Okay, so good afternoon. My name is reid smith and on behalf of the Charles Koch Institute id like to thank you for joining us today or what promises to be a substantive and timely discussion about the applicability or lack thereof of existing legal authorities to use of force against iran. Its great to see so many staffers here today. We are encouraged to see a full house. You guys that so much to do with the way that we approach the broader matter of congressional war powers, so its encouraging to see an interested room thats looking to get informed by some expert jurors up here with you today. For the sake of time and discussion im going to keep these introductions perfunctory in no small part because our panelists reputations undoubtedly precede them. To my far left, Stephen Vladeck is the professor in law at the university of texas school of law and austin, a graduate of Amherst College and yale law school, both degrees earned with distinction. His teaching and Research Focus on federal jurisdiction, constitutional law, National Security law and military justice. His affiliations are numerous as are his appearances in broadcast media and in print. A Founding Member of laffaire, he cohosts the National Security law podcast with his colleague Bobby Chesney. Its a great name. It is a great name. To his right and our left, heather brandonsmith is fcnl legislative director for militarism and human rights where she works to repeal the 2001 authorization for war, promote respect for human rights and international law, and reduce u. S. Armed interventions. An adjunct professor of law at georgetown, heather earned her ba in politics and International Relations from the university of New South Wales where she also received two law degrees before receiving her masters of law from Georgetown University. Finally, gene healy is Vice President at the cato institute. His Research Interests include executive power and the role of the presidency, as well as federalism and over criminalization. A prolific author and editor, gene earned his bachelors from Georgetown University and a j. D. From university of chicago law school. Ill just note briefly on everybodys seats we prepared a small packet with what i think are substantive reflections and commentary from our speakers today. Also from our colleagues at concerned veterans from america, statement on the desired repeal of the 2001 authorization for use of military force. I just want to state the different station between the charles koch institution, institute which is a c3 organization and doesnt take position on legislative matters and the concerned veterans for america which is a c4 and does what in on those matters. And now to our conversation. In a way i think we should start at the beginning mere hours after the tragedy of 9 11 as congress debated, drafted, and ultimately by an overwhelming majority voted to enact the 2001 authorization for use of military force against those who had planned, authorized, committed, or aided the september 11 attacks, or those who are offered these persons safe harbor. Nearly 20 years later, one sentence, the key provision, at the heart of this joint resolution continues to provide the Legal Foundation for virtually every action taken by three successive administrations prosecuting the global war on terrorism. Thats everything from invasion of afghanistan in 2001 to the downing of a syrian airplane in 2017, and everything in between, from gitmo the secret tribunals and extraordinary rendition. In sum, an estimated 41 military operations in 19 countries. So now some within the Trump Administration may be looking to link the Islamic Republic of iran to the underlying logic of the 2001 aumf. As i take my seat, stephen, press you would like to provide some introductory thoughts about the remarkable circumstances that help this bill still into its existence. Thanks for hosting this event. Thanks everyone for coming. I think its really important to start not just at the beginning but also in context with what was going on. So september 12, september 13 come september 14 while congress was considering the bill that would become the aumf, this is still very early on. Its not until september 20 that the the president will publicly acknowledged that the United States determine that alqaeda as sponsored and harbored by the taliban in afghanistan was even responsible for the attack. This was still very early days. I suspect some of you were not even alive yet but will get back to that. So part of why that really matters is because the statute was written in context where it wasnt publicly clear who had attacked us and it wasnt necessarily clear what the goal was going to be beyond ensuring that whoever attacked us could not similarly attacked us in the future. So to that end the Bush Administrations and National Draft language had been this very openended text that wouldve generally authorized use of military force in order to prevent future acts of terrorism. That really wouldve been a statutory authorization for a global war on terror. And congress i think to its credit especially given the circumstances did not go that far. Really Jim Sensenbrenner leading the way congress pushed back and said thats too broad. Even though we havent yet figured out whos responsible, we want the forced we are authorizing to be targeted at those who responsible. And so the final text of the bill passes both houses on friday september 14 and is signed into law by the president the following tuesday, the final text refers specifically to those nations, persons, or organizations that the president determines committed the attacks, or harbored those who committed the attack. In