Branches of former representative Mickey Edwards and former chief assistant new york u. S. Attorney andrew mccarthy. They outline the constitutional war powers for each branch of government cover limitations of the power and whether congress should be more involved in the authorization for use of military force. By my clock we are at 12 15. Good afternoon. My name is nick has merit, Deputy Director of the Federalist Societys article i initiative. The initiative is dedicated to the development of a series of rolling practical goals of congress that stemmed directly from poor constitutional principles. Todays luncheon dish is one of the many that the Federalist Society is playing here on capitol hill and across the country. On behalf of the initiative, i want to thank you all for joining us. At the outset, and also like to thank senator ron johnson and his staff were sponsoring the room for todays event. As you may have noticed from your program and from our panel appear, we are playing shorthanded this afternoon. Professor julian khoo from Hofstra University school of law [laughter] im not sure what that was. Even without his valuable president s, i think you will agree we have a great panel in the topic of executive and legislative or power seems particularly appropriate given that we just celebrated our nations independence day. After more than 200 years, our government has developed a track record regarding starting wars in the use of military force, which can be measured against the founders views on the comp to shame. Its good to last, how has the understanding been followed and in what ways has it been ignored . And do the following principles regarding tax excel have application to our modern era . To help us navigate these and other important questions, we are pleased to have with us mccarthy, senior fellow at the National Review acetate and contributing editor at National Review. Hes a former assistant u. S. Attorney for the Southern District of new york. He led the 1995 terrorism prosecution against sheik omar abdel rockman and 11 others waging a terrorist war against the United States including an 1893 World Trade Center bombing and a plot to bomb new york city landmarks. Hes also contributed to the prosecution of terrorists who bombed the u. S. Embassies in kenya and tanzania. He writes regularly for pga media and the new criterion and as the New York Times bestselling author of many books. We are also pleased to have with us former congressman Mickey Edwards, Vice President and Program Director for the roads all fellowships in public leadership im sorry, the Vice President and Program Director for the fellowships and public leadership at the out and institute. He was a member of congress for 16 years representing good district. After congress he taught at Harvards Kennedy school of government and princetons Woodrow Wilson school of public and international affairs. Hes on the board of direct heirs for the constitution project, where he is shared task force on judicial independence, government oversight and war power. Hes the author of numerous articles and books in his most recent book was published in 2013 titled the party bursts of people, how to turn republicans and democrats into americans. Before i turn it over to our panel, i want to note the following panels remarks will have q a. So please think about questions youd like to ask our panelists. With that, mr. Mccarthy, the floor is yours. Thank you so much coming mate, in thank you for the federal society for the kind invitation. I have about 15 minutes opening remarks in light of julians apps and i will try to squeeze it into 20th i can. But as we gather on capitol hill today, the United States armed forces are engaged in combat operations in several local hotspot. In syria, we have not only cannot did attacks against the regime without any congressional authorization, we are now occupying territory as well. But sensibly, we are there to fight not the regime or its russian and iranian allies, but the Islamic StateJihadist Organization also known as isis. To the extent that is a legally authorize conflict, it is against an enemy that arguably did not just at the time the relevant authorizations of military force were atop it about 15 years ago. Now, you could say as we have been saying, that a safe is merely a breakaway faction of al qaeda. It began as the Terror Network by rocky franchise and consequently is covered under the existing au amount. This however ignores the inconvenience that al qaeda along with its allied islamist faction is also fighting isis and the assad regime in syria. Essentially, the enemy we start out fighting after it attacked america in 2001 and still regards the united dates as its mortal enemy is nevertheless fighting in the area alongside the rebel elements that we support. In that sense, the situation mirrors our misadventure in libya. That was another recent conflict in which a president without congressional authorization launched an aggressive war against the foreign sovereign that not only posed threats to the united days, but was actually regarded as an important counterterrorism ally. And that was because for all its many flaws, the gadhafi regime was providing us with intelligence in places like benghazi, which was the libyan support have are the antiamerican jihads in iraq and afghanistan. That is to say in libya we initiated an unnecessary war without any debate among the peoples representatives, much less any congressional authorization. The result was a catastrophe. The ally in a dangerous neighborhood, the empowerment of our enemies, a failed