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Military Law Is to Law as Military Music Is to Music

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"To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

"To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

"To provide and maintain a navy;

"To make rules for the government and regulation of the land and naval forces;

"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

"To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress . . .

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

There is nothing legal about war.  If there were there would still be nothing legal about non-U.N. war.  If there were there would still be nothing legal about non-Congressional war.  In fact, Obama's other lawyer Harold Koh has told Congress that it has no power to stop presidential wars, such as the one in Libya, because such actions are neither wars nor hostilities.  Why? Because, as with drone murders, the Americans are not present on the ground and not likely to be immediately killed.

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But then how can the conventional nature of war legalize the killing and imprisoning? Either it's war and Congress has control over it, or it's not war and the supposed legal and moral loophole for all evil does not apply.

And if it could, what can possibly constitute "proportionality, necessity and distinction," in the act of killing people with drones, the vast majority of whom are innocent civilians, and the rest of whom are targeted victims who include Americans (is this country at conventional war with itself?) teenagers (is this country at conventional war with minors?) and the citizens and residents of nations the United States is not at war with in any conventional sense.

Were another nation to begin murdering people in the United States with drones and night raids, would the U.S. government consider those actions justifiable as conventional war (or justified in any other way), or would the United States launch a war against that nation?  And if the latter, what would justify it?  What justified the invasion of Afghanistan?  What justifies the bombing of Gaza?  According to President Obama,

"there's no country on Earth that would tolerate missiles raining down on its citizens from outside its borders."

Not Yemen? Not Somalia? Not Pakistan? Not Afghanistan?  Those nations are legally justified in murdering and imprisoning Americans?  This can't be right. 

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Nor can it be right to take seriously Johnson's suggestion that the U.S. war on terra will end some day, not while the terrorizing of foreign nations continues producing the sort of resistance that Johnson uses to justify the continuation of the killing.  That's a loop that neither ends nor comes to rest on any legal or moral support.

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David Swanson is the author of "When the World Outlawed War," "War Is A Lie" and "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union." He blogs at and and works for the online (more...)

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