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Instituted, this court had approved it. And there was this process of briefing in congress. And i dont think theres anything classified. You can tell me if it is and if you cant answer it. But could you just explain to me. If im a member of the congress, an ordinary member, not a member of some special committee, what exactly was i told . I dont mean what was in the classified briefing. What was i told about you better go read this before you vote for this. What memo did i get from whom . So, i think, there were memos from the chairs of the two intelligence committees. And they are in the joint appendix. They identified within the connection of the reauthorization, information has been provided by the im paraphrasing but information provided by the executive branch that was important for evaluation of the reauthorization of this authority in section 215. And it was up to me to go and figure out if it was worth it for me to go and read it as they were telling me i should. And i think of things like legislative vetoes and other issues where the Supreme Court has emphasized that legislation gets done when each house votes for it and the president signs it. This notion that the legislation has been accomplished because i as a member of congress got a letter saying you should go read something thats in a secret compartment before you vote on this. That its therefore assumed that Congress Approved whatever was in the secret compartment. The further fact that we have here is there were members, including senators wyden and udahl, who were pointing to this very debate at the time. Some people got up on the floor and said, listen, you bozos, you better read it, because we dont want to vote for it because of whats in there. We cant tell you what it is in public, but you better go read it. And nevertheless, they voted. And so, in other context, the court has said, you know, Supreme Court has indicated that references and committee reports, for example, are sufficient. This, i think, goes beyond what youd look at in an ordinary ratification given the classified. I think so, but Justice Scalia doesnt seem to think to as far as counts of legislation. And to your point, your honor, about the current state of discussions in congress and the president s position. I mean, i think it is certainly correct that the wisdom of this program in light of its nature and scope is the current subject of public debate and debate within congress. As indicated, there are multiple proposals that have been introduced and that process is working forward. The president has we could this i suppose is not a consideration thats entirely appropriate for a court. If this court said we dont think this is authorized by congress, that would kind of put it to them, wouldnt it . To actually act on whether they think this is something that should be done or not. And then they could take their vote and that would put to all of these issues as far as short of the constitution. It would put paid about all the issues about whether this is elective authorized if Congress Just voted and said. Has to take out the word relevant. I could say we think this program is okay. Keep doing this, or alternatively dont do this anymore, and then there would be nothing if they did the latter, we wouldnt have a constitutional issue either. If they did the former, then the constitutional issue i suppose, would still be around. And the section 215 authority will sunset in june of next year. So some action has to be taken one way or the other. Either to extend it or to change it in light of the current ongoing debates. What the president has said is that he supports achieving the goals, National Security goals reflected in the section 215 Authority Without the government actually ingesting the bulk metadata. Allowing querying at the providers. Although, in the same statement in march, he also noted that in order for that approach to be workable with the speed and in the manner necessary to accomplish the goals, legislation would be required. And so he directed that in the meantime because he thought it was important in his judgment it was important to continue this capability that the government go to the fisk and seek continued reauthorization of the program. 90 days there now. And its now been reauthorized a second time with the two restrict two changes that your honor spoke about earlier. September 10th is the next reup day. I believe september 12th is the expiration of the current order as reflected in the briefs. But so i just think that clarifies some of the discussion earlier about where things currently stand. And if i might turn to the no more questions about the statutory reauthorization, i think the ill turn to the Fourth Amendment if that makes sense. Our position is that the fisk and the District Court in this case did correctly conclude under smith versus maryland, the acquisition of Business Records reflecting the data was not let me tell you what problem i have with that. Its not just, you know, those were the old days. But does the question is and i dont think im using the mosaic approach. But doesnt there come a time. And isnt this what the plaintiffs are contending. Doesnt there come a time when the oldfashioned, simple pen register that was used in smith versus maryland or and that we are recognized it for a long time where the amount of data that you have of that sort is so detailed and so extensive that, in fact, it is a content divulging action rather than not. The whole point of the direction the whole point would suggest i write it again this morning. But the point was, youre just its something that you already give out. Anyhow, its given to a third party. So its its not a big. And its not as though you are listening in, which would be different. And the question is, i think, or a question is whether the methods have become so sophisticated of analyzing this kind of data that this, unlike with a pen register in this case, you are finding out content. Is there any oomph to that idea . Okay. So certainly, this is the one of the issues, i think, thats been a factor in the public debate over the last year since the disclosures. Id make a couple of points. First, here, again, we are, in fact, talking about the same type of information that to that point, to the point, judge pauley didnt go each piece of metadata by metadata and do the analysis that was done in smith. Right . He did so it was sort of a he said that its third party and its like similar type information. But wouldnt doesnt the, doesnt it require that actually he well, should it require that determination is made based upon if youre talking about a right to privacy. You look at each part of the metadata and make a determination at that point. Why shouldnt the court have to go through that exercise . I think that the record in this case reflects that if youre talking about the type of information thats at issue that we are talking about the same type of call data record call detail records at issue. So the number call, number received. The routing information, time and duration of the calls. Were not talking about name or address or Financial Information or cell site location. The question is whether the technology hasnt changed so much that the analysis that its just a pen register doesnt work anymore. The next two points i would make on that are, one, the ability of metadata to reveal useful information to investigators and particularly connections was known at the time of smith and was actually, you know, in effect the power of the metadata was a point pointed out, obviously did not carry the day with the court, which concluded that even though the expectation is that phone companies are assembling the metadata if only because you know you get a list of your calls at the end of the month, that did not give rise to a protected Fourth Amendment interest. So, you know even that very simple stuff that comes from the pen register is used in courtrooms in the United States every day in the week when assistant u. S. Attorneys get up and say heres a chart of the all the times that conspirator a talked to conspirator b on his cell phone in the days leading up to the drug transaction. You, the jury, should infer from that what theyre talking about. Theyre talking about the drug transaction, or alternatively. Heres a record, we dont have the content of the phone call, but we have a record of the insider at Goldman Sachs talking to the traitor right before heres the record of the traitors purchase of the stock in question right before the announcement of some new public information. What, ladies and gentlemen of the jury, do you think they were talking about . Thats proof this was a leak from the insider. So theres no secret about the fact that metadata never was, never was in smith any secret about the fact that metadata can reveal content. The point about the power, the technology now that allows analysis leads me back to the point i want to make in response to judge lynch. Which is, its important not to lose sight of all of the other protections that are built around the acquisition and retention and use of the data under this Program Given its bulk, you know, the bulk nature of the production to the government and in light of the technology. And i think thats critical to understand. That, you know, in addition to being only noncontent information about the telephone calls, the data can only be queried for counterterrorism purposes. And then only if theres a reasonable articulatable suspicion, is connected, associated with a specified foreign terrorist organization. None of the safeguards are built into the legislation. The legislation totally silent as to any of that. I dont think thats right, your honor. So in 1861, subsection g, i believe it is, requires mine minimization procedures. This could be used to gather data that would relate to a number of u. S. Persons. So the statute requires that the government propose and that an element of the program be robust minimization procedures. Theyve been spelled out in orders of the fisc, but there would be protections around the use and dissemination of the data. Now that youve got some experience with the procedures, it presumably would be possible to spell out something in legislation if this program were going to be authorized by congress explicitly that said what made sense and didnt make sense. After all, this just says the attorney general has to specify. So far the record is that fisc signed off. And when it was made more restrictive, that was because the attorney general asked for it to be more restrictive. Nobodys there saying heres what would be better minimization procedures or we think this is what the constitution requires. The government goes in and says heres a list of things we think you should tell us to do. And the court says, okay, thats what those restrictions are approved. Right . I mean, that my concern about all of this is that if, you know, its fine to say weve got this program and this is the we never misuse this data. We only use it for these purposes and we have rules to have that happen. Thats not the same thing as the government not having that information sitting there where, you know, i dont know what mr. Snowden couldve done. Maybe instead of leaking the order, he couldve leaked the database to somebody. We dont know what happens when some inhabitant of the white house, this one or another one, has a plumbers unit and decides to let them have access to the data base. These are realistic concerns. About letting the government have this massive body of data without anything, but even the, of course, look, anyone im sure part of your answer has to be and it makes sense. Whoever makes the rules, they could be abused. If we told the government it cant do this, it has a technological capacity. And imagining a government that breaks all the rules, they