Jewish World Review Feb 2, 2012/ 9 Shevat, 5772
What Is a Just War?
By Judge Andrew P. Napolitano
http://www.JewishWorldReview.com | When President Obama announced last April that he was sending the United States military to bomb Libya, he not only violated the United States Constitution, which he has taken an oath to uphold, but he also violated the moral principles of the just war. The Constitution permits only Congress to declare war and the president to initiate on his own only a truly defensive war. When the president takes an oath to uphold the Constitution, he also promises to uphold the treaties into which the U.S. has entered and the laws that have been written pursuant to those treaties.
St. Thomas Aquinas is the modern articulator of the idea that governments are required to follow the same moral principles as the rest of us. This is particularly so in the case of a government that claims its source of power is the consent of the governed. St. Thomas More once put it this way: "Some men say the earth is round and some say it is flat. If it is round, can the King's command flatten it; and if it is flat, can Parliament make it round?"
Of course, the answer to those questions is no; and the reason it is no is that kings and parliaments — all governments — just like all living beings, are subject to the laws of nature. One of those laws was articulated by Aquinas and embraced by More and accepted by Thomas Jefferson and taught by many Judeo-Christian scholars, and was eventually engrafted into treaties and into American law. It is the concept of the just war. In American law and culture, for war to be valid, it must not only be lawful, meaning either declared by Congress or defensive; it must also be just.
What is a just war? For a war to be just, generally, a half-dozen principles must be met.
First, since force destroys, and there is a presumption against its use, the presumption must be overcome by first using all peaceful and viable means and alternatives to war; and it must be clear that these alternatives are fruitless before a war can be just.
Second, the cause must be just; that is, the purpose of the war must be to correct a grave, profound, enduring public evil that directly impairs the freedom or safety of those contemplating war.
Third, only a lawfully competent authority may commence the use of violence, as was not the case when President Johnson bombed North Vietnam or President Nixon bombed Cambodia or President Obama bombed Libya. Thus, the internal laws of the nation using military violence must be crafted so that war is the public policy of the nation, not just the temporary personal preference of whoever is running the government.
Fourth, there must be a probability of success, so that men and women are not sent to certain death for a lost cause.
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?
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Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the Senior Judicial Analyst at Fox News Channel and anchor of "FreedomWatch" on Fox Business Network.
© 2012, ANDREW P. NAPOLITANO
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