The Federalist Society last on thested a discussion constitutional war powers of congress and the president. Among those we will hear from is armor congressman Mickey Edwards who represented oklahoma and andrew mccarthy, former federal prosecutor who led the prosecutor against the blind world tradehe 1993 center bombing. This is about one hour and 20 minutes. 12 15. Y clock, it is im the deputy rector of the Federalist Society article one initiative dedicated to the development of a series of rolls and practical goals for congress that stem from core constitutional principles of thought todays luncheon is just one of many events the Federalist Society has planned here on capitol hill across the country. On behalf of the initiative, i want to thank you all for joining us. I would also like to thank senator ron johnson and his staff for sponsoring the room for todays event. As you may have noticed from your program and your panel appear, we are shorthanded. The hawthornefrom school of law [strange noise] [laughter] was alsore what that the professor had a conflict that prevented him from flying down this morning. But i think we have a great panel and the topic of executive and legislative war power seems appropriate even though we just celebrated our nations independence day. Years, ourthan 200 government developed a track record starting wars and use of military force which can be measured against the founders views and the constitution. It is good to ask how has the framers understanding been followed and in what ways has a then ignored and do the founding principles regarding these topics still have application to our modern era . Navigate these and other important questions, we are pleased to have with us andrew mccarthy, a senior fellow at that National Review institute and a country being editor at National Review. These a former assistant u. S. Attorney for the Southern District of new york. He led the 1995 terror prosecution against shake abdul rockman and for others waging a including the 1993 World Trade Center bombing and the plot to bomb new york city landmarks stop he has also contributed to the prosecution of terrorists who armed u. S. Embassies in kenya and tanzania. For the new criterion and is a New York Times bestselling author of many books will stop we are pleased to have with us former congressman Mickey Edwards, the revised president for the road l fellowship in public leadership im sorry, the Vice President and Program Leader for the aspen institute. Congress forer of 16 years, representing oklahomas this Congressional District first thought. And served on the policy committee. He taught at the Kennedy School of government and princetons Woodrow Wilson school of international affairs. Affairs the board of for the constitution project, where he has chaired a task force on judicial independence, government oversight and war powers. He is the author of numerous articles and books will stop his most recent book was published in 2013 titled the public versus the people, how to turn republicans and democrats into americans. Ourre i turn it over to panel, following the panelists remarks, we will have a q and a. Please think about questions you would like to ask our panelists. With that, mr. Mccarthy, the floor is yours. Thank you so much and thank you to the Federalist Society for the kind invitation to top i have about 15 minutes of opening remarks that in light of julians absence, i will try to squeeze into 20 if i can. On capitol hill today, the United States armed forces are engaged in combat operations in several global hotspots. In syria, we have not only conduct did attacks against a regime without any congressional authorization, but we are now occupying territory as well. Are there not to fight the regime or its russian and iranian allies, but the Islamic StateJihadist Organization also known as isis. To the extent it is a legally authorized conflict, it is against an enemy that arguably thenot exist at the time relevant authorizations of military force were adopted about 15 years ago. You could say, as we have been saying, that isis is nearly is merely a takeaway faction of al qaeda and began as the iraqi franchise and is covered under the existing au ms. This ignores the inconvenience that al qaeda, along with its allied islamic faction is also fighting the assad regime in syria. The enemy we started out fighting after it attacked america in 2001 and that still regards the United States as its mortal enemy is nevertheless fighting in syria alongside the rebel elements we support. Sense, its mirrors our misadventure in libya, another recent conflict in which a president without congressional authorization launched an aggressive war against a foreign sovereign that not only post no threat to the United States, but which was regarded as an important counterterrorism ally. That was because for all of its many flaws, the regime was information about for therists antiamerican jihad in iraq and afghanistan. Wet is to say in libya, initiated an unnecessary war without any debate among the peoples representatives, shall s congressional authorization. A catastrophe, the undoing of a counterterrorism ally in a dangerous neighborhood. The empowerment of our hottest enemies, a failed state and an administration reduced to absurd rationalizations about how bombardments against regime targets were somehow not acts of. It is tempting to draw the conclusion that modern practice has superseded the warmaking powers between the executive and congress. Down to brasset tacks, this is simply not true. Its not true for a reason that is often forgotten in the war powers debate which are dominated by lawyers the debates tend to take