At the outset i want to thank senator ron johnson and his staff for sponsoring the room for todays event. As you have may have noticed from your program and our panel up here were playing shorthanded this afternoon. Professor coup from Hofstra School of law [laughter] not sure what that was. Professor koo had a last minute conflict which precluded him from flying down this morning. Even without his valuable presence i think you will agree we have a great panel. And the topic of executive and legislative war powers seems particularly appropriate given we just celebrated our nations independence day. After more than 200 years, our government has develop ad track record regarding 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 it been ignored . Do the founding principles regarding these topics still have application to our modern era . To help us navigate these and other important questions were pleased to have with us, andrew mccarthy, who is a senior fellow at the National Review institute and contributing editor at National Review. He is a former assistant u. S. Attorney for the Southern District of new york. He led the 1995 terrorism prosecution against Sheikh Omar Abdel rahman and 11 others for waging a terrorist war against the United States. Including the 1993 World Trade Center bombing and a plot to bomb new york city landmarks. He is also contributed to the prosecutions of terrorists who bombed u. S. Embassies in kenya and tanzania. He writes regularly for pga media and the new criterion. He is a New York Times bestselling author of many books. Were also pleased to have with us former congressman Mickey Edwards who is the Vice President and Program Director for the rodel fellowship in public leadership at, im sorry, he is the Vice President and Program Director for the rodel fellowships and public leadership at the aspen institute. He was a member of congress for16 years, representing oklahomas fifth done conference district. He was on the house budget and appropriations committee. Chairman of the house policy committee. He taught at Harvards Kennedy school of government and Princeton Woodrow Wilson School of public and national affairs. He is on the board of directors for the constitution progress where he chaired tack forces on judicial independence, government oversight and the war powers. He is author of numerous articles and books. His most recent book was published in 2013, titled, the parties versus the people. How to turn republicans and democrats into americans. Before i turn it over to our panel i wanted to he note that following panelists remarks well have q a. Think of questions you want to ask our panelists. With that, mr. Mccarthy, the floor is yours. Thank you so much, nate. Thank you to the Federalist Society for the kind invitation. I have about 15 minutes of opening remarks that, in light of julians absence i will try to squeeze into 20 if i can. But, as we gather on capitol hill today the United States armed forces are engaged in combat operations in several global hot spots. In syria we have not only conducted attacks against the regime without any congressional authorization, we are now occupying territory as well. Ostensibly were there to fight not the regime or its russian and iranian allies but the Islamic StateJihadist Organization also known as isis. But to the extent that is a legallyauthorized conflict it is against an enemy arguably did not exist at the time that the relevant authorizations of military force were adopted about 15 years ago. You could say, as weve been saying isis is breakaway faction of al qaeda. It began as the Terror Networks iraqi franchise. Consequently it is covered under the existing aumf. This however ignores inconvenience al qaeda along with its allied islamic factions is also fighting isis and assad regime in syria. Essentially 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 that we support. In that sense the situation mirrors our misadventure in libya. That was another recent conflict in which a president , without congressional authorization, launched an aggressive war against a foreign sovereign that not only posed no threat to the United States but which was actually regarded as an important counterterrorism ally. And that was because for all its many flaws, the gadhafi regime was providing us with intelligence about militants in places like benghazi and de are. In. A, which were libyan support hubs for the antiamerican jihad in iraq and afghanistan. In libya we initiated unnecessary war without any debate among the peoples representatives much less any congressional authorization. The result was a catastrophe. The undoing of a counterterrorism ally in a dangerous neighborhood. The empowerment of jihadist enemies, a failed state, and an administration reduced to absurd rationalizations about how its bombardments against regime targets were somehow not acts of war. It is tempting on this record to draw the conclusion that modern practice has superseded the constitutions division of warmaking powers between the executive and the congress. When we get down to brass tacks it is simply not true. It is not true that is simply forgotten in the war powers debates which are dominated by lawyers. The debates tend to take place under auspice of legal academic institutions or organizations like my friends and colleagues here at the Federalist Society who are hosting us today. The reason is we are a body politic, not a legal community, at least in the main. For any free society to flourish, it must of course be underbidderred by the rule of under girded by the rule of law. But the constitution is a basically a political document, not a legal one. It is the assignment and division of Political Authority among actors who compete and collude depending on the attendant circumstances. This is critical because war is a political exercise. Politics by other means as carl von klaus memmably put it. There are legal elements to it but basically a political endeavor, use of government power, in this instance, force against a foreign enemy in order to break the enemys will. Though you wouldnt know it to listen to most war powers discussions there is a limit how much war can be judicialized or how much it can be subjected to antecedent rules and procedures. The state of war after all is the antithesis of our domestic peacetime footing. It is proud to boast of our legal system prefer to have guilty go free than a single innocent person wrongly convicted. Therefore we presume against the government. The accused is presumed innocent. The government has weighty standards of proof to conduct a search, obtain a wiretap, to make an arrest, to convict a defendant. Our bottom line is we would rather he see the government lose. That is justice is not 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. In war we dont, and we cant want the government to lose and we can not give the enemy the presumption of interest. In war it is always in the National Interest the government prevail. Yes, our troops are the worlds best trained and most disciplined. We demand of them adherence to the laws and customs of civilized warfare. But the highest National Interest is to defeat the to defeat the the enemy and achieve whatever objective it was so vital to go to war in the first place. War is different paradigm. Far from legal niceties it is driven by the publics perception of threats to the homeland and to vital American Interests. Our division of