Those working online, we remind you as well as those joining us on cspan that you are welcome to send questions or comments at any time, simply emailing speaker at heritage. Org and of course we will post the program on the homepage following todays presentation for everyones future reference. Leading our discussion is mr. Stimson, manager of our law program and senior legal fellow in our center for National Defense. He is a National Recognized expert and Homeland Security crime control, drug control and immigration. He he writes and lectures on policy issues such as the law of Armed Conflict in interrogations, the geneva conventions, the patriot act and others. Before joining us here ten years ago, he served he served as Deputy Assistant secretary of defense for Detainee Affairs for Donald Rumsfeld and ronald gates. He has been a prosecutor about state local and federal levels. He is a navy officer and served as a milk terry prosecutor and recently served as deputy judge of the green core trial judiciary. Please join me in welcoming mr. Stinson. Thank you very much for that long but warm introduction. We will have have the air conditioning turned on so we will cool down the room a bit. It is a real pleasure to welcome a heritage intern and now senator young back to heritage. He represents this great state of indiana which i held my first job back in 86. He is a fifth generation hoosier and he grew up watching his parents work hard supporting their family pretty first jobs were delivering newspapers, mowing lawns and providing Janitorial Services at the family business. Adapter graduating from high school, he enlisted in our great United States navy, and one year later was offered an employment to the United States naval academy. Upon graduation he accepted commission in the United States marine corps where he served as an Intelligence Officer. While based in chicago with the navy, the the senator put himself through night school at the university of chicago where he earned his mba with a concentration in economics. He later received a masters from the school of advanced study in london before returning to the United States to work here and later as a legislative assistant in the u. S. Senate. In 2003, the senator returned home to indiana and soon met his wife jenny. He put himself through night school. This time earning his jd from indiana university. They married in 2005 and worked together at a Small Law Firm started by his wifes greatgrandfather. Did when he is not here attending to his responsibilities, he is spending time with his children. I will say at the point of personal privilege week. To know each other when he was a congressman and we played soccer together at a fundraiser. Todays topic is one theyve taken a keen interest in every now and then. That is the authorization of military force, one of the most awesome powers we have under the constitution, one that congress has authorized war in our nations history undeclared war five times and authorize the use of military force over 40 times in our nations history. What we are delving into is the fascinating and interesting concept of senator youngs proposal of isis specific authorization for military force. I would commend to your reading the paper that we just released and my coauthor is here on analyzing all of the cases out of guantanamo to see if President Trump brought isis members to guantanamo, whether the old amf would actually apply and if not what the litigation risks would apply. I hope you read that paper, we are not going to talk much about it, thats not the point. The point is to you from a senator who has some excellent prepared remarks. He has been kind enough to agree to answer a few questions after words and then we will think the senator who will go back to his duties in the senate and i will introduce our excellent panelists at that time. Please give a a warm welcome to senator todd young. [applause] is a privilege to be back here and i want to thank all those that made this possible. I want to thank him for inviting me to be part of this event and for your leadership with respect to the law of war , bouncing between all the things you produce and say to help inform our work. Today, as he said, i would like to offer some remarks about whether its time for congress to pass use of military force against isis. What you may not know is that my time here came at a historically significant moment because it gave me a taste of the fine scholarship here. My last day here at heritage was supposed to be september 1september 10, 2001. My successor in my administrative role here had not formally been trained and turnover didnt occur so i volunteered to come back on september 11, 2001. I was buying a bagel for breakfast at the corner bagel shop that is now closed and theres a Television Screen in the corner and i noted on that screen there was some breaking news, a plane had hit the World Trade Center tower. I arrived here at heritage, not certain certain what had occurred but i had some suspicions, and we were told the second plane had hit the World Trade Center tower. Not too much after that, as i recall events, we were looking out the window and saw a large plume of smoke which appeared to be rising from the mall right here in washington d. C. We later found out that was the plane that had struck the pentagon. If theres ever a full circle moment, i feel like i am in it with respect to my first realization with the war on terror, and our responsibility to make sure it is carried out in a responsible way. I come to this issue as someone who spent years in the marine corps. I spent two years in the house of representatives on Armed Services committee and i now sit on the Foreign Relations committee which has jurisdiction over authorizations for the use of military force. With that said, i realize this this debate has been going on for some time. There are a number of my colleagues who have shown real leadership with respect to this matter. Particularly, i would like to commend senator kaine of virginia, senator flake of arizona for their efforts to be champions when it comes to a ums and the need to make sure that congress not only does its Due Diligence and communicates the importance of this issue, but acts in the end. For those reasons, i come to this issue with strong opinions, but please know i understand i am not a law for expert. I have been trained in the law, but my opinions are leavened with a great dose of humility. You will be be hearing from some law experts momentarily. It is in that spirit that i offer the following comments. I believe it is long past time for congress to consider and pass in a ums. Let me give you three simple reasons