seas is an old and important concept that has played a pivotal role in peace and war, particularly in the history of the United States of America. The distinguished American historian Samuel Flagg Bemis called it the "ancient birthright" of the United States. Over time, however, the exact meaning of "freedom of the seas" has changed considerably. At the core of this change has been the conflict between the privileges of belligerent navies and the rights of noncombatant and neutral sailors. This conflict became even more intense in the twentieth century, with the advent of new technologies. Increasingly, the noncombatant status of merchant sailors and their ships came into doubt.


The concept of freedom of the seas is an ancient one, but it was not seriously defined and intellectually defended until the seventeenth century. In 1609 Dutch philosopher Hugo Grotius anonymously published a small but important book, Mare Liberum, or "The Free Sea." Grotius's work set the conceptual boundaries of freedom of the seas, starting with the very first paragraph of the first chapter:

We will lay this certain rule of the law of nations (which they call primary) as the foundation, the reason whereof is clear and immutable: that it is lawful for any nation to go to any other and to trade with it.

Grotius asserted that the seas were different from land because while solid land could be owned as property, the ever-shifting liquid seas could not be possessed. Furthermore, while land could be garrisoned and guarded, no nation could ever maintain a permanent presence in one stretch of water. Grotius believed that while a kingdom could rightly tax its own subject sailors and fishermen, it could not extend that control to the ships and sailors of other nations that sailed in waters claimed by that kingdom. In short, because of its fluid nature, "the sea is incomprehensible, no less than the air, [and] it can be added to the goods of no nation."

Understandably, Grotius's ideas drew a great deal of debate and controversy. Because of his detailed denials of the Catholic Church's right to apportion territory or the seas, the Church banned his book. Additionally, a number of scholars wrote detailed critiques, which added important heft and nuance to Grotius's concept, establishing the justification for territorial waters and other caveats to freedom of the seas. Grotius's argument became so thoroughly accepted that he even suffered the ignominy of having his own book used to undermine his negotiating position in a fishing dispute with England in 1613.

Grotius's ideas contributed not only to the concept of freedom of the seas in peacetime but also to a growing debate about the ability to search and seize ships of other nations on the high seas. Grotius's Mare Liberum actually served as the twelfth chapter of a much larger philosophical work, not fully published until 1864, De Jure Praedae Commentaris, or "Commentary on the Law of Prize and Booty." Within the larger context of De Jure Praedae Commentaris, Grotius's explanation dealt with the rights of neutral and belligerent merchant ships in time of war as well as with trade disputes in peacetime.

Grotius confirmed that by natural law, private property was usually inviolable and to seize it was an act of theft. However, the concept of justice demanded that wrongful actions be punished and virtuous actions rewarded. In a just war, therefore, private property could be legitimately seized to recompense the virtuous side while depriving the wicked side of vitally needed supplies. Although Grotius never published the entire De Jure Praedae, he often referred to it in other texts and his ideas were in accord with previous "just war" concepts. Consequently, from the beginning, freedom of the seas was implicitly and intricately tied up with the belligerent right of search and seizure on the high seas.


Transport over water has long proved to be the fastest, most reliable, and most efficient way to transport large numbers of people and quantities of supplies over extended distances. As a result, interdicting supplies at sea is one of the most vital missions of a belligerent navy. Until the twentieth century, the standard method of interdicting supplies at sea was search and seizure, a belligerent right that allowed hostile warships to search almost any ship and confiscate goods. Search and seizure was generally unpleasant for noncombatant merchant sailors, but it rarely cost lives or ships. As with the concept of freedom of the seas, however, the limits and meaning of search and seizure changed over time.

The rules of search and seizure were first codified in the Consolato del Mare, a work predating Grotius's Mare Liberum by at least a hundred years if not more. Perhaps the first work solely devoted to maritime law, the Consolato del Mare was essentially a compendium of legal opinions and precedents regarding the sea. In 1494, an edition of the Consolato del Mare included the opinion that enemy cargo could always be seized, but neutral cargo should not be seized, even if found on board an enemy ship. Unfortunately, because the Consolato del Mare was only a compendium of opinions and precedents, it was not actually binding upon any nation. Consequently, the French and the British often chose to confiscate any neutral ship carrying even the slightest amount of enemy cargo. Resentment over these actions resulted in a number of nations advocating the "free ships, free goods" concept.

The idea of "free ships, free goods" maintained that a neutral ship's cargo was exempt at all times from seizure. The idea came to prominence in the seventeenth century, and underlay a number of wars between England and Holland. The British wanted to seize neutral ships if enemy cargo of any sort was found on board, while the Dutch wanted to protect their commercial empire. The solution was a compromise: the Dutch were willing to accept that belligerent ships with neutral cargo could be captured, so long as neutral ships were always exempt from capture. Eventually Holland succeeded in wringing "Free Ships" treaties from France, Spain, and Great Britain, culminating in the Treaties of Utrecht that ended the War of Spanish Succession in 1713. However, the Dutch themselves were not above waiving their own rules in wartime, sometimes attempting to prohibit neutral traffic to an enemy country.