war powers is a reflection of this political reality. As we discovered painfully in site name and to a lesser extent in iraq a war effort needs Strong Political support to be a strong effort in a democracy. If there is not public con sends is our security is at risk or high American Interests are at take stake support for war at home and in congress will flag. At that point we can debate until the end of time whether the use of force was lawful and authorized. The only salient point is that the public does not regard war effort nesac nice of blood and treasure. That will be the practical and dispositive test of a wars legitimacy. Our constitutions war powers are geared in just that way, just for that reality. The constitution vested in congress the power to declare war. The executive however is cheaply tasked with our National Defense against foreign threats and it is for the commanderinchief to prosecute war. This means that when the United States is under attack, or a real threat of attack, no authorization from congress is needed. The president may take whatever military actions are necessary in order to quell the threat. Even under these circumstance, however, congressional authorization is desirable. It becomes not only desirable but increasingly essential as the immediate i cant is sy of a immediacy is of a threat fades. Combat operations not only reflects public support for the war, it further he 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, subject to lethal force, detention without trial after capture and potentially even trial by military commission if provable wartimes have been committed. A congressional authorization controls where and against whom military operations may be conducted as wars go forward. Here is the main point. The further removed the use of force is from an identifiable threat to vital American Interests, the more imperative it is that Congress Weigh in and either endorse or withhold authorization for combat operations. The less obvious the peril the more important it is that congress use its other constitutional authorities, particularly the power of the purse, to insure that military force is employed only for political ends worth fighting for and critically, that the public will perceive as worth fighting for. Now, it is fair enough to say that our contrary practice has not confirmed to the constitutional guidelines ive just outlined. As a practical matter, we have Permanent Military forces. There is no stopping a president from ordering them into battle. As we noted 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. After insisting as candidate trump that obama needed congressional as sent to attack targets in syria, President Trump attacked regime targets in syria without congressional authorization. The congresss war powers seem not to be too much of a hindrance on the executive. Nor does congresss power of the purse seem to have much bite. It is simply a political reality. It is 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 objective. Congress may disapprove of a unilateral president ial use of force but unless the public is not merely indifferent, but actually deeply opposed to american participation in a conflict, lawmakers will be very leery of being seen cutting off support for the troops. So here is is the dynamic. The president has a relatively free hand. And congress abdicates its responsiblities, content to wave the pompoms when things go well and excoriate the incumbent administration but not cut of funding when the guying gets tough. Over time, congress does assert itself. We saw how this worked in iraq. There was very strong public support for the mission of removing Saddam Hussein on grounds that were very powerful in the post 911 environment that he had weapons of mass destruction and might be inclined to share them. Congressional democrats with the 2004 election on the horizon sought out the opportunity to vote in favor of authorizing force. After a swift and successful toppling of the regime, it became evident there was a different and ambitious warning. It was more washington enterprise than the mission the American People believed in. It was prioritized when weapons of mass destruction were not found in the quantities advertised. The efforts of western democracy, principles and institutions in a society that was hostile to them. Hostility that grew more intense is the joy of liberation from saddam transitioned into a civil war between shiite faction. Alas, we did not learn and apply the lesson of this folly in libya. I fear we are well on the way toward making the same mistakes in syria where the consequences of folly could be disastrous given the players involved in this complex multilayer complex. Russia, iran, turkey and so forth. President trump give a very interesting speech in poland about preserving western societ society. Except, he didnt call it western society. He referred to it instead as western civilization. He was right, just as Samuel Huntington was right. Our conflict with radical islam, with what i call the premises him is a class of civilization. To prevail, the west has to decide that the west is worth defending and we have a lot of work to do to repair that self perception. We also have to realize that the enemy is a product of arrival civilization with starkly different principles. Its not enough to say fundamentalist islam which is the mainstream islam of the middle east does not wish to be westernized. It considers the intrusion of western armies and institution to be a deep provocation. Even if we see ourselves as dogooders who are just trying to improve peoples lives. This is a product of spending a generation and willful blindness animating ideology, and that could be the subject by itself for another symposium. The point relative to constitutional war powers is the imperative of public support for military operations. If there are vital American Security interests at stake, the American People will be on boar board. Congressional authorization and endorsement will then make it possible to achieve crucial military victory. Americans, however, are simply not interested in trying to democratize societies through military force. On this score, it is essential congress to its job, demand that any president who lurches into these complex seek congressional authorization for clearly stated a objectives and satisfy that we are conducting Real Security needs, not conducting an experiment at the lives of our best and bravest young people. As a practical matter, the constitution may not be able to prevent an overly ambitious president from in meshing us into conflicts against our interest but war powers can still have a very important say about the legitimacy of the use of force and therefore about its extent and duration. Moreover, where the use of force is clearly in americas vital interest, congressional powers used to issue a powerful endorsement of a clear, necessary mission can help us achieve something that has eluded us since 1945, victory. That is a word that is barely even spoken when we speak of american war power. Thank you very much for your attention. I look forward to our dialogue. Im very hightech, i had to learn to how on how to push to turn on the microphone. While im delighted to be here and have a chance to give some different views, i agree with an awful lot of what you have said. I want to maybe come at it from a different angle and to try to wrestle with some things in