Transcripts For CSPAN Federalist Society Discussion On War Powers 20170710

The Federalist Society last on thested a discussion constitutional war powers of congress and the president. Among those we will hear from is armor congressman Mickey Edwards who represented oklahoma and andrew mccarthy, former federal prosecutor who led the prosecutor against the blind world tradehe 1993 center bombing. This is about one hour and 20 minutes. 12 15. Y clock, it is im the deputy rector of the Federalist Society article one initiative dedicated to the development of a series of rolls and practical goals for congress that stem from core constitutional principles of thought todays luncheon is just one of many events the Federalist Society has planned here on capitol hill across the country. On behalf of the initiative, i want to thank you all for joining us. I would also like to thank senator ron johnson and his staff for sponsoring the room for todays event. As you may have noticed from your program and your panel appear, we are shorthanded. The hawthornefrom school of law [strange noise] [laughter] was alsore what that the professor had a conflict that prevented him from flying down this morning. But i think we have a great panel and the topic of executive and legislative war power seems appropriate even though we just celebrated our nations independence day. Years, ourthan 200 government developed a track record starting wars and use of military force which can be measured against the founders views and the constitution. It is good to ask how has the framers understanding been followed and in what ways has a then ignored and do the founding principles regarding these topics still have application to our modern era . Navigate these and other important questions, we are pleased to have with us andrew mccarthy, a senior fellow at that National Review institute and a country being editor at National Review. These a former assistant u. S. Attorney for the Southern District of new york. He led the 1995 terror prosecution against shake abdul rockman and for others waging a including the 1993 World Trade Center bombing and the plot to bomb new york city landmarks stop he has also contributed to the prosecution of terrorists who armed u. S. Embassies in kenya and tanzania. For the new criterion and is a New York Times bestselling author of many books will stop we are pleased to have with us former congressman Mickey Edwards, the revised president for the road l fellowship in public leadership im sorry, the Vice President and Program Leader for the aspen institute. Congress forer of 16 years, representing oklahomas this Congressional District first thought. And served on the policy committee. He taught at the Kennedy School of government and princetons Woodrow Wilson school of international affairs. Affairs the board of for the constitution project, where he has chaired a task force on judicial independence, government oversight and war powers. He is the author of numerous articles and books will stop his most recent book was published in 2013 titled the public versus the people, how to turn republicans and democrats into americans. Ourre i turn it over to panel, following the panelists remarks, we will have a q and a. Please think about questions you would like to ask our panelists. With that, mr. Mccarthy, the floor is yours. Thank you so much and thank you to the Federalist Society for the kind invitation to top i have about 15 minutes of opening remarks that in light of julians absence, i will try to squeeze into 20 if i can. On capitol hill today, the United States armed forces are engaged in combat operations in several global hotspots. In syria, we have not only conduct did attacks against a regime without any congressional authorization, but we are now occupying territory as well. Are there not to fight the regime or its russian and iranian allies, but the Islamic State Jihadist Organization also known as isis. To the extent it is a legally authorized conflict, it is against an enemy that arguably thenot exist at the time relevant authorizations of military force were adopted about 15 years ago. You could say, as we have been saying, that isis is nearly is merely a takeaway faction of al qaeda and began as the iraqi franchise and is covered under the existing au ms. This ignores the inconvenience that al qaeda, along with its allied islamic faction is also fighting the assad regime in syria. The enemy we started out fighting after it attacked america in 2001 and that still regards the United States as its mortal enemy is nevertheless fighting in syria alongside the rebel elements we support. Sense, its mirrors our misadventure in libya, another recent conflict in which a president without congressional authorization launched an aggressive war against a foreign sovereign that not only post no threat to the United States, but which was regarded as an important counterterrorism ally. That was because for all of its many flaws, the regime was information about for therists antiamerican jihad in iraq and afghanistan. Wet is to say in libya, initiated an unnecessary war without any debate among the peoples representatives, shall s congressional authorization. A catastrophe, the undoing of a counterterrorism ally in a dangerous neighborhood. The empowerment of our hottest enemies, a failed state and an administration reduced to absurd rationalizations about how bombardments against regime targets were somehow not acts of. It is tempting to draw the conclusion that modern practice has superseded the warmaking powers between the executive and congress. Down to brasset tacks, this is simply not true. Its not true for a reason that is often forgotten in the war powers debate which are dominated by lawyers the debates tend to take place under the auspices of legal academic institutions or organizations like my friends and colleagues here at the Federalist Society who are hosting is today. We are a body politic, not a legal community, at least not in the main. For any free society to flourish, it must be undergirded by the rule of law. But the constitution is a political document, not a legal one. It is the assignment and division of Legal Authority among actors who compete and collude depending on the circumstance. More iscritical because a political exercise. Politics by other means. There are legal elements to it, but it is basically a political endeavor the use of government power against a foreign enemy to break the enemies will. So you would not know it to listen to most war powers discussion, there is a limit to how much more can be judicial eyes or subjected to legal rules and procedures. All, isof war, after the antithesis to peacetime footing. It is the proud boast of our domestic legal system that we would prefer to see the guilty go free than have a Single Person wrongfully convicted stop us, we presume against the government. The accused is presumed to be innocent and the government must weigh these standards of proof to obtain a wiretap, to make an arrest to convict a defendant. Our bottom line is we would rather see the government lose. Not just a conviction of the guilty, it is forcing the government to meet its strict burden of proof before liberty is