could get it anyway somehow. They could tap all our phones and wed never know it. And if theyre bad guys, these are all paper restrictions. But there are levels of restriction and, you know, its one thing to have congress adopt a program and say this is what it is and weve considered what needs to be done to give protections, and one that says, well, they can get whats relevant, but they should be careful how they use it. And then we infer from that this massive, this massive program. So i think, your honor, i think the record on the enactment of section 215 and its extensions respectfully goes beyond the last version that you just articulated. But i do think that the point about in the National Security area, the political branches being charged with, within a range drawing the lines about what steps are appropriate to accomplish National Security needs, something that the Supreme Court has articulated in the Fourth Amendment context, for example, in the keith decision urged the that congress draw some of these lines. Almost, im not sure this was the phrase that was used but because some of these questions are susceptible in effect to legislative fact finding about what is appropriate, what tradeoffs are appropriate in the to meet the needs of National Security. Similarly, in the mcwade and cassidy cases, this court in evaluating types of antiterrorism or counterterrorism activities, in connection with the subways and ferries noted that there, again, that the court should be reluctant to rest away from the political branches, the choices about how these judgments should be made and we should be be very cautious about making a constitutional determination. Which is why, i think, your honor, should evaluate the program that we have. Theres obviously a desire to ask questions about, you know, what might arise in other context. But given that the Supreme Court has made clear that the examination, a tally of the circumstances type question and you do have smith and you do have the same type of information that was at smith. If youre reaching the constitutional issues, we urge a focus on the program. You have to reach the constitutional yes. I was referring to your point. Which, respectfully is a function of the regime that congress established. And the Supreme Court has also recognized that where that is the case, where congress has not provided an apa cause of action, the consequence may be the examination of a constitutional and not a statutory claim. That was the issue in webster versus doe and that was the result. The constitutional claim could be reached, not the statutory claim. There was not an apa cause of action available. It seems to me quite simple that the only way we can achieve constitutional avoidance in this case is by ruling against you on something statutory. Otherwise were forced to get there anyhow, right . Again, and our position is. Would you prefer we not rule against you . I prefer you not rule against us, thats certainly true, but here, congress has not provided jurisdiction for the court to reach the statutory claims. Theres not an apa waiver of sovereign immunity. We are left with the constitutional argument, there, we think, that whether you do it at the level of smith versus maryland, which we think remains binding precedent and answers the question about the whether its a Fourth Amendment search to get the records from the Telephone Companies in this context. Or if you go to the special needs inquiry and the reasonableness approach. If you look at the program as a whole, not just the initial collection, but the fact that the fisc has authorized that collection only upon the imposition of robust controls of when the data may be queried, ha may be done with the results of the query, set out in the primary orders and reporting back to the fisc. This is not, respectfully, and this is reflected in the courts opinions, which have been declassified. Not just the court accepting whatever the government offered, but making determinations according to its own statements that with these procedures, its the program strikes an appropriate balance with providing the capability that is that is fisc order that imposes more restrictions than the government sought at the time . I dont i dont know the answer to that question. My point was that if you look at several of the recent opinions, which i had occasion to i never suggested there being some kind of rubber stamp. Im saying the procedures there are a little different than the procedures that would be in place in a District Court or for that matter in congress in terms of having a robust consideration, not just from what the government says is a good idea to minimize and whatever the judge can bring to bear in his or her own experience. But to a real debate. Right. So what i think i what i can say is that although these particular orders are not in the joint appendix here, among the declassified materials from the fisc are opinions reflecting reactions to compliance issues that were identified. And steps that the fisc took in response. Which as i recall included orders not only things proposed by the government, but that is a general recollection on that front. You seem to rely in part, improperly so on material that has in the last year and a half or so been declassified and should serve to assure us that there is not a special needs problem or Fourth Amendment problem. Its odd. What else, thats what youve let us know. What else havent you let us know . You were pushed to that i say this with all more than all due respect. With all respect. Im not saying thats a bad thing. But all of this stuff that we now know, and we dont know, we dont know. All of this stuff we now know is as part of a political reaction to the understanding that this program was in effect. Isnt that so . Arent you arguing a good deal from a material that was made that was classified until a june ago and was made public as a reaction to that . I mean, certainly that is true that theres now information public in the public realm that had not been public before. But this program, and i think this is the critical aspect of the congressional design was subject to article 3 review from the beginning by operation of the fisc which was a body that congress set up specifically to accomplish that. Just as the intelligence committees act as the channel for oversight of the executive branch on from the congressional side where youre by necessity dealing with classified information. But it would certainly this is entirely useless. I cant say this, but the whole system surely would be give a much warmer feeling inside if it was not all ex parte but some representative of the other side even if that some representative of the other side was a a pro bono or not pro bono. Pay them. Get fitzgerald out from chicago and have him argue the other side of these. And i for one would find what you say, im not talking law now, thats why its out of school. I find this a lot more reassuring if it were subject to an adversary process. And its not. And as your honor may be aware. Among the proposals that are currently pending for change to the program. Would it include provisions that allow for and there are more than one option on the table, the kind of approach youre talking about. In that case, i vote for it. In fact, if you look at if you look at the reasonable inquiry, for example. I think, you know, and balance the factors that the Supreme Court and this court have said should be balanced. On the one hand, there certainly is an overriding importance in preventing future terrorist attacks. Here, the intrusion, if any, you know, subject to the smith argument on the privacy of individuals is carefully cabined to allow the examination of the data. To allow the identification of connections only on finding of reasonable, articulatable suspicion and the other procedures in place. The statutory and fiscimposed safeguards limit the use retention and dissemination of the records collected. Theres also an oversight system by the fisc and by congress as well as other entities and the executive branch. All of this, i submit, we submit should lead the court, if evaluating the Fourth Amendment question to conclude that the program as it currently stands is reasonable because the Fourth Amendment. Something can be constitutionally reasonable whether or not it gives us a warm feeling. That is certainly true, and because, the test is whether its a reasonably effective means of accomplishing the interest, theres no restrictive means. I think we all understand that. Looks like youre folding up. I was about to say unless my colleagues have more questions, weve given you about as much time as weve given unless theres something you think you havent gotten to thats critical. Anything about the first amendment. Didnt mention it either. Well consider that based on the brief because hes not going to be able to pick it up in rebuttal since he hasnt talked about it and didnt talk about it in his initial arctic any more than spoke about the standing argument, which doesnt mean hes waived it. It means hes relying on his brief. I dont know we need to hear more about any of those things. Unless you i dont want to cut you off if theres something critical that we should know that you havent gotten to. But weve given it probably more time than youll get in the Supreme Court let alone in the usual arguments here. I can also assure you, if and when you get to the Supreme Court, you wont see two of these. Thank you, your honor. Thank you very much. I will hear you. We will hear you on rebuttal. Limited to two minutes in light of all thats been said. At the same time, we have had a very thorough discussion of the issues, i believe. So i hope that you will be able to be relatively brief and respond only to points that you havent had an opportunity to address so far that he has spoken of on his side of the argument. With that, go ahead. Of course. And just a few points, your honor. The first is to respond to the discussion of ratification. That doctrine is not a game of got ya with congressional intent. The question is whether theres an interpretation of statute that congress was aware of. And thats simply not the case here. Many members of congress were not aware of the program. Those who were, were not provided any legal analysis of the program. And even then, they werent allowed to discuss it with their colleagues and constituents in a way that the Supreme Court has pointed to in past cases of ratification. The second point is to go back to an exchange that you had, judge lynch, with the government relating to the efficiency, question of efficiency. Professor has explained quite clearly that the government could use targeted demands in a nearly instantaneous way if its structured arrangement with a Telecommunications Company in a certain way and Congress Certainly could provide for that mechanism. Even and the fact that congress has not yet provided for that mechanism is no bar to this court ruling it must. That was precisely the case when the Supreme Court ruled the government could not wiretap individuals without a warrant and led to the enactment of title three. And that was the case in keith when the Supreme Court ruled that for an Intelligence Surveillance even though justified by the need to gather intelligence had to be individualized. Third quick point is that smith is very different from this case for a lot of reasons. Its not just that the government is acquiring different types of information under this program that it was acquiring under smith. Its not just that the government is acquiring the information about millions of individuals and not just one. But its also that the government is acquiring that information even with respect to a Single Person indefinitely. For an indefinite duration. And not made clear, just a few years after smith, that when the government scales up a surveillance