That was its plan for america we would have gone to war. [inaudible conversations] [inaudible conversations] good afternoon everyone. Thank you so much for being here at the National Constitution center. My name is jenni parker and im the Vice President indications. Before we begin i would like you to take a few moments to share some basic housekeeping. We will begin, we will take the obvious audience questions at the conclusion of our program today. Please address your question the notecards provided for you and they will be gathered by one of our Staff Members that if youre on twitter i urge you to follow us at at Constitution Center and you can also hashtag questions comments hashtag than with americas town hall. After the program are going to have a book sale at a book signing opportunity with david barron. Please join us in the lobby to get your signed copy of this book. I would like to thank any members hear for joining us today. The center is a private nonprofit and our work relies heavily on the generosity of people around the country you are inspired by her nonpartisan mission of constitutional education and debate. If you are not yet a member please consider becoming one and support our work including todays program. You can get information and todays gallery talk. That will benefit the membership and high content today. Lastly please take a moment to silence your cell phones. Now i will introduce todays guest. David barron is the honorable William Green visiting professor of public law at Harvard Law School and judge of the First Circuit court of appeals. He has clerked for both judge Steven Reinhardt and John Paul Stevens and previously served as the acting assistant attorney general of peoples counsel at the u. S. Department of state. David barron joins us today to discuss his newlyreleased book, waging war, the clash between president s and congress 1776 to isis. A timely count of the eternal tugofwar between congress and president s over how and when to wage war. Moderating todays program is ted ruger dean professor of law at the university of pennsylvania law school. His research draws on his broader works on judicial power and constitutionalism and addresses the manner in which american legal institutions including the u. S. Supreme court have shaped the field of health law over the past two centuries. Please join me in welcoming judge david barron and dean. [applause] thank you and i want to thank our hosts at the National Constitution center. An institution that im really pleased that we are doing more collaboratively with this Excellent Institution over the past few years and its a pleasure to be here. A pleasure to be here with a very old and dear friend of mine , david barron. We have known each other for a gas almost 25 years since we were in law school together. Judge barron ive seen you do a number of things over the past couple of decades working in the highest levels of government, researching and as a scholar at Harvard Law School. Your Research Includes a number of areas including the subject of this book. I want to start out asking you to talk about what led you to write this book over the past many years and given the different roles in which ive worked how does this book reflect your thinking over this long period of time . Thank you to the center and all of you for coming and on a day when you had to go outside. I started thinking about the book when i was still a professor. It was in the early years after the attack of 9 11 when it was formulated its initial response. That that time some of you may recall there were a range of pinions coming out of the Justice Department which i had worked on years before the end of the clinton administration. Those opinions have in them some very sweeping statements about the presence power to fight a war and position on those opinions was it was for the present alone to decide how to wage the war on terrorism. At the time that struck me and i know others scholars as a controversial statement so ive really wanted to get into the history of it and started researching. Over time by i then ended up serving in the Justice Department in the first years of the obama administration. And within the same office at the early stage. So i had a new perspective not only systemically but for real. What is the present supposed to do in wartime operations . If congress put obstacles in the way what is the present supposed to do in overtime that led me to write this book which is really an account less of a legal argument about what the right answer is in more account of how has the president handled that aspect of how has congress handled it and the delicate dance between the two of them that we have been living with before we have the constitution. Lets pick up on where you just ended. When we teach constitutional law we often take about the Constitution Convention in 1787 ratified a couple of years later in 1789. Her book title, your subtitle is 1776. What was happening in 1776 and why is that relevant . Is here that was an important one and the book opens with the beginning of the revolutionary war and the first commanderinchief George Washington as he confronted this dilemma very early on. He confronted it most directly after a relatively successful encounter with the british in boston and then the battle moved to new york. While in new york things were not going well. He became a ticket and he would have to retreat from new york and the huge naval force off of long island was going to be attacked at his quest at the time was if you leave New York House do we leave it . We burn new york to the ground. Street t. Jackley would not make sense. Better they raised the. Before deciding to order the destruction of new york he wrote to the congress and asked should we leave new york for the enemy . That sets off the leading question. He expected the answer would be no, go ahead and raise it but thats not the answer you. At that stage he got a letter