state in an administration reduced to absurd bombardments against regime targets were somehow not acts of war. It is tempting on this record to draw the conclusion that modern practice has superseded the constitutions division of warmaking powers between the executive and the congress. But when we get down to brass tacks, this simply is not true. And its not true for a reason that is often forgotten in our war power space, which are dominated by lawyers. The debate to take place under the auspices of legal institutions or organizations like my friends and colleagues here at the Federalist Society here today. The reason is we are a body of politics, not a Legal Community at least in the name. For in a society to flourish, it must of course be undergirded by the rule of law. The cost to touche and basically a political document, not a legal one. It is the assignment of Political Authority among actors who collude depending upon the circumstances. This is critical because war is a political exercise. Politics by other means as memorably put it, there are legal elements, but basically the use of government power and force against a foreign enemy in order to break the foreign will. But you wouldnt know what to listen to most war power discussions, there was a limit to how much more can be judicial eyes or how much you can be subjected to antecedent legal rules. A state of war after all is the antithesis of our domestic peacetime footing. It is the proud legal system that we would prefer to see the guilty go free than have a Single Person wrongfully convict did. Thus we present against the government he accused presumed to be innocent and has no burden to prove any in. The government must meet weight standards approved to conduct the research to obtain a wiretap to convict the defendant. Our bottom line is we would rather be the government lose. That is just not a conviction of the guilty. It is forcing the government to meet its strict burden of proof before liberty is removed from one of our fellow citizens. War is entirely different. In war, we dont and we cant the government to lose and we cannot give the enemy the presumption of innocence. In war, it is always in the National Interest that the government prevail. Yes, our troops are the worlds best trained and most disciplined and we demand of them adherence to the laws and customs of civilized warfare. But the highest National Interest is to defeat the enemy and to achieve whatever jacket was so vital that it was worth going to war over in the first place. Or is that they very different paradigm. Far from legal niceties that is driven by the publics perception of threats to the homeland into vital American Interests. Our division of war powers is a reflection of this political reality. As we discovered painfully in vietnam into a lesser extent in iraq, a war effort and Strong Political support to be successful in a democracy. If there is not public consensus that our security is at risk with a high order American Interests are at stake, support the war at home and in congress will flag. At that point, we can debate until the end of time whether the use of force was lawful and authorized. The only salient point will be that the public does not regard the war effort as a necessary sacrifice of blood and treasure. That will be the practical and his positive test of the wars legitimacy. Our constitutions were powers are geared in just that way and for just a reality. The constitution vests in congress the power to declare war. The executive however is our National Strike and it is with the commanderinchief to prosecute war. This means that when the United States is under attack or a real threat of attack, no authorization from congress is needed. The president may take whatever military actions are necessary in order to swell the threat. Even under the separate answers, however, congressional authorization is desirable in a becomes not only desirable, but increasingly essential as the immediacy of the threat fades. Congressional endorsement of combat operations not only reflects public supported the war, a further defined the parameters of the conflict, including critically who the enemy is. This is necessary because it delineates the operations of the laws of war, determining who may be regarded as an enemy combatant subject to legal forests, detention without trial after capture and potentially trial by military commission is provable war crimes have been committed. Congressional authorization controls where and against two military operations may be conduct did as wars go forward. Here is the main point. The further removed the use of force is from an identifiable threat to vital American Interests, the more imperative it is the congress weighin and either indoors or withhold authorization for combat operations. The less obvious the peril, the more important it is that congress use its other constitutional authority, particularly the power of the to ensure that military forces deployed only for political ends worth fighting for and critically that the public will perceive is worth fighting for. Now, it is fair enough to say that our contemporary practice does not conform to the constitutional guidelines that just outlined. As a practical matter, we have Permanent Military forces and theres no stopping a president from ordering them into battle. As we have noted, president obama did not see congressional operations to the Libya Campaign just as president clinton did not seek it to the balkans and president reagan did not seek it before invading granada. After insisting that candidate trump that obama needed