A more practical version of the "free ships, free goods" doctrine admitted that any cargo on board any ship could be confiscated if it was contraband material needed for the war effort and ultimately bound for an enemy country. This, however, required agreement as to what type of material constituted contraband supplies and proof as to whether supplies were ultimately destined for the enemy's war effort. Such an agreement was unlikely. For instance, should clothing, which could possibly be used for uniforms, or wood or rubber, which could be used for ships and vehicles, be prohibited or not? The list of potential contraband could eventually cover every possible item that could be shipped. There was also the problem of "continuous voyage": what if a cargo bound for a neutral country was then shipped overland or by waterway to an enemy nation? Consequently, this concept of "free ships, free goods" was also problematic.

Finally, there was an extreme view that essentially denied the belligerent right of search and seizure: why not simply make all private property on board ships exempt from seizure? In its ultimate form, this doctrine feasibly meant that all civilian merchant ships would be immune from harassment or capture. This concept was first enacted in a 1785 treaty between Prussia and the United States. Although other, more "practical" treaties quickly superseded this treaty, the concept of immunity of private property and the inviolability of civilian merchant ships eventually became a fixture of U.S. foreign policy.


As previously noted, a number of treaties in the seventeenth and early eighteenth centuries called for freedom of the seas and neutral rights. But it was not until the late eighteenth century that a large number of world powers chose to formally codify these principles. In no small measure, this was due to the influence of the newly formed United States of America.

With the beginning of the American Revolution, the Second Continental Congress quickly moved to establish ties with friendly powers. To guide diplomats sent abroad, a congressional committee created what became known as the Plan of 1776. In terms of maritime law, the Plan of 1776 adopted many of the principles of previous treaties:

free ships free goods, freedom of neutrals to trade in non-contraband between port and port of a belligerent ..., restricted and carefully defined lists of contraband not including foodstuffs or naval stores, and generally liberal and considerate treatment of neutral shipping.

The first diplomatic mission sent to France dutifully followed these instructions and secured these rights in the first Franco-American Treaty of 1778.

Two years and several treaties later, Catherine the Great of Russia took up the initiative of freedom of the seas and neutral rights in response to the seizure of a number of her ships and the lack of an overarching code of maritime law. Catherine used virtually all of the principles in the Plan of 1776 in what became known as the Armed Neutrality of 1780, or the First Armed Neutrality.

The First Armed Neutrality set specifications on close blockade, contraband, and neutral shipping. According to Samuel Flagg Bemis, the five important principles of the First Armed Neutrality were these:

1. That neutral vessels may navigate freely from port to port and along the coasts of nations at war ...

2. That the effects belonging to subjects of the said Powers at war shall be free on board neutral vessels, with the exception of contraband merchandise ...

3. That, as to the specification of the above-mentioned merchandise [contraband], the Empress holds to what is enumerated in the 10th and 11th articles of her treaty of commerce [of 1766] with Great Britain, extending her obligations to all the Powers at war ...

4. That to determine what constitutes a blockaded port, this designation shall apply only to a port where the attacking Power has stationed its vessels sufficiently near and in such a way as to render access thereto clearly dangerous ...

5. That these principles shall serve as a rule for proceedings and judgments as to the legality of prizes.

The resemblance to the Plan of 1776 was striking, although Catherine was also harkening back to older treaties that contained similar rules. The first principle, as in the Plan of 1776, permitted neutral traffic between belligerent ports. The second principle was a restatement of "free ships, free goods," with a practical proviso allowing for contraband. The third principle set the contraband list to that of the British-Russian commerce treaty of 1766, which excluded naval stores, just like the Plan of 1776. The rules of blockade, embodied in the fourth principle, were also in agreement with the Plan of 1776. Although Catherine and her advisers may have used older treaties for templates, the Armed Neutrality of 1780 was still an enactment of what had become U.S. diplomatic policy.

Although some mocked the Armed Neutrality of 1780 for being a hollow and poorly enforced treaty, many nations agreed to its principles, including the United States, France, Spain, Holland, Denmark, Sweden, Prussia, Portugal, and Naples. Great Britain refused to sign the First Armed Neutrality, but respected many of its principles. The principles of the First Armed Neutrality would become increasingly important over the next seventy years, gaining acceptance and credibility from all world powers. Moreover, the United States had established itself as a nation that placed great priority on the freedom of the seas.