my mind. You mention my background as the head of the policy committee, i actually was the National Chairman of the american conservative union, founder of the Heritage Foundation and the chairman of c pack. Im finding myself constantly looking at some of the positions that our movement takes today and trying to figure out how they square it with what our movement once was. I am someone who has not gone to see hamilton, but i would spend a lot of money to see a play on maverick. That gives you some sense of where im coming from. I would disagree a little bit on one area. The declaration of independence, which we just celebrated his aspirational and political. A typical document. It lays out a case for an actio action, it lays out the grievances but the constitution is law. It is the supreme law. It 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 also the bill of rights and i think its too easy to look at the constitution and dismiss it as something that well it was a bunch of old white guys a long time ago and we dont have to follow their lead. I would disagree on that point. I am a constitutionalist. Im quite often surprised at the number of people i see in congress or writing and publications who are staunch defenders of constitution who seem never to have read it. I suggest reading it is actually good exercise to start with. One of the things i have observed watching my former colleagues on the hill is the day the constitutional mandates about what congress is supposed to do, which is not giving power to congress, its putting obligations on congress. Congress is the way in which the peoples will is to be considered, deliberated and enforced. It is the way we mix the democratic process with our republican form of government. I have watched, appalled, aimed at both parties to the extent at which members of congress ignore in the name of tribal solidarity the mandates of the constitution so that what barack obama did for republican is automatically wrong and what the republican president doesnt its just fine and we understand why and vice versa. We are really not going to be able to live up to our constitutional mandates until we decide that Party Loyalty which is all very nice and fun, i went to Republican Conventions and waved the banners and did all that stuff, but its a game. They are private clubs and what matters is our diligence in being true to the constitution. I want to talk about that in terms of the power. I also want to make a point, and this goes a little bit toward what you said with the role of law and other factors. This is not theoretical. This is not to have a discussion about the role of the constitution. We are now looking at a real threat potentially from korea. There has been talk about pushing for regime change in iran and we have a president who you may support or you may not, thats irrelevant to me, but who i think even his supporters would agree tends to be impulsive. That is a dangerous proposition and one that the founders had in mind when they considered where to place the power to send americas men and women and combat and possibly be killed. One of the interesting things, im sure all of you have read this but youve heard about the war and one of the major parts of that was the discussion between. [inaudible] athens was a great power the time and the other was the small island about the athenians were trying to take over, and what happened was the people at the top, which you would call the executive branch decided they were went to consider what the public which would be represented by the congress, they werent really going to consider what the public wanted. They had their own causes and reasons in the decided that nonetheless they were not going to surrender, they were going to stand up and fight and go to war and they were slaughtered and enslaved heard we have a constitution that ensures that the will of the people is considered, through their representatives in congress to make decisions hopefully through a deliberative process that considers the options and ramifications and so forth, and if the founders believed in anything it was that you are not going to give the power of life and death for a country 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 privacy in deciding what to do about war but that the commanderinchief means that when the Proper Authority decides that we are going to go to war, that the commanderinchief doesnt 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. We have, over the years, and starting with a very poor decision by Justice George sutherland who had been in the senate from utah and went to the Supreme Court and declared out of nowhere, not related to the case at all that inform policy the president has powers and hes in charge. That decision has been overturned by the Supreme Court repeatedly starting with Justice Jacksons decision, most recently in another case in 2013, that congress does not surrender its power just because the issue on the table is Foreign Policy. We seem to have forgotten, i know a lot of reporters from the New York Times have forgotten that. Talk to them all the time about it. So, a few years ago i was cochair of the task force by the constitution project on looking into the war of power. We had a pretty good group of people on that task task force but it was bipartisan and we had susan rice and harold who is in charge of the law school would look the best. I just want to quickly summarize three key points that we came up with because this is something we all agreed on. Number one, this is the summary. Congress must perform its constitutional duty to reach a deliberate and transparent collective judgment about initiating the use of force, except when force is used for limited reach of defensive purposes. Two, the president must seek advance authorization from congress for initiating the use of force abroad except when force is used are defensive purposes and three, the congress should authorize initiating use of force abroad only by declaration of war or a specific statute or preparation. You made the point correctly that the use of military force that we now have did not envision going into military combat against forces that did not even exist at the time it was passed. So, i want to get to the questions so want to make one more point. One is that we have been seeing an application over the years, you go back to harry truman and deciding that it was okay for the United Nations to decide when were going to go to war in korea, and there has been a fundamental abandonment of our democratic processes and our republican structure of government. One of the ways we did this, i will say it was not when i was in congress, it happened just two years before was to pass the more powers act. That is clearly unconstitutional because it infringes on their powers 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 period of time after which there is no way those of us in congress were going to cut off funds when our troops were under fire so we essentially surrendered that power to the president. So in closing, today is a mention weve got the threat from korea, a potential claim this administration that we need to pursue regime change in iran, we have strikes going on, military action thats outside the scope and thats why i close 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. Mr. Mccarthy, would you like to respond . Just a couple points and some of it is off the track of the war