Like oh pwplbama has said all wars must end its on the scope of the president s war powers and the use of military force. They include the draw down of u. S. Forces and the rise of new groups like isil that threaten regional stability. This past february president obama submitted the proposal if a new force organization targeted at isil. The responsibility of congress in responding to new threats. Whether the nature of new threats like isil require us to rethink traditional conceptions of the war powers and the optimal ways of the powers should be exercised. Were fortunate to be joined by a distinguished panel of experts. Ill introduce the panelists to you and theyll speak in order and after that well have time for questions and answers. I would ask in advance when you have a question please come up to the mike phones to ask your question. First well hear from Lieutenant Colonel. Hes at the department of law at west point. Hes the u. S. Army judge advocate who was deployed to iraq as the chief Legal Advisor to a combat brigade. Before being assigned to west point he served as deputy chief of International Law division at u. S. Army europe, so a discontinue wished career both in academia as well as on the ground. Hell be follow by ryan goodman. Hes a professor at nyu and coeditor of the just securities blog. He formally taught at Harvard Law School where he was a professor of human rights and humanitarian law and director of the human rights program. Hes a member of many distinguished boards and american journal of International Law and department of states fiftiesadvisory committee at International Law and Foreign Relations and published widely at academic journals and elsewhere and his book socializing states which he cowrote had the certificate of merit. Then well hear from julian. Distinguished professor of law at hofstra law school. Focuses on the relationship of International Law and skopbs doingsal law and also conducted an 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. Hes the coauthor of the u. S. Constitution and has written numerous academic articles, book chapters, sim pose i cant as well as writing in numerous popular journals from the wall street journal to the los angeles and new york journals from the wall street journal to the los angeles and new york times. His blog is read by thousands worldwide. Were fortunate tonight to have such a distinguished group of experts. Ill turn it over to them and theyll speak in the order they were introduced and well move into the question and answer portion of the segment. I think i get it go first so jonathan thank you for the introduction and thank you for having me. I have to give the standard d. O. D. Disclaimer. Im here in my personal capacity so any remarks are not for west point. Ill give the lay of the land and the framework on the law as it exists and then turn it over to professor goodman. 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 in our system the president any time he uses force has to have two legal justification. Internationally were talking about primarily the u. N. Charter. The u. N. Charter article ii. 4 sets the standard that states do not use force and thats the baseline and gives us exceptions. The primary exception is resolution or acting in self defense and then under self defense you have several different types of self defense. So, thats one legal justification that the president has to have. We can get into that tonight if anybody wishes to. The conversation leads in that direction. In my sense as in regards to isis thats not as controversial as domestic legal justification which is the second the president has to have. So thats probably going to be our primary emphasis tonight. I will talk about what are those potential legal justifications and then get into what are the specific ones hes relying on in the case of isis. Any time you talk about the legal justifications you start with the constitution. Congress the way the constitution divides the war powers between the two primary branches of government, congress and the president , the congress has the greatest number of lifted powers in this area, so they have the one power to declare war and the power to punish offenses against the law of nations and have more greater list of actual powers that relate to the National Security area as compared to the president. So his primary president is the commander in chiefs clause. Its very straightforward and the president is the commander in chief but doesnt give us details of what that includes. We know or most people are relatively confident it includes some power to defend the nation. We get that from the indications and then the way the president has acted over the years since the founding of our government many. So thats his primary power. He relies on a general Foreign Affairs power. We know he has the power to make treaties. We know that he has the power to receive ambassadors and appoint them and from that we derive a general idea that the president has the power to execute Foreign Affairs. That includes some ability to use the military. The president is the chief and that alone is a grant of power that can he use in this area. So those are the way the powers are laid out generally in the constitution. Most people are relatively comfortable saying that. Founders intended congress to be involved in this area particularly in war powers than they are today than the way it was originally drafted. Over time weve seen this evolution of power towards the president. Why has that occurred . For several different reasons. Primarily the president is a aoupb terri actor. He has the ability to act independently. Where congress has to muster the will of 535 people. So thats often a problem. So what often happens the president acts and Congress Even where many of them may disagree with his use of power may muster up the political well to check him. When we have seen over time is like i said is power evolving toward the president. 