removed from one of our fellow citizens. War is entirely different. Not in cannot want the government to lose and we cannot give the enemy the presumption of innocence. In the it is always National Interest that the government prevail. Yes, our troops are the world is trained and best disciplined, and we demand of them adherents to the laws and customs of civilized warfare. The highest National Interest is to defeat the enemy and the cheese whatever directive was so vital that it was worth going to war over in the first place. War is thus a very different paradigm. Publicsven by the perception of threats to the homeland and vital American Interests. Our division of war powers is a reflection of this political reality. As we discovered painfully in vietnam and to a lesser extent in iraq, a war effort needs Strong Political support to be successful in a democracy. If there is not public consensus our security is at risk for that American Interests are at stake, support for him the war at home and in congress will flag. That point, we can debate until the end of time whether the use of force was lawful and authorized to stop the only sale and point is that the public does not regard the war effort as a necessary sacrifice of what and treasure. Thats will be the test of a wars legitimacy. Our constitutions war powers are weird that way and for that reality. It did best in congress the power to declare war. The executive is tasked with the National Defense against foreign threats and it is for the commanderinchief to prosecute war. This means when the United States is under attack or the real threat of attack, no authorization from congress is needed. The president may take whatever military actions are needed to quell the threat. Even under these circumstances, congressional authorization is desirable and it becomes not butsirable but increasingly essential as the threat fades. Not only does it reflect public support of the war, it further defines the parameters of the conflict, including critically to the enemy is. This is necessary because it delineates the operations of the laws of war, determining who may be regarded as an enemy combatant was subject to lethal force, detention without trial and intentionally trial by military commission is provable war crimes have been committed. A congressional authorization totrols where and against military operations may be conducted as work goes forward. The is the main point further removed the use of force is from and i then if i able threat to vital American Interests, the more imperative it is that Congress Weigh in and either endorse or withhold authorization for combat operation. The less obvious the peril, the more important it is congress using its other constitutional authority, particularly the power of the purse to ensure military force is employed only for political ends that are worth fighting for and critically, that the public will perceive as worth fighting for. Say ourir enough to contemporary practice has not conformed to the constitutional guidelines i have outlined. As a practical matter, we have Permanent Military forces, and theres no stopping a president from ordering them into battle. As we noticed, president obama did not seek congressional authorization for the Libya Campaign just as president clinton did not seek it for the bombings in the balkans and president reagan did not seek it before invading grenada. As candidateng trump that obama needed congressional consent to attack regime targets in syria, President Trump has attacked regime targets in syria without congressional authorization. Powers havear seemed not to be too much of a hindrance on the executive. s power of thess person to have much bite will stop it simply a clinical reality and common sense that the American People have a deep attachment to their sons and daughters in harms way regardless of their commitment or lack of commitment to a war and its of check tos. Congress may disapprove of a unilateral use of force, but unless the public is deeply opposed to american participation in a conflict, lawmakers will be leery of being seen as cutting off support for the troops. , here is the dynamic. The president has a relatively abdicatesand congress its responsibility, content to waive the pompoms when things go well and excoriates the administration, but not cut off funding when the going gets tough. , we can see the Constitution Network as a political document even if the resulting legal arrangements are untidy. The lack of Political Support that makes presence refrain from seeking congressional authorization operates as a severe impediment to president ial more making. The perception warmaking is of dubious legitimacy serves to rein in executive ambitions and, over time, congress does assert itself. We saw how this worked in iraq. There was strong public support for the mission of removing Saddam Hussein on the ground, grounds that were very powerful in the post9 11 environment, that he had weapons of mass destruction and might be inclined to share them. The mission was sufficiently popular that Congressional Democrats with the 2004 election on the horizon sought out the opportunity to vote in favor of authorizing force. But after a swift and successful toppling of the regime, it became increasingly evident there was another very different and very ambitious angle. It was more a washington enterprise than a mission the people believed in. It became prioritized when weapons of mass destruction were not found in the quantities advertised. To then effort hostility grew more intense as the joy of liberation from saddam transitioned into American Occupation and a savage civil war between sunni and shiite factions. Applywe did not learn and the lesson of this folly in libya and i fear we are on the way to making the same mistakes in syria where the consequences could be disastrous given the players involved in this complex, multilayered conflict. President trump President Trump gave a very interesting speech in poland but he didrn society not refer to it as western society. He referred to it as western civilization. He was right, just as Samuel Huntington is right. Radical islamith is a clash of civilizations. To prevail, the west has to decide the west is worth defending and we have a lot of work to do to repair that self perception. But we also have to realize that the enemy is a product of a rival civilization was starkly different principles. It is not enough to say fundamentalist islam, the mainstream islam of the middle east, does not wish to be westernized. Intrusion ofthe western institutions to be a provocation. Even if we see ourselves as dogooders who are trying to improve peoples lives. This is a product of spending a generation in willful blindness our enemies ideology and that could be a subject by itself for another symposium. The point that is relevant to constitutional war powers is the political imperative of public support for military operations. If there are vital American Security interests at stake, the American People will be on board. Congressional authorization and endorsement will then make it possible to achieve crucial military victories. Americans, however, are simply not interested in trying