operation from targeted to dragnet, to constitutional balance is different and needs to be addressed differently. And i think, judge, youre exactly right. Now requires this court to assess the expectations of privacy of this program and not just of what the Supreme Court decided. A quick related point is that the minimization procedures would be superfluous. They could collect the records without any of those protections in place. They could store all of them indefinitely, they could query them for any reason or no reason at all. And they could build the dossiers they disclaim building in this case. A final point is that the government tries to explain why its only asking for a narrow ruling from this court. But the legal theorys that it advances are a road map to a world in which the government routinely collects vast quantities of information about americans who have done absolutely nothing wrong. I dont think thats the world that congress envisioned when it enacted section 215 and certainly not the world that the framers envisioned when they crafted the Fourth Amendment. If there are no questions. Thank you very much. We very much appreciate the arguments of both sides which were extremely careful, thorough and learned. And we will take them under advisement and eventually render a decision. Thank you all very much. Thats the last case on the calendar, the clerk will adjourn the court. Court stands adjourned. The senate is back today. After general speeches theyll vote on a resolution stating the governments policy on u. S. Citizens in iran. On tuesday at 2 30 eastern they take a vote on whether to advance trade promotion legislation. Our live coverage of the senate on cspan 2. The house returns tuesday with a full agenda work on a measure to ban most abortions beyond 20 weeks. Then they start debate on 2016 defense programs by wednesday and reauthorizing provisions in the patriot act dealing with the nsas bulk collection of americans phone records. Live house coverage on cspan. Here are a few book festival festivals well be covering this spring. On tuesday well visit maryland with congressman tom davis and mark frost, as well as david axelrod, and then well close out may at book expo america in new york city. Then on the first week in june were live for the chicago tribune. Including Lawrence Wright and your phone calls. Thats this spring on cspan 2s book tv. Next, military lawyer, law professors and authors talk about president obamas request to use military forces in isis and look at actions dating back to vietnam and korea. Host bid the new york city bar association, this is an hour and 20 minutes. Good evening, everyone. My name is jonathan affits and im the chair of the task force on National Security and the rule of law. And were delighted to be here tonight for this panel discussion, a president at war. An examination of the war powers and the congress in authorizing military operations. Tonight well discuss an issue that is both timeless and timely. The president s war powers and and Congress Role in authorizing military operations. These issues date to the first days of the republic and have remained central to our understanding of the constitutional structure since. Through lincolns use of the force on the confederacy. And post war interventions in korea, vietnam, and conflicts that followed. Questions of the war powers is central to the current fight on al qaeda and other terrorist groups since 9 11. And today to the response of emerging threats, such as thes islams Islamic State. In the days since 9 11, Congress Allowed authorization ff the military force to respond to the attacks of 9 11. Zins 2001 the authorization has provided a statutory basis not only for the conflict against al qaeda and the taliban in afghanistan, but for a global conflict against al qaeda as well as associated groups including offchutes in yemen somalia and most recent isil. This has provided basis for a wide range of counter terrorism, military operationses including detention, interrogation and targeting. In the socalled war on terror. A war that president obama himself has said like all wars must end. Recent developments have prompted renewed attention on the scope of the president s war powers and the role of congress in authorizing the use of military force. Those events include the drawdown of u. S. Forces in afghanistan, which provided the indisputable arms on the ground and the rise of new groups like isil that threaten regional stability. This past february president obama submitted his administrations proposal for a new force authorization, targeted at isil. As well discuss more tonight, he proposed it was notable both for what it includes, limited ground operations and a threeyear provision as for what it does not include, no corresponding of the land standing 2001. In many ways the United States is at a cross roads on congressional war powers and congressional authorization and actions in the coming months will shape the course of future sbons response to these issues for many years to come. Tonight well explore many of the questions including the authority of the pot po respond to the use of force as demander in chief. Whether the nature of new threats, like isil, require us to rethink traditional conceptions of the war powers and the optimal ways that the powers of the two branches should be exercised in this context. Were fortunate tonight to be joined by distinguished panel of experts. Ill go ahead and convert the panelists to you and they will speak in order, and after that, we will have time for questions and answers. I would ask in advance when you have a question to please come up to the microphones to ask your question. First well here from Lieutenant Colonel marimore. Hes a u. S. Army judge advocate who was deployed to iraq as the chief in the the 101st airborne division. Before being designed to west point, Lieutenant Colonel served as deputy chief of the International Law division at u. S. Army europe. So a distinguished career both in academia as well as on the ground Lieutenant Colonel will be followed by ryan goodman a professor at Nyu Law School here in the city and a coed tor of the widely red and influential justice security blog, which focuses on Civil Liberties and National Security. Ryan formally taught at Harvard Law School where he was a professor of human rights and humanitarian law and hes a member of many distinguished boards, and journals including the american journal of International Law. Hes also a member of the United States department of states Advisory Committee on International Law, and a member of the counsel on foreign relations. Hes published widely in economic journals and elsewhere, and his book socializing states promoting human rights through International Law was awarded the American Society of International Laws 2014 certificate of merit for preeminent contribution to creative scholarship. And then we will hear from julian cou. Hes the professor at law school. He focuses primarily on the relationship of International Law to constitutional law. Hes also conducted a Academic Research on a wide range of topics including chinas relationship with International Law. Hes received many honors including membership in the american law institute. International law, the constitution in the new world order, and has written numerous academic articles, book chapters, as well as writing in numerous popular journals, from the wall street journal to the los angeles and new york times. Finally, he is a cofounder of the leading International Law, which like the security blog is read daily by thousands worldwide. So we are fortunate tonight to have such a distinguished group of experts. I will turn it over to them. In the order they with introduced and then turn it over to the question and answer portion of the segment. All right, i get to go first. So jonathan thank you for the introduction and thank you for having me. I start with a housekeeping business. Im here on personal capacity. Any remarks are not official position of the department of defense. So thats out of the way. So i think the way we discussed is im going to give the lay of the land, the general frame work on the the law, as it exists and turn it over to professor goodman and they can clean up any left. So our topic is president ial war powers. Any time you talk about president ial war powers, you have to start with the basic concept that the president , any time he uses force has to have two justifications. International justification and domestic justification. Now internationally were talking about primarily the un charter. The un charter article 24 sets a standard that states do not use force against political independence. And thats the baseline. And it gives us certain perceptions. Primarily is authorizing the use of force or acting in sell fs defense. And then you have several types of self defense. So thats one justification that the president has to have. We can certainly get into that tonight. And the conversation leads in that direction. My sense is in at least in regard to isis, that one is not as controversial as domestic legal justification, which is the second justification the president has to have. He has to have domestic justification for his use of lethal force. So thats probably going to be our primary area of emphasis tonight. So im going to just talk a little bit about what are the potential legal justifications and then get into what are the the specific ones hes relying on in the case of isis. So any time we talk about the justifications, legal justifications for use of force, you have to start with the constitution. So the congress the way the constitution divides the war powers between two primary branches of government who operate in this area is the congress has the greater number of listed powers. So they have one, the power to declare war. The power to grant letters of marquee. To power to punish offenses against the laws of nation. To punish piracies. So they have a much greater list of actual powers that relate to the National Security area as compared to the president s. So his primary power is the commander in chief clause. Is so very straight guard. The president is the commander in chief but doesnt give us any additional detail of what specifically that includes. So most people are relatively confident that it certainly includes some power to defend the nation. We get that from the prize cases, and the way the president has acted over the years since the founding of our government. So thats his primary power. He also relies on a general Foreign Affairs power. Now theres no clause in the constitution that says spechkly the president will exercise Foreign Affairs but we know he has the power to make treaties. We know he has the power to receive ambassadors appoint ambassadors and from that we derive a general idea that the president has the power to execute Foreign Affairs. So that in it of itself includes some ability to use the military. And then on top of that you have the the chief executive clause. Soft the president is the chief executive. Many argue that alone in it of itself, is a grant of power to the president that he can use in this area. So those are the way the powers are laid out generally in the constitution. Most people are relatively comfortable saying the founders probably intended congress to be much more involved in this area particularly in war powers than they are today. But overtime weve seen a revolution. Why that has occurred . Primarily the president is a unitary actor. He has the ability to act independently. Congress that has to muster the the will of 535 people. Thats often a problem. They often cant do that. So through history the president has acted, and Congress Even where many of them may disagree with his use of power have been unable to check him. So a good recent example of that is libya. So in libya we were involved in 