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 the branch of the government that will supposed to declare war. Thats become obsolete but yet we have modern day equivalents of that. So theres definitely certainly still a role for congress in determining when we use force and the president is always on stronger ground if he can act. He can say, look, i have the power to do this whether congress is with me or not as a backup 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 lot of our conflict what is the stat khoer authority that the president is relying on. Its primarily the a. U. F. M. From 2001. It was passed right after 9 11. It gives pretty broad power but its in specific regards to 9 11. So it says the president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided terrorist thats occurred september 11, 2001. You can see the intent of correct me if im wrong in that language was focused clearly on the terrorist attacks appropriate force against on on 2001. Yet the president has relied on that for many of uses of force that we have seen like places like yemen and somalia and hes relying on that for use of force against isis. Thats the basis that hes currently relying. There are other authorizations out there. There are others specifically for invasion for iraq in 2003. The problem with that one however is it was specifically directed at the threat created by Saddam Hussein. Theres been talk it says that the president can use force to end threats coming from iraq is the basic language. It was clearly directed at Saddam Hussein and the threat here isnt coming from iraq. You can make the argument it does apply. The other political implication is that that would link president obama with the president bushs policies and the invasion of iraq which he has separated himself over the course of his political career. Although that one has been thrown around, thats not the one that the president seems to be primarily relying on for his use of force. And then of course the problem with 2001 is it was directed as those forces directed in 9 11. Thats somewhat problematic given that we know that isis is in conflict with alqaida which is the force that we link with 9 11. But the administration would argue that, well icy flows from al kaied da in iraq that we were fighting there from 2003 until we left in iraq and therefore it is an associated force. You can see just from the language its kind of problematic and were now 15 years later and the president is still relying on this aumf. Thats what has led the president to ask for a new d at umf. Oh, by the way the president made a speech a year or so before before this the conflict with isis arose in which he said the president i the president and future president s need to stop relying on aumf. He says it cant last forever. Hes using that very same aumf. You can see the problems that arise from that. Thats pushed or encouraged the president to ask or request this new atumf the one he proposed and has got this specific language in it and gives him some interesting leeway that professor goodwin will talk about. I want to orient you about what hes asking for. He says as the president is authorized subject to limitations to use armed forces of the United States as the president determines to be necessary and appropriate against isil or associated persons or forces. If you go down further he has some restrictions. It does not authorize armed forces in crime comebat operations. Its not previously used in documents. What is an enduring offensive ground operations and he says the authorization shall terminate they years after the date of the enactment. Unlike the aumf of 2001 the president s proposing this this one includes a builtin determination date. Thats the final thing i want to talk about from my perspective. What would be their role in the discussions . I dont speak officially or personally from the official position but i can talk to you about what the military wants in any operation as they want clear objectives of what they are expected to accomplish and two they want operational responsibility. Can i imagine the leadership in the department of defense thinks that three years is problematic in and of itself because its tarb arbitrary. So i can imagine that can i say its likely the leadership and the department of defense will not participate in the public debate on of defense thinks that three years is problematic in and of itself because its tarb whether it should be or not be passed because that would go against Civil Military relationship, the idea its in charge of a military. As a cultural matter generally the military leadership doesnt participate in this debate. What they probably are doing behind the scenes, both with the president and with members of congress is talking about Operational Flexibility and the concern thats this idea of no enduring offensive ground operations is a limitation and more specifically theyre concerned about this idea of a 3year limitation, all right . So my sense is that the impact that will have it will just make this harder for this to go forward. Because if the military leadership is telling the president theyre concerned about this and maybe the president says okay i got it and this is still important for me for various reasons but theyre talking to members of congress and saying, this is the concerns we might have and that will influence some members of congress and may influence them as to whether or not this goes forward or not. These are the considerations and