powers. I dont deny that the constitution lays out 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 its written and as it was originally understood and then you compare it to american governance today, its virtually, what we have today is almost unrecognizable. There is a Fourth Branch of government which the administrative state, which could engulf a lot of the powers of the other three, and in a way thats completely opposite to have political accountability for political decision, the way that happened was political. It wasnt legal. It happened because people took steps that were beyond the power and contemplation of the constitution and the system accepted it. The remedy, the ultimate remedy for that behavior is impeachment which is wholly apolitical remedy, not a legal one in the sense that you can be, i can say this as a prosecutor even though high crimes and misdemeanors are not indictable offenses, but you can have a thousand provable high crimes and 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 two thirds of the senate to vote for removal, it really doesnt matter if the president is hot committed to high crimes and misdemeanors. The question is political will and procedures with the constitution are laid out to enforce the constitution standards and i think while there are extremely important legal ranges to the constitution, the remedy for that is largely political and political will. If the president decides to haul off and invade the country when theres no American Interest at stake, its not like you can march into federal court and get a judge to order him not to. Then you quickly find out what the framers recognize which is that that the courts have judgment. They dont have the sort of the purse. They dont have any means without the executive to correct the executive. So i guess thats one point. The other point, just briefly is about curtis right. I think going back to jefferson, madison, the framers, their position was that the executive was supreme in Foreign Affairs except to the extent that the constitution created exception and that the exceptions were to be strictly construed. Ive never understood it to be a situation where the congress didnt have war powers, but in the main, the president conducts Foreign Policy. I agree with you, i think its vitally important that the congress assert itself with respect to the war powers that it does have in the constitution, but i dont think that necessarily cuts against the president is supreme in conducting Foreign Policy. I agree with a lot of what you said. Part of the problem is enforcement of policy. The founders did give the president some powers inform policy. The president can negotiate treaties and only the president. Those treaties are nothing, they can decide who will be the ambassadors to our country. But it has no force unless the congress decides or the senate. The powers, i read it differently. It was very limiting. Article two is a really brief article, and until recent years, it was understood that these were not president ial decisions. We disagree about that. I will say, and maybe we both agree on this, a lot of the concern rests on those of you in this room. Arrests on you because one of the fundamental problems with that is that so many members of congress, house and senate simply have no clue what their obligation is so that if you have very, very Important National security concerns, and the administration decides to come and share that information with members of the intelligence committee, i dont know if any of you are staffed with the intelligence committee, but the executive branch tells members of the senate and the house, who can come here that information. And who they can share with. And whether they can bring staff. The congress of the United States which has the authority to decide whether theyre going to go to war and set Foreign Policy is told by another branch of government, who you can count, you can share it with. You cant tell other members of the senate. Congress just accept that. Im on the board of a group called pogo, the project of government oversight and i talked to a group of Senate Staffers and was shocked because somebody got out, maybe one of you and got totally angry because they kept filing freedom of information act and their administration would not respond. I just said john dingell wouldve never filed that. He would said get dressed down here. So, there is an obligation here for members of the senate that its nice to belong to a political club. I was on the bowling team, ive belonged to things too, but my oath, i took an oath my oath was to defend the constitution of the United States, not to defend my political club. So youre right. It has a lot to do with public pressure and its how the congress response, doing its job, even if the majority of our constituents they were gonna run sunday against you or were going to primary you. Tough. We cant stand that, dont take the oath of office. Dont promise youll bit obey the constitution if youre not. Were not that far apart. I feel compelled to say i belong to the Federalist Society but so far he hasnt made me take an oath. Just to echo what you say, i think its critically important that congress, as an institution protect itself and its prerogatives and the government doesnt work unless it does. If i said during the last eight years when i was usually in disagreement with what the government was doing and the eight years before that when i was often, 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 office with the National Review or wherever, but you dont have that luxury on capitol hill. You dont get to be a spectator. Thats part of the gig of being elected members of congress and the staff they have to support them. If you dont protect the prerogatives of this institution and the constitution, it doesnt work. As much as we all admire it and we say we would like to see it operate in the way that it was intended to operate, those of us who have that decision, it requires not only accountabilit accountability, the original understanding was that the branches were going to compete and keep each other in check. Part of the reason we end up in a crisis environment is that if you let other branches get on for a long period of time with getting away with this and that, you eventually get to a point where they are so convinced theyre not being checked that you end up with very weighted decisions being made outside the perimeter of the constitution and thats what we have crisis. I think its absolutely essential that if this government is going to work the way its supposed to work that this institution defend its prerogatives and be accountable. Just one sentence, maybe its too, greg remember this is not Great Britain. In Great Britain the executive is the government. Not the United States for the government is not the executive branch. Youre the government as much of the executive branch. Both branches so just remember that. Are good. We are now moving to the q a portion of our session. I have a standing mike in the hallway next to the door. Please lineup and we will get as many questions as we can. Just one quick, before we get to the questions i just have one broad question for both of you. Its obvious that both of you would consider yourselves in the congressional war powers camp, but with some differences and distinctions. What i often gather from the other side is sort of the objection on four levels. Some of