President s and congress has followed, that this would lead to a paralysis of our ability to defend ourselves. All of the framers agreed about war and i dont think that is true either like bruce said. I would look at the constitutional text. I have a free copy someone gave me. I expect some place like the committee on the republic we have one. Article 1 says no state shall without the consent of congress engage in war unless actually invaded or in such eminent danger delay isnt allowed. That is the constitutional balance of powers that bruce thinks should apply between the president and congress. All you would have to do is take out the word state and put in the word president. Unless we are invaded or danger of attack. Why couldnt the framers written that if they had intended what bruce said . Instead they wrote provisions that gave some power to congress, some to the president and expected them to fight it out. I want to bring the argument to the contemporary period. I know john was involved in the authorization of military force and the broad power it gave the president and i think at first, your understanding of the authorization of military force use and the president s current request that he requires another authorization to use military force in the current situation. Could you address that . The authorization use of military force language describes the universe of targets that the president can set as those who were complicit, they can be persons, organizations, individuals who are complicit in 9 11 or harbor those who work. It isnt an authorization to go after every terrorist in the world. It is an authorization to target those who are complicit in the 9 11 organizations. The president is saying omaf auth authorizes him to bomb and express the need for Ground Troops if the air campaign doesnt work which it surely wont if we bomb with more bombs in world war ii that didnt work it will not work with isis. But the president , isis, is an opponent of alqaeda. They are rivals and didnt even exist in 2001. They fall within the aumf that congress thought they were authorizing an attack on an organization that didnt even exist at the time. That is an example of the insouciance that is president utilizes without going to war without authorization. It was the president James Madison who asked for a declaring of war. If the congress is more aggressive than the president they could have passed the bill and sent it to him. In the war of 1812, the british were able to successfully invade the United States. Harvey is from canada trying to snatch canada history there for facts. But john, the authorization of use of military forces is historically unique in that it authorizes the military forces not only for states put for organizations and persons. And that i think was unprecedented in our congressional relationship of power. Could you address that . Your understanding. I am not sure whether bruce is arguing against war or president s who act without congressional authorization. Drones, surveillance, some of those examples are terrible things and the use of collection of intelligence during war time and those are Things Congress is authorizing president ial action. When the decisions came to congress we have supported them. So sometimes you are arguing against war or the harassness of war. But if we debate on whether congress and there president have to agree that is different. Is the aumf from 2011 and i participated in the drafting so i have bias. Does it authorize use against isis and that depends on how connected isis to is alqaeda. Isis was at one point part of alqaeda and now there are reports they are fighting it each other. If they are not part of each i dont think it falls within the 2001 reportism i think it falls against the 2002 report. Resources financial and natural are there and if they intend to attack us, as they appear to, i think they fall in the the 2002 report. I think the president needs to go to the congress and explain why they fit under such statue. I dont think they are blank checks. They are broader because they are not limited by time or geography but that put us back into what it was like in september 18, 2001 when written and passed. We were not sure who attacked us yet and wanted to make sure should alqaeda evolve or transform itself into different groups, remaim itself and the authorization still be able to follow them and the people helping them, no matter what they call their organizational chart or change in goals. I promised i would save time for the audience. And i usually try to keep my promises. So why dont you stand up and say your name, who you are and any affiliations so we have a sense of where the question is coming from. You might have to take the whole thing. Well done. My name is patrick. I am an adjunct professor of law. The question i have my understanding of the constitution was that there was a financial part of this, too. They saw the kings in europe were getting their countries into war and bankrupting them. They felt they wanted to restrain the spending of the peoples money and bankrupting the country by engaging in the foreign wars so they put the authority in the congress because they did feel the king, then the executive, had a tendency to get involved in more wars. Anybody want to talk about the financial part of this . I know how much the war in iraq cost the country, for example. I just wanted to raise that. Professor, i agree with you. And that is why the power of the purse is in the hands of congress. Congress is given the authority the Sole Authority to fund the military for twoyear periods. I think that is the real check on any kind of executive war making or grandizement. I will give you one historical example i think supports this. This is the constitutional amendment that is at work. It is a specific power. The spending power. When the constitution