and sent in syria, President Trump has attacked regime targets in syria without congressional authorization. Congresses were powers have seen not to be too much of a hindrance on the executives. Nor is this Congress Power seem to have much bite. It is simply a political reality and common sense that the American People have a deep attachment to their sons and daughters in harms way, regardless of their commitment or lack of commitment to a war and is subject to us. Still, we can see the constitution at work as a political document even if the resulting legal arrangements are untidy. The lack of Political Support that induces president s to refrain from seeking congressional authorization also operates as a severe political impediment to president ial warmaking. The perception that warmaking is a dubious legitimacy serves to rein in executive ambition and overtime congress does assert itself. We saw how this worked in iraq. It was a very strong public support for the mission of removing Saddam Hussein on the grounds that were very powerful in the post 911 environment that he had weapons of mass to section and might be inclined to share them with jihadists. The mission was sufficiently popular that Congressional Democrats with the 2004 election on the horizon sought out the opportunity to vote in favor of authorizing force. After a swift and successful toppling of the regime it became increasingly evident that there was another very different and very ambitious wargame. It was more a washington enterprise than a mission the American People believed it. It became prioritized when weapons of mass instruction were not found in the quantities as advertised. This was the effort to sell western democracy, principles and institutions in an islamic riot society that was hostile to them. Hostility that grew more intense as the joy of liberation from saddam transitioned into American Occupation and a savage civil war between sunni and shiite factions. Alas, we did not learn and apply the lesson of this folly in libya and i fear we are well on the way to making the same mistakes in syria were the consequences of probably could be disastrous given the players involved in this complex, multilayered conflict. Russia and iran turkey and support. President trump gave a very interesting speech and pulling yesterday about preserving western society. Except he didnt call it western society. He referred to it instead as western civilization. He was right for just as Samuel Huntington was right. Our conflict with radical islam, with what i call sharias promises him, is a clash of civilization. To prevail the west has to decide that the west is worth defending and we have a lot of work to do prepare that self perception. We also have to realize that the enemy is a product of a rival civilization with starkly different principles. It is not enough to say fundamental with islam which is the mainstream islam of the middle east that it does not wish to be westernized. It considers the intrusion of western armies and institutions to be a deep provocation even if we see ourselves as dogooders who were just trying to improve peoples lives. This is a product of spending a generation in willful blindness of our enemies animating ideology and that could be the subject by itself for another symposium. The point that is relevant to constitutional war powers is the political into imperative of public support for military operation. If there are vital American Security interest at stake the American People will be on boa board. Congressional authorization and endorsement will then make it possible to achieve crucial military victories. Americans, however, are simply not interested in trying to democratize Islamic Society for military force. On this score, it is essential that congress do its job. We demand that any president who lurches into these conflicts seek congressional authorization for clearly stated objectives and satisfy the peoples representatives that we are pursuing Real Security needs, not conducting a sociology experiment at the expense of the lives of our best and brightest young people. As a practical matter the constitution may not be able to prevent an overly ambitious and adventurous president from investing us into complex against our interest but congressional war powers can still have a very important say on the legitimacy of the use of force and therefore its extent and its duration. Moreover, where the use of force is clearly in americans interest, congressional war powers used to issue a powerful endorsement of a clear necessary mission and help us achieve something that is alluded us since 1945. Victory which is a word that is barely spoken when we speak of american war powers. Thank you very much for your attention. I look forward to our dialogue. So, im very hightech and have to learn how to push to turn on the microphone. I am delighted to be here and have a chance to give different views. I agree with an awful lot of what you said and i want to come at it from a different angle and to try to wrestle with some things in my mind. You mentioned my background is the head of the policy committee and in the house and i actually was also the National Chairman of the American Conservative Union founder of the Heritage Foundation and chairman of the pack and im finding myself constantly looking at some of the positions that are movement takes today and trying to figure out how they square with what are movement once was and im somebody who has not gone to see hamilton and i would spend a lot of money to see a play on the madison. That gives you a sense of where i am c