to democratize islamic societies through military force. Is essential, it the congress do its job demand that any president who lurches into these conflicts seek congressional authorization for clearly stated objectives and satisfy the peoples representatives that we are pursuing Real Security needs, not conducting a sociological experiment of expense of the lives of our best and bravest young people. As a practical matter, the constitution may not be able to prevent an overly adventurous president from enmeshing us in conference against our interests, but congressional war powers can, still have a very important say about the legitimacy of the use of force and, therefore, about is extent and its duration. Moreover, where the use of force is clearly in americas vital interests, congressional war powers used to issue a powerful endorsement of a clear, necessary mission, can help us achieve something that has eluded us since 1945 victory, which is a word that is barely even spoken when we speak of american war powers. Thank you very much for your attention on look forward to our dialogue. Very high tech. I had to learn how to push to turn on the microphone. Im delighted to be here, have the chance to give some different views. I think i agree with an awful lot of what you said. I want may be come at it from a little different angle. And to try to wrestle with some things in my mind. You mentioned to my background as the head of the policy committee and the republicans in the house. I, actually, was also the National Chairman of the american conservative union, founder of the heritage foundation, and chairman of cpac. And so, i am finding myself constantly looking at some of the positions that our movement takes today and trying to figure out how they square with what our movement once was. So, im somebody who has not gone to see hamilton, but i would spend a lot of money to see a play on madison. That will give you some sense of where i am coming from. I would disagree a little bit on one area, and i think it is important. The declaration of independence, which we just celebrated, is aspirational and it is political. A political document. It lays out a case for an action. It lays the grievances that impels us to that action but the constitution is law. Constitution is the supreme law. The constitution is not a political document. It lays out not only the structure but it puts limits on what government can do. Very specific limits, not only in the body of the constitution but in the bill of rights. Easy toink i tsts too look at the constitution and dismiss it as something it was a bunch of old white guys and we dont have to follow their lead. So, i would disagree on that point. I start from that. Because i am a constitutionalist. I am quite often surprised at the number of people i see in congress or writing in publications who are strong, staunch defenders of the constitution who seem never to have read it. Just reading it is actually a good exercise to start with. One of the things that ive observed watching my former colleagues on the hill is the date, the constitutional mandates about what congress is supposed to do, which are not giving power to congress. Obligations on congress. Congress is the way in which the peoples will is to be considered, deliberated, and, yo u know, and forced. Enforced. We mixed the democratic process with our republican form of government. And i have watched appalled, this is aimed at both parties, to the extent to which members of congress, house and senate, nameparties, ignore in the of tribal solidarity the mandates of the constitution so aat what barack obama did for republican is automatically wrong. When a republican president does it, it is just fine and we understand why and vice versa. We are really not going to be able to live up to our constitutional mandate until we decide a party loyalty, which is nice and fun, and i went to Republican Conventions and i waved to the banners, but, you know, it is a game. Theyre private clubs. And what matters is our diligent in being true to the constitution. So, i want to talk about that in terms of the war powers. I also want to make a point. This, of course, goes a little bit towards what you said in terms of the role of law. This is not theoretical. A discussiono have about the role of the constitution in this or that. This is not theoretical. We are now looking at a real threat possibly potentially from korea. Theres been talk about pushing for regime change in iran. And we have a president who you support or you may not, that is irrelevant to me, but who i think even his supporters would agree tense to be impulsive. A dangerousts proposition and one that the founders had in mind when they considered where to place the power to send americas men and women into combat and possibly be killed. One of the interesting things im sure all of you have read this about the polynesian war. One of the major parts of that was a discussion between the athenians and heres athens, the great power of the time, and milos a small island the athenians were tried to take over. And what happened was, the people at the top, which we would call the executive branch in milos, decided they were not going to consider what the eublic, which would b represented by the congress, we were not going to consider what the public wanted. They had their own causes and reasons, and they decided that as big as athens was, nonetheless, they were not going to surrender. They were going to fight in go to war. And the mileans were slaughtered and enslaved. We have a constitution that ensures that the will of the people is considered, through their representatives in congress, who make decisions hopefully through a deliberative process that considers the options and ramifications and so forth. If the founders believed in anything, in anything, it was that you are not going to give the power of life and death for as well as its citizens, to a single or small group of individuals. That is the founding principle of the constitutional system that we have. One of the things that has happened, unfortunately, is over time, we have come to believe that president s not only have primacy in deciding what to do about war. Theyre commanderinchief means that when the proper authority, congress, decides we are going to go to war, that the commanderinchief does not have to fight with 23 other generals to decide what strategies to pursue. What the tactics are going to be. The commanderinchief is in charge of conducting the military operations when some other body has decided we are going to go to war. So, we have over the years, and starting with a very poor decision by Justice George sutherland, from utah, went to the Supreme Court, and in the Curtiss Wright case declared out of nowhere as dicta not related to the case at all, that in Foreign Policy the present has plenary power is. That decision has been overturned by the Supreme Court repeatedly, starting with Justice Jacksons decision in youngstown. Most recently in 2013. Congress does not surrender its power just because the issue on the table is Foreign Policy. Forgotten o have i know a lot of reporters from the New York Times have forgotten that. I talked to them