them have been touched and we got to go over them, but i just want to make sure theyre out there in order to balance our discussion. The first is the track record including formal declaration. More than 100 times the United States has been involved in military skirmishes, weve only declared war five times in our history. His Congress Needed or even desirable in the space . Another is, congressman touched on it but the wars act of 1973. We been involved in separate military action of varying skills without any effect from that resolution. Another objection from the pro executive camp would be the idea that congress is unmanageable. Its too large and unwieldy and it cant make the swift action thats required in wartime. The last one that i think i often hear his what is the congressional incentive. How can you convince congress to really be more involved in wartime policy . Maybe you could comment quickly on that and then we will go to our question. As far as the track record, the first point in the third point that you made, i think part of the reason we havent had as many declarations of war is to the extent that were dealing with emerging situations. I think even people who are staunch congressional war powers advocates accept the idea that if the United States is under attack or under the threat of attack that the president has the power to respond and to the extent that there was any dispute over that, i think the Supreme Court resulted during the civil war or just after the civil war. I think even rand paul, who is probably as staunch a pro Congress War Powers guy would accept the idea that when the United States is under threat, that the president doesnt need to waive the congressional authorization and the president can move. I dont see that as retracting from the importance of congressional war powers in situations, in particular where we get remote from a real threat to the United States where i think its really important that the other Political Branch either landed support or perhaps persuade to the president that hes in. [inaudible] very quickly, in the civil war, the power that lincoln had was very specifically spelled out in the constitution which was insurrection. As for congress being unmanageable, most of the cases, including right now with korea, what you need is the liberation. 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 we are dealing with is not that kind of a situation, and the benefit of having legislative branch and power is that you have thoughtful deliberation, you get input to me talk about it, you consider ramifications. With 320 Million People potentially at risk, lets see how we can move quickly is a recipe for disaster. I think there are circumstances where you have to move quickly but not most of the time. Finally, in terms, well with congress being unmanageable, one of the incentives, jesus christ, their americans. They care about the country. They iran for office and took an oath and said its our country and were gonna keep it safe. Thats their incentive to do it right. Maybe if this is a question that bears asking because were not seeing signs of incentive, been then maybe those people are to go back home and run a bakery or drive truck or whatever and get out of congress. Along those lines, when we were attacked on 911, we had an authorization for military force in about a week and we couldve had in a day. On the other hand, the next step on the trajectory, iraq, congress ultimately wanted to vote to authorize that because there was at least a persuasion on the fact that was known at the time that it was important for the country to do at that juncture. When you get to syria and libya, there is enough disagreement about whether we have real vital interest that nobody even wants to discuss it. The congress would just wanted to go away. I think sometimes our president wanted to assume those present problems would go as well. My point is, it may seem that congress is unmanageable, but the fact of the matter is, when there is an obvious threat to the United States, congress can get its act together a quick and to the extent that Congress Seems to be unmanageable, maybe the problem isnt the unmanageability of congress but the fact that is not clear that there is a vital American Interest at stake. Very Good Private School our first question. If you could just announce your name and give your question. My name is devon. My question is hypothetical to mr. Mccarthy. If later today President Trump were to go attack north korea without any kind of congressional authorization, would it be appropriate to impeach him for that . I guess it would depend on the intelligence you mean if we didnt know anything more than we know now. Yes. I dont think i would be in favor of impeaching him, but i would think it would be a colorable argument. Yes it would be a and impeachable offense. Does that mean the decision should be made to impeach him, i dont know. But yes, it would be and impeachable offense. Next question. I would like to ask about information warfare. We know it has changed drastically over the past century. Today we have a lot of warfare cyber attack, commercial conflict, special operations, that to not involve trooper materials. My question to the panel is why and how should congress have more weighing on that form of where fair and where should the limits be set to limit executive power . A lot of those decisions require very immediate response. They probably can still have those disastrous consequences and they can last a very long time. Thank you. My own view of it is that what matters is the degree of threat to the United States. I dont understand, for example, the military concept of proportionality. I dont understand that to mean that if you are attacked in a cyber attack that that means you your response has to be a cyber response. If the threat to the United States is profound enough, its the job of Congress Working together with the executive branch to arrive at an appropriate response and if its a profound threat, military force of any kind isnt something that should ever be off the table. Its up to congress to authorize the development of the program to resist and to fund i it, and to perhaps put limits on it. Outside of that, its up to the executive branch to figure out how to make it work. You talked about the will of the people as a big factor as it should be for members of congress to consider and what they do. Im particularly concerned about that one. I think Something Like a quarter of those who voted in the last election voted for socialist, someone who believes in the ideology more or less that is one of the two, that is one of the greatest threats to liberty everywhere. My question is a little broad but i think its important and id like to hear your thoughts. What can we do so that in the place where theres young people who first hear about history that theyre hearing the full story, theyre not called islamic folks. If they look at what sharia is, theyre not called an elitist or focus on their own goodwill. When we talk about, what can we do as will boards. What can we do with wealthy donors. What can we do with legislation in congress, even though i dont necessarily believe in the department of education getting mixed up, but if thats what we have, how can we use monies are young people understand the reality of the world and we dont end up having the world of people not forcing members of congress to do the right thing. I