2011 in a bombing. Many congressmen spoke out against that. The president was in violation of his war powers. Yet, no action occurred to curve his activity in that case. So what we have seen over time is this power evolving towards the president. Right now this doesnt mean that the congress is no longer important at all in this area. Right . They still have a significant role to play. Primarily flowing from the idea that they are originally the branch of our government that is supposed to declare war. We dont declare war anymore. Thats become obsolete, basically since the 1940s. But we have modern day e kwif equivalent of that. So theres definitely still a role for congress. And the president is always on stronger ground if he can act consistent with congress, right. So the president will often look to his commander in chief power, and say look i have the power to do this whether the congress is with me or not. But the president always looks to have the support of congress when he can, to act. So in the particular instances, specifically with isis, but in a lot of our conflicts today, what is the Statutory Authority that the president is relying on . Its primarily theres a couple of different ones. The primary one is the aumf. So this is the authorization that was passed right after 9 11. It gives pretty broad power, but its in specific regards to 9 11. It says the president is authorizeded to use all necessary and appropriate force against the nations organizations or persons he determines planned, authorized, committed or aided the twaings that occurred in 2001. You can see the intent of congress in that language was focused clearly on the terror attacks of 2001. The president has relied on that for many of the uses of force that we have seen over the last decade to 15 years, including places like yemen and somalia and specifically, hes currently relying on that for use of force in iraq against isis. So thats the basis hes currently relying on. Now theres other authorizations out there. That was specifically passed in preparation for our invasion of iraq in 2003. Right . And now the problem with that one, however, is it was specifically directed at the threat created by Saddam Hussein. So theres been talk of it says that the president can use force to end threats coming from iraq is the basic language of that. The problem is that it was clearly directed at Saddam Hussein. The threat here isnt directly come from iraq. You can make the argument that it does apply. The other political implication is, and maybe more important in this particular case is that would link president obama with president bushs policies and the invasion of iraq, which he has certainly separated himself from over the course of his political career. So although that one has been thrown around, its not really the one that the president seems to be primarily relying on for his current use of force. And then of course the problem with the 2001 is it was directed at those forces associated with 9 11. So is isis associated with 9 11 . Thats somewhat problematic given we know isis is in conflict with al qaeda, which is the force we link with 9 11 primarily. But the administration would argue that well isis directly flows from al qaeda in iraq that we were fighting there from 2003 until we left iraq, and so therefore it is an associated force. But you can see just from the the language that its kind of problematic. And now 15 years later and the president is still relying on this as his domestic use of authorization for force. So thats what has led the president to ask for a new aumf. An updated aumf. And oh by the way, the president made a speech a year ago or so at the National Defense university before this you know, the conflict with isis arose, in which he said i the president and future president s need to stop relying on aumf. It cant last from 2001. It cant last forever. Right. Sho he makes this speech and is using that very same aumf to support our Armed Conflict with isis. So you can see the problems that arise from that. Thats pushed or encouraged the president to ask for a new aumf the one hes now proposed. And it has specific language in it but language that gives him interesting lee way that i interesting leave way that the professor will talk about. I want to orient you to what were asking for said as the president is authorized subject to limitations to use armed forces of the United States as the president determines to be necessary or appropriate against persons or forces and go down further he has restrictions. The authority granted in subsection a does not authorize the United States armed force and during Ground Combat operations thats an interesting term one not previously used in any legal document enduring offensive ground operation and he also puts limitations authorization for use of military force shall terminate three days after the date of the enactment. Unlike the one that does have a specific termination date, the president is proposing this includes a builtin termination date. That leads me to the final thing i want to talk about, the military operations perspective. What is the military likely to think or what would be their role in the discussions of this aumf . I dont speak personally from the official position of the department of defense, but i can tell you generally what the military wants in any military operation, they want one clear objective of what they have what they are expected to accomplish and two they want operational flexibility. So looking at this proposed aumf, i can imagine the department of defense thinks three years is problematic because its arbitrary. How do we know if they are going to be accomplished in three years and what if they are not . I can imagine that i can say its likely the leadership in the department of defense will not participate in the pub ricklic debate of whether this should be should or should not be passed because that would tend to go against the idea of Civil Military relationship. The idea that civil government is in charge of the military. As a cultural matter, generally the military leadership doesnt participate in this open debate in the public as to whether he should accept the aumf or not. What they are doing behind the scenes both with the president and with members of congress is talking about operational flexibility. And the concerns that this idea of a no enduring ground offensive operations is a potential limitation on the military and more specifically probably concerned about this idea of a threeyear limitation. So my sense is that the impact that will have is it will make this harder for this to go forward. Because if the military leadership is both telling the president they are concerned about this and maybe the president says i got it this is still important for various reasons but also talking to members of congress and saying this is the problem or concerns we might have. Thats going to influence some members of congress and may influence as to whether this goes forward or not. So those are the operations there is and thats the general layout. I think well talk more specific about the aumf and specific problems. Theres a terrific what i did think i would do is drill down deeper on the aumf and concerns about how its structured and designed. Just to kind of give a sense of where were at currently in terms of whats happening on the hill and why were at this point, two things to think about, one is drilling down on concerns that the 2001 aumf dont really authorize Current Operations that are ongoing in iraq and syria. Thats the deep problem that theres been actually quite a lot of bipartisan statements in the hill especially when representatives from the Administration Come before congress saying we really arent buying this theory that isis is somehow underneath the 2001 aumf, in part because the aumf was about the attacks on 9 11. The governments argument is not what some think, that the notion that isil is an associated force of al qaeda central. But rather that isil is a successor of al qaeda. So that helps in some respects because the Administration Says even if theres fighting between the two groups, it doesnt matter because were not saying they are in association with each other in a battle against the United States, rather isil was disaffected from al qaeda central and broke apart and now is an independent group that they kind of have taken the mantle of al qaeda central and think and say they are the true inheritors of bin ladens campaign. Thats the argument but it lacks support. I think its incredibly weak because one presumption is there they were ever truly unified. The Intelligence Community was unclear even in the first years what the relationship exactly was because al qaeda in iraq was not following the command and control of al qaeda central from afghanistan and pakistan. There was a lot infighting until they broke apart. Some people say what about the name . It was called al qaeda in iraq. That was a name that the Coalition Forces ascribe to them. Some say they ascribe to them in some sense to try to tell the public that these groups were related and Saddam Hussein and position in iraq was related to 9 11 and pakistan but that was our u. S. Multinational forces application of the name to the organization. Theres open question were they ever truly unified before they broke apart. The second question is not just the structural relationship but organizational goals does isil, did it have the same goals as al qaeda. One of the reasons they split apart, isil had local and regional ambitions and didnt pose a threat to the homeland. The president has said theres been no evidence of an imminent or likely threat against the u. S. Homeland from isil. Al qaeda of iraq when the Group Formerly known as al qaeda of iraq when the u. S. Withdrew from iraq then they stopped attacks against u. S. Forces and the like. So theres been a long period of time in which there was no real threat, even to the point that in summer of last year the white house had sent a letter to Speaker Boehner saying we no longer need because theres not a threat to the United States coming out of iraq. Another indication that they didnt actually pose a direct threat to the u. S. Some people cite to the beheadings of american journalists. They started happening after the u. S. Its air campaign, cant be a justification for the air campaign. It was a response. There is inher ent weakness to a successor model and concerns about the relationship organizationally between isil and al qaeda central as to whether or not they really have split apart and still fighting a fight against the United States. With that the concern is that the president is not acting under an existing Statutory Authority that hes not acting with congressional support. Everything the colonel said i would agree with with respect to the president is stronger when he has congressional backing. Both as a constitutional legal matter but also a political matter so that i would imagine troops on the ground dont just want operational plexibility but want to know the American Public and congress is behind them. Some statements now being made by members of congress senator cane made this week, how can we have people sacrificing their lives in iraq and syria in the u. S. Armed forces and congress isnt doing its job to vote and design how they see fit and give that kind of support and approval to the president s operations. Recently on the hill, in the last 24 hourds aparent tli theres a letter circulating on behalf of the democrat and republican ranking democrat on the house intelligence committee, adam schiff and representative asking boehner to please put this to a pesk congress so congress can step up. That kind of goes to the question that we have for us tonight in this panel, theres kind of an important quote that id like to take out of that letter where they say each Additional Data