all the time about it. So, a few years ago i was cochair of a task force by the constitution project on looking into the war powers. We had a pretty good group of people on that task force, by ipartisan. We looked at this, and i just want to very quickly summarize three key points that we came up with. Just because this is something we all agreed on. Number one, this is the summary. Congress must perform its constitutional duty. A deliberate and transparent, collective judgment about initiating the use of force, except one force is used for a limited range of defensive purposes. Two, the president must seek advance authorization from congress for initiating the use of force a broadway step one force was used for limited range of defensive purposes. And three, the congress should authorize initiating use of force abroad only by declaration of war or a specific appropriation. The point that the use of military force we now have did not envision going into military combat against forces that did not even exist at the time the aumf was passed. To get me just, i want to the questions. So, i want to make one more point, a couple. One is that we have been seeing a consistent abdication over the years, you go back to harry truman and deciding it was ok for the United Nations to decide when we were going to go to war. In korea. And there has been a fundamental abandonment of both our democratic processes and our republican structure of government. And one of the ways in which we did this was, i will say it was not when i was in congress. It happened two years before i got there, was the passage of the war powers act, which is clearly unconstitutional. President s think it is unconstitutional because it infringes on their powers. Its unconstitutional because it infringes on constitutional powers by giving a Single Person at the top of the chain the ability to send us to war for a limited time, after which you are absolutely correct, there is no way those of us in congress were going to cut off funds when our troops are under fire. So, we essentially surrendered that power to the president. We have,osing, today as i mentioned, we have got the threat potentially from korea. We have potential claims by this administration that we need to pursue regime change in iran. Strikes going on, military acts in the south side of the scope of the aumf. That is why a close this. This is not a theoretical, classroom discussion. Reestablishing the authority of the congress of the United States to decide whether we are going to go to war is absolutely fundamental. Thank you. Mr. Maccarthy, would you like to respond . Just a couple of points. Some of it is a sort of off the track of the war powers. I dont deny that the constitution lays o ut in an exacting way a lot of legal arrangements, but when i say its a political document what i mean is, if you look at the constitution as it was originally understood, and then you compare it to american governance today, its virtually what we have today is almost unrecognizable. Theres a Fourth Branch of government which the administrative state, which could engulf a lot of the powers, has engulfed a lot of the powers of the other three. Way that is completely antithetical to the idea behind the constitution, which was to have political accountability for political decisions, the way that happened was political. It wasnt legal. Tookppened because people steps that were beyond the power oand contemplation of the constitution and the system accepted it. And the remedy for it, the ultimate remedy in the constitution for that sort of behavior is impeachment, which is wholly a political remedy, not a legal one. In this sense that you can be, ad i can say that as prosecutor, even though high crimes and misdemeanors are not indictable, but you can have 1000 provable misdemeanors. The way the constitution is structured, if there is not political will to remove the president in the public, such that you could get 2 3 of the senate to vote for removal, it really does not matter, as a legal matter, whether the present has committed high crimes and misdemeanors. The question is political will under the procedures that the constitution has laid out to enforce the constitution standards. Arei think, while there extremely important legal arrangements in the constitution, to the extent they are breached, the remedy for that is largely political and political will. If the president decides to haul off and invade a country when there is no American Interest at stake, it is not like youre going to be able to march into federal court and get a judge to order him not to. Quickly findyou out what the framers recognized which was that the courts have judgment. They do not have the sword or the purse. They do not have the means without the cooperation of the executive to correct the executive. So, i guess, thats one point. The other point just briefly about Curtiss Wright. I think going back to jefferson, madison, the framers, their position was that the executive was supreme in foreign affairs, extent that the constitution created exceptions and they were to be strickler construed. To be ar understood it situation where the congress did not have war powers and in fact robust war powers, but in the main, the president conducts Foreign Policy. And i agree with you. I think it is vitally important that the congress assert itself with respect to the war powers that it does have in the constitution. But i do not think that necessarily cuts against the idea that the president is essentially supreme in conducting Foreign Policy. I agree with a lot of what you said. Part of the problem is enforcing a political will. Founders did give the president some powers in Foreign Policy get the president can negotiate treaties. And only the president can negotiate treaties. They are nothing but scraps of paper unless the congress decides. The president can decide who will be our ambassadors to other countries but that is only something they can put on the wall and say i was once nominated to be ambassador because it has no force unless the congress decides, the senate. So, the powers, i read it differently. The constitution actually is very limiting, in article i is in the congress. Article ii is really brief. Until recent years, fairly recent years, it was understood that these were not president ial decisions. We disagree with that fact. I would say, though, and maybe we both agree on this, a lot of the concern rests on those of you in this room. You because one of the fundamental problems we have is that so many members of congress, house and senate, simply have no clue what their obligation is. Veryat if you have very, Important National security administrationhe share thatcome and information with members of the Intelligence Committee i you areow if any of staff of the Intelligence Committee the executive branch tells members of the senate and the house who can come hear that information . And, you know, who can share it with and whether they can bring staff. The uniteds of states, which has the authority to decide whether we are going to go to war and set Foreign Policy, is told by another branch of government who you can tell, who you can share it with. You cannot bring