At the outset i want to thank senator ron johnson and his staff for sponsoring the room for todays event. As you have may have noticed from your program and our panel up here were playing shorthanded this afternoon. Professor coup from Hofstra School of law [laughter] not sure what that was. Professor koo had a last minute conflict which precluded him from flying down this morning. Even without his valuable presence i think you will agree we have a great panel. And the topic of executive and legislative war powers seems particularly appropriate given we just celebrated our nations independence day. After more than 200 years, our government has develop ad track record regarding 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 it been ignored . Do the founding principles regarding these topics still have application to our modern era . To help us navigate these and other important questions were pleased to have with us, andrew mccarthy, who is a senior fellow at the National Review institute and contributing editor at National Review. He is a former assistant u. S. Attorney for the Southern District of new york. He led the 1995 terrorism prosecution against Sheikh Omar Abdel rahman and 11 others for waging a terrorist war against the United States. Including the 1993 World Trade Center bombing and a plot to bomb new york city landmarks. He is also contributed to the prosecutions of terrorists who bombed u. S. Embassies in kenya and tanzania. He writes regularly for pga media and the new criterion. He is a New York Times bestselling author of many books. Were also pleased to have with us former congressman Mickey Edwards who is the Vice President and Program Director for the rodel fellowship in public leadership at, im sorry, he is the Vice President and Program Director for the rodel fellowships and public leadership at the aspen institute. He was a member of congress for16 years, representing oklahomas fifth done conference district. He was on the house budget and appropriations committee. Chairman of the house policy committee. He taught at Harvards Kennedy school of government and Princeton Woodrow Wilson School of public and national affairs. He is on the board of directors for the constitution progress where he chaired tack forces on judicial independence, government oversight and the war powers. He is author of numerous articles and books. His most recent book was published in 2013, titled, the parties versus the people. How to turn republicans and democrats into americans. Before i turn it over to our panel i wanted to he note that following panelists remarks well have q a. Think of questions you want to ask our panelists. With that, mr. Mccarthy, the floor is yours. Thank you so much, nate. Thank you to the Federalist Society for the kind invitation. I have about 15 minutes of opening remarks that, in light of julians absence i will try to squeeze into 20 if i can. But, as we gather on capitol hill today the United States armed forces are engaged in combat operations in several global hot spots. In syria we have not only conducted attacks against the regime without any congressional authorization, we are now occupying territory as well. Ostensibly were there to fight not the regime or its russian and iranian allies but the Islamic StateJihadist Organization also known as isis. But to the extent that is a legallyauthorized conflict it is against an enemy arguably did not exist at the time that the relevant authorizations of military force were adopted about 15 years ago. You could say, as weve been saying isis is breakaway faction of al qaeda. It began as the Terror Networks iraqi franchise. Consequently it is covered under the existing aumf. This however ignores inconvenience al qaeda along with its allied islamic factions is also fighting isis and assad regime in syria. Essentially 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 that we support. In that sense the situation mirrors our misadventure in libya. That was another recent conflict in which a president , without congressional authorization, launched an aggressive war against a foreign sovereign that not only posed no threat to the United States but which was actually regarded as an important counterterrorism ally. And that was because for all its many flaws, the gadhafi regime was providing us with intelligence about militants in places like benghazi and de are. In. A, which were libyan support hubs for the antiamerican jihad in iraq and afghanistan. In libya we initiated unnecessary war without any debate among the peoples representatives much less any congressional authorization. The result was a catastrophe. The undoing of a counterterrorism ally in a dangerous neighborhood. The empowerment of jihadist enemies, a failed state, and an administration reduced to absurd rationalizations about how its bombardments against regime targets were somehow not acts of war. It is tempting on this record to draw the conclusion that modern practice has superseded the constitutions division of warmaking powers between the executive and the congress. When we get down to brass tacks it is simply not true. It is not true that is simply forgotten in the war powers debates which are dominated by lawyers. The debates tend to take place under auspice of legal academic institutions or organizations like my friends and colleagues here at the Federalist Society who are hosting us today. The reason is we are a body politic, not a legal