place under the auspices of legal academic institutions or organizations like my friends and colleagues here at the Federalist Society who are hosting is today. We are a body politic, not a legal community, at least not in the main. For any free society to flourish, it must be undergirded by the rule of law. But the constitution is a political document, not a legal one. It is the assignment and division of Legal Authority among actors who compete and collude depending on the circumstance. More iscritical because a political exercise. Politics by other means. There are legal elements to it, but it is basically a political endeavor the use of government power against a foreign enemy to break the enemies will. So you would not know it to listen to most war powers discussion, there is a limit to how much more can be judicial eyes or subjected to legal rules and procedures. All, isof war, after the antithesis to peacetime footing. It is the proud boast of our domestic legal system that we would prefer to see the guilty go free than have a Single Person wrongfully convicted stop us, we presume against the government. The accused is presumed to be innocent and the government must weigh these standards of proof to obtain a wiretap, to make an arrest to convict a defendant. Our bottom line is we would rather see the government lose. Not just a conviction of the guilty, it is forcing the government to meet its strict burden of proof before liberty is removed from one of our fellow citizens. War is entirely different. Not in cannot want the government to lose and we cannot give the enemy the presumption of innocence. In the it is always National Interest that the government prevail. Yes, our troops are the world is trained and best disciplined, and we demand of them adherents to the laws and customs of civilized warfare. The highest National Interest is to defeat the enemy and the cheese whatever directive was so vital that it was worth going to war over in the first place. War is thus a very different paradigm. Publicsven by the perception of threats to the homeland and vital American Interests. Our division of war powers is a reflection of this political reality. As we discovered painfully in vietnam and to a lesser extent in iraq, a war effort needs Strong Political support to be successful in a democracy. If there is not public consensus our security is at risk for that American Interests are at stake, support for him the war at home and in congress will flag. That point, we can debate until the end of time whether the use of force was lawful and authorized to stop the only sale and point is that the public does not regard the war effort as a necessary sacrifice of what and treasure. Thats will be the test of a wars legitimacy. Our constitutions war powers are weird that way and for that reality. It did best in congress the power to declare war. The executive is tasked with the National Defense against foreign threats and it is for the commanderinchief to prosecute war. This means when the United States is under attack or the real threat of attack, no authorization from congress is needed. The president may take whatever military actions are needed to quell the threat. Even under these circumstances, congressional authorization is desirable and it becomes not butsirable but increasingly essential as the threat fades. Not only does it reflect public support of the war, it further defines the parameters of the conflict, including critically to the enemy is. This is necessary because it delineates the operations of the laws of war, determining who may be regarded as an enemy combatant was subject to lethal force, detention without trial and intentionally trial by military commission is provable war crimes have been committed. A congressional authorization totrols where and against military operations may be conducted as work goes forward. The is the main point further removed the use of force is from and i then if i able threat to vital American Interests, the more imperative it is that Congress Weigh in and either endorse or withhold authorization for combat operation. The less obvious the peril, the more important it is congress using its other constitutional authority, particularly the power of the purse to ensure military force is employed only for political ends that are worth fighting for and critically, that the public will perceive as worth fighting for. Say ourir enough to contemporary practice has not conformed to the constitutional guidelines i have outlined. As a practical matter, we have Permanent Military forces, and theres no stopping a president from ordering them into battle. As we noticed, president obama did not seek congressional authorization for the Libya Campaign just as president clinton did not seek it for the bombings in the balkans and president reagan did not seek it before invading grenada. As candidateng trump that obama needed congressional consent to attack regime targets in syria, President Trump has attacked regime targets in syria without congressional authorization. Powers havear seemed not to be too much of a hindrance on the executive. s power of thess person to have much bite will stop it simply a clinical reality and common sense that the American People have a deep attachment to their sons and daughters in harms way regardless of their commitment or lack of commitment to a war and its of check tos. Congress may disapprove of a unilateral use of force, but unless the public is deeply opposed to american participation in a conflict, lawmakers will be leery of being seen as cutting off support for the troops. , here is the dynamic. The president has a relatively abdicatesand congress its responsibility, content