passes without Congress Taking up operations against isil undermines our authority and role in matters of war and peace. If we refuse to debate on the way the nation faces whether to take military action we see to the framework intentionally delegated to congress. Thats the chief concern that operates hipd the scenes, whether or not were going to see congressional action on the white house proposal. I do have deep concerns about some aspects and the first to highlight is the association of forces. For first time what the white house wants is for congress to codify the notion that we arent going to war with one entity isil but whatever the associated forces are. Currently the United States operates under the framework that under the 2001 aumf, were in an Armed Conflict with al qaeda and its associated forces which might be al qaeda in the Arabian Peninsula in yemen. But thats an interpretation that the administration has given to the 2001 aufmf. It would codify was been in existing practice by the administration, one thing that is remarkable, a con speck uous owe mission, the United States has been operating for several years and what jeh johnson said is the definition of associated forces which says other organizations that join the fight alongside the principle group, similar to the way that coblijer rens did in world war ii. In japan strikes in world war ii and allies with italy italy is part of the battle. Theres a lot of justification to why the United States would be in conflict with al qaeda and then with another operation out of yemen that joins the fight. But whats conspicuously absent is the term cobelligerency. The concern is wait a minute, thats the limit weve been operating under. How can you take that out . Whats the idea behind it . Congress hasnt asked the executive that question. There would be multiple hearings but never heard that question come from a member of the house or senate. In fact, what the administration has said suggests that without the cobelligerency test i think theres a concern for slippery slope. Secretary of defense Ashton Carter said earlier last month that it might apply to isil want to bes. Organizations that stand up and the idea of flying the isil flag that maybe arent connected in a cobelligerency operating with isil but they might pop up in other countries, libya, lebanon nigeria and they are operating under the brand of isil thats a concern. It doesnt fit the standard but the administration is already invoking those types groups. Even if you concern the same test you applied to al qaeda, isil is not like al qaeda. Im in some sense at peace with the ways in which the administration has used the associated forces test over the past 14 years. Its fairly narrow. The general counsel of dod at the american study of International Law annual meeting for the first time really listed an exhaustive list of all organizations that the United States considers to be an associated force. Id say its fairly narrow. But thats because al qaeda had a very High Standard for anybody in associated force. They were kind of a van guard movement. Isil is considered to be more of a populist movement they say lone wolves that call themselves isil can. They are open tune is tick and working with the former bathists. Its a much more openended and does mean there are a bunch of other forces and individuals that might associate with them. The last point to just put under the category of associated forces is the following kind of thought. I think its very likely that congress isnt going to enact an authorization for isil, in that scenario they will act under the current interpretation of the 2001 aumf applying. And the administration has said it doesnt need the authorization and almost redundant and would like congresss if congress doesnt do that, they already have the authority under the 2001 aumf. I would assume that means operating without the cobelligerency test to isil and status quo, not something we need to worry about for the draft language but in the status quo, want to know the answer to the question do they think they can apply force to one of the organizations and the like . Do they in fact use the jeh johnson standard . The second point i wanted to highlight, also something the colonel touched upon, the sunset clause. Just a couple of thoughts about that. One, i wouldnt call it a termination date because the idea is not that authorities will necessarily terminate the ideas that congress will get a second vote. The thought is that theres a threeyear time frame three years from now congress should be back at the table reauthorizing and tailering the authorities according to the standard what the situation is at the time. Some say congress shouldnt be involved because isil morphs. But i think the fact that the organization morphs and the conflict is almost unpredictable is an added reason why we Want Congress back from the table. Not to terminate authorities but reup authorities. If anything, thats another indication of how to get congress and American Public behind the operations if they are just. Ified. One argument against having a sunset clause, it sends a signal of weakness to our enemies. They think were only in it for three years. My thought is if we say were afraid to have a reup in three years time that sends a signal of weakness and in fact just to wear another hat the one jonathan mentioned in my social science work this great Political Science scholarship studies that argue, have a finding that democracy wage and win war more effectively. When you have democratic checks and the ininclusion of legislatures in the war fighting, that actually sends a stronger signal to the enemies because you have to justify your actions to your public and build support. Theres good Political Science evidence that says the more democratic in a certain serns are, sends a stronger signal. We also think it is important because it actually requires members of congress to justify to themselves to inform themselves and then inform the public about why the war is justified. The last just to put on to that one, theres a curiosity. For operations against isil three years from now it says nothing as the colonel said about the 2001 aumf. Thats ill logical. If the United States Administration Says its operating under the 2001 aumf and didnt need authorities then we put on top of it an isi , au aumf, it defyies logic. Whats the purpose of a sunset if after three years you can revert back to the 2001 aumf and continue along . They need a sunset in some respects or sunset for neither. The last thought is whether or not its appropriate to have some kinds of sunset on authorization for force or authorization for war. The last departing thought i want to give to that, to suggest its part of the dna of our constitution. The thought here is that we some ways already have sunsets on all authorizations to use forces in the appropriations clause in the u. S. Constitution, article one of the u. S. Constitution has a requirement in it that congress cannot appropriate funds for longer than two years and hamilton actually writes in federalist paper 26 that the purpose behind that was to have buyin from the congress. At least every two years. Part of a structure that we work with understanding that we Want Congress at the table, we kind of lost that sensibility and its time to reingauge with it. Thank you for inviting me to join this interesting and important topic. And joins the panel on this interesting topic and all of you for trekking out here in such great weather. I want to take a step back and look at the same issues that were discussed between sort of a broader perspective from the constitutional perspective to try to locate where we are sort of from broad constitutional discussions and perspectives and then come back to some of the more technical detail issues that professor goodman just addressed. Its also, believe it or not, its Campaign Season for the 2016 presidency already. So its also worth thinking about what will the perspectives be and more powers in the various scenarios. I want to open with a quotation both a teacher and practitioner in constitutional law. His name is barack obama he says the president does not have the power to unilaterally authorize a military tact in a situation that does not involve stopping an actual or imminent threat to the nation. As many might have guessed, that statement is from the 2008 version of president obama not the 2015 version. Ill argue that candidate obamas view of the war powers expressed in the statement in 2008 which i call the congressionalist view is incorrect the strongest evidence that is very strict is incorrect that president obama himself aband anned this view in his actions as president. This is important for setting the precedents both for debate currently over the isis and the 2001 aumf but trying to understand the allocation of war powers in the constitution. Let me begin by outlining what building on what the colonel explains, what i call the two views on how war powers are allocated under the u. S. Constitution, which i think the colonel outlined want to give a little more detail to it. Im going to call the two views congressionalist view and president ialist view. The congressionalist view reads the constitution as allocating the primary decision on the use of any military force to congress. The constitution text does allocate many more powers over military Foreign Affairs of congress than the president and so the main basis for this congressionalist view is in fact the text of the constitution. Congress to declare war and make rules governing those forces. In a congressionalist view, they have the primary responsibility to manage all aspects of the arm forces of the United States, including the ultimate decision whether to use the armed forces of the United States in some sort of military action or Armed Conflict. Many appearance, not just 2008 president obama 2008 candidate obama but many legal scholars such as john hart to classes with at yale. Now, the opposition of the president ialist view which holds that the president has an independent and inherent power to deploy American Armed forces in a war conflict even without a specific congressional authorization and offers a different reading of the constitution which the colonel alluded to and emphasizes the as the holder of the executive power and as the commander in chief of the u. S. Armed forces. Now, holds the power to initiate Armed Conflict and exclusive power to fund the u. S. Military. But it holds the commander in chief power and gives the president the decision when and how to use the armed forces including in an Armed Conflict. A declaration of war, primarily serves to give formal notice and as an enemy under International Law such as seizing of property and such. That is not about controlling whether or not military force was used by the United States. Now, the president ial view also enjoys support of this legal scholars perhaps not as many as the first view but will argue a lot of support in the practice of president ial administrations throughout u. S. History. As a tactical matter, the view is not as large as it seems, even the most extreme congress has exclusive power to fund or not fund the military actions and even the most extreme congressionalist can see the constitution should be read although it doesnt say specifically, should be read to allow the president to respond to an actual or imminent attack without going to congress. But the difference between the two views boils down to this, according to congressionalists, the president may not use force without a specific authorization from Congress Unless the u. S. Is under imminent attack. President ialists argue that the president can choose to use armed force in a wide range of circumstances if necessary to further the National Security interest of the United States even in the absence of an item