community, at least in the main. For any free society to flourish, it must of course be underbidderred by the rule of under girded by the rule of law. But the constitution is a basically a political document, not a legal one. It is the assignment and division of Political Authority among actors who compete and collude depending on the attendant circumstances. This is critical because war is a political exercise. Politics by other means as carl von klaus memmably put it. There are legal elements to it but basically a political endeavor, use of government power, in this instance, force against a foreign enemy in order to break the enemys will. Though you wouldnt know it to listen to most war powers discussions there is a limit how much war can be judicialized or how much it can be subjected to antecedent rules and procedures. The state of war after all is the antithesis of our domestic peacetime footing. It is proud to boast of our legal system prefer to have guilty go free than a single innocent person wrongly convicted. Therefore we presume against the government. The accused is presumed innocent. The government has weighty standards of proof to conduct a search, obtain a wiretap, to make an arrest, to convict a defendant. Our bottom line is we would rather he see the government lose. That is justice is not 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. In war we dont, and we cant want the government to lose and we can not give the enemy the presumption of interest. In war it is always in the National Interest the government prevail. Yes, our troops are the worlds best trained and most disciplined. We demand of them adherence to the laws and customs of civilized warfare. But the highest National Interest is to defeat the to defeat the the enemy and achieve whatever objective it was so vital to go to war in the first place. War is different paradigm. Far from legal niceties it is driven by the publics perception of threats to the homeland and to vital American Interests. Our division of war powers is a reflection of this political reality. As we discovered painfully in site name and to a lesser extent in iraq a war effort needs Strong Political support to be a strong effort in a democracy. If there is not public con sends is our security is at risk or high American Interests are at take stake support for war at home and in congress will flag. At that point we can debate until the end of time whether the use of force was lawful and authorized. The only salient point is that the public does not regard war effort nesac nice of blood and treasure. That will be the practical and dispositive test of a wars legitimacy. Our constitutions war powers are geared in just that way, just for that reality. The constitution vested in congress the power to declare war. The executive however is cheaply tasked with our National Defense against foreign threats and it is for the commanderinchief to prosecute war. This means that when the United States is under attack, or a real threat of attack, no authorization from congress is needed. The president may take whatever military actions are necessary in order to quell the threat. Even under these circumstance, however, congressional authorization is desirable. It becomes not only desirable but increasingly essential as the immediate i cant is sy of a immediacy is of a threat fades. Combat operations not only reflects public support for the war, it further he 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, subject to lethal force, detention without trial after capture and potentially even trial by military commission if provable wartimes have been committed. A congressional authorization controls where and against whom military operations may be conducted as wars go forward. Here is the main point. The further removed the use of force is from an identifiable threat to vital American Interests, the more imperative it is that Congress Weigh in and either endorse or withhold authorization for combat operations. The less obvious the peril the more important it is that congress use its other constitutional authorities, particularly the power of the purse, to insure that military force is employed only for political ends worth fighting for and critically, that the public will perceive as worth fighting for. Now, it is fair enough to say that our contrary practice has not confirmed to the constitutional guidelines ive just outlined. As a practical matter, we have Permanent Military forces. There is no stopping a president from ordering them into battle. As we noted 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. After insisting as candidate trump that obama needed congressional as sent to attack targets in syria, President Trump attacked regime targets in syria without congressional authorization. The congresss war powers seem not to be too much of a hindrance on the executive. Nor does congresss power of the purse seem to have much bite. It is simply a political reality. It is 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 objective. Congress may disapprove of a unilateral president ial use of force but unless the public is not merely indifferent, but actually deeply opposed to american participation in a conflict, lawmakers will be very leery of being seen cutting off support for the troops. So here is is the dynamic. The president has a relatively free hand. And congress abdicates its responsiblities, content to wave the pompoms when things go