your staff to you cannot tell other members of the senate. A Congress Just exceptsn a ccepts it. The board of the project on government oversight and i spoke to congressional staffers one time and i was shocked because somebody got up maybe one of you, i hope not, totally angry because they kept filing on behalf of their member of congress a freedom of information act request and the administration would not respond. I said, john dingell never wouldve filed a freedom of information request. He wouldve said get your ass down here. So, there is an obligation here for members of the senate and the house to decide. Politicalto along to club. I belong to the Republican Party or do i belong to the kiwanis club. I was on a bowling team. I belong to things, too, but my oath was to defend the constitution, not to defend my political club. And so, youre right. It has a lot to do with public pressure. Its how the congress response, theg its job, even if majority of the constituents say, we are going to run somebody against you or were going to primary you. Tough. If you cant stand that, do not take the oath of office, dont promise you are going to obey the constitution if you are not. So, were not that far apart. I feel compelled to say that i belong to the society but so far dean hasnt made me take an oath. Just to echo what you say, i think its critically important that congress as an institution protects itself and its prerogatives and the government does not work unless it does. And, as i said during the last 8 years when i was usually in disagreement with what the government was doing, and the 8 years before that when i was often but less usually in disagreement with what the government was doing, as a journalist, i get to rant and rave and get peeled off the ceiling in my attic or the office of National Review or whatever. But you dont have that luxury on capitol hill. You dont get to be a spectator. And thats part of the gig of b eing elected members of congress and the staff that have to support them. If you dont protect the prerogatives of this institution, then the constitution doesnt work. As much as we all admire it, and as much as we all say we would like to see it operate in the way it was intended to operate, take thats who position, it requires not only accountability, the original understanding was that the branches were going to compete and keep each other in check. And part of the reason that we end up in a crisis environment, that, if you let other branches get on for a long time with getting away with this and that, you will eventually get to a point where they are so convinced theyre not being checked, that you end up with very weighty decisions being made outside the parameters of the constitution, and that is when we have crises. Its absolutely essential at framework ofis government is going to work the way it is supposed to work, that this institution defend its prerogatives and be accountable. One sentence or maybe it is two. Remember, this is not great britain. In great britain, the executive is the government. Not in the United States. The government is not the executive branch. Your the government as much as the accepted a branch is, both branches. Just remember that. Ok, very good. Were now moving to the q a portion of our session here. We actually have a standing mike right here in the hallway next to the door. Please line up and we will get to as many questions as we can. Quick, before we get to the questions, i have one sort of broad question for both of you. Its obvious that both of you would consider yourselves in the congressional war powers camp. With some noted differences and distinctions. What i often gather from the other side, the executive war powers, our objections on four levels. In some of them have been touched, but i want to make sure they are out there in order to balance our discussion. The first is the track record regarding formal declarations. Unitedan 100 times the states has been involved in military skirmishes. Weve only declared war five times in our history. Is Congress Really needed or desirable in this space . Another one is, of course, and conquer smit edwards did touch on it, the war powers act of 1973. We have been involved in several military actions. And without any real effect from that resolution. Another objection from the proexecutive camp would be the idea that congress is really unmanageable. Its too large and unwieldy and it cannot make the swift action that is required in wartime. The last time that i think i often hear is what is the congressional incentive . How can you convince congress to really be more involved in wartime policy . So, maybe you could comment quickly on that, and then well go to our questions. Well, i think as far as the concerned, the pointpoint and the third you made, part of the reason we have not had as many declarations of war is to the extent that were dealing with emergent situations. I think even people who are staunch congressional war powers the idea thatpt if the United States is under attack or under the threat of attack that the president has the power to respond. To the extent there was any dispute over that, i think the Supreme Court result it during the civil war or just after the civil war. I dont take, i think even ran d paul, who is probably as staunch a procongress war thers guy, would accept idea that when the United States president hreat, that does not need to wait for congressional authorization. Aso not see that at all detracting from the importance of congressional war powers in situations in particular where we get remote from the real threat to the United States. Where he think it is really important that the other Political Branch either lend its support or, you know, perhaps persuade the president that hes about to embark on folly. Very quickly, i have already addressed the war powers act. Actually in the civil war, the power that lincoln had was very specifically spelled out in the constitution which was an insurrection, to put down insurrection. As to congress being unmanageable, because, most of the cases, including right now with korea, what you need is deliberation. You dont need impulsivity. There are times when the fleet is right off the shore or whatever when you have to act very quickly but most of the time what were dealing with is not that kind of situation. And the benefit of having a what are the incentives . They are americans. They care about the country. Office. For they took an oath for office. Its our country well keep it safe. What were their incentive to do it right. If this is a question that bears asking because were not incentives, then maybe those people ought to go back home and run a bakery or drive truck or whatever. Get out of congress. Just along those lines. On 9 11 wee attacked had authorization for military in a week. Hand, the next step on at trajectory iraq, congress wanted to vote to authorize that because there was the fact that thought to be known that it was the country to do at that juncture. When you get to syria and libya now, theres enough disagreement vitalwhether we have real interest there that nobody even wants to discuss it. The congress would assume it went away. I think sometimes our