think a lot of what you mentioned is upstream of congress and the law. What you are talking about our cultural factors and i always think the thing that we have the privilege of in this country is to live in a country where we are supposed to have full Robust Exchange of ideas, and if you are living in a society where the law is dragging the culture along rather than vice versa, you have enormous problem. With that ends up meaning is that until i can persuade people to see things my way, as a member of this political community, i have to accept the fact that a lot of things will go on that i dont like and i have to continue to try to fight and persuade, but i also have to be realistic about what is possible to achieve, and particularly what is possible to through law. Idle paper culture can be changed by laws i get enacted in congress and i think this is after a lot of hard years of thinking about this and maybe seeing things differently when i was younger than i do now. I think the more people look to the city to solve whats wrong with the country, the more they are looking in the wrong place because its the sort of thing that has to come from the ground up. Its hard to come from here. Thats right. I would just add one thing and that is, this is a little offtopic but we have basically turned our high schools and colleges and universities into votech schools whether basically focused on how we help our young people learn how to get a job which is an important part of it, but we dont teach them Critical Thinking where they can look at various options and think critically about what their benefits are, what the dangers are two floors. If you believe your position is right and we all think each of us has a position thats right, we should all wanna welleducated society capable of thinking critically and evaluating the arguments they hear with confidence that when everybody thanks about it they will come out thinking just like i do. I do think, education is part of it, but i do want to say, because i did hear the example she used, i dont think it serves our countrys purpose for us to try to have Education Systems that propagandize support our particular point of view. I think socialism is a great policy for people going broke and starving, but i dont know that we should preclude people being exposed to the idea and able to evaluate it. Its important that we maintain the essence of freedom, freedom of thought, basic liberties and things that distinguish us from other countries. My name is april. My question is, does the president have authority, under the constitution, to refuel saudi warplanes bombing yemen without congressional authorization. Does he have authority . Under the constitution. I dont need to go lawyer here, when i hear these questions, i always think of the distinction between power and authority. So i would say he has the power but not the authority. The way i would look at it is as follows, i believe if there is not a threat to the United States, forget about eminent or, if there is not a threat to the United States and the president wants to take military action because he believes its in American Interest which you would think that would be his thought process if he was president of the United States, then i think he needs authorization from congress. Putting my prosecutor hat back on for a second, if you aid and abet principle in committing an act, you are treated, under the law, as if you were the principal. I dont really see a big difference between aiding and abetting the saudis and carrying out attacks were directly attacking that other country ourselves. To me its the same thing and since its removed from obvious American Interest, it would require congressional authorization to be authorized, but i wouldnt argue that the president doesnt have the power to do it. He is the commanderinchief. If you think he has abused his power in an unacceptable way then youre talking about impeachment. Theres not a lot that you can start by trying to cut off money and politically put pressure on him to stop doing something outside the constitution, but if hes hellbent on doing something thats harmful and outside the constitution, congress is way to rein in the president is to impeach him which obviously is not something weve ever done. What weve impeach them, but we havent convicted them. We have other wayson other things. You can cut off funding for what the president is doing and you do it in a threatening way. It doesnt have to be related to two. If you dont have a way to interfere directly, you say fine but we just cut off all the funds for the executive office. Have fun, you wont have a salary. Congress has a lot of power if it exercises it. That would require an extreme case but the power of the purse is not a small thing. Theres something in your question that prompted this thought which is probably unrelated to everything else, but i think when youre thinking about making these kinds of decisions, you are to remember that youre making them regardless, youre making them on principle regardless of whos in the white house and what party is on power. One of the issues when i was in congress, my party the Republican Party fell in love with two concepts. I think they preferred these even to cure cancer. One was line item veto and the other was privilege. I said well, those would be cool, does it bother you that their unconstitutional. Well know so the thing is, when i was in congress, we had overwhelming democratic majorities in the house and the senate and we had a republican president so we have line item veto would give more power to the republican president and it would wipe out all these democrats. I said what if, not much chance of it, but what of sunday a democrat was elected president , then what, and of course then came bill clinton. I think we have to be really careful when we think about these things. What is the longterm principle and how will it apply if its being used against us. Thank you. With got a couple more questions were running short on time but we will try to get to all of them if we cant. David wagner. One thing that may be causing problems today in applying a framers work laws, and this is not my own idea, the framers may have thought will is not much kinetic operations on the field but as a legal status between states and thats why its in article one, the lawmaking section. Once the relationship between states is defined as one of what war, all kinds of policies, their shifts are subject to seizure, all kinds of things. We dont make war with states so much anymore. In 1941 we had that declaration where we were at war with the germans and the should of been one for korea, but since then its been the vietcong, the al qaeda, we dont live so much in an era of wars against state where they could define a relationship of war where instead to give a very broad authorization that covered a lot more. I would hate to think that the way theyd find them, i always wanted to define it as written, come what may, but is this a problem. You have a situation where you have an authorization for military force in 2001 that is still being used as a rationale for carrying out military operations under circumstances as we discussed solar combatants then exist before it was enacted in fact, even though i dont agree we regard al qaeda as an allied, it is a fact that they are aligned with factions that we are supporting. To my mind, thats a classic example, but if congress