other words, this is not just a general authorization to use force against terrorist groups. It was a specific authorization to use force against whoever it was publicly determined to be responsible for 9 11 this was signed into law and two days later the president goes on National Television us as we determine its alqaeda and as a board and harbored by the taliban regime in afghanistan. Its important because what it means is in context what we now call the 2001 or sometimes the 9 11 aumf to distinguish it from the 2002 iraq aumf really was focused at alqaeda and the taliban. The statute doesnt say that and i think we are continuing to reap the consequences of the fact the statute doesnt say that but it dont think theres any question at least in that moment that is who caucus was thinking of, thats what the statute was directed towards and it was how the president reacted and responded. When the u. S. Started using offensive military force in afghanistan about five weeks later in the middle of october, toward the end of october, it was under the ages of aumf because edwin understood that the taliban in afghanistan was clearly part of a the working assumption was the harder questions and a longerterm questions would be fleshed out in subsequent legislation. Congress was very busy in september and october. There were a number statute enacted relating to the 9 11 attacks and the response thereto, leading up to from the aumf all the way to the patriot act on october 26. The assumption was congress would continue to be just as engaged going forward. The reality we have seen is over the last nearly 18 years that actually hasnt been the case. That for a host of Reasons Congress has largely sort of left the regime it put in place and that has led us to all of these continuing debates about whether the 9 11 aumf, well get to iran, that doesnt even cover alqaeda in the Arabian Peninsula . Does it cover alqaeda in the monograph . Congress enacted and never thought was answering in that 60 word, one sentence operative provision. I want to turn to gene right now, as i think steve gave a great summation of like 2001 21 into 2002 as the Bush Administration considered other potential military operations, obviously iraq was on the to do list. Can you talk a little bit about perhaps theyre thinking coming back to congress again for an aumf specific to iraq and Saddam Hussein . Sure. One of the things thats interesting about the current debate about whether the 2001 aumf applies to iran is that when the 2001 aumf was young, barely a year old, and the Bush Administration had iraq in its sights and there was a lot of talk about, you know, from Vice President cheney and others about iraq and alqaeda links, most of which, the important elements of which turned out to be bogus but they were promoting this idea that mohammad outside met with iraqi intelligence agents in prague. They were making a lot out of the suppose it connections, and for a hot moment they did float the idea publicly that they didnt need authorization to go to war and iraq, because among other Legal Provisions they might be able to rely on the 2001 aumf because of the suppose it connections between alqaeda and iraq, most of which turned out to be bogus. But the actually decide, you know, in the end to get, that was little too cute, that was too big, a bridge too far, that you needed a separate authorization from congress, at least publicly. He never acknowledged that they will they were legally required to get this authorization. But at least politically. A year after the 2001 aumf is passed, they can see that they at least need some, for political reasons is not legal reasons, some authorization for congress. This is an administration that famously was not shy about aggressive legal interpretations, but it is strange, i think this episode shows how strange it is. Nearly 18 years later to be talking about a legend iranian a legend iranian at alqaeda connections as as a bs for war under the 2001 aumf. It was too much of a stretch for the Bush Administration heather, lets talk about that 2002 aumf. Its still on the books. Can you talk about now, i mean many years past Saddam Husseins demise, this still remains intact and how has it been employed by successive administrations . How is it still utilize . Yes, sure. So the 2002 iraq aumf, that, that was passed in october 2002. You are really authorizing force against the facade of losing the Saddam Hussein regime. In particular that piece of legislation authorized the forced to use force, defend the National Security of the United States against the threat posed by iraq and enforce all relevant u. N. Security Council Resolutions against iraq. Those security Council Resolutions are really talking about weapons of mass distraction. This is sort of the predicate, the reason for going after iraq, that they had these weapons of mass distraction and that as a result of that they were breaching u. N. Security Council Resolutions and they were posing a threat to the United States. That was what congress voted to authorize. So views when it iraq. Saddam hussein was defeated, and yet now 17 years later we still have that law on the books. And just as with the 2001 aumf the weve seen being interpreted far beyond what congress intended, we using that as wel with the 2002 iraq aumf. This most notably happened in 2015 when the Obama Administration went back into iraq to fight isis. So try to that time actually Obama Administration officials have been calling for the 2002 iraq aylmer to be repealed. That was the policy. And actually even once they went into iraq and they said actually you know what, were going into iraq, its the 2000 