Transcripts For CSPAN3 Politics Public Policy Today 2014111

CSPAN3 Politics Public Policy Today November 13, 2014

Defending every attack doesnt seem smart. Cant we go on offense . And he said, when i go beyond the line of defense, i cant do that without the sanction of congress. So it was very clear initially from the beginning that a president could defend against imminent attack without congress, although you should get congress on board later. Congress though had to declare war, any going on offense against anyone other than imminent defense, took a congressional declaration. That was the clear understanding. But we have gotten it wrong virtually sense the ink was dry. It doesnt matter whether president s or congresss or republican or democrat or wig or federalist, we have gotten it wrong. We have gotten it wrong because madison was half right but he want cynical enough. Madison described the provision of the war powers provisions as a check against executive power. The branch most prone po war, most interested in it. We put it in the legislative branch. He saw monarchs and executives overreach. War is unpopular. People will get killed. My constituents may not like it. Well, maybe if the president can initiate and if it works out well, we were with you all the time, if it works out poorly, mr. President , how dare you, i cant believe you did this without coming to congress. From the beginning there has been a tendency toward congressional abdication. Its that that is more explanatory of our dilemma that executive overreach. Theres a pathology between executive overreach and congressional abdication thats put us in a situation where president s like president obama can go all the way back are more prone to start things without congress. So one value is ought to get the constitutional we ought to get our Decision Making back so that it respects the allocation of powers that was a revolutionary thing when it was done and that still is, that war shouldnt be for the monarch or executive, it should be for legislative. The second thing is the underlying value. This is what matters to me. If we dont do it the way the framers intended, if we allow war to begin by a president with a congress that stands back and says, we dont want to get involved, theres a midterm coming up, we might make people mad, then we ask people to risk their lives. Were asking people to risk their lives every day. We had the first combat death against isil, a corporal marine corporal from indiana killed in an incident supporting the air Strike Campaign on the 2nd of october. Were asking people to risk their lives or risk injury or risk capture or risk the mental stress of seeing these things happen to their colleagues or the mental stress of seeing thee things happen to civilians that is kind of a part of the damage in war. How dare we ask people to risk that if were not willing to do our job to have a debate in front of the American Public and then put our thumb print on the mission and say this is in the National Interest . Were afraid of having that debate. We dont want to say its in the National Interest but still go risk your life. That seems to be the height of public immorality. What could you do bribery is bad, other things are bad. Thats whats at stake. When you dont have congress have the debate, you not only violate the constitution, but you force people to risk their lives without a consensus that the mission is in the National Interest. Finally, what should he would do . Very quickly. I propose three things. First, we have to have a legal authorization to cover this current military mission against isil because in my view, from about mid august to now, there has not been Legal Authority that is sufficient to authorize this mission. When the president started air strikes on august 8, there was a credible claim that isils momentum could jeopardize embassy personnel. So he was defending the United States as president s can do without coming to congress. But by mid august, we were engaged in air strikes to retain a dam that posed no threat, that posed n ed no threat to the uni states. We were helping rescue refugees, but there was no threat to american interests. So from that time, we have been engaged as the president said, we have gone on offense against isil, where he in a war against isil, we have been engaged in a war that is not about imminent defense of the United States without Legal Authority. The president s article two powers as commander in chief are as jefferson said, about defending against imminent threat. Where we are beyond that. I view the argument that the 01 or 02 authorization covers this as ridiculous. This mission against isil is not covered by the wording of those authorizations. Its not covered by the intent of those authorizations. Its not covered by what members of congress thought when they voted for these authorizations. Maybe most importantly, its not covered by what president obama has said about the authorizations. In may of 2013, he said the 2001 aumf authorization should be narrow and repealed, not expanded. He sent witnesses to testify before us in the senate about the 2002 iraq authorization and said it was obsolete and it was time to repeal it. In my view, theres currently no Legal Authority to support the action against isil unless and until Congress Comes in and has the debate and votes. Thats why i introduced a resolution in the shortterm we should deal with it right away. Second, we do need to deal with the 2001 authorization, because that continues to be out there. We could deal with it together with the antiisil authorization or separately. But congress in 01 pass aid brief authorization without a geographic limitation. Even the targets that were subject to the authorization are now very broad, multiple theeltetheel theaters of war. Administration officials have said they think the war authorized by the 2001 authorization will go on for another 25 or 30 years. That is unacceptable. And we should be having a bedate to narrow that authorization. Especially since members of