doesnt assert itself and uses article, one of the most important parts of this power that congress has, exactly as you are describing, to set these legal arrangements, is Congress Gets to say who the combatants are and who the laws and customs of war apply to. If that something thats not done and you then decide to start off with the premise that you are at war on terror which is not an enemy, its a message, you are asking for confusion and conflict and a lot of the problems that weve had the last 15 or 16 years. Militarily, im aware that the word war originally would interview all sorts of things, but i think theres a distinction without a difference. The war power includes engagement with an enemy, a conflict, and whether were going to do the is a congressional power. So the fact that the word war includes several other things is all in the constitution and those are all management of the military, who can be an admiral or a general, who decides what to do with confiscated property, all of those are congressional powers. The president really has to scour hard to find something except if he wants to wear uniform, because hes commanderinchief you could wear uniform like they do in some other country and have the stars on his shoulders, he would have six stars because he would outrank a fivestar general. Whether you call it a war or authorization to use military strength, that is a congressional authority. I was originally going to ask about the refueling but my question is should congress have to authorize use of nuclear weapons. Should the president have the ability, should there be a no first use policy as law . I believe in the constitutio constitution, i believe in congressional war powers and president ial war powers. Congressional war powers are to declare war and set the parameters for conflict and i think its up to the president to prosecute the war once congress has declared war, and i dont favor any in that regard. It becomes a difficult question if for example this limitation that have been in place in world war ii and would have not allowed harry truman to use atomic bomb, and thats a very debatable point about that, but there wouldve been many tens of thousands of americans killed on the beaches in japan. Im inclined to think that when the congress has declared that yes we are in conflict and we are fighting this, unless they specifically put a limitation, no we will not have that, then it is the president s job to decide the tactics, strategies et cetera. This microphone thanks im taller than i am. Thank you for speaking with us today. I wanted to ask you what your thoughts were on senator frankens 2011 war bill. At the time it was introduced it was a real problem and still is but congress has the power of the purse and many wars are what people would say put on a credit card through emergency spending bills and international loans. This bill allowed any expenditures outside of the daytoday Defense Budget to be paid for and they can be paid for without increasing the on budget deficit. They allowed for a waiver in case of emergencies and current wars were exempted so operations would not be disrupted. The idea was to encourage the American People to feel further incentivized to speak with their elected officials on their views of war by making them more financially responsible in addition to personally responsible through their connections as veterans. The idea was they become more involved in the liberation process and this congressional deliberation process would therefore then have to be more transparent and open to the power of the Purse Strings would once again become something a little more meaningful to the overall conduct of war in the United States. My question is, what type of impact do you feel legislation like this would have on the executive and legislative war powers, and you think it would significantly impact american support for war which you discussed was so important to their success. I am in favor of anything that is reflective of congress using its power of the purse in the military context and doing it in a way thats transparent. Im not smart enough to figure out what all the unintended consequences, if we do this, then someone will think this in the be more responsible and that, but i do think, to the extent that you propose legislation that makes it clear what its costing us to fight in these complex, it makes it much more likely or at least more likely, depending on how effective measures that military force is going to be used only for vital American Interests. My own personal view is thats what it should only be used for. I hate have any disagreement with out franken because hes the giant of the senate but i think theres several factors. One is, i think war is one of those circumstances where real people get killed and i dont think we should be making our decisions about whether to go to war or not based on what it cost. If it is something that is a matter of not going to war, you dont go to war willynilly. Its a war you would not go to the cost too much then you shouldnt be going into it at all. I also dont like the idea of one congress tying the hands hands, the whole idea is that you can sit down, deliberate with the circumstances that you have at the moment. I have no problem with saying we want to know what it costs, what we anticipate the cost to be but thats not have any bearing on whether you decide to go to war not. I dont know that i agree with that. I think, to cost is part of the equation of what your interests are. Im not saying its the dispositive one, but im saying it is a factor. We are in the business of weighing whether particular interest is important enough to go to war over. Since there are a number of considerations that go into that, i dont see that the Financial One shouldnt be one of them. We are running short on time but lets try to squeeze it in if we can. Hello, i wanted to revisit two examples that have come up couple times, the entering of the korean war and the resolution, to try to tie together, and underlying question we havent directly addressed yet which is while congress has the power to the declare war, we havent discussed whether theres any limitations or requirements. Using these two examples, could you briefly explain what exactly the declaration of war can or cannot contain. For example, why were those two examples unconstitutional even though there was sort of blanket authorization to use the arms forces. In the case of the korean war, the un participation act that does authorize the president to carry council resolutions. Commanderinchief powers. But short of Something Like that, i dont know that, i dont believe there are any limitations on what congress can do. I agree on both points. One is that congress has the authority to decide whether not were going to engage in conflict. A perfectly fine way to do it. I dont think it means you have to use the specific words. Its power. Its not an english test. But then on the korean war, a treaty that violates the constitution, that provision of it come is unconstitutional. The United Nations, and no treaty, no president , no consigned and no senate cant approve a treaty that is in violation of provisions of the constitution. They can violates statutes by the constitution is our supreme law. So if theres actually no grounds that you can think of in my mind that would say that a u. N. Treaty gives the president the authority pics so weve had something that