Host of the National War College. The last government job you worked for the director of national intelligence. Thank you [applause] there wasnt a single founder who doubted that going to war was the most important decision the republic could make. War is the greatest threat to the public. War focuses power on the executive saying since the executive has more incentive to go to war the founders placed the power of going to war the congress not the executive. The founder who understood war better than any president was George Washington who gave a long farewell address and spelled out the Foreign Policy of the foreigners. He said we should stay neutral in war and cut all foreign powers because they will entangle us in their wars. To support neutrality washington said be leerly and not to borrow more money than we can pay off and avoid political factions. Sounds good me. I am sticking with george. Harvey is the moderator. Bruce you will go first and then john and harvey is going to ask questions of the panelist and then we will open it up to all of you to talk. Thanks. [applause] thank you for coming. I want to thank the Heritage Club for having us. I wish they could do this with bruces mike. Good evening. Thank you for coming out. We have done this a number of times. I am with the National War College and the american Bar CommitteeSenate Committee on National Security and i am here on my personal capacity and not representing those two organizations per se. We think it is important to have events like this and you would not have two more experienced debaters. What well do is have ten minutes on each side and then we will have five minutes of rebuttal and then i will pose a few questions that may have been raised by the speakers. Does someone have a pen out there . And then i think what we want to do is get the audience involved and have people and what i encourage you to do as a law professor is ask short, crisp questions. This isnt an opportunity for political speeches or to sharp n the debate. This is a timely issue with legacy and contemporary power as well. Bruce start off. All those who seek to destroy liberty in democratic nations ought to know that war is the surest and shortest means to accomplish it. Those words were written in democracy of america over 150 years ago. The Founding Fathers were present in recognizing that fact. James wilson, one of the founding generations, talked about putting clogs in the arteries of war. And that is why ever member understood that only congress, not the executive branch, could authorize the initiation of war. Power diminishes in times of war. What is it that makes war so threatening to our republic . First the power of the government focuses in the executive. Our customary separation of powers principle is wrenched there. Congress and the judiciary are ink blots and we can see today that the president is claiming power during the socalled war against alqaeda, isis or otherwise. If he declares them an imminent danger to the United States. Most awesome power entrusted to any individual. There is no congressional rev w review. It is final. That is not the only power the presence has during war. Think of the power of surveillance disclosed by snowden. And before then shortly after 9 11 the president claimed the power to intercept emails and conversations of Americans International without any statutory authorization what whatsoever. And then we have guatemala where we dont have due process Guantanamo Bay and you are not able to prove your wrongdoing. The power of the presidency climbs during war time and they never take back the power. There is another wrench and that is customary transparency. The heart of the government by the consent of if governed yields to secrecy and that is mocked if the people do not know what their government is doing; how can they give consent . And you find discrepancy from what the government does and what the people would want if they knew what was going on and that is shown dramatically with snowdens disclosures. Every since 2006, the American People were ignore ignorant but with the disclosures the American People are alarmed by the fact the nsa was collected data on every single phone call they were involved in, domestic and international. And the collection was made without any suspicion of the data indicated involvement in crime, terrorism or otherwise. It was just collection. Think of the program that was a gast and it was the public pressure that forced president obama to curtail the program by congressional order all provoked by snowden. Imagine a lot of conversations over liberty and the right to be left alone you had because of Edward Snowden not because of congress or the executive. But this kind of secrecy is characteristic during war time. And secrecy, i believe, leads to misguided positions like there bay of pigs where we were forecasting the cubans were going to rise up. I think the president said he wished the New York Times had leaked the bay was happening so it saved him from the folly. But in the United States, we the people are sovereign and we get to decide our own destiny and how does that occur if we dont know what the government is doing . That is a key attendant of all wars skwchlt a third thing is it cripples safety liberties. Safety is viewed as supreme. The right to be left alone, due process and that is tyranny superseding civilian courts, we have surveillance, not just with the nsa but increasing the use of Surveillance Drones to watch where we are going when we walk outside, we have a sense of Government Programs that are initiated by the president through this claimed executive authority that we are still clueless about. Edward snowden didnt have access to all of the spying going on and it is probably true there are additional intrusions on our privacy we dont know about because of the secrecy and during war time making everything be safety. The 4th amendment was based upon the idea we take risks that others dont take in order to be free. It was captured