why. We would send a clear message to our men and women in uniform that the American People have their back. As theyve done throughout her nations history, members of armed forces are once again bravely serving and fighting overseas to keep us safe and secure. On july 4, 2015, i attended a memorial service, just memorial service, just outside of memphis indiana. It was the hometown of the first marine who fell in our war against isis. Indiana now has thousands of our men and women in uniform who are directly engaged in one form of combat or another. We have have 266 members of our Indiana National guard directly supporting the fight against isis. I think we owe it to all of our Service Members and all of our branches, our airmen, our our marines, our soldiers and sailors, whether they are activeduty, guard or reserve. As they confront ices, they have to know americans are representatives here in washington d. C. Stand with them. There is a lot of talk in washington about supporting our troops. I support that talk. I think its important on a very regular basis to come in and celebrate and recognize the extraordinary sacrifices the men and women in uniform make on our behalf. We recognize their family sacrifices and their caregivers. In addition to to talk we need to provide resources and training to our service personnel, but we also need to put our rhetorical support into legal action by passing this. The second second reason i believe its time to consider and pass an authorization for use of military force against isis relates to the constitutional response abilities. As this audience well knows, article 11 section eight of the constitution clearly states that congress has the power to declare war, yet two and half years after the u. S. Began bombing isis, congress has failed to explicitly exercise this fundamental constitutional responsibility. The American People have the right to expect better. Many in congress including members of both parties, have introduced legislation, made goodfaith efforts to pass it focused on isis. Still, the simple fact remains that congress has failed to fully honor its constitutional responsibility. As students of history here know, the founders understood the decision to go to war represents one of the most grievous, serious responsibilities that any government faces. To avoid foolish, hasty, unnecessary in perpetual wars that accrue depth and e road liberty. The founders divided war powers between the legislative and executive branches. James madison who was rightly known as the father of our constitution for his role in drafting the supreme law of the land explained why the founders gave power to declare war to congress. Madison wrote, a declaration that there shall be war is not an execution of law. It is not in any respect and act merely executive. Madison continued, those who are to conduct a war cannot be proper or safe judges whether a war ought to be commenced, continued or concluded. They are barred from the latter functions by a great principle and free government, and analysis that separates the sword from the purse. While the founders clearly intended the president to serve as commanderinchief, the founders granted to congress an impressive list of powers related to war, centering on the power to declare war. In my view the founders intended in the constitution demands that Congress Play a decisive role in the decision to go to war. Not to act as a rubberstamp or passive observer. For much of American History Congress Took the responsibility seriously. According to my numbers, from the Congressional Research service, since our nations Founding Congress has passed 11 formal declarations of war against foreign nations and dozens of authorization for military force. Since world war ii, congress has seemed less inclined to fulfill its constitutional duty and assert itself war powers. Not surprisingly, this application has resulted of a consolidation of war powers in the executive branch. Madison would have found this concerning and unhealthy for our republic. Most agree the president has the authority to utilize military force in the shortterm. In the cases of Eminent National emergency, but no reasonable definition of such an instance should include the engagement of u. S. Military forces in protracted hostilities in Foreign Countries absent a declaration of war or authorization of use of military forced from congress. In short, i believe this this failure by congress to fulfill its Constitutional Responsibilities related to war powers isnt good for our country. Third, i share the concerns regarding the ability to detain isis fighters in guantanamo. In a well argued memorandum from last week that i encourage everyone to read they argue that its needed for legal ambiguity related to the team members of isis. Law of war detention is essential to keeping enemy combatants off the battlefield , and i say as a former Intelligence Officer to gathering intelligence that we need to protect our country. Yet, as the scholars argue, if they choose to retain detainees at guantanamo bay, they will likely challenge their detention in that it doesnt extend to isis. Its not to me how the courts would rule. We have a legal risk that needs to be addressed. Passage of an authorization for use of military force targeting isis could address this concern. I realize some very smart people disagree with me on whether or not 2001 au mf is sufficient to authorize use of force against isis, and this will continue to be something that people of great principle and high intellect will debate. Mr. Stinson, mr. Preston and mr. Savage will be able to share their views on this momentarily. I will leave that debate to the panel for today. I will simply say that for reasons related to supporting our troops, fulfilling Congress Constitutional responsibility, and lastly eliminating any doubt whatsoever related to law of war detention, i believe congress should act. I will conclude my thoughts by briefly summarizing my legislation. Rather than being a member who sat around and lamented the fact that congress failed to pass an au mf, i wanted wanted to put pen to paper and put out what i thought an optimal plan would look like. I introduced Senate Joint Resolution 31. This au mf would authorize the president to use all necessary and appropriate force against al qaeda, the taliban, the Islamic State of iraq and syria, successor organizations and associated forces. To eliminate any remaining legal uncertainty, i also included a section that makes clear that it includes the authority to detain members of al qaeda, the taliban and isis. Believing that congress should fulfill its oversight responsibilities fully and