come the swiss and the french and the belgians and other but all come together and say yes, you can go to war. We are going to Center People to go get killed. Lets not forget war and again. Those are body bags. We dont leave that to other people to decide whether we are going to do that. Thank you very much. Hopefully its a yes or no question but you have waited very patiently. Please go ahead. What role do the courts playing all this in terms of both power and authority to get involved . And they seem to have more Political Capital that we seem to acknowledge. Also a good maybe offer your concluding thoughts, that would be great. Sure. Im glad to get the question about the courts because if you would ask the question a little over a decade ago the answer would be probably very different than it is today. Justice jackson wrote a decision in a case called chicago and southern, around 1944, 1946, it escapes me. But its one of the best articulations of what the framers had in mind in the distribution of power in different areas of the constitution. And why he pointed out was that what he pointed out was that the most important decisions that a body politic makes our decisions about its national security. So that in our system those decisions are supposed to be made by the political actors who are accountable to the people whose lives are at stake. So for that reason they are not judicial decisions as he pointed out. Not just because there is nothing about being a lawyer even a judge that gives you institutional confidence in areas that are relevant to warmaking but also because our basic system is supposed to be that these decisions get made by congress and the president because the answer to the people whose lives are at stake. For that reason i think for a very long time, and wisely so, there was no real judicial role. Things are different now he goes we are involved in a different kind of conflict. So that even though we havent in the, alqaeda for example, that attacked us in a way that foreign sovereign neighbor never able to attack us on homeland, at least the continental homeland, i think its kind of an admirable thing about the American People, that even though logic says terrorists who attacked civilian populations should have less rights, we always want to make sure that we got the right people. And because terrorist, unless you catch them in the act, present as if they were ordinary civilians and not combatants, weve layered onto this war and unprecedented amount of due process for any combatants. To my mind its gone way too far. When you get to the point where they say that any combatants have constitutional maybe habeas corpus i so what youre essentially saying is that the constitution is a weapon that the enemy can use against the United States, that you can bring the people who prosecute war in our system, the enemy can bring those people into our courts, to me thats gone way too far. Im okay, i wasnt at the beginning but im okay with the idea because its a political reality, the public wants to make sure that were holding the right people. So im okay with the idea, if theres a modicum of due process thats allowed in order to make an evaluation about whether somebody actually qualifies as an enemy combatant but if it gets to courts like ordering the president to release people or gets the courts telling congress, after the court has invited congress to come in and make a system for detention and trial, Congress Actually does that at the courts behest of the court comes back and says not good enough. I think its gone way too far. I will just add the thought, habeas corpus is a fundamental constitutional principle and it is something that our government does or does not do. Under the constitution the right to habeas corpus is fundamental. The United States, i dont know how many of you believe in american exceptionalism but i do. I think we are different. We dont lock people up and hold them forever without knowing that they are guilty. We just dont do that. One of the things that happened in the socalled war on terror is that we have become very good at capturing and locking up and punishing people have committed war against us, and also locking up and Holding People that we dont know were committing war against us here because they were there. We have to be really careful. Its too easy. It is too tempting to say that our constitutional principles, theyre kind of inconvenient at times. We just have to be real careful that we dont just say lets give them up, lets become any other country, you know, we have seen them do it. Why dont we do it . And im bothered by that. I grew up believing this country is different and its rules are different from its principles are different, its values are different. And im just really reluctant. I would much rather let one guilty person go free and have somebody who did not commit a crime be punished. And i just think some of the fundamental principles are important to remember. It would too easy to follow the path of all these other countries, and we can start naming them and i wont, but, i mean, of the country that, to ensure that whatever theyre trying to ensure, could just simply set aside the rules. And we cant do that. Very good. I think well have to leave it there. Thank you, gentlemen, for a wonderful a discussion. [applause] lastly if you like to learn more about the article and an initiative please visit our website. Weve got new papers out in the harvard journal of law and public policy, it was also launched a podcast called necessary and proper available on google play and itunes. Thank you all for coming. [inaudible conversations] [inaudible conversations] [inaudible conversations] coming up tonight its a booktv in prime time. Starting at eight eastern well talk with utah senator mike lee about his book written out of history, the forgotten founders who fought big government. Sunday night on after words. Someone like steve jobs can come and sell this product and forever be associated with it. When thats just a shade of the story. He was certainly handson, but the truth is like even the iphone and supports it was developed at apple never wouldve happened without scores of people working around the clock. Motherboard magazine scene editor brian merchant on the creation and development of the iphone in his book the one device. Part of this story is that the iphone was born as like the software interaction paradigm, was born behind steve jobs back. This group of guys called it on a routine like a document in the book started basically experimenting. It was freewheeling research. It was fun. It was like wild kind of stuff. They had this crazy projector rate to using to hack different products together and create what would become the iphone. Watch after words sunday night at night eastern on cspan2s booktv. The u. S. Economy added 220,000 jobs in june, the most in four months. The Labor Department released those numbers this morning. They showed Unemployment Rate increased to 4. 4 from 4. 3 in may which was a 16 year low. Unappointed rose because more americans began looking for work and not all of them found jobs. The center for strategic and International Studies hosted a Panel Discussion on u. S. China relations. Panelists cover trade come military and Security Issues and north Koreas Nuclear weapons programs. This is about two 1 2 hours. We had five issue papers with authors for each paper or papers on each subject from the u. S