Time to put an end to summary executions and drone strikes in the Middle East.

[jberryhill]

14. Yeah, unfortunately, I'm a complete nincompoop about law

Nobody in Hiroshima got a trial either. But unless and until there is a legal challenge, which can be done, the apparent underlying rationale is that these are military operations in an unconventional assymetric war.

That rationale might hold up, and might not, but what we really need to do as a country is to re-visit the War Powers Act in light of changed assumptions and approaches to warfare.

What you don't seem to understand is that you have not been appointed to a federal court as a judge, nor do you have opposing briefs before you on the subject on which you are empowered to rule.

It is your opinion that these do not constitute legitimate military targets or operations, and you are uncomfortable with the discretion in the use thereof which has thus far been assumed by the office of the president in the conduct of these operations. It is certainly a subject which, if we had a rational legislature at the moment, deserves attention.

I share your concerns, but do not see it as black and white as you do.

When we passed the last revision of the War Powers Act, the assumption was that there are circumstances in which military force may be used, and the president has discretion to use it for a limited period of time - to actually commit troops to a conflict of his or her choosing - before having to report to Congress on continuing authorization to maintain engagement.

What we have now is a warfighting infrastructure which is not consistent with the underlying assumptions of the War Powers Act. The WPA more or less assumes that warfighting will involve a significant commitment of troops and material, but there are finer tools now - i.e. drones, that lead to this kind of low-intensity, low-commitment type of conflict.

What I do not share with you is your black and white view of the situation. For example, we have for several decades now, committed complete discretion in the president's authority to launch nukes. The president has the complete legal authority to launch the entire arsenal at Canada, if he or she feels grumpy one morning. Against that background, the use of drones abroad pales in comparison on the scale of gut-level legal acceptability.

In terms of legality, generally, it may well be that there is too much discretion vested in the office of president on the use of force - any force - without adequate review and oversight. But if it is your across the board position that the president has no discretion in the use of military force for objectives of national security, then that has not been anything resembling the relevant legal framework for a long time.

If you wanted to press the issue on a piece of legislation that would outright ban presidential discretion on the use of military force, that would be guaranteed not to pass, no matter what the composition of the legislature.

The situation with the use of drones is not one in which anyone can declare it to be "illegal" with such certainty and without reservation, in the context of presidential discretion in the use of military force abroad generally. I'm sorry but I do not think it is as simple as you believe it is, and your declaration that my disagreement with you arises from some inability to understand what is legal and what is not is an indication that you really don't know me very well.