congress, in 2001, rejected the Bush Administrations attempt to have a broader authorization. The Bush Administration came to congress and said, give us the authorization to take essentially preemptive action against terrorist groups before they hurt it. Congress rejected that. What both administrations have expand the authorization passed to basically be what congress rejected in 01. The last thing i think we should do i have introduced legislation with senator mccain do this is go back into the war powers resolution of 1973 and come up weapon a bert ptter process for this discussion that will take place between congress and the president. Aproce ap a process that respects both sides. Theres a group at the university of millof virginia, concluded there has never been an era where we got this right. We changed the process. Im under no illusion that a Better Process will make this easy. But not having a process takes hard decisions and makes them harder. So senator mccain and i have a bill to the war powers consultation act of 2014 that tries to take the dialogue process, define what is a war in the 21st century that would trigger consultation and voting, cyber attacks, drones, nonstate actors, what is a war. Second defines what consultation is so that a president cant say i consulted with congress when he calls one person. And third, defines what voting requirements would be. So the congress would have to be on the board and do their job. These are the three things were working on. We do need, as jane said, to do this right now in the lameduck. Theres no reason to extend this questionable war for five or six months before Congress Gets around to it. Im excited we have our first meeting in the Foreign Relations committee today. I look forward to working with my colleagues. Thank you. [ applause ] its an honor to be on the stage today. Jack goldsmith, professor harvard, senior fellow, which means he has two decent educational institutions covered and jane, its great to see jane. We see each other in the cnn green room but in the field as well. We were in ukraine for elections. We will have that. I wonder if i would begin with you. This is an issue that splits both parties. You see the president now oddly presenting this that he wants to pursue a new aumf, knowing that theres some in the gop that might be more forward leaning than his own party. I wonder if we can look at this issue as one where theres a potential for bipartisan agreement, to give definition whether before or ideally as you have said during the lameduck session but perhaps after. I look at the split not as a negative but positive. So many things on the hill now get divided. This is not partisan. On Foreign Relations committee one i my hardest votes was whether to authorize use of military force in syria to punish use of chemical weapons against civilians. It was a 108 vote but not part son. It was divided because it was hard. But it was nonpartisan because it didnt break down along part son lines. There are republicans who do not like the notion of executive power exercise muscularly by this president or other president s who i think would resonate with this. There are democrats of a variety of the big tent that we have in the Democratic Party who feel they may have different feelings about the isil mission itself and the parameters of it, but they do feel strongly they dont want to see that power purely to an executive. I think that this is senator corker who i work closely with, i know this has been a passion of his as well. I dont see it as a partisan issue. I think that creates some opportunity for finding a path forward. There was are specifics that are important specifics where there are some partisan differences. You want to authorize Ground Troops or prohibit Ground Troops . What should the length of a sunset provision be . Theres dinkfferences. There are plenty who worry about president ial unilateral power. Professor gold smith, there have been 3,200 strike missions. You have the president authorizing with this latest 1,500, up to 2,900 troops. That sounds like a war to me. Isnt this debate arguably too late . By doing this now, is this mostly about the president s legacy . Does it then set a precedent for our president s . Weigh in on how important it is to act even though the war is already under way. In you get through the lameduck session, you get into the new year, were talking six, 12 months before you have an actual vote on this. Right. First of all, thank you for inviting me here today. Its an honor to be on this panel. I dont think its too late. Its not too late. It can happen. It would be very important for the president to go to congress and for congress to give him the authorization not just to use force against the Islamic State but also as senator kaine to update the 2001 authorization and to give that contemporary approval and legitimacy and to figure out some of the complicated issues that have arisen in the last 12 years. Do those necessarily come together that you get a new authorization, you revise the 2001 or is that they can come together. Thats a matter of how politics work and what the sequencing is. It might be easier to do it one way or the other. I think they both should be done, both the isil authorization and updating the 2001 authorization. The president last week basically suggested that they both should be done. It would be extraordinarily important to do so for all the reasons senator kaine said. As for the president s legacy, i believe its in his interest to see that this happens. For a long time until the rise of the Islamic State one got the impression that the Obama Administration wanted to declare the war against terrorists over with. So for a long time, they resi resisted going to congress. The president also has kind of by accident developed the most extro aerdly aggressive war powers legacy. He used force in humanitarian context that has never been done before. He has done things that have gutted the central provisions of the war powers resolution. He extended the 2001 aumf when he said he