or imminent attack. So this leads me to my second point. While president obama campaigned fairly described as a congressionalist he is pretty plainly embraced the president ialist view in his administrations defense of military actions especially in libya in 2011. So as they discussed the main military action of the United States is involved in during president Obamas Administration have been actions in iraq and afghanistan, both of which had specific authorizations by congress. But in 2011 when the United States and allies intervened in the civil war there was no authorization and president obama did not seek an authorization from congress. His department of justice issued a legal opinion which rejected the congressionalist view and defended the libyan action as a constitutional exercise of the president s inherent powers to use military force. It does not worth noting this did not claim the libyan civil war in any way constituted an actual or imminent threat to the United States. But in this opinion assistant attorney general argued that the libya actions were unconstitutional Even Without Congress specifically rejects the congressionalist view, arguing defense of the United States to direct a immediate attack is by no means the president can use military force without congressional authorization. Accordingly the absence of and selfdefense interest does not mean the president lacks authority from military operations in libya. The opinion went on to say to protect u. S. National interests such as preserving regional stability and supporting United Nations Security Council credibility and effectiveness. Libya is not the only case departing from the view. In the fall of 2013, president obama announced he would seek support from syria in response to evidence that syria was using chemical weapons in a civil war but making his statement that he was seeking congressional support, president obama careful to state that he believed he was already possessed of Constitutional Authority to strike syria for the use of chemical weapons whether or not Congress Gave him authorization. And a similar posture has been taken in current discussions over the action against Islamic State in syria and iraq. In fact, last summer initially the administration suggested it could justify the use of force some of the uses of forces in iraq under the president s inherent powers. One example that stood out, the president s action to protect an ethnic minority trapped on a mountain in Northern Iraq which was surrounded by isis forces. This again at that time they thought was sort of no arctic lags of a justification of the 2001 aumf but there was humanitarian justification linked to president s inherent power under article 2 of the constitution. And so, the president has ee involved to the legal condition to embrace the 2001 authorization for the use of military force but as professor goodman both suggested a very difficult legal argument to support. But i do suggest thats one of the reasons why theres argument that has not ruled out it does have authority under the u. S. Constitution article 2 separate from the 2001 aumf but clearly sought authorization from congress not ruled out the possibility that article 2 can provide legal justification for some of the actions currently taking against isis. Ill argue that the rationale for the 2001 libya intervention is still out there and can support i think given the language of that opinion a constitutional basis absent dongal authorization at all, a constitutional basis for u. S. Actions against isis. So let me just conclude by with a third point the defense of president obamas conversion from congressionalists to the president ialist view even though i think we can see theres a solid strong textural and historical basic for the congressionalist view, i offer three reasons why i think its not the best reading today of the constitutions allocation of war powers. I dont think that the textural historical case for the congressionalist view is well documented, had some doubts about given the power to congress and so thats why the initial drought for the constitution changed from make war to declare war. So the record remains a little bit murky. And second i think historical since 1989 weighs heavily in favor of a president ialist view, only used the declare war times five times and specifically authorized use of military force a few more times than that. Meanwhile depending on the account, military force abroad without congressional authorizes and submitted 215 times. Mostly and usually without congressional authorization and many of these actions range from very small actions such as invasion of panama in the 1980s to large actions such as the korean war or action kosovo in 1989. Historical record at least shows that the main actors who interpret and apply u. S. Constitution, the congress and president do not necessarily embrace in some cases have rejected the strict congressionalist view that candidate obama expressed in 2008. I think that is a functional as a practical matter complete adherence seems impractical and unwise given the position of the United States today as the Worlds Largest military power and economic power. The u. S. Has National Interest in almost every corner of the globe and more weapons than any other world power. I sheer variety of possible military conflicts for the u. S. Of military force for combatting terrorists and shooting pirates to prevent the could tras toe fees and other powers seems to support the idea that the strict congressionalist view is not practical. Even with we abandon the view, theres still much room for debate over the exact scope of the president s independent powers. And the Obama Administration has given itself a substantive limit by saying although the president can use military force without congress, that force cannot announce whats been war. What a war versus use of military force is a very fuzzy definition. The bombing in libya was determined not to be a military force. Not enough to war. Without giving the president unchecked power to engage in military force. The president can act independently without congress up until it engages in a war theres a variety of other problems in that including the International Definition of war means essentially that would be every action almost no declared wars anymore. Thats one way in which the administration has tried to do the power it claimed for itself. I think the disagreements as to what constitutes a war, i think that there has been evolution in the Obama Administration towards a view of how war powers are allocated in the constitution. Even the current debate over isis it sought congressional authorization while expressly pointed out it doesnt need it and adopted a very difficult and difficult to support interpretation of the 2001 authorization for use of military force. Even without that, much more conception of the president s role in independent role in deciding when and how to nish yaf military conflict on behalf of the United States. So i believe that the conversion from barack obama from a strict congressionalist to president ialist is a welcome and even understandable development i do hope the candidates recognize this. Some statements perhaps may not demonstrate full understanding of the issues were facing but hope they recognize the weakness of the view before they wholeheartedly embrace it. Thanks. Thank the three of you for those illuminating comments. Ill invoke my moderator prerogative to start the questioning off with the first one and hear from members of the audience. So i think well jump off from the professor whos presentation and distinction between congressional and president ial war powers and both as a legal matter and practical matter is argument that the case for president ial war power. So i want to give both the senator a chance to respond to that and ill frame the question this way. So professor you talked about clear objectives and flexibility as the key principles operationally which could be although not necessarily would be, might be in conflict with one another, right . I wonder whether for you whether the model president ial war powers over congressional war powers is more amenable or would be easier to carry out though as were balanced to clear objectives in flexibilities as opposed to the congressional model. Easier to have two things that the military wants if they follow the president ial as opposed to congressional model. And professor goodman, you have an incredibly rich discussion of the current debate around the aumf, the new authorization for isil specific aumf. And i wondered whether does this debate support or in your view the professors version which as i read it, that the congressional approval is perhaps sal you tri and beneficial for various reasons but not required and that being born out by the context of both of the last 14 years and also the current debate. So i certainly think that the actions of the military the culture of the military, what the military is seeking probably enables the evolution of power for the president. So if you only have one boss its much easier to respond to one boss than two bosses where the second boss is 535 people. Certainly over ourypically the military seeks as far as guidance and what it needs to do. I certainly believe it enables or supports the idea of enhanced president ial power. If the president is limited then it limits the military. If the president has more flexibility back on its own than the military by virtue has more power to act on its own. So i will dive into that as well and suggest maybe the military might benefit from shared powers in the sense that one of the items thats lacking from the white house draft authorization use of force against isil is the objective. One of the questions thats been raised and senator corker raised it, what is the objective so we can know and measure whether or not were succeeding and i think thats something that the congress can force the administration to give to the public in a certain sense of what really is the objective and why do you want authorization to use force against isil, is success pushing isil back over the border so its con strained inside syria, december mating or defeating it to the point it no longer pose az threat to iraq or any threat to the United States . Whats the objective . And currently we dont have that under president ial when congress isnt involved and congress maybe has the appropriations in the background to try to force that. On the second question with respect to does the authorization to use force suggest something about the notion that the president can actually act without it, i dont think so because i dont think the administration is as julian put it julian said they are not uncomfortable with their isil arguments because theyve got article two in the background. I think they are uncomfortable and if they arent they should be. The kinds of questioning that secretary kerry has had to undergo in the Senate Foreign Relations Committee makes him uncomfortable, its not such a great legal argument. I think why they resorted to this kind of Statutory Authority, not that they say we dont need this from you because of article 2 2, because you had already give it to us in 2001. The president has unapologetically embraced imperialism, he made bad args. S to force the argument its operating under Congressional Authority. So some of the argument with respect to the war powers resolution in libya was because this administration has in fact embraced the war powers resolution more than other administrations and said but we need the war powers resolution because it doesnt rise to the level of hostilities and the like which are stretches of legal arguments but hes not unapoll gettically embracing a president ial model but trying to figure within congressional statute. Same thing with the bergdahl exchange. It was almost