assertively, my legislation also would require the submission to congress of a comprehensive strategy to defeat isis. In conclusion, i made clear to my colleagues that i believe congress should act and have expressed an eagerness to work with them in a bipartisan manner as well as him willingness to make compromises and make tough votes. I think its too important to be mired in politics or inertia. As i wrote in an oped earlier this year, an au mf would incentivize greater scrutiny and oversight of the executive Branch Strategy to defeat isis , establish greater account ability to the American People and prevent a further dangerous erosion in the congressional war powers that undercuts the ability of the American People to influence our nations decisions related to war and peace. Thats why i believe its time, past time for congress to pass an aumf on isis. Thank you for having me and i look forward to your questions. [applause] thank you for those excellent remarks. The check is in the mail for the plug on our paper. Im kidding, obviously, but we appreciate that you and your staff have read it and we did put a lot of time into it, analyzing all this cases before the d. C. Circuit. A couple questions, is there any appetite on the hill for an aum aumf . President obama introduced an aumf on the hill. It didnt really get a full hearing. There were hearings in the year before. What is your general sense of whether theres an appetite today for that debate. Congress remains an institution that is driven by its numbers. Most recently we saw 46 members of the house of representatives and a letter to Speaker Paul Ryan that was a bipartisan letter encouraging consideration on the house side. I expect those numbers are a lot larger. On the senate side i noted a couple people who have been out front with respect to the need to pass an aumf and there are others in my private conversations. Leadership will respond to the concerns of their members. I can tell you, as i speak to hoosiers, they hoosiers, they are concerned about this. My suspicion is that americans from every state understand that the American People themselves need to have a say about this fundamental and consequential decision about whether or not we send our nations best in harms way. I do think there is a growing appetite. Now is the time to lean in on this as the world appears to be getting more dangerous on a number of fronts. You correctly pointed out obviously that the Congressional Research service noted there had been 11 specific declarations of war in congress history. We lay out those 11 in our paper in five major conflicts. Forty plus authorizations for use of military force, some of which were very narrow. This 2001 aumf is rather capacious compared to others. You seem a path forward on your committee . Is there an appetite to take this up and move forward. When i first brought this up in january, i wasnt certain, i saw some affirmative nods as i discussed the leaves. Let me re style that, i think everyone recognizes it would be optimal for congress to speak on this particular issue. , the other groups that we list and the authorization of military force, in in a manner required to actually defeat them and achieve our objectives so, there is tension here between those who. We have to do everything we can to sanction the use of military force and members who dont want to tie the hands of this for future president. Through compromise we could end up in a good spot and make sure that we dont just delegate the executive branch powers. I think theres Something Else i needs to be said. Merely going through the debate in a public forum requires us in congress to sell the need to go into battle to the American People. If we cant do that in a democratic republic, perhaps we ought not be going into battle. That responsibility of the president , but not the president alone. delighted to take your question. Just please raise your hand, identify yourself by name in organization and ask a question what . It didnt. Ill start with all lurking in the back, my colleague. Thank you, senator. I am paul lurking from a fellow here at heritage. In your opinion, what is the difference between an au msn one would you choose one over the other . In the use of military force, my colleague sort of alluded to, can either be fairly narrow in scope if that is how Congress Taylor said. One example would be the class i wore in the 1790s, where was limited with the action be taken against the barbary targets who were targeting our merchant textiles. Another difficult of tonkin resolution, which some scholars have argued and noted that with effect to a declaration of war because of the breadth of the legislation. But if one were to declare war, it is essentially it is incredibly broad in scope. It allows the president extraordinary discussion that is theres almost nothing circumscribing it here to see the asset and accomplish the object days. And i would note that there is an excellent review on this by Curtis Bradley and jeff holt snags going throughout the declarations of war in the trade floor and they could include among other things the declarations of war tend to be out of favor because of the change in national law. I know you love all the articles, so ill give you a a copy of it when i see you. Sarah, in front of you. Who doesnt love review articles . I am jim payson, foreignpolicy director of the committee on National Legislation and i want to first thank you for the letter you sent last week on the human rights situation in yemen. I wanted to ask you particularly about sunsets because mr. Simson mentioned it is very broad and seems to be going on without any congressional review at all. In your legislation, do you consider the issue of when it might be sunsets and how congress revisit the issue . We do not. I struggle with this frankly because the downside horse to send setting is you allowed the enemy to grasp when youre going to disengage and when youre well might break in you preferred the enemy might not know that. They lay out the object is in god and accomplish those objectives. There is another side to this and i think this is a healthy debate. They need to enter commanderinchief, ensuring a robust strategy, which is sufficiently resourced if there is another enemy later that is defeated or degraded or a distinct aumf. Time for one more question. High commits early savage from the New York Times. I wanted to follow up on both of those questions. It seems to me tension between your desire not to have a perpetual war and the language of the euros to raising for an authorizing military force against. Also, i was curious when you raise the colleagues, some of them thought to