wanted to contract it. All of those things will be on his record and all of it can be cleaned up for his legacy if we can work out these issues. Retroactively . He will leave on a high note for him. Jane, you know washington, to say the least, handicapped this for us. Senator kaine laid out an ambitious agenda. But just for a moment, handicap the chances in this congress with a hardfought 2016 president ial election coming up that you can get Real Progress on this issue, resolution on this issue. Well, i think this was an ugly election. No one has missed that. Control changed hands in the senate. But it didnt change hands because people decided the other team was great and Democratic Team was bad. They decided everybody was bad and congress does nothing. And i think this was in many ways a referendum on the incumbents in congress. Now we have a . What new congress and a new team in control. But i think this congress is on trial. The terrorists arent going to check Party Registrations before they blow us up. They arent going to figure out which hat are you wearing. I have no idea which hat. You are wearing a government hat. Thats why you are here. So is everybody on this panel. I hope that every Editorial Board in the country starts writing about the awol congress, the duck and blame congress. I think this has to be item number one. People are dieing there. There hasnt been a public debate. The place the public can debate this is through congress. We spent 1 billion. I understand thats chump change these days. But a billion over the next month is going to be more billions. There may be more deaths. There may be turns and twists here that we cant imagine. I just its not just i actually agree with you, tim, that this is immoral. But i also think it is dumb and unwise politics for both parties. They better get at it. You think they will . They better. But will they . Sort of. I mean it starts now. It will depend on how what the public says, too. Thats why country, digital campaign, editorials, come on. Wake folks up. This is day one. Here is tim kaine on hour one of day one down here doing the right thing, which is calling for action. Do you see the partners on the other side of the aisle, particularly as we have the leadership change, corker moving into a leadership role, mccain, they have very public views on this as well. But do you see with that leadership theres a leadership question in congress. Can the leadership bring their own party to the table on both sides . Do you think you have the partners present in congress to Work Together and move forward . Im still a new guy. I think we do. If the president had really pushed congress to have this debate and vote before we went into recess, he would have gotten authorization. Whats my evidence for that . Well, i sat around the table at the Foreign Relations committee when we debated when we met with secretary hagel and secretary kerry. The single hardest piece against eisil that the president proposd was arming and training of the syrian army. That was the most con trtrovers. Congress voted for that in connection with the continuing resolution. The vote was twothirds, onethirds. And i watched my colleagues around the Foreign Relations committee table, 18 of them i was counting based on the discussion who would likely vote yes on an authorization right now. It was a bert margin than 108. That was as of september 13 or 14. We will see come november what folks think. But i think actually if the president had pushed the authorization at that time, he would have gotten it. Its more complicated now after the midterms. I do see partners there on all three of the the immediateterm to the longterm, i see partners on both sides. Good to hear. I can say one thing about the duck and blame congress and how the president could have gotten authorization before the midterms . If you look back at every authorization of force, every single one, every major one, they only there have been 10 or 12, they came about because the president insisted on t. Its hard for congress to do this on its own. President obama has gone from saying i welcome it to saying i will work with congress. If he set up a draft authorization and said i want this in a month, that would get the job done. The question is going to be if he doesnt make that move whether congress can do it on its own. Boehner wants the president to draft it. I completely agree with this. This works so much better when the president sends up the draft authorization. It works so much better. Because if he doesnt, i dont need you but i welcome you. Then you have six different authorizations put in. I put one in with basic authorization, similar limitations but five others are floating around. The better thing is for the president to send up a draft and for us to have hearings and pepper the administration witnesses with questions and refine it. Thats what we did with syria. They sent up one vision and they got a different one. They started with a whitehouse version. Thats the best way to it might help if the leadership on a bipartisan basis asked the president to do this. This is a big deal. They asked the president not to do it. Well, i think before the midterms they asked him not to do it. Were now after the midterms. He is doing what they asked. They wanted him to ask. I was part of preconversation on this. They wanted him to ask. He has asked. Now they should ask him to send up a bill. Hopefully that will be prepared by a squad of outstanding lawyers like jeff smith and Jack Goldsmith and others and it will come up for congressional consideration, possibly base on the six that have been introduced, certainly including yours. I would bet i dont know this for a fact. I would bet that as senator menendez is taking this in, he is talking to the administration, here are three versions, what do you think . One from a, one from b, one from c. Im sure they are trying to do a frankenstein and take the best from each. Lets not spook it. But lets invite comments by republic

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