in the 1763 address william pithy made to the parliament and sparked the american revolution. It shows how distant we are from our roots. The poorest man in the cottage may bid the forces of the crown. He maybe frail, the roof may shake, winds may enter, storms may enter, rain may enter but the king of england cant enter and his forces cant cross the threshold. Think of the variance in our lives compared with that understanding of the right to be left alone. And there is a fourth principle i will address quickly. And that is the heart of who we were as people. We believe it is more acceptable for us to take the risk of being injustice than to be complicit in it. Let me just explain one situation where the point is made rather graphically. About a year ago, there was a hearing held by alan grayson of florida featuring a 9yearold grand daughter from pakistan. And she related her 68yearold grandmother asked her to come out and pick vegetables. The 9yearold saw darkness, and started to run and heard screams. She saw her hands bleeding and tried to stop it but couldnt. And she looked and her grandmother was killed by a predator drone. That is injustice. Sometimes it is impossible, and inescapable in war time, but that is another reason why we try to resist going to war except in self defense authorized by congress. Moderator thank you, bruce. Bruce has painted a bleak picture. [applause] moderator of executive excess. And john what is your response for the argument . Greetings from the people republic of berkeley. I enjoy the chance to come to conservative cities. I want to thank the committee and bruce and harvey putting this together and having me come along. I have to confess i am not an x expert debater and i have never debated like this. I have ever expectation of loosing the election. I wish more candidates said that during the election year. Let me start saying i think bruce has won this debate. He won it in 2008 because at that time we elected a president who agrees which i think much of which bruce stands for. During the campaign the president we elected told the boston globe he doesnt believe the president has the Constitutional Authority to used armed forces without the permission of congress or in self defense. And what did he do as president . Withdraw from iraq, from afghanistan, we didnt interfere in syria. On drones and surveillance which bruce is unhappy about and criticized sharply it should be noted those are policies that have met with congressional approval. If the complaint is the president went on these adventures alone, i dont think this characterizes this administration. I dont think this has resulted in a good policy. If you look at the results of the kind of president we have now or the policy that bruce has defended we are, right now, confronting a terrible terrorist threat that i think is worse than six years ago. We should ask ourself if we are more secure now than six years. I think the threat of isis is much worse than at the time when the administration pulled out. I think the reason i disagree with bruces argument is because i think it is a mistake of view of president ial power. My view is the constitution gives the president the power to respond quickly in the face of crisis or war or an emergency or unforeseen circumstances. This has characterized the best president s we have had. Our kind host mentioned George Washington at the beginning and he issued the neutrality pro proclamation to keep the United States out of war between britain and france. By his critics this was seen as abusing his power. Or look at lincoln who responded not like bucannon, who was labeled the worst president in history, said he should ask congress what to do and congress setup a special committee to study the problem. I think they are still meeting in the basements of the capital now. President lincoln read his president ial powers broadly, raised an army, sent it into combat against the south, put up a blockaid of the south and issued the emancipation proclamation freeing the slaves not with the permission of congress. Congress never approved the emancipation proclamation and it required the 13th amendment to validate freeing the slaves. Roosevelt is the last example. Congress passed neutrality acts to prevent us from getting into war of europe and roosevelt prepared us for war and i think roosevelt was right and it would have been better for the country and world if the United States had entered world war ii earlier than pearl harbor. And i would contrast with president s like bucannon who followed the arguments that bruce laid out. Let congress decide and the president is there to execute congress policies. I think that has led to some of the worst problems we have had in our countrys Foreign Policy and National Security. I am not arguing the president s power has to be great at all time. President nixon is a good example of someone who tried to exercise excessive power when the times didnt call for it. Let me look at the constitution itself. I think bruce talked about constitutional text but i assume his argument is based on the declare war clause. Congress has the power to declare war. I would assume bruce would read that to read as only once congress has decided can the country go to war and then the president can lead his power as commander in chief to lead the armed forces. I think that reads too much into the anti executive atmosphere of the revolution. The people that wrote the constitution thought the revolution went too far in reducing executive power and sought to restore a balance. When they said in the constitution that the executive power of the United States was invested in the president that would have drawn on there discussions of what was the executive power under the theories of john locke and thinkers that influenced them. And one thing they made clear is the reason we have an executive is because some part of the government has to be able to respond quickly and decisively to events that the legislature could not foresee or