came up for radification in virginia, which was the most important ra radfication state. Patrick henry, you know mr. Give me liberty or give me death, the bruce fein of his day, Patrick Henry made many of the same arguments saying you have created a potential monarch who is going to use power to oppose the tyranny. And James Madison, the leader of the fight for the constitution in virginia, his reply wasnt dont worry the clause is there. His answer is under the constitution the sword and the purse are separated. So the parliament can always cut off funds if the king choses to fight a war. And congress can have control over the purse and without it the president cannot wage a war. I agree it is that check. However today congress is choosing to fund the wars. Again, my point it it isnt a failure of the constitution or the democratic system. The congress and president are in agreement. What is your reaction . Madison did state the power of the purse enabled congress to readdress all of its grievances. It did so on one occasion. Vietnam war was brought to a close when Congress Said there was no more money to fight the war in china. President nixon did obey that law. There is a problem with the approach relying on the power of the purse and that is we know what happens where the president sends troops into war and they are in some kind of danger. And then it is viewed if you vote to cut off the funds you are creating danger for the troops. That script is played out repeatedly in politics. I dont see why there is anything wrong with understanding there is more one than check on president ial eagerness to go to war. I dont think with regard to what you said, john, that the congress hasnt authorized the president to use predator drones to kill american citizens on his sayso alone. When that issue arose with John Brennans election to be director of the cia it was controversial and we got a wobble answer on what he could do. The congress didnt say we are allowing the president to kill americans because he thinks they are dangerous without a review. Question in the back . Thank you. Good evening. I am ann wright a former diplomat and i resigned in 2003 in opposition to the war in iraq. All of this is personal to me as many of you all. The either intended or unintended consequences of giving legal opinions to allow a president to do essentially whatever we wants to is i think very dangerous for our country and the rest of the world. And how can we control these types of president ial decisions backed up by john yoo and a host of lawyers who in my opinion didnt serve the government and people well by the allowing of this type of overreach by the president . Thank you. I think we [applause] i think we know because it was conveyed about a year ago when president obama was poised to launch missiles into syria and the American People got awo awoken and said we dont want another war. The president retreated, congress didnt do anything and we wend ended up with destroying the chemical weapons and it was okay to kill them with other things. But the congress and president are still responsive to what American People believe are the requirements of the dangers that justify going to war. I respect your point of view. [inaudible question] let me answer the question. Each government is responsible for using their own constitutional powers. I think if there are lawyers in the executive branch the people that maintain the position and going back many decades thinking the president can use force, i expect congress to have their own lawyers and institutions and they are supposed to fight back. That is what the framers intended for the constitutional mechanisms to work. If you goback to 2011, this isnt a place where the president is saying im going to war and congress was saying dont go to war. Congress was attacking the executive for being too passive and allowing the 9 11 attacks to happen. My memory is congress and the president were in agreement in taking the fight into afghanistan and against the terrorist. I dont see this division of authority between the president and congress. We obviously have what i would say from 20042005. I dont think the constitutional system broke down in 2001 and i dont think the president and congress were in disagreement. And i dont see Signs Congress was trying to stop the president from conducting the war in anyway. If congress wanted to, they had ample powers at their disposal to do so and they chose not to exercise them and passed the amuf in 2011. A broad authorization to use force. I need to give a counter example because this is important of the model for Government Service. This is my involvement in watergate and there was a time when nixon believed your example is yourself. I was at the Justice Department at the time of watergate and the attorney general was Elliot Richardson and the president believe he had the right to fire the special prosecutor who was getting close to uncovering evidence against the president. And he said i am quitting because i am not firing cox. And then the entire department of justice in the aftermath listened to richardson and gave him standing ovation for the courage. What happened was the department would have been a cephalous without a general acting and mr. Ri ri richardson was asked to stay on. I cannot let that example go. Now you know why they asked me to do this. First, i think that i dont know if bruce would agree with this. But i think it was constitutionally in correct for the attorney general and the Deputy Attorney to say they cannot fire a prosecutor. I think judge fork did the right thing. He carried out the president s order. The president is a chief Law Enforcement office. Congress power was to impeach the president. It went to litigation nato versus fork and the judge ruled it was illegal to discharge mr. Richardson. I am with the institute for justice. And