president to assume those problems would go away as well. May seem thatt congress is unmanageable but the matter is, when theres obvious threat to the can gettates, congress. Ts act together real quick very good. Lets go to our first question. Nameu can announce your and give your question. Any name is devin watkins. Toquestion is hypothetical mr. Mccarthy. If later today, President Trump attack north korea without any kind of congressional authorization in it be appropriate to impeach him for that . Thet would depend on intelligence that you mean if we didnt know anything more than we know now . Yes. I would be innk favor of impeaching him. Would think ta it would be a colorable argument. Impeachablebe an offense. Does that mean the decision him, ibe made to impeach dont know. Yeah, it would be Impeachable Offense question please. My name is wailian. Like to ask about warfare. We know the warfare has been changed drastically over the century. Today we have lot of warfare cyberattack and disinformation campaign, commercial conflict, special that do not involve a lot of convertive truth and material. My question to the panel here should congress have more close weighing on those of warfare. Form where should the limit be set to limit the power . Of those decision in those immediateire very power. They probably still have vary consequence as warfare and they can last a very long time. You. That own view of it is what matters is the degree of states. O the united i dont understand for example, concept ofr proportionality. I dont understand that to mean youre attacked in a cyberattack, that means that your response has to be a cyber response. I think if the threat to the us, itsates is upon the job of Congress Working executiveith the branch to arrive at an response. E if its profound enough threat, i dont think that military kind, proportionate or enough to quell the threat, be offthing that should the table. I would say, its up to congress to authorize the of the program to it and to putfund limits on it. Executive branch to figure out the play. Work. Make it you talked about will of the as a big factor as it should be for members of congress to consider and what they do. Im concerned about that one. Like a quarter of in lasto voted election, voted for socialist. Sharia,along with more or less one of the two greatest threat to liberty. I think its important. I like to hear both and you and response. What do we do so that in the place that especially young people first hear about history and economics theyre hearing story. L islamphobes. Alled what can we do with school board and what can we do with legislation here in congress, necessarily believe in the department of education local. Mixed up how how can we use money so that young people have the reality of world so we cant have world people forcing members of do the righthe to thing. Mentioned ist you of congress and the law. What youre talking about are cultural factors. I always think that if the thing that we have the privilege of in this country is to live in a country where were supposed to have full robust, exchange of ideas. If youre living in a society dragging the is culture along, rather than vice versa, you have enormous problem. Meaning isnds up that until i can persuade people to see things my way, as a member of this political community, i have to accept the willthat a lot of things go on that i dont like. I have to continue to try to fight and to persuade. Realistic have to be what is possible to achieve. Possible to what is achieve through law. I dont think that the culture that getanged by laws enacted in congress. A lotk this is after of hard years of think being and maybe seeing things differently when i was younger. Look to thispeople city to solve whats wrong with the country, the more theyre in the wrong place. Its the sort of thing that has to come from the ground up. Come fromoing to here. Thats right. I would add one thing to it. Is, we have this little little off topic. We turned our high schools, colleges and universities into tech schools. Where theyre focused on how we help our young people learn how to get a job. Which is an important part of it. Teach themt Critical Thinking where they can look at various options and think critically about what their benefits are, what the so forth. E and if you believe your position is ofht and we all think each us think our positions are right, we should all want a well educated society capable of thinking critically and theyating the arguments hear with confidence what everybody thinks about it. Theyll come out thinking like i do. I do think education is an important part of it. Want to say, i did hear the itmples, i dont think searches our serve our countrys purpose to have prop begana advise our view. That we maintain the essence of freedom. Freedom of thought. My name is april. Question is does the president have a authority under saudinstitution to refuel yemen withoutbing congressional authorization . Theority under constitution . I dont mean to go lawyer i hear these questions, i always think of distinction between power and authority. I would say he has the power but not the authority. At it as would look follows, i believe that if there a threat to the united eminent andet about if theres not a threat and the president wasnts to take military action because he believes its in americas interest, you would think that be his thought process f hes president of the united he needs think authorization from congress. Just putting my prosecutor hat abet a, if you aid and principle in committing an act, the law,reated under at least domestic criminal law the principle. Bignt really see a difference between aiding and abetting saudis or carrying out directly attacking that other country ourselves. To me its the same thing and removed from obvious American Interest, it would require congressional to be authorized. I wouldnt argue that the president doesnt have the power it. O hes commander in chief. Hisou think hes abused power in an unacceptable way, up that throw impeachment. You can start by trying to cut off money and politically try to put pressure on him to stop doing something thats outside the constitution. If the president is held bent something thats harmful and outside the constitution, ultimate way to reign impeachsident is to him. Convicted. Him ways on other things. Just to cut off funding what do. Idents want to its to do it in a threatening way. It doesnt have to be related to issue. If you dont have a way to interfere directly what the sayident trying to do, you fine, but just cut off all the executive office. Have fun, you wont have a salary. Congress has a lot of power. It exercises it and that would require kind of an extreme case. Power of the purse is not a small thing. Theres something in your that prompted this thought. Which is probably unrelated to everything else. Thinkinghen youre about making these kinds of to rememberou ought that youre making them on principle. Regardless of whos in the white house, what party is in power. In of the issues when i was congress, my party, Republican Party, fell in love with two concepts. I think they prefer these, cure for cancer. Was line item veto and one limits. Lilt