like a constitutional avoidance question interpreting congresss restrictions on moving people out of guantanamo to be consistent with president ial powers so that more like a statutory interpretation. Once again wrapped themselves up in the act they are acting within Congressional Authority. Last one so we have at least on the table counter evidence i think listed out a lot of points in favor but counter evidence, march 2009 in litigation for habeas claims out of guantanamo the federal judge required the administration to give the legal rationale. I dont think they were comfortable at the time and in a brief march 13th 2009 was an important moment in which the president said im not claiming article 2 commander in chief authority. Only claiming im operating under the 2001 amf which is a remarkable move by a president to not claim more power and claim less. Think theres that kind of counter current we have to take into account if we have an interpretation of what the administration has done. Its not been in one direction but more mixed. Before we turn it over to the audience, give you an opportunity to respond. I dont want to say i dont disagree exactly with the professor but i guess what im suggesting, theres Different Levels of degrees of congressionalism. And so this is more im more interested to see what folks like senator paul and senator cruz and some candidates interested in the issue will talk about in future. In 2008 it was president obama saying im a new guy, heres the view, very simple. The president cannot use military force unless unilateral unilaterally without any imminent threat to the United States. What i consider the extreme position that president obama took in 2008. That position is gonge in the sense that that extreme position, he cant act and use military force without Congress Unless theres an actual or imminent threat to the United States, that is off the table. And i think put that off the table is libya 2011 where he explicitly claimed that what i consider extreme congressional iflt position. I dont intend to argue that president obama is in any way an extreme president ialist. My point was hes moved off from what i consider to be the extreme congressionalist view and that extreme congressionalist view, which is actually the view shared by a lot of leading scholars and many politicians, that extreme congressionalist view is not supportive, not practical. No modern president and i predict any president who enters the office will not actually follow that extreme statement he made back in 2008 that the president cannot use military force without Congress Unless theres an actual imminent attack. Now, i dont mean to suggest that he argues that for instance if Congress Comes later and tries to restrict the president they cant restrict them. I dont take myself believe thats a very good view. The point is that congress can when congress doesnt act, i think the view that article 2 authorizes and i think president obama now recognizes authorizes the use of military force abroad, even without a specific congressional authorization and without an actual or imminent threat to the United States. Thats the narrow argument. But i think its take fair one given not so much the practical issues that the administration has been wrestling with over the past seven years, but the broad rush claims that we are we love congress and support congress, not all about a different power. Its a more complicated view. Thats the point im trying to make here. And i dont disagree that with really in some ways like all administration,s its not consistent. I think i would agree with the president s characterization of the administration has often made very difficult maybe even wrong or knowingly wrong legal arguments under statutes because they dont want to make the obvious article two argument in other context outside the one i was discussing such as the bergdahl issue or the other context we mentioned. I wouldnt suggest a full president ialist but moved off what i consider the extreme congressionalist view. Thank you. So now id like to open it up to questions from the floor. If you would please komg up to the microphone if you have any questions. To your right. I understand. If you dont mind, please. I didnt think of it before i came here, the colonel has talked about enduring enduring what did you say weve been in germany japan, korea for 70 years or so, are those in the category of enduring operations . Not in the way that the president is using in the aproposed aumf, were there based on treaty korea based on treaty and agreements with germany and nato treaty. Now you havent spoken of any specific war powers authorizations during korea and vietnam era. I dont know if there were any. If someone wanted to put an end to the vietnam war, mechanic of Congress Introduced legislation and congress declined to declare war on North Vietnam while in full military operations, what would happen . I think this is a good question that goes to the professors discussion about the president ial view. If that were to happen, its not unreasonable or not unreasonable interpretation for the president to declare that congress is infringing on his independent executive authority. You could get to a broader discussion of the idea of president ial power specifically in a situation where congress is going directly contrary to some military operation the president is trying to participate in. Im done. I dont think the view that congress cannot restrict at all against military action. I think what im suggesting is congress does not always have to initiate it which people try to talk about a lot, unless its after the fact notion that a president im not sure you understood the question properly. It would have delivered to the nation and the world and enemy a is this coming through working . That the congress distant want it even though the president was, whether or not the president has the authority. Thank you. Come on up. My name is david freeman. Before i have my question, congress did do what the previous questioner asked, repealed the resolution and next claimed under article 2 that he had the right to continue the war. I have a question for the professor. In 1991 and 2002 both president bushes sought congressional authorization and received assuming they did not under your view of the president ial war power, if it committed u. S. Forces to those operations would that have been unconstitutional or constitutional . I think that as long as congress doesnt spechkally abandon it, i think it won constitutional to execute military action in both cases just as it was constitutional for president even though congress did not authorize, i was thinking about it, there was a declaration of war introduced which was not supported and voted down by the republican house. I think thats why i think Congress Come in and say you have to get out like they did in vietnam but im not sure watching military action i think they can do so. There are virtually no limits. The limit is congress can stop them or Congress People noted every two Years Congress has a funding bill and they can and has voted the bill be defunded. It can restrict war powers if it chooses to certainly under the funding clause or other statutes after the fact to limit the operations. My point is that initiation of the military force. I think the precedence suggests that the president has broad use of military force, absent congressional ban or prohibition on it. Does professor goodman agree with that . No i think there has to be some limit. I think if were saying that taking the nation to war i think having congress the power to declare war is part of the idea even if we dont have declarations of war we have authorizations to use force kind of a requirement. The president certainly has a residual authority to act but thats in defense of nation. Against Something Like an imminent attack in which theres actually no time really to go to congress. Even in that situation, one would think after a certain period of time when its no longer imminent and if its going to be a longterm commitment by the nation thats so inaudible ]. Kosovo might be, the only question is dan, one other element i should also say caveat, im not a constitutional law scholar. Im just curious. Just i should register the caveat. Theres the other question which the Clinton Administration tried to justify which is that congress then appropriated funds and did the appropriation of funds count as authorization . I also think it might be some of the background game that the administration is playing now with respect to isil, which is even if congress doesnt get its act together to approve an authorization at a certain point, the administration is going to be asking but they already asked for large amounts of funds. If they ask to carry out operations, Congress Funds that, there we go. Congress has implicitly given some form of authority. I think its troubling deeply troubling and in some sense were taking the most extreme kinds of conflicts or cases but i wouldnt have a problem re reretrospectively thinking did clinton act without authority but maybe so its a fair question, and one of the interesting thoughts, why would president bush famed unilateral why did he go to congress . Its unclear what he thought he had the authority. Fair suggestion he thought he did have authority. The reason why president s go to congress is not for legal but for practical and political. I totally agree that it would be better in every way for congress to authorize especially substantial and before it actually happens and any president s do so theres literature, when they think theyll be engaged for a long time, they are more likely to seek authorization ahead of time to get political my point is simply that as a practical matter and legal matter. The president has and president Obamas Administration argue they have the power to initiate military force even if its not in response to actual or attack without congress. If i might just with a followup question. In the context of a, for example, invasion of iraq, how will you regard whether president bush needed congresss approval beforehand presumably the war powers resolution would have kicked in and acted as a limit on a a kind of traditional conventional use of force there where u. S. Ground troops were introduced into hostilities. And i guess the question is if were looking at the war powers through the conflicts of the 21st century and whether its legal or practical, a president is going to want to see congress buyin before committing american troops to a longterm conflict overseas but those conflicts seem to be increasingly the exception and the new conflicts raised with limited use of troops and special forces and more with the use of drone strikes. And other methods of conducting Armed Conflicts in the norm. The question is is it a sense this congressional buyin, whether legal or practical fading as a result of the realities of Armed Conflict today. I actually dont to some agree with respect to the initial use of force i think congress will always be deeply involved through the funding and by the way as a footnote i think one of the reasons the Obama Administration became embedded with the 2001 aumf for the isil action is because they were worried about the war crimes resolution and couldnt get around the war crimes resolution just on an article 2 argument because even if they believed they have the inher ent authority to go into iraq and syria to go after isil that goes out after 60 or 90 days. They didnt i dont even myself believe that the president can override the statute. My point is that once congress doesnt stop or initiate the course. Its hard to i mean administration argued that libya wasnt a violation of the war crimes. On its face it seems like it was a violation of war powers act. But i certainly seems like congressional probably more consistent with the founders