to waive the pompoms when things go well and excoriates the administration, but not cut off funding when the going gets tough. , we can see the Constitution Network as a political document even if the resulting legal arrangements are untidy. The lack of Political Support that makes presence refrain from seeking congressional authorization operates as a severe impediment to president ial more making. The perception warmaking is of dubious legitimacy serves to rein in executive ambitions and, over time, congress does assert itself. We saw how this worked in iraq. There was strong public support for the mission of removing Saddam Hussein on the ground, grounds that were very powerful in the post9 11 environment, that he had weapons of mass destruction and might be inclined to share them. The mission was sufficiently popular that Congressional Democrats with the 2004 election on the horizon sought out the opportunity to vote in favor of authorizing force. But after a swift and successful toppling of the regime, it became increasingly evident there was another very different and very ambitious angle. It was more a washington enterprise than a mission the people believed in. It became prioritized when weapons of mass destruction were not found in the quantities advertised. To then effort hostility grew more intense as the joy of liberation from saddam transitioned into American Occupation and a savage civil war between sunni and shiite factions. Applywe did not learn and the lesson of this folly in libya and i fear we are on the way to making the same mistakes in syria where the consequences could be disastrous given the players involved in this complex, multilayered conflict. President trump President Trump gave a very interesting speech in poland but he didrn society not refer to it as western society. He referred to it as western civilization. He was right, just as Samuel Huntington is right. Radical islamith is a clash of civilizations. To prevail, the west has to decide the west is worth defending and we have a lot of work to do to repair that self perception. But we also have to realize that the enemy is a product of a rival civilization was starkly different principles. It is not enough to say fundamentalist islam, the mainstream islam of the middle east, does not wish to be westernized. Intrusion ofthe western institutions to be a provocation. Even if we see ourselves as dogooders who are trying to improve peoples lives. This is a product of spending a generation in willful blindness our enemies ideology and that could be a subject by itself for another symposium. The point that is relevant to constitutional war powers is the political imperative of public support for military operations. If there are vital American Security interests at stake, the American People will be on board. Congressional authorization and endorsement will then make it possible to achieve crucial military victories. Americans, however, are simply not interested in trying to democratize islamic societies through military force. Is essential, it the congress do its job demand that any president who lurches into these conflicts seek congressional authorization for clearly stated objectives and satisfy the peoples representatives that we are pursuing Real Security needs, not conducting a sociological experiment of expense of the lives of our best and bravest young people. As a practical matter, the constitution may not be able to prevent an overly adventurous president from enmeshing us in conference against our interests, but congressional war powers can, still have a very important say about the legitimacy of the use of force and, therefore, about is extent and its duration. Moreover, where the use of force is clearly in americas vital interests, congressional war powers used to issue a powerful endorsement of a clear, necessary mission, can help us achieve something that has eluded us since 1945 victory, which is a word that is barely even spoken when we speak of american war powers. Thank you very much for your attention on look forward to our dialogue. Very high tech. I had to learn how to push to turn on the microphone. Im delighted to be here, have the chance to give some different views. I think i agree with an awful lot of what you said. I want may be come at it from a little different angle. And to try to wrestle with some things in my mind. You mentioned to my background as the head of the policy committee and the republicans in the house. I, actually, was also the National Chairman of the american conservative union, founder of the heritage foundation, and chairman of cpac. And so, i am finding myself constantly looking at some of the positions that our movement takes today and trying to figure out how they square with what our movement once was. So, im somebody who has not gone to see hamilton, but i would spend a lot of money to see a play on madison. That will give you some sense of where i am coming from. I would disagree a little bit on one area, and i think it is important. The declaration of independence, which we just celebrated, is aspirational and it is political. A political document. It lays out a case for an action. It lays the grievances that impels us to that action but the constitution is law. Constitution is the supreme law. The constitution is not a political document. It lays out not only the structure but it puts limits on what government can do. Very specific limits, not only in the body of the constitution but in the bill of rights. Easy toink i tsts too look at the constitution and dismiss it as something it was a bunch of old white guys and we dont have to follow their lead. So, i would disagree on that point. I