have an authorization might do when you are proposing might actually constrain president charm. Constraints weve heard has been obamas suggestion and limitation on ground forces. It doesnt sound like you had either of those did what constrain a given your colleagues pause or d. Would present it from being a perpetual war. Thank you. So, the constraints we have her congressional oversight, which we have advocated to the executive branch. The American People can hold people like myself to account for the decisions we make and that is not a oneoff deal. That is in the future of the American People, recognizing the congress has ownership over the decision to go to war. If they indicate they are not happy with the conduct of that war, we try and reflect that. In policy we cant persuade them to go another direction. With respect to the perpetuity possibilities and our version of the aumf. We do indeed as you said include successor organizations to al qaeda or isis, recognizing that if one merely changes their name or if another organization is tightly affiliated with one of those entities, then the war can continue. This leads to this could lead to a longer conflict without doubt. The mission isnt really accomplished, lets face it. If they continue to threaten the safety, the welfare of the American People, allies. And so, all of this is consistent with my belief that when the United States go to war, we go to war to win. We ought not set an artificial timelines in a sense sense we ought not establish an artificial barrier to go in after a hostile organization which may have slightly changed over a period of years. Please join me in thanking the senator young. [applause] are traditional gift while under the ethics rule [inaudible] thank you so much. I would ask mr. Preston and mr. Savage to come up, please. [inaudible conversations] a few years ago during the Obama Administration i had a very high honor and privilege to a friend, jeh johnson, who was at the time at the pentagon running the transitions before the Obama Administration came to power on january 20th. Jay and i had a series of discussions over several years and he was kind enough to come to heritage but he was the dod general counsel and gave a fascinating speech on the administrations position with respect to retention policy. This was done as many speeches at the Obama Administration senior Government Official scale over the course of eight years, all of which have been pulled together in various publications and i commend them to you to read. That is why i am particularly pleased that Stephen Preston and Charlie Savage, that Stephen Preston and protect it with the Obama Administration kindly agreed to come by and spend some time with us. Mr. Preston is a partner at boulder Cutler Pickering and or laurie has said National Security government contracts practice. His work includes investigation, federal procurement, civil fraud , Foreign Investment in the United States can the cybersecurity, strategic counseling and crisis management. From 20092015, mr. Preston served as general counsel of the department of defense and before that, general counsel of the cia. I would note the only person to hold both positions. During his six years in the administration, he played a leading role in ensuring the United States intelligence that committees and military operations fully complied with the law and was a key Legal Advisor and many of the countries most challenging inconsequential endeavors. He previously served in positions at the pentagon and the u. S. Department of justice between 1993 in 2000 included as general counsel to the department of the navy from 19982000. When not in government, he practiced law between 86 and 93 and 20012009 and of course again today. Not surprisingly for his contributions on office, he has received the highest awards presented to civilians by dod and cia as well a state department, director of National Intelligence and department of the navy. He speaks wisely on topics related to law, National Security and 2015 received an adjunct faculty teaching at the law school at the oscar he Rubin Hansson lecturer in International Conflict and security law. He was appointed to the intelligence Advisory Board and 2016. He received his bachelors degree from Yale University and law degree from harvard university. Charlie savage, who by the way of robust among other excellent books. This one entitled power wars come inside the bombers post9 11 presidency, which i reviewed among others. Charlie savage is a pulitzer prizewinning journalist and the washington correspondent for the New York Times New York Times covering post9 11 legal policy issues since 2003. Also a hoosier, he graduated from Harvard College and holds a masters degree from yale law school. His first book, takeover from a bestselling account of the administrations efforts to expand president ial power was named one of the best works of 2007 by the washington post, esquire and other institutions. Join me in welcoming both mr. Preston and mr. Savage. [applause] i thought we would start off by going back in time a little bit if we could. The senator gave his three reasons for congress, for congress reasserting what he believes is their constitutional role in the authorization for use of military force against isis. He said that one, it sends a message to the troops that it is their constitutional duty secondly and third he thinks that with respect to the more limited issue of guantanamo, it might add more legal clarity to that. But start probably with your reaction to comments and anything you want to add to them. Start with you, mr. Preston and you, mr. Savage. Thank you for the opportunity to be here and the debate, the public debate about National Security law issues as evidenced by your most recent paper and of course for your service as a naval officer. Very grateful for that. Let me also say what a privilege it is to share the panel with my friend, Charlie Savage who has done so much to report on the role of law and legal policy and National Security, but also those issues and nine happy to be here. To respond to your question and not surprisingly to me, and i found myself very much largely in agreement with the senator. I think we can all remember in summer 2014 when isil, isis whatever you want to call it, captured the attention of the United States and of the world with brutality including held captive in syria. Great swaths of land, territory two aces in iraq and it was imperative that that time on behalf of the United States for military force to address the threats of the region into our interest as well. Expressly on the authority as president and commanderinchief under article