from john hancock that silly for bit him from burning new york down. Washington thought this was a real ridiculous strategic decision but he obeyed it and did not plan a strategic fire. A good chunk of new york did burn but by all accounts washington had not organized it. It wasnt as successful as it would have been. That very early incident is the kind of conflict we have been living with it ever since. Washington was extraordinary as you know in being a powerful commanderinchief and the successful ones are also one who is very cognizant of the limits of its power. This leads us to an interpretive question. Why is it important to think about something that happened before this over a decade before and how we interpret the document that was ratified in 1789. What kind of theory gives us license or promotes the desirability of taking things that have happened before into account . And all of these kinds of situations there always two to be thinking of. We can be thinking of it as an turbo question the legal sense. Youll have the legal dispute and the judge has to make a decision in deciding what the constitution means but theres another sense in which the constitution operates which is it sets up a framework for government in which people and the government have to make hard decisions. And what conclusion they draw are very common ones is to look back at how other people who came before them made those decisions. In washington as you know most people think if you were doing what you did u. R. Doing something pretty good. He has a lot of purchase and did have a lot of purchase. One of the very striking things after the constitution have been formed and went to the state to decide whether to approve it is that the rita which the opponents of the constitution realized they had a problem which was that washington was such a revered figure. It made claims about the dangers of executive power rings somewhat hollow because there was fear that it was impossible to have a chief executive who people could respect. Since he was likely to be the new president that made those arguments harder. What you see the constitution doing his cousin we stressing to the audience they are going to be people after washington that may not be like him and the power you are giving not to think about the people who are not washington coming down the line. Lets be more concrete in your book is magisterial scope. Take a problem that happened over 200 years ago with the algerian pirates were somewhere outside the u. S. In the territory of the United States you have attacks on american commercial interests by a state actor or nonstate actor. We might think that our constitution gives someone or some institution the power to define what those acts are. Are they more apt to find a response . First i would ask what have we learned from the text itself the algerian pirates years ago. What this article ii of the constitution say about who gets to decide whether thats war and did we learn much . It tells us that congress has the power to declare war and it also tells us the president is the commander in chief and that is how do we reconcile that on the subject of huge debate. What the book focuses on is the conflict that got somewhat less attention but in our Current Situation has a great deal of relevance which is what do we do when congress has said nothing. Tickets to decide can the president start a war and use military force on his own and more question of what happens if congress has entered and reported to regulate in some way. And many of the artist questions when about how to fight that war limiting surveillance power, the statutes regulating interrogation, with that kind of dilemma has a longstanding history with many of the issues you are racing of commercial interest. And those that try to keep american neutral from the european wars going on at the time it was true be early in the late 18th century a huge fight with four congress that fight was going on about john adams when the french were attacking the ann adams was very hesitant to follow and tried to negotiate his way and then that was the runup to world war ii that was the huge fight of what roosevelt could lend to the of british with the neutrality statute to keep americans out of another european war. Even in the institution that Congress Statute making behavior greg many scholars say that we think of this as part of the constitutional you comfortable with that . With those major statutes in the area . Often we think of a bill of rights but of course, that be that came after the constitution that was the charter of government to be an active participant in and then as president who was supposed to be executed so congresss role at particularly in war making but Arthur Schlesinger that came up at the tail end of vietnam for president ial war making over generations and account the congress being weak and never since the error end of world war i how to wage war and to dominate the scene in a way it is a response is a little more complicated congress checks of president he pushes congress and worried about taking it too far. I liked your metaphor to push that well past the breaking point of people dancing and there it is judges. [laughter] so what role . Talkedabout uh checks and balances with the Supreme Court intervention given the current roll but may be thinking his starkly or is this a particular part of of constitution with individual rights where judges need to leave the two other branches quick. We have said things and when we do speak we have an impact to shape how the rules are understood face said that it is important for the president to follow the law in dallas as said that congress does not have the power of how to conduct the campaigns of you are listening closely there not consistent with one another and that has created a great deal of ambiguity because the court did say there are boundaries and one of those from World War Two as you may know in 1942 and