The ideas of the First Armed Neutrality gained greater currency during the nineteenth century. During the Napoleonic War, numerous nations discarded the principles of the First Armed Neutrality as they saw fit, including a short-lived Second Armed Neutrality dedicated to excluding British supplies from European ports. By the end of the war, however, most nations ended up returning to the ideas of "free ships, free goods" and other principles expressed by the First Armed Neutrality. After the Napoleonic Wars ended, virtually all treaties dealing with commerce adopted the rules of the First Armed Neutrality.

The watershed moment for the principles of the First Armed Neutrality finally came in the Crimean War (1854–1855). During the war, Great Britain and France both adopted the principles that had been enumerated in the First Armed Neutrality. When the Crimean War ended, these principles were codified in the Declaration of Paris of 1856, including "free ships, free goods," contraband law, blockade law, and an article that abolished privateering. However, even as the Declaration of Paris codified the paradigm of the First Armed Neutrality, a new conception of freedom of the seas was emerging from the United States.

The United States had supported a vigorous concept of freedom of the seas from its inception, as seen in the 1785 treaty with Prussia that attempted to exempt all property from seizure on the high seas. In 1798, in response to predations by French privateers and warships on neutral U.S. merchantmen in the Caribbean, President John Adams ordered U.S. Navy warships and privateers to retaliate against armed French vessels. Similarly, in 1803 President Thomas Jefferson sent a U.S. Navy squadron to the Mediterranean to end extortion and piracy by the Barbary corsairs located on the North African coast. Jefferson's subsequent trade embargoes and James Madison's War of 1812 were similarly grounded in an attempt to defend the right of American ships to freely and peacefully trade at all times and in all oceans. Many portions of the Declaration of Paris mirrored similar clauses that U.S. negotiators had attempted to place without success in the Treaty of Ghent that ended the War of 1812.

The U.S. president in 1856 was Franklin Pierce, probably one of the strongest American proponents of freedom of the seas. Although most historians have derided Pierce for being incompetent and inept, President Pierce and his administration actively advocated for freedom of the seas and the respect of noncombatant rights at sea. With the vigorous prodding of Secretary of State William L. Marcy, the Pierce administration helped force Denmark to end the extortion of merchant ships coming through the Danish Sound. The Pierce administration also helped to force open for trade the River Plate in South America. Although Secretary Marcy failed to similarly open the Amazon River, his efforts laid the groundwork for the eventual treaty that opened the Amazon for all shipping. The Pierce administration was clearly not a slouch when it came to enforcing and expanding the freedom of the seas.

Unlike previous administrations, which had settled for the principles embodied by the First Armed Neutrality, the Pierce administration adamantly pushed for the immunity of private property on the high seas and the inviolability of civilian merchant ships. Consequently, Pierce and his diplomats refused to sign the Declaration of Paris unless the prohibition of privateering was linked to the immunity of private property, except for war contraband.

The Pierce administration's stance stemmed directly from the weak naval power of the United States and the importance of privateering in commerce warfare. Despite the naval success the U.S. Navy had enjoyed against the Barbary pirates and the famous victories of the War of 1812, the United States remained a relatively weak naval power with regard to naval superpowers like Great Britain. Privateers served as a cheap substitute for a powerful navy. Legitimized by a government-issued letter of marque and manned by wellmotivated sailors, privateers sought to capture as much enemy commerce as possible. During both the American Revolution and the War of 1812, American privateers arguably played a far more important role than the U.S. Navy in wrecking the British merchant marine and leading maritime investors to beseech the British government to end the war. Consequently, the United States could always use the threat of privateers to deter naval superpowers from threatening American commerce. The United States was unwilling to throw away its greatest and cheapest maritime deterrent unless the great naval powers promised to enforce rules that would protect American commerce. The other delegations in Paris were reluctant to give up the time-honored practice of commerce interdiction, however, and they refused to add the proposed clause. As a result, although the United States generally abided by the Declaration of Paris, it never signed or ratified the document.


Excerpted from "Execute Against Japan" by Joel Ira Holwitt. Copyright © 2008 Joel Ira Holwitt. Excerpted by permission of Texas A&M University Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents


List of Illustrations,
1 Freedom of the Seas, the Submarine, and the First World War,
2 The U.S. Navy and the Submarine Question,
3 The Failure of International Law in the Interwar Period,
4 Legislating Away Freedom of the Seas,
5 The Accidental Commerce Raider: U.S. Submarine Development, Strategy, and Tactics,
6 Laying the Strategic Groundwork,
7 Debating Law, Ethics, and Strategy,
8 "Immediately upon the Outbreak of War",
9 Day of Infamy, Day of Decision,
10 Unrestricted Warfare and the Civilian Chain of Command,
11 The Victory of Unrestricted Submarine Warfare,

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