ii of the constitution. The powers solution raise the question whether Congress Needs to authorize use of force against isis or whether that authority, congressional authorization was embodied in the existing legislation and it fell to the first instance to examine that issue, which we did and we concluded that the 2002 provided authority was ordering and was in fact in iraq. I believed then and i believe now that was the correct conclusion and i believe it is that conclusion that provides a basis for our government to continue to prosecute the fight against isis. I also firmly felt bad and i strongly now that it was important, i would even say imperative for congress to act, for congress to carry out its constitutional role in the war fighting decision that takes this country to war. Not because at the time it was necessary in order for the military action to be lawful, but as a senator underscored its important in our democracy to play its role to fulfill and its responsibility here. Also important as a practical matter to demonstrate that our government was fully behind us by demonstrating to our armed forces who are fighting the fight and also demonstrate that its government our government was united in its support for the fight and also importantly the senator didnt mention but would agree to demonstrate to our partners and adversary that this government in our country is united in the fight. To circle back to your question, that seems to be what is animating the senators resolution and certainly the pain he was sounding and i will agree with that. The questions on the table and if you want to pick up anything stephen said, please do. The senator didnt make the case about why some people are uncomfortable with the idea that the existing use of force authorizations cover the conflict with isis. Whoevers watching on cspan, quickly summarize. Isis grew out of iraq, al qaeda affiliate and ran the insurgency from 2003 on, but it is no longer part of al qaeda. The two groups have had a leadership split, a disagreement not just about who should be in charge and the rightful heir of bin laden, but also deep strategic issues. Are we being too brutal to muslims when we should be keeping the muslim worlds united. They are literally at war with each other. What used to be until 10 minutes ago known as al qaedas affiliate in literally killed by the Islamic State. It seems bizarre from that Vantage Point that these groups literally at war with each other with the same group, not that the seymore and the use of force against the perpetrators of 9 11 15 years later in syria. The Obama Administration senator didnt bring this up and is still the cleanup from the decision to invade iraq in 2003. The discomfort with the Previous Administration they have gotten out of the iraq war. Susan rice said explicitly the government would no longer rely on that authority can clean up the books by rescinding it. They need to be relying on it but the available reservoir of authority rather than coming to congress for sending mail. So that is why its been in a comfortable thing. Why did the Obama Administration first put forward the theory i see then described. I think that resonates with Something Else with the senators remarks, is he didnt actually say it was necessary. His first argument for why congress should now do this will make the troops feel better, which is a soft argument, and aesthetically nice thing to do and maybe the Trump Administration wants to bring a detainee to guantanamo, they would remove some litigation risk of whether the authority doesnt extend to any detainee. That authority does not cover the war. This is an unconstitutional thing and weve got to clean it up and do our constitutional duty by providing Rail Authority for two and a half years. The reason he didnt do that if he doesnt trust congress to do its job. But he doesnt want to go out on a limb and say if you dont its unconstitutional. In the same way, back in 2014, president obama has stephen described it and does not trust congress to come back heading into the 2014 made turned and actually pass something. Do nothing because it was going to get its act together or do something with a good enough theory and thats what they did. The unwillingness to trust congress, to actually move. If you dont say its necessary, its very hard to get congress to something so controversial and look how much john kerry suffered for having endorsed the iraq war, though enough members of congress are willing to go there, which apparently theres not going to be a really resounding sense of the and this must happen because otherwise they get turned off. Let me add to that and i will ask either of you to jump in. If my recollection is correct, when your boss, president obama sent to transport up to the hill, there is a transmittal letter. If i recall correctly, is that although i have the authorization to conduct this war, i still recommend blah, blah, blah. You are putting your finger on part of that and there is this sense upon the body of sun in the house that if it aint broke, you dont need to fix it. They do adequately cover this and why do you do this if its not legally required. Could you speak more to that . Here you are in an administration that is taking kinetic action against the enemy and in my opinion fully covered, but from what i can leave from the outside looking in, wanting to engage congress to get engaged and fulfill their Constitutional Responsibilities not for the reasons editor jan. 0, that they are recognizing that isis grew out of al qaeda and iraq in 2004. They are really going off in their own direction and this makes more sense. Could you post more words around that . It seems to me to be careful to say that a new trend for was not necessary at the time for military operations to be lawful is not to say its merely desirable to have a aumf appeared to use the word earlier imperative. It is imperative not as legal necessity but a proper function of our government and a number of subsidiaries that there is that we discuss. Another sense in which time passes, it may go from not just desirable or imperative in the sense ive described, but legally necessary but as the adversary evolves. At the time we address this issue, we are dealing with what had been called al qaeda in iraq , a few like him a terrorist organization that was a component of al qaeda but didnt tell the differences between the leaderships that was operating in area and iraq. Now we have isis manifestations of isis in libya, afghanistan. I dont know where boko haram is these days. The aumf and the rationales are not infinitely elastic no matter what it is or how it manifests itself. If you take a