thats the general layout. So i think with that i want to turn it over to professor goodman. Professor. Professor thank you, thats a terrific overview. Professor goodman. I think ill drill down on amuf. Just to give a sense of where were an at in terms of whats happening on the hill, two things to think about, one is drilling down on the concerns that the 2001 amf dont authorize Current Operations that are on going and thats the deep program. Theres been i think ill drill quite a lot of bipartisan statements on the hill especially when representatives from the Administration Come before congress saying we really arent buying this theory that isis is somehow underneath the hill especially when representatives from the 2001 a mf. Because it was about the attacks on 9 11. Governmentments argument is not what some people think which is that the notion isil is an associated force of alqaida central but rather than isil is a successor of alqaida. So that helps because the Administration Says, okay, even if there is fighting between the two groups it doesnt matter, because were not saying theyre in association in a battle against the United States. Rather isil was diseffective and broke apart and now is an independent group but theyve taken president mantle and they are the true inheriters of bin ladens campaign. Thats the argument. Partly the presumption is that they were unified. It was a little bit and clear even in the first years in 2003 when the United States was fighting alqaida and iraq what the relationship was because alqaida and iraq was not following the command and control of alqaida central. This was a lot of infighting until they broke a part. Some people say what about the name . It was called alqaida. There was a name that they ascribed to them. They did it in some sense to try to tell the public that these groups were related and that Sadam Hussein and the situation in iraq was related. But that was our u. S. And forces to the name to the organization. Theres one open question were they ever unified before they broke apart. The second one is their organizational goals. Does isil or did it have the same organizational goals as alqaida. One of the reasons they split apart is because our u. S. And forces to the name to the organization. They had ambitions and didnt pose a threat to the u. S. Homeland and theres been no evidence of imminent or likely threat against the u. S. Homeland. When the group formally was alqaida iraq when they withdrew they stopped attacks. There was no real threat, even to the point of summer of last year the white house sent a letter to Speaker Boehner saying we no longer need the 2002 amf because there is no threat. Some people cited the they hadbeheadings of american journalists. It started happening after the u. S. Started its air campaign, not before. So it cant be a justification for the air campaign. So theres an inherent weakness which nobody heard of before and this concern about the relationship organizationally between isil and alqaida central and their organizational goals as to whether or not they have split apart and still fighting the fight against the United States. With that, the concern is that if the president is not acting under an existing stat authority then hes not acting with support. Everything colonel said i would agree respect the president is stronger both as a constitutional legal matter but political matter. Because troops on the ground want to know that the American Public and congress is behind them. So that some statements that are being made by members of congress, senator cane made it 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 which is to come forward and vote on this authorization and design it how they see fit and give that kind of support and approval for the president s operations. Recently on the hill, just in the last 24 hours apparently there is a letter circulating on behalf of the democrat and republican member of the House Intelligence Committee representative adam shift and republican representative tom cole asking boehner to please put this to a vote so congress can step up. I think that kind of goes to the question that we have for to us night on this panel and just kind of an important quote id like to try to take out of that letter where they say, quote, eachedation additional day undermines our authority and role in matters of war and peace. If we refuse to debate a resolution on the question any nation faces we see a power that the framers delegated to the congress. Thats the chief concern that operates behind the scenes as to whether or not well see congressional action on the white house proposal. That said, i do have deep concerns about some aspects of the white house proposal and the first one i want to highlight is the definition of associated forces. For the first time what the white house wants is Congress Actually ratify the notion we wont go to war one entity but what ever its associated forces are. Currently it operates under the framework under the 2001 at umf it might be in the Arabian Peninsula in yemen but thats what they have given. The words associated force dont appear in the 2001 atumf. I think it would be good. It would codify an existing practice. One thing remarkable is a conspicuous omission of the element of the test. The United States has been operating for several years and what jay johnson the former counsel of the Department Defense said other organizations that join the fight alongside the Principal Group similar to the way the terminology is used it thats the definition weve been operating under which gives a lot of justification to why the United States have been in conflict with alqaida and another organization operating out of yemen that joins the fight. What