number of german saboteurs came over on the youth vote from long island with a campaign for the United States but they were picked up by the fbi and handed over to the of military for trial tried in a military commission in one of the offices on the fifth four of the Justice Department they contended that it was wrong to try them in a military commission there is an open military court they could have been tried by roosevelt did not believe that they should get a civilian trial that led to the Supreme Court whether or not they could be tried in a military commission but the court upheld that also had jurisdiction to make clear they were watching and another thing that happened with the course of deliberations is the court had to confront what roosevelt had done if one did was legal and the question was he set certain procedures the were favorable to the prosecution but congress had they down provisions in they had to decide if they would couple deep tribunal. And at the time roosevelt was in gauged because wary about inflation of World War Two and there was a one laugh at the time roosevelt made a big speech which he threatened that if congress did not give him the powers that he wanted he would do it on his own as commanderinchief and it was quite an extreme statement and he was making the accord was made aware that roosevelt as making always at the time theyre trying to decide the military Commission Said you looked at the internal debates with the court their very cognizant to say nothing one that would give a green light to roosevelt to assert that type of power as commander in chief. So it was very narrow to not give the green light soleil say that the cuts they do not laydown hard and fast rules historical even also they are sensitive to the atf of giving a green light. As something that you address in the book and with that japanese internment case maybe participated long term. And one feature of the system that is open and ambiguous that decisions are made in the republic as a cool recognizes and in light of history it does not look like a decision that can be justified. But the system as a whole is how to evaluate do you evaluate in a moment, more from larger timeframe if you look at it from a famous perspective over to the house centuries to enable the country with a fair degree of frequency and then to be a leader of the world stage and then it operate as a system with those two branches could recognize that would occur peacefully. With respect to the people who designed the system of government and one of those features is the ambiguity and a product of that is you have to make your own judgment in retractions need to be made and with that capacity for self correction. So to this point of one institution in our democracy i want to ask about that of checks and balances. They did not structure them into the constitution that they design those institutional checks and balances with the interested restraining each other. But in a world of twoparty democracy is how does that put a strain on the checks and balances quick. And with that functioning democracy that the system can accomplish so sometimes a few branches of the same government to be supportive of that program to enable that program and one thing that is interesting with the same Party Government it does not mean the president and the congress the eyetoeye and example of that is the civil war itself. But they have very different ideas of how hard should be fought how aggressive, because they thought it was atrocious at the beginning and Congress Pass the statute as commanderinchief. Will before he was ready if he usurped his role many people were telling him they will be running the war you will not Sophie Tucker is time now and then thought i could use this with the emancipation of the slaves suss adjust to say that theyre the same party means they go on the same direction. And the dance between talking about the president as an individual with the executive branch as a collective and with the constitutional interpretation with that executive branch is that a collective process . Warning to the advisers of the president with those legal decisions that were with me from my inexperience and jeremiah black on the Supreme Court from the late 19th century with the years leading up to secession that is a hard time to be the attorney general it was a hard time. And gave them three days to answer the question. What legal power to have to respond . The cuddy right down the exact questions and that it wanted paper to say the last with those questions so then he got of questions those are not all that different but writing those questions so flu can use the force first and said you really can use the force. As he was condemned for being part of the treason and in consequence of that. Of course, there was a very different position then he immediately called up the thousands of troops. Diocese of cards being passed around i think those will be collected soon so i just want to ask you with a historical scope that relationship is ongoing that said we live in a world of cyberattacks where nongovernmental groups really is an world of pathogens seemingly on a moments notice. Is this a challenge to your paradigm of continuity . In almost every age they ask themselves that question they thought it should be for the president alone into voice tried to make some argument from that time and it was true in adams day dealing with the french to content their rule was such reword vulnerable in ways we have not contemplated to have a Standing Force and the congress was hesitant. But that fight was reconstituted of course, with that crisis of orders of magnitude that they were confronting that they should be operating differently and that whole concept of total war not just on a battlefield with the entire economy at war with each other to change our thinking with uh nature of secrecy of the non state actors raises that issue. It is just to say the idea that