i thought it would be cool. Does it bother you theyre unconstitutional . Well no. When i was in congress, we had overwhelming democratic majorities in the house and senate. Republican president. Line item veto give more power president. Blican term limits would wipe out all democrats. What if some day a democrat was what. D president , then of course, then came bill clinton. Have to be really careful when we think about these things. Whos the whats the long term principle and how it will apply. Thank you. Weve got a couple of more questions and running a little time. On david wagner. One of the thing that maybe pause causing problems today applying the framers war framers read their warhey may have thought of as not so much operation on the as a legalather status between states. Its in article one. Section. King once the relationship between war,s is defined as one all must follow from that. The president can get connectic with them. We dont live so much in an era against states. The power to define relationship of war between us and the state. A very broad authorization to use military lot more than just iraq. I would hate to think that war powers that way. Congress define them arent applicable to that. To apply the. Onstitution as written is this a problem . You have a situation where you have an authorization for military force in 2001 that a rationaleused as for carrying out military circumstanceser as we discussed before where combatants used, was enact. Fact, even we regard al qaeda life ally, its a fact of that they are alive with were supporting. To my mind, thats a classic congress doesnt assert itself and use its article one. One of the most important part this power that congress has exactly as youre describing, to set these legal arrangements is Congress Gets to say what the combatants are and who the law to. Customs of war apply if thats something thats not done and you then decide that start asking the premise that youre at war on terror. Enemy. S not an its a method. Youre asking for confusion and conflict and a lot of the problems that weve had the last 15 or 16 years. Militarily, im aware the the word war originally otherimpugn all kinds of things. I think thats a distinction difference. Includes,wer engagement with an enemy. A conflict. Going to do that, whether were going to engage an aemy, militarily, is congressional power. Warfact that the word includes several other things all in the it, its constitution and those are all the military. Or general. Ral all of those are congressional powers. A president really has to scour find something. If he wants to wear a uniform, chief, hes commander in he can wear uniform and have stars on his shoulder. Stars. Ve six outside of that, whether you a war or authorization to thats aary force, legislative power. Clearly. Hello. My name is abram. I work for the organization Foreign Policy. I was originally going to ask refueling. That was asked. I have an additional question. The congressuld have to authorize offensive use weapons . R should the president have the therey to use should be a no first use policy as law . I believe under the constitution, i believe that in war powers. L i believe in president ial war powers. War powers are to declare war and set the parameters. The president to prosecute the war once Congress Declared war. I dont favor any divisions in regard it becomes a difficult question. Limitation hadis been in place in world war ii, not allowed harry atomic bomb too. Thats very debatable point. Thought there would have been many tens of thousands of landings killed on the beechebeech beaches in japan. Im inclined to think that when the congress has declared that conflict. In unless they specifically put a limitation, no we will not have that. Is the president s job to decide the tactics and strategies and weaponry. Thank you. Hi. Thinks imhone taller than i am. Thank you for speaking with us today. I wanted to ask you what your on senator franken for war bill. Congress has the power of the pursestrings. Wouldars are what people say put on a credit card through emergency spending bills and loans. Tional this bill allowed any expenditures outside of daytoday Defense Budget for a new war to be paid for and they couldnt be paid for without increasing the budget deficit. It allows for waiver in case of emergencies and current war were exempted from it so operations disrupted. The idea of this bill was to American People to feel further incentivize to officials onted feelings about war by making them more financially wars in addition personally responsible through their connections with veterans becomeidea was that they more involved in the congressional deliberation process. This process would therefore then have to be more transparent and open so that the power of the pursestrings become something little more meaningful the overall conduct of wars in the United States. Toquestion is, what impact you feel that legislation like this would have on the executive power. Islative war do do you think it would impact americans support for wars which you discussed thats so important to success . Im in favor of anything that usinglective of congress its power of the purse in the military contact and doing it in a way thats transparent. Im not smart enough to figure out what all the unintended consequences if we do this, think this. D i do think to the extent that have that you propose legislation that makes it clear costing us to fight in these conflicts. More likely orh at least more likely depending measure is,tive the that military force is going to be used only for vital American Interest. My own personal view, thats used for. Ould be only i hate to have a disagreement with al franken. Hes the giant of the senate. Think there are several factors. Theis i think war is one of circumstances where real people get killed. I dont think we should be decisions about whether to go to war or not because what its going to cost. If it is something that is a matter of you should not go to war, unless its something nots really important and debatable, National Interest. If its a war you would not go to if it cost too much, then you shouldnt be going to that war at all. Dont like the idea one congress tieing the hans of a congress. The whole idea is that you are able to sit down deliberate with the circumstances that you have the moment. I have no problem with saying we this, whatw as we do it cost, what do we anticipate the cost will be. That should not have any bearing on whether you decide to go to war or not. I dont know that i agree with that. Think that how much is cost is part of the equation of what interests are. Im not saying its the deposited one. A factor. Its we are in the business of particularether a interest is important enough to go to war over. Since there are a number of go intoations that that, i dont see that the Financial One shouldnt be one of them. Okay, lets try to squeeze it in if we can. Im an attorney with the financial network. Revisit. Do a two examples that come up a couple of times. The korean war and war powers resolution. Together, those tied underlying question we havent directly addressed yet. While congress has a power under article one to declare war, we