i have a question about the role of the courts specifically about the role of the courts in keeping the executive in check. They were mentioned earlier and one of the things that is remarkable about the case is that the final report, general dewits report used to support the relocation orders was based on deeply flawed information that the Justice Department knew was flawed when the argued the case. He was pardon decades after and being sent to a concentration camp. I am wondered what the facts in evidence is given the facts used to justify the actions of the executive are hidden and because of National Security allegedly would being not know about them. I think the courts should reannounce what i think this foolish doctrine of the execute branch and Foreign Affairs because they are on mission and it maybe true they have more information than the congress and judiciary. They have huge motive done. The most famous case was reynolds versus the United States. The claim of secrets and the secret report not viewed by the justice years later showed the secretary of air force lied and suggested that the report that caused the death of an engineer would disclose state secrets but there was no kind. You just showed the United States being responsible for the death. I get the answer, too, harvey . I think that was like a question hostile to my side and friendly to bruces. It was like they got to speak twice as long. No, no, i will be brief. First the courts have never decided such a question. They have consistently stayed out of the speech between congress and the president over war because they realize, one they dont want to this slippery slope argument and started addressing the question and what questions are they not going to address in war. They dont want to get pulled down and review all kinds of operational decisions. And because they realize the president in congress can fend for themselves. If you a civil libertarian you would think they would want to put their capital toward other cases and not between the two branches of government that can take care of themselves. I am not a fan of judges and i disagree when what they have dope. I have clerks of the Supreme Court and i admire individual judges but i think the judiciary did wrong things but i dont think the answer to the war power issue is to call for more intervention into the system. Paul horn, an International Economist and member of co committee. I thought bruce fein made a comment about the lack of power and i would like to hear you you would prescribe to the president and the exercises involved in the war powers transparency that would satisfy the American Voter . I dont know if i have the answer for a American Voter. But it is a good question. The concern is that we dont want to have the premature release of information in the public to harm the Operational Security and mission and what the armed forces are being asked to kerry carry out. We are having one about isis in this room right now. But you dont want to have to excessive details put in public that will be selfdefeating. That has been a problem fighting alqaeda and other terrorist groups which rely on secrecy, rely on surprise attacks on civilians by hiding themselves. So i think that what the president and congress have tried to work out over the last decades is better than i think it is pretty good as we can hope for. The president and Congress Meet together in classified settings and the president can disclose that information to congress. If congress disagrees and doesnt support they can chose not to fund it. This is how the system for cia covert action works. The executive branch comes to the Senate Intelligence committee, they were briefed on the covert actions, and congress has an implicit check on every single one if they chose not to fund it, but you have democratic behavior between the branches and maintain the ability to act secretly at the same time. You could take the perspective that Henry Simpson once had as secretary of war. He found out the United States had an Extensive Program against germany and other countries. This was a hundred years ago. He said gentlemen dont read each others mail and shutdown the program. I think that is a mistake. You could have that point of view. Everything should be in public. We should not have an nsa or no secret parts of the government fighting these enemies. But i think that would lead to a decrease in the National Security and wouldnt convince our rivals and opponents in the world to take it easy on us. I think that the transparency issue is out of whack. John suggesting it is acceptable. Are you kidding . The president bush ran this terrorist Surveillance Program for years until the new york city times sat on it for a year and published in december of 2005. Do joke. We have to make this point. The First Amendment which is to us all is also article i, section 5 which says each has a general proceeding in from time to time accepting such parties because it may in their judgment require secrecy and the yeas and nays of the members of anyhow either house on any question enters into journal. We always point out that even George Washington and the Founding Fathers realized those issues of secrecy but they also had issues of the First Amendment and thats part of attention that this debate usually brings up. Im at the institute for justice. My question is for mr. Yoo and mr. Fein. To the whole office come . [laughter] did everyone from the office get a question . We have supporters of the empire. Did they get any questions . Dont they have a group . Properly read the constitution has an assumption of liberated by the powers that are enumerated and limited in area mentioned courts should really not waste Political Capital on aging engaging in issues on the exercise of power and focus more on individual liberty but the emphasize of power doesnt dic