Judge Andrew Napolitano

Fifth, the use of force must be proportional to the harm it seeks to eradicate; thus, no more persons may be harmed by the use of military force than are absolutely necessary to achieve the just goals of the war.

Finally, the war must be fought fairly and ended quickly.

Have you ever heard of these rules before? Since they're universally accepted in the West, wouldn't you expect that they'd be discussed and debated openly? Did the Congress apply these rules to any war in your lifetime?

Congress has not declared war since Dec. 8, 1941. But it has, from time to time, debated these principles while it permitted the president to fight unjust wars. It did so when LBJ tricked it into adopting the Gulf of Tonkin Resolution in 1964, authorizing him to bomb North Vietnam, a backward country that posed no threats to America. It debated these values when it enacted the War Powers Act in 1973 in order to restrain Nixon from bombing Cambodia, another country that did not harm and could not have harmed the U.S. It did not debate these principles when it authorized President George W. Bush to invade Afghanistan and Iraq.

The problem with most wars is that they are more strategic and adventurist than they are just. We now know that Saddam Hussein posed no threat to the U.S. Regrettably, it took 5,000 American lives, more than a half-million Iraqi lives, nearly a trillion borrowed dollars and two presidential election campaigns for voters to realize that. What was the grave, profound, enduring public evil from Iraq that directly threatened the freedom or safety of Americans? There wasn't one.

The same may be said for Afghanistan, about which, shortly before he was fired, Gen. James Jones, Obama's first national security adviser and a former Marine commandant, stated that the U.S. had 100,000 troops wasting their time chasing fewer than 100 al-Qaida there. Did we assure that no more innocents -- or even combatants -- died than was necessary to end that war? No.

And my guess is that you don't know anyone in America whose freedom and safety were threatened by the Libyan government last April.

The concept of a just war can induce a debate without end, unless and until we repose the Constitution for safekeeping into the hands of men and women who accept the concept. If we do that, we will bring the troops home and save many lives and much taxpayer money and be free and safe and prosperous. If we don't, it seems whoever is the president gets to fight whatever wars he wants. Is that what you want?


Judge Andrew Napolitano

Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995, during which time he presided over 150 jury trials and thousands of motions, sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year.

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