well and excoriate the incumbent administration but not cut of funding when the guying gets tough. Over time, congress does assert itself. We saw how this worked in iraq. There was very strong public support for the mission of removing Saddam Hussein on grounds that were very powerful in the post 911 environment that he had weapons of mass destruction and might be inclined to share them. Congressional democrats with the 2004 election on the horizon sought out the opportunity to vote in favor of authorizing force. After a swift and successful toppling of the regime, it became evident there was a different and ambitious warning. It was more washington enterprise than the mission the American People believed in. It was prioritized when weapons of mass destruction were not found in the quantities advertised. The efforts of western democracy, principles and institutions in a society that was hostile to them. Hostility that grew more intense is the joy of liberation from saddam transitioned into a civil war between shiite faction. Alas, we did not learn and apply the lesson of this folly in libya. I fear we are well on the way toward making the same mistakes in syria where the consequences of folly could be disastrous given the players involved in this complex multilayer complex. Russia, iran, turkey and so forth. President trump give a very interesting speech in poland about preserving western societ society. Except, he didnt call it western society. He referred to it instead as western civilization. He was right, just as Samuel Huntington was right. Our conflict with radical islam, with what i call the premises him is a class of civilization. To prevail, the west has to decide that the west is worth defending and we have a lot of work to do to repair that self perception. We also have to realize that the enemy is a product of arrival civilization with starkly different principles. Its not enough to say fundamentalist islam which is the mainstream islam of the middle east does not wish to be westernized. It considers the intrusion of western armies and institution to be a deep provocation. Even if we see ourselves as dogooders who are just trying to improve peoples lives. This is a product of spending a generation and willful blindness animating ideology, and that could be the subject by itself for another symposium. The point relative to constitutional war powers is the imperative of public support for military operations. If there are vital American Security interests at stake, the American People will be on boar board. Congressional authorization and endorsement will then make it possible to achieve crucial military victory. Americans, however, are simply not interested in trying to democratize societies through military force. On this score, it is essential congress to its job, demand that any president who lurches into these complex seek congressional authorization for clearly stated a objectives and satisfy that we are conducting Real Security needs, not conducting an experiment at the lives of our best and bravest young people. As a practical matter, the constitution may not be able to prevent an overly ambitious president from in meshing us into conflicts against our interest but war powers can still have a very important say about the legitimacy of the use of force and therefore about its extent and duration. Moreover, where the use of force is clearly in americas vital interest, congressional powers used to issue a powerful endorsement of a clear, necessary mission can help us achieve something that has eluded us since 1945, victory. That is a word that is barely even spoken when we speak of american war power. Thank you very much for your attention. I look forward to our dialogue. Im very hightech, i had to learn to how on how to push to turn on the microphone. While im delighted to be here and have a chance to give some different views, i agree with an awful lot of what you have said. I want to maybe come at it from a different angle and to try to wrestle with some things in my mind. You mention my background as the head of the policy committee, i actually was the National Chairman of the american conservative union, founder of the Heritage Foundation and the chairman of c pack. Im finding myself constantly looking at some of the positions that our movement takes today and trying to figure out how they square it with what our movement once was. I am someone who has not gone to see hamilton, but i would spend a lot of money to see a play on maverick. That gives you some sense of where im coming from. I would disagree a little bit on one area. The declaration of independence, which we just celebrated his aspirational and political. A typical document. It lays out a case for an actio action, it lays out the grievances but the constitution is law. It is the supreme law. It 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 also the bill of rights and i think its too easy to look at the constitution and dismiss it as something that well it was a bunch of old white guys a long time ago and we dont have to follow their lead. I would disagree on that point. I am a constitutionalist. Im quite often surprised at the number of people i see in congress or writing and publications who are staunch defenders of constitution who seem never to have read it. I suggest reading it is actually good exercise to start with. One of the things i have observed watching my former colleagues on the hill is the