longer view, it is imperative to our democracy, but there is also legal reasons it would be wise and advantageous to the Current Administration to secure a new and express authorization. Charlie. I quarrel with the notion that its not necessary but still part of the core constitutional functioning of our government because it is not legally necessary, that means the core constitutional function of our government as congress has more power in a ceremonial. They need to be seen to be blessing the thing that can happen without them. They could repeal the transfer of the exercise their constitutional role that war should end in exactly the same manner they can act to endorse the fight as it has evolved post9 11. I disagree with that. But if they dont repeal it, then everything is fine. The other piece of it for education purposes is it has acted repeatedly since 2014 and knowing how the executive branch is interpreting this authority. It has repeatedly authorized for the counter isis operation. One of the interesting things very complicated about all this is even if you are among the faction that thinks the administrations original assertion was edgy and maybe stretching the aumf too far, it may be that the problem has healed over time because congress has essentially ratified. By continuing to appropriate funds explicitly for the counter isil operations, which amounts to authorization. This is one of the problems that senator mccain and i because as they passed to an half years now, three years, whatever sort of reading fred madisons comment about the need to separate the power to decide whether to go to war or execute a war, it increases power to the executive and so forth. The damage is done if there was damage. At this point it may be that the scar tissue has 34 and. And so the cleanup explicitly say isil and explicit organizations, whatever that means. Im not sure what problems are being fixed today if it ever were to happen. One of the things that are geared for the senate Armed Services committee when they had the hearing in 2013 on isis, aumf and the laws conflict was in my written testimony was that the 2001 aumf is self limiting. And that its not as broad as some would argue. At this gentleman asked a question many people have which seems like its gone on forever. One associated force becomes the next associated force, et cetera. Your predecessor and our friend, jeh johnson gave his speech at yale law school, which you talk about in your Excellent International loss speech in 2015 where you said talking about associated forces that an associated force must be an organized group that is centered to fight alongside al qaeda and echo blucher with al qaeda against the United States and coalition partners. And then you go on to say it doesnt mean every group that commit terrorist acts as an associate hours and i argued the same. Most of all, scholars believe that. We are not talking about hezbollah for this group over here to change their name to Something Else that theyre not associated with al qaeda. Im not going to burden you with this question. Ill ask you, charlie as a reporter, what is i mean, i asked the senator with the appetite on the hill was for aumf and i agree that senator king, senator flake and others have done a good job trying to tee up the question. How would you answer the question i gave the senator . Is there any appetite there . I argue that a aumf is not a substitute for comprehensive data sheet and legal underpinnings to authorize the strategy. You want to pick up any part of that question . Observationally, the thing that prevented congress, everyone in congress essentially supporters. There are no proisis or even might stay home and let them solve their own problems because they cant hear and attack paris and everyone can see that. So why did Congress Pass an authorization in 2015 when the Obama Administration set it up . The reason was there is a split between what the administration wanted and what republicans who controlled both branches wanted. The administration wanted a sunset. The administration wanted a limit on the use of Common Ground forces entering offense operations and for emulation that was intended to allow some rescue her without her or commando raids, but not occupation. The other view was no come out for going to go to war. You dont tie your hands in the hopes that you do everything. Because of the experience of the 2001 aumf and the forever war that has grown out of it, on the left there was less appetite. Lets not do that again. And because there was because there is no one saying we have to stop if we dont get something because the administration was saying the authority was sufficient. This conflict could not be resolved. Theres nothing that president would sign it so its easier to not do anything. Now we have a new administration that would presumably find a more openended aumf without ground forces. It seems like the conditions are there to clean us up as part of the next National Defense authorization act or something. Very few people are talking about it. Theres a lot going on in the world and a lot going on in washington abc used more urgent. Nevertheless, i would not be shocked to see some language not unlike the one he was opposing folded into congress deals with this year despite the fact we are not hearing much about it. I dont see where the opposition to it is organized in the sense that obama wasnt going to sign the bill. Trump will sign the bill. So, as i think about judging a new aumf, from my perspective it is uncertainty and clarity as to what the authority is and that resides in terms of a followon aumf in deciding who the enemy is. N. B. Im not, wanted to be adequate and sufficient to meet the threat in the first see about that and tailored to the media and foreseeable threat. I think there is a concern at least among a good number of members about a blank check type authorization. That then leads to consideration of various limitations. Geographic limitations, and a mode of fighting limitation, temporal limitation and others. The former i think are particularly problematic in that they tend to erode clarity as to what the authority is and may erode the utility of a aumf to meet the foreseeable if not present threat. I think the time limitations, the sunset cant let this entirely different. And if properly structured, isnt really a limitation at all. If properly structured, it is a public embrace of our democratic system where congress and the president have to agree to initiate conflict and this would be structured in a fashion to periodically reaffirm our commitment. So i think if it is a twoyear limitation, death may have the effect and may signal to