consistent with realities, particularly today more practical and just more consistent with modern warfare. Yes, please. My name is phil bronener i would like to ask if any member of the committee would support the proposition that the authorization by the congress of the funding for specific activities proposed by the administration in syria or iraq or otherwise, in concert with the pending war powers proposal, could be read constitutionally as a de facto authorization of force that has been requested. Other arguments and pretty much every conflict where congress didnt have a specific authorization, it wasvietnam. That is one of its arguments as to why its use of force is per missible and supported by congress. In this case, however theres a debate in the committees that focuses on the change in the structure of the Defense Budget pretty much to get past problems of sequestration but the result would be under one proposal, a much more focused allocation of resources. Does that make a difference . I suppose it could under the theory that the Clinton Administration promulgated with respect to kosovo. I expect if you have specific appropriations for the ongoing operations, then under that theory, yes. But im not sure time not supporting the theory. The other concern might be if you have forces on the ground or in theater maybe congress by appropriating funds rather than taking back funds is just trying to protect the troops, not a signal that they approve of the operations but rather with those kinds of facts on the ground they have no choice but to support the troops financially. But that shouldnt be read to be that they actually support the operations as a political matter that they would authorize them. I think theres some of the competing concerns how you would interpret it and war powers resolution itself in terms of as an assertion of Congressional Authority says appropriations shouldnt count. Thank you for that answer. One followup if i may. Yes, please. Its striking that the administration picked three years as its sunset date with length of a congressional appropriation cannot exceed two years as was mentioned by one of the panel earlier. Do you have any idea why three years chosen . I dont. I dont know why three years in particular, but i do think that they wanted it to be a determination that would be made by kind of a future congress and the next president after the next president is in office with enough time that they dont have to race to a decision. Why they picked exactly three years, not sure about that. You also have to presume there was at least some consul taths consultation with the military. Im sure the military would have said we dont really want this limitation but if youre going to place it, at least there was probably some consultation as to what the various options were and how they might impact the military and how long the military thought it might need to accomplish the mission or the objectives as they currently are. May i keep going well i think well have one final followup question and then well wrap up from there. I havent heard anyone describe any coherent argument other than the ones that have been considered deriving from the congress as justification for inactivity. Is that just because we were considering other issues or is it because nobody has heard a coherent argument defending inactivity . Could you clarify at least for me what you mean by inactivity . Could you clarify what you mean by inactivity . Theres been a proposal for a war powers statute and why Congress Wont vote for it . The failure to take action on an authorization is that yes. Well, theres never going to be complete inactivity because as we talked about, you still have the funding issue so they have to continue to fund the military and fund the operation. So there will never be absolutely no activity. I think also, you know, the Administration May not be excited if it gets voted down right . So i think theres a political split in the Congress Like there is in the country i think. Some people think they want a tougher theyre not happy with limitations. Some of the critics in congress are not that they dont want to authorize it, they want to vote to authorize it. And theres some folks that dont want to authorize anything. If you cant build a coalition, its a simple political reason. Why does congress not act . It usually is because theyre divided and cant agree, frankly, like the country. And just to further that same line of thought the chair of the Senate Foreign Relations Committee has said that at this point he doesnt have democratic support for the president s authorization because of the lack of limitations in it and hes unwilling to kind of pass an authorization along party lines because of the signal that that then sends. Its more of a political argument, not a legal or constitutional argument, but the signal it sends to isil and the potential allies iraq, if we in fact, pass an authorization but its right down party lines. And then you could blame either party. Could you say that the democrats arent accepting it without their limitations and the republicans arent giving any limitations. So its two knows where you apportion the blame. And then the second part i think that senator corker is saying in a certain respect is and then why should i pour so much Political Capital and the rest of it into this when the administration is telling me they dont even need it . If the administration were coming and saying we really need this from you as an Additional Authority that we otherwise dont have, maybe so, then they can justify that but if the Administration Says we just want to hear from you but if you dont do it, were nothing is going to change on the ground, he kind of said im a person who wants to do something to make a difference. If its not going to make a difference on the ground according to the administration, then why . It seems that the public pressure that was building or around when the issue first came up before the midterms has dissipated somewhat, which relieves i think pressure on the actors particularly in light of what julianne and ryan pointed out. Well, i wanted to thank our panelists for an incredibly rich discussion of this important topic that goes to fundamental questions about our constitutional structure and the role of the president and congress andin what are challenging and changing times. If you had join me in a round of applause for our panelists, thank you very much. And thank you all for coming. Join us later this afternoon when the Atlantic Council will be hosting a discussion of how low oil prices have impacted fracking. Well examine the shale boom in the United States and the fongs for fracing to spread across the globe. Live coverage at 3 00 p. M. Eastern on our companion network cspan. A live look at the u. S. Capitol here where the u. S. Senate will gavel into session today starting at 3 00 p. M. Eastern. You can watch that live on cspan2. Here is a look at the week ahead in congress. Start with the senate first mike lillis, whats on tap . A big issue in the senate will be trade. All eyes are on president obama one of his Top Priorities for his second term is to get some of the Huge International trade deals done and the senate is going to take up a bill that was passed earlier in the month out of the Senate Finance committee had broad bipartisan support and its going to come up during probably wednesday thursday. Well look at that trade vote. Very interesting issue because its got obama on it, of course but and its got Senate Majority leader Mitch Mcconnell on it, but it doesnt have harry reid. Hes a strong opponent as are a number of liberal democrats. Theyre lining up against it. So this is very Strange Bedfellows Coalition in congress, not just in the senate, but in the house and its going to be an enormous lift for obama. Its expected to pass the senate and have a tougher time when it moves over to the house but that will be the debate this week and then well get a sense of where that bill is going to go. And its been more than a week since weve seen the house. Theyll come back in. When we last left the house they were debating a couple Appropriations Bills for 2016. Where are they headed this week . Also a big week in the house. A lot of highprofile issues on tap. Theyre going to come in on tuesday. Theyll do some suspension stuff, some low hanging fruit stuff, and then on wednesday theyre going to dive back into the abortion debate. The republicans had tried to bring up a bill in january that bans abortions after 20 weeks of pregnancy. They had to yank it because of concern from female lawmakers in their own party and some centrist republicans that the previous bill, the trent franks bill, republican from arizona, had an exemption for rape victims but only if they reported the rape to police, and there was a lot of concern within the Republican Party that that was going to send the wrong message to women that it was a bar too high and so the new version will yank that language just requires a doctor to ensure that the woman has received either medical treatment or licensed counseling at least 48 hours prior to the service. So that vote is expected on wednesday. Also on wednesday another huge issue, the patriot act renewal. There are sections of that that there are supposed to expire on june 1st in particular section 215, this is an enormously controversial section just because the thanksnsa uses that provision to justify its bulk collection of phone records and youll remember just last week a federal court ruled that the nsas bulk collection without a warrant is illegal. And so theres a lot of big push in congress to eliminate that and the house bill would do it. It would bar the government from collecting phone records in bulk and instead it would require the agency to make specific requests to private companies. And that is also supposed to come up on wednesday. Then moving right along on thursday theres a Defense Authorization vote expected. House Armed Services passed this bill last month and also very controversial because there are a couple resolutions in there that the pentagon should move to allow Illegal Immigrants brought to the country as kids to serve in the military. These are the dreamers. Immigration has been such a thorny issue with president obamas executive actions, and this involves all of that. So another very very tough issue for republicans here. Just have to move that bill with the immigration language attached. Theres a big move to get it out of there, a move to expand it. That fight will also be going on on thursday. And the hill is reporting that, i believe, theres some republican support for including allowing those dreamers to have a military service correct . Sure, yeah. You know, it was a republican amendment in the committee, in the Armed Services committee, that installed this stuff, and then jeff denham, a republican from california, heavy latino district, and hes pushing to expand the immigration language to allow Illegal Immigrants to serve in the military in exchange for legal status. Now, he has tried that in the past and gop leaders didnt allow him a vote on that amendment on the floor, and its not clear if theyre going to do the same thing this year. But hes also pushing for that even as more conservative guys want to eliminate the sense of the congress language thats already in there. So youre going to see that republican versus republican battle on the floor on thursday over this defense bill and immigration. A full week ahead in both the house and senate. We appreciate mike lilles who covers congress for the hill joining us. Thank you very much. Thank you, bill. Appreciate it. The new congressional directory is a handy guide to the 114th congress with color photos of every senator and house member plus bio and Contact Information and

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