handle because it was many members and it was hard to get an agreement. When the framers then went to the American People to seek radification of the constitution that is how they explained the presidency. It was a controversial topic in that time. Most countries today dont have presidencies but a parliament system. And what Alexander Hamilton said in particular he said the executive is there because he can be swift, decisive and secret when the times call for it. Hamilton said what are the powers listed and the most important one he gave was the administration of war. Again, i am not arguing our constitution creates an unchecked executive who can do whatever we wants, but the check comes from the political process when congress and the court use their power to struggle with the president for control over policy. This was the idea of the framers in the federalist papers saying ambition must be made to contract the ambition and if congress doesnt want to use powers that is not a constitutional force. If congress doesnt want to stop president obama from bombing isis that is not a constitutional defect. That is because congress is choosing not to use their ample powers. The primary one is the power of the purse. If congress doesnt want a war, they just need to not fund it. This was a great check back in the day because when the congress wanted to fight a war he would go to congress and say build me a military. Today we have a military that is designed to conduct wars in other peoples country and that is at the design of congress. Congress has created the military designed to prevent war from other getting here by fighting in other peoples countries. I would say we have had many decades of agreement between the president and congress. Time is up. So to a law professor that means i have ten more minutes. Let me conclude. I think we should have all concerns about executive power but i dont think it should be foreign affairs. I think many people are concerned about domestic use and the refusal to enforce laws, selective use of the irs and so on. There i think he is in violation of the constitution. Domestic affairs of presidency wasnt designed to play the leading role and the president is supposed to enforce the laws that Congress Passed. I think it is as a mistake to assume a narrow presidency at home must be a the same broad and vis versa. John has invoked many of the federalist papers here. So where do you stand having taken hamilton and madison . I think it is fair to say those who drafted and ratified the constitution were believing the executive power abroad was the most dangerous because war is the most threatening to liberty. And secondally that is why congress was entrusted with that decision. George washington made the proclamation that only congress can authorize the offensive use of war and Thomas Jefferson got authorization to fight the pie pirates many times. And jefferson made it clear and the reason why congress was entrusted with this exclusive power is because the executive has an incentive to make excuses for war because they get the power. That is was true in 1787 but history shows the wars start with the leaders. John jay pointed out they have executive branch reasons to go to war. Those who were primary in drafting the constitution all agreed only congress could authorize the initiation of war. If you want to say declare war is something else, they thought of the option of executive power u u unilaterally they said the president needs to respond to repel invasions. We go to the idea of executive power and the confederates bombed fort sumpter. Lincoln didnt say i can go to war to make it better. There was war initiated. And with regard to his use of executive power, ask and received congressional ratification and he recognized it was tainted with unilateral executive action. And i would dispute the idea of having great things happening by giving the president the unilateral authority. For example, vietnam. We have a memorial and people are wondering why they died and we are protecting them in the south china see. As john kerry said who is going to tell the last soldier in vietnam what he did for . Who is going to tell the last soldier in afghanistan what he died for . By the way, president obama did not remove our troops from afghanistan. Indeed, he initially increased the troops and they are still there today. What happens in 2015 no body knows but that ought to be a decision congress makes. Lastly, i dont think simply because congress is bear in exercising responsibilities tat exonerates the president ial lawlessness as well. Afterall, we have a third branch of government called the federal judiciary which should step in and find if the two branches dont exercise their responsibilities the court can hold things unconstitutional. This happened in world war ii. Pursuant to executive order that congress ratified, president roosevelt created concentration camps for asians based on the intelligence they got from the west coast of even though they could find no evidence of spying treason was suspected because it was clever to hide what they were doing. And the Supreme Court got the cases and folded. It made a great statement at the outset. Racial distinguishments are odious to people but not in times of war. I dont think we can just wash our hands because congress and the president dont under their constitutional responsibilities. Moderator john, bruce made an argument about supine congress and a judiciary that loses its context in the line of war. What is your reaction to that argument . First, i think that it might be an artifact of the modern time to assume the president , who is the most warlike, and it is congress that is a pacifist. We have lived in times where congress has been the more warlike and president s have been the ones who didnt want war. We have had five war and i think two of them would fit the description where congress was more warlike. Saying the framers formed this because they were worried about the executive being too war