others that we are not committed to the fight. But i could foresee a sunset provision that places the sunset somewhere, perhaps a president ial turn away and create some mechanism for renewing the authority in advance of the sun that so that the public partners, adversaries are not being mass aged that we are not committed to the fight, but rather committed to our Democratic Institutions and we have set up a mechanism to fight this fight as long as we have to fight the fight. I think to the extent as a practical matter in congress, there are those that are uncomfortable with a blank check and there are those that are uncomfortable with excessive limitations. I think a properly structured time limitations could be a point. And i could add one thing. You are starting to push her finger this is so hard. So he names in his taliban hq and isis in the associated forces, whatever that. So does the fact that he didnt name alshabaab or didnt name boko haram that the congressman had an opportunity to do so or a few repeat or whatever, the little ones no one is ever heard of that are running around, are they not part of it . Youre still giving the executive branch the decision to deem part of the site and youre not really solving the problem. So theres been various efforts to grapple with that. Do we need notice her son conditions that are statutorily being matt p. At the other part of the blank check problem is its not Just Congress started as an authorized in al qaeda and afghanistan and 9 11. Now its being used in isis in syria and so forth that it sort of spread. There is a history of using nonauthorization to do all kinds of other things that have a Warrantless Surveillance Program on domestic soil because the Bush Administration decided an authorized going around sides. What else could it be used for . This is blank check anxieties that maybe we need to put limits in it and its easier to go with the existing authority and not openness pandoras talks. I dont think they will need to very broad and openended to me. It will attract a line. Lets pay that if we could. I referenced jeh johnson speech here in the Obama Administration speeches around the country explaining legal rationale for various aspects of what some call the war on terror. Charlie, you are journalists. He won a pulitzer prize. That must be nice. A long time ago now. He wrote about it extensively here and power wars. Did you find that helpful and if so why . In other words, does it make more sense for an Administration Given the complexities of the war for senior Government Officials in a methodical step by step approach to go in the public and explain to the extent practical the legal rationale they are taking and even if youre able, looking back now, did it meet the object is you hoped it would serve . Ill start with charlie. The Obama Administration did things that were edgy, controversial in the area for power and National Security law. But as a general proposition , saw a broad need and advantage in trying to explain itself. It wanted to be seen as an organization that took seriously the rule of law and was grappling with these difficult issues in the 21st century where its not always clear what the law is often a lot was written for situations different than the one we are facing today and you have to interpreted by analogy and there may be multiple possible interpretations, but also implausible one to show they were staying away from the crazy ones at least. They engendered through that a lot of public debate but i think was good for democracy, even if people didnt always agree with what they were doing and where they came down on things. To date, this administration has not been that way. The great example of that, only 100 days or whatever and, trump shot missiles at assad force is an offered no rationalization for why he had Legal Authority to do that without the international law, without a u. N. Security council resolution, without a selfdefense claim, a very edgy thing to do. The obama people thought they came close and thought they had an argument for why they could do it, but it was at least this administration is saying is you dont to be the next lane itself. That is not good for democratic accountability in public debate and i hope they evolve on it. My sense of it is i first need to use suggested, it was part of president obamas philosophy in view of the government that there should be as much transparency as possible. As much transparent to possible and to include in matters of National Security within the confines of preserving National Security. From my days, it was a much more practical proposition. When i started in government in july 2009, you couldnt pick up a newspaper without front page references to the latest strike as in southwest asia pursuant to our governments illegal counterterrorism program. It was as if it were conventional wisdom that what our government was doing to fight the terrorists in afghanistan and elsewhere was part of a secret Illegal Program it was disturbing me to have that characterized that way and i saw that as horribly corrosive and again in our system of government and in terms of public support for what our country was doing. But also potentially quite harmful for the rank and file people that we were asking to fight this fight, to have some widespread perception that these offers were unlawful. It was all so deeply disturbing to me that there is a constant refrain that he was unlawful and no one seemed to care. From my perspective ideas died, it was important to articulate for our government, to articulate to our people white was doing what it was doing and what the legal basis was for it. He saw that in speeches by the Legal Advisor in 2010 and the attorney generals beach. Would she not only in the domestic and International Legal bases for counterterrorism program, but also addressed the lawfulness of using force to an american citizen and who chooses to take up arms against our country. And i think the end product, you ask about whether it was effective. On the matter that concerns me initially, this conventional drumbeat in the press and among sums dollars that our country was pursuing an unlawful counterterrorism program. That fell out of the public debate. Not that everyone was convinced her that all critics would be satisfied, but i think there was a broader understanding and wider acceptance of our governments counterterrorism activities then there was without that type of transparency. Yeah, i will just say as a person who spent time at the pentagon and the Bush Administration, we certainly did do a very good job explaining rationale. In fact we were pretty bad at it. When john bollinger, who was