havent discussed whether there are limitation or requirements on the form and content with declaration of war. Examples, could you explain somewhat declaration cannot coin taken contain why were those two examples unconstitutional . By time to use armed force. In the case of the korean war, the unite u. N. Participation acs to carry the president resolution. Council an authorization for military force, declaration theres no formulation or authorization of military force is fine. Its like other congressional legislation which cannot buyyou legislation a trip the powers. Ts i dont think you can have, a declaration of war that told the how to prosecute the war. A would be i agree on both points. The congress has the authority to decide whether or not were going to engage in conflict. Its a power. Its not an english test. On the korean war. Violates the constitution that provision of it is unconstitutional. Nations and no treaty, no president , no can no senate can approve a treaty that is in violation of constitution. The it can violate statutes but the is our supreme law. Theres no grounds you can think my mind that would say that a u. N. Treaty gives the authority. He alle had something they come together say yes you can go to war. Were going to send our people get killed. Lets not forget, war is not a game. Bags. Are body we dont leave that to other people to decide whether well that. Thank you very much. Hopefully its a yes or no question. Very patiently. Connor white. The courts play in all this in terms of both power get involved to and they seem to have more capital. Also if you would maybe offer your concluding thoughts that would be great. Sure. Im glad to get the question courts. E if you would ask the question a little over a decade ago, the be probably very today. Nt than it is Justice Jackson wrote a decision and case called chicago southern around 1944 or 1946. Bestone of the articulations of what the had in mind in the distribution of power in different areas of the constitution. Was that theed out that aportant decisions are in politic makes decision about national security. In those systems, those decisions supposed to be made by political actors who are accountable to the people whos stake. Re at for that reason, they are not pointed decisions as he out. Not just because theres nothing about being a lawyer even a judge that gives you intitutional confidence areas that are relevant to warmaking. Basic system is supposed to be these decisions get made by congress and the president. Because they answer to the people whos lives are at stake. That reason, i think for a so, long time and wisely role. Was no real judicial things are different now because were involved in a different conflict. So that even though we have an enemy in al qaeda for example that attacked us a way that foreign sovereigns were never attack us on homeland, i think its kind of an admiral the American People that even logic said terrorist who attack civilian population should have less rights. Always want to make sure that we got the right people. Unless yourorists, catch them in the act, present as if they were ordinary civilians and not combatants, to this ward on unprecedented amount of due process. To my mind they are going too far. Have habeasants course right its a weapon that theenemy can use against United States. You can bring the people who prosecute war, the enemy can into ourse people court the. Too far. Ts gone way im okay. I once at the beginning, im okay with the idea. A political reality. The public wants to make sure that were holding the right people. Im okay with the idea, theres due process thats allowed in to make an evaluation about whether somebody actually combatant. S an enemy if it gets to courts like toering the president release people or gets to courts the courtngress after has invited congress to come in detention system for and trial, Congress Actually behest. T at the courts the court comes back and say not good enough. I had the thought, habeas corpus is a fundamental constitutional principle. That ourething government does and does not do. Under the constitution, the to habeas corpus is fundamental. States i dont know how many of you believe in american exceptionalism. I do. Different. Are we dont lock people up and hold them forever without knowing that theyre guilty. We dont do that. One of the things thats so called waris on terror, we have become very good capturing and locking up and punishing people who have committed war against us. Holdingking up and people that we dont know committing war against us. Because they were there. We have to be really careful. Is tooo easy it tempting to say our constitutional principle, they times. Onvenient at we have to be real careful we say, lets become any other country. It, why dont we do it. Im bothered by that. This countryieving is different. Its rules are different and principals are different and values are different. Reluctant. Ally i would much rather let one free than haveo somebody who did not commit a punished. I just think some of those fundamental principles are remember. To it would be too easy to follow the path all these other and we can start naming them other countries that whatever they were trying to ensure, could the rules. Set aside we cant do that. Thank you gentlemen for a wonderful discussion. [applause] if you like to learn more about the article one initiative to our website. Weve got new papers out on the harvard journal law. We have a podcast out on google play and itune. Coming. U all for tonight on the the communicators. They are doing there was trials. What peter, it was wireless. St thats something i never thought see. Ld that is broad band fast. Really exciting. Ctia president Meredith Baker the 5g network will lactic to consumers. She talks about building out of broad band in the rural areas. Baker is interviewed by politicos Technology Reporter Margaret Harding magill. Whats economic case for 5g. It cost that much to build off the network. How do they make a return . It will need 500 million to our economy and three million jobs. One out of every person will 5g job. Weve got to move on spectrum. Pipeline. To get a weve got to get this infrastructure right. Need tove forward, we build 300,000 small cell sites few years. What small cell looks like is maybe a pizza box. Small. Its going to be attached to everything because these are going to be much more dense networks. They will be on traffic lights and street lights. Buildings. We really need, this is really important, we need that rethinks how we site. Watch the the communicators tonight 8 00 eastern on cspan 2. Cspan 2, mikeon pompeo offers his view on the value of Public Private collaboration. Willctor wil cia director sit down for q a. You can watch it live on our cspan 2. Network where history unfolds daily. 1979 cspan was created by americas Cable Division company. Brought to you today by your cable or satellite provider. The Senate Judiciary ammittee will hold confirmation hearing this wray. Day for christopher where he would replace james comey who fired. Nt trump that confirmation hearing gets under way 9 30 a. M. Eastern. Live on ourit companion network, cspan 3. Up next on cspan, author and