aumf that authorizes that. We can get into how they made that legal argument a little bit later. They said the 2002 aumf also provides some additional authority. There were not very specific though. But then he also said, but still our position hasnt changed. We like to see it repealed. Now were in a situation where the Current Administration interpreting the 2001 2002 aumf more broadly come basically sort of to bring stability to iraq type of aumf much broader than to defend the u. S. Against a sort of immediate threat posed by a particular regime. So last year there was a report that came out which said that the 2002 aumf authorizes the administration to use force to address threats both to and stemming from iraq. In surrey or elsewhere. So weve gone from this very specific or at least we thought it was a very specific resolution for a particular country for a particular purpose, and now that is getting more and more broadly interpreted. Cant i say real quickly . Its worth addressing that in both contest, both 2,012,002 aumf is a substantial break from what it been the consistent practice of the United States, for the first 200 plus years of its history. Just to take a counterexample during world war ii when i think theres no question were powers were all on the table, that we were at war, the constitution allowed us to be at work, congress with out of its way to declare wars separately against every single country against whom we were fighting or who was a cobelligerent of germany. One of my favorite tree to questions, whats the last coach with which the u. S. Has declared war . The answer is romania. Go try that at home. It proves the point there was never a thought that simply because we are at war with germany we were there, congress had therefore signed off. Congress instead took upon itself to go in several authorize force against each country we were using force against. That was the model that prevailed all the way up through 9 11. This is the problem we have confided in 18 years since. One is a curious evolution of this 2001 aumf is the instantiation of the notion of associated forces. Because in that short, key provision, that 60 word sentence, there is actually no mention of associated forces. Can we talk a little bit about how that is become part of our prevailing rhetorical logic . Sure. So i believe that term was first in some legislation i think in 2006 in the detention context. So it was really about who could be detained, who had been captured sort of on the battlefield. So not just alqaeda and the taliban, but if you had other groups who were fighting with them, then they would also be detained both. Now, the Obama Administration took that term and really kind of ran with it, and they developed a definition of it which is sort of, its a twopart definition which is they use the term cobelligerent in the conflict and as entered the fight alongside alqaeda or the taliban in the conflict but is still a very malleable term. We dont know what entered the fight means. Now we really talk about war as the doctor traditional war, not just battlefields with soldiers fighting against each other. We dont know into the fight could mean someone, you know, help giving getting advice to e on how to make a bomb or Something Like that. Its a term we dont know what the definition might be but i guess the main point is that that term has now been read into the law by the previous administration, accepted by te Current Administration, and it is now led to the situation where weve been fighting dozens, over a dozen groups in 19 different countries. As as a result of his term of associated forces and its one of the problematic terms thats out there which has led to hearing now the top of today about the administration potentially trying to say that the 2001 aumf covers iran, one of the theories were hearing, sort of the ruminations of what might be a theory, a connection between alqaeda and iran, so that iran could potentially be an associated forces its a really problematic term. Its not in the 2000 aumf itself. We have a definition out there. The parameters are not very clear, and its really sort of open to abuse. I will just add, its worth stressing, heather alluded to this, the extent to which the detentions of socalled enemy combatants drove a lot of the policy initially, but how thats change. In 2006 the terms associated forces became a port because government was trying to figure how to win hades cases brought by guantanamo detainees at how to defend the detention of folks might have a peripheral connection to alqaeda. The problem is as time went on the detention cases receded and their importance and the more than that it uses a, especially during the Obama Administration when there were no new dtv knees no new detainees and thats what he saw the mushrooming of this definition. Congress and i think fiscal year 2012 National Defense authorization act specifically authorized the detention of noncitizens outside the United States if they were part of associate forces but didnt bother to define what associated forces work. The most important statutory reference to associated forces is to the term devoid of any context and is the itself on applicable to military detention, not to targeting. Associated forces is this medically important issue that has never been fleshed out by statute. Its never been fleshed out by the court because there hasnt been a single case where the court has been asked to decide is group x and associate of force, so its left entirely to not just internal executive branch determinations but also classified with the government will not even concede on the record which groups it treats this wit w