the Legal Advisor, head of the legal shop at the state Department Gave a series of speeches, one of which stands out in my mind, which is his halloween speech 2006 at the London School of economics, where he explained to our partners, the legal rationale and probably shouldve done more of that, but john did the work. Watching the Obama Administration from the sidelines at a think tank, i thought it was rather helpful, understanding where youre coming from and the legal justification. I found president of august 2009 speech particularly helpful. That said the table on how they would try to solve that problem. These are tough issues. We have a little time for questions and if anyone has a question, raise your hand and identify yourself by name and organization and ask a question. Here are the front. Wait for the microphone, please. Chris harlin with the International Committee of red cross. Thank you for the panel and thank you for the paper as well, which was good and very interesting. You conclude in the paper i think that the United States should have a aumf before bringing Islamic State Group Fighters to guantanamo because of the risk you mentioned. I think you say that there might be a successful challenge and its unclear currently. I wonder if you might say a couple words about that. Maybe the other panelists discussed that potential risk as well. And maybe if you have any sound. , to guantanamo detainees would not, under the Current System would not get a periodic review board set up under the executive order that does that for the current detainee. Whether you think that would influence the judge is in the d. C. Circuit and also earn having to assess whether or not the people were there illegally or whether that is simply a separate question. Yeah, well, thank you adult take those questions in order. We didnt cover the periodic review board issue and i think its an important and related concern. I dont have enough ink or space to cover it. You would think that in the time i spent at the pentagon and since then i wouldve analyzed the cases and come to a conclusion. I hide until they did the analysis and try to categorize the bucket for lack of a better term that each detainee fell in to as the d. C. Circuit analyzed and had to decide on their risk. You know, i hearken back bananas at the pentagon as you know, we had a close working relationship with your organization and its a very important relationship. And the government still does as i understand. The Bush Administration not almost a perfect record. They almost lost every case. You know, you tend to remember your losses and hopefully you think about why you lost and what of the table to that litigation and how you can avoid that in the future. So perhaps it was the litigation risk averse side of my personality. Having been a defense attorney and for all sides of the litigation. You know, we picked up on the defensive several judges said in the circuit cases and i think the further we get away from 9 11 and theres been an interregnum obviously in the times of people have been brought to guantanamo. The Obama Administration didnt bring one person. So there has been no isis member brought to guantanamo. And so, i think we prudently concluded that the litigation risk is well above zero, that certainty is better than lack of certainty, which stephen and others have stress which is very kind of them to do so. I dont know what charlie and Steven Pinker whether they have read the paper, but i think when you look at the litigation, just the easiest litigation and you look at who these isis member sorry, i dont know who they are. I havent been in the government for a long period of time. I can imagine that trying to connect the dots as a government lawyer between this particular isis member back to the people who could fall squarely under the 2000 au of mass might be a heavy lift for a government lawyer to do. So that is the conclusion. To your second part of your question, i dont know what this administration is going to do with respect to the periodic review board. We had periodic reviews as you know during the Bush Administration called something different, the annual review board and i would certainly hope that this administration would review detainees, files on a regular basis. I dont know if they are. I suspect they may be. That would factor into a coarse analysis, especially of counsel for the detainee brought back to the courts attention. How that would turn out, i dont know. I would invite any of my colleagues to comment if they want. I did read a piece in as i mentioned earlier, its a useful contribution to the debate and analytically a sound treatment of those cases. No disagreement on it. I am concerned about the implication of society and the ability to put detainees as a reason to have another aumf are the very practical reason that if they political lightning rod. To hearken back and have the executive and congress agree on war fighting authority here and to have congress is participation be bipartisan if at all possible. Wonton memo, like it or not has become a political lightning rod. To the extent that if i were strategizing if you will with senator jan about it in a resolution passed, i dont think i would highlight as a reason to pass it enabling this administration to bring isis fighters to guantanamo. I think that might undermine the goal of trying to get bipartisan support. I totally agree. It goes to charlies original point. Whats the real rationale . What is the real need to do so . I think that point assured and at the same time thats a place where you get a hook. You better do this because you are screwed up if you dont or you are taking the risk. If you take that off the table for political reasons, you are asserted that in the purely aesthetic, wouldnt it be nice and send a warm and fuzzy message to the troops, which is its hard to get any individual lawmaker to then cast the hard vote that might come back to haunt him or her later when you dont have that you better do it or else the government will be screwed up in some white argument. Any final thoughts for neither of you . Thinks very much for having us. This is a pleasure. Youve been wonderful. Appreciate both of you taking time out of your busy days. Please join me in thinking this panel. [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] if you missed any discussion come you can watch it in its entirety online at cspan. Org. Sean spicer scheduled to greet supporters shortly. We will have that on cspan2 when it gets under way. [inaudible conversations] [inaudible conversations] yeah, one minute away. [inaudible conversations]
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