Transcripts For CSPAN2 Koch Institute Discussion On Iran And The Use Of Military Force 20240714

Congressional war powers regarding iran. This comes as tension with tehran increased. Posted by the Charles Koch Institute, this is live coverage on cspan2. As we approach the broader matter of congressional war powers, so its encouraging to see an interested room is looking to get informed by some expert jurists appear with me today. For the sake of time and discussion im going to keep these introductions perfunctory in no small part because our panelists repetitions and deadly received them. To my far left, Stephen Vladeck is the professor in Life University of texas school of law in austin. A a graduate of Amherst College and Yellow School all degrees on with distinction, his teaching and Research Focus on federal jurisdiction, constitutional law, National Security law, and military justice. His affiliations are numerous as are his appearances and broadcast media and in print. Outstanding member of laffaire he cohosts a National Security podcast with his colleague. To his right and are left, heather brandonsmith is fcnl legislative director from militarism and human rights where she works to repeal the 2001 authorization for war, promote respect for human rights and international law, and reduce u. S. Arms interventions. An adjunct professor of law at georgetown, heather earned her ba in politics and International Relations from university of New South Wales which also received two law degrees before seeing her masters of law at Georgetown University. Finally, gene healy as Vice President at the cato institute. His Research Interests include executive power and the role of the presidency as well as federalism and over criminalization. A prolific author and editor, he earned his bachelors from Georgetown University and a j. D. From university of chicago law school. Ill just note briefly that on everybodys seats we prepared a small packet with what i think are substantive reflections and commentary from our speakers today. Also from our colleagues at concern veterans from america, a statement on the desired repeal of the 2001 authorization 2001r use of military force. I just want to state the differential nation between the Charles Koch Institute which is a c3 organization and doesnt take position on legislative matters, and the concern veterans for america which is a c4 and does weigh in on those matters. And now to our conversation. Anyway think we should probably start at the beginning mere hours after tragedy of 9 11 as congress debated drafted and ultimately by an overwhelming majority voted to enact the 2001 authorization for use of military force against those who had planned, authorized, committed, or aided the september 11 attacks, are those whod offered these persons safe harbor. Nearly 20 years later, one sentence, the key provision at the heart of this joint resolution continues to provide the Legal Foundation for virtually every action taken by three successive administrations prosecuting the global war on terrorism. Thats everything from invasion of afghanistan in 2001, to the downing of the syrian airplane in 2017, and everything in between from gitmo to secret tribunals and extraordinary rendition. In sum, an estimated 41 military operations in 19 countries. So now some within the Trump Administration may be looking to link the Islamic Republic of iran to the underlying logic of the 2001 aumf. As the title of this suggest we will get to that matter but as i take my seat, stephen, perhaps you would like to provide some introductory thoughts about the remarkable circumstances that helped midwest this bill still into its existence. Thanks everyone for coming. I think its important to start not just at the beginning but also in context with what was going on. September 12, september 13, september 14 while congress was considering the bill that would become the aumf, this is a very early on. Its not until september 20 that the the president of public acknowledged that the United States determined that alqaeda as sponsored and harbored by the taliban in afghanistan was even responsible for the attacks. So this is still very early days i suspect some of you were not even alive yet but well get back to that. As a part of what it really matters is because the statute was written in context where it was in publicly clear who had attacked us and it wasnt necessarily clear what the goal was going to be beyond ensuring that whoever attacked us could not similarly attacked us in the future. To that end the Bush Administration initial draft language had been this very openended text that would have generally authorized the use of military force in order to prevent future acts of terrorism that really wouldve been a statutory authorization for a global war on terror. And congress i think too much credit especially given the circumstances did not go that far. Really congress pushed back and said thats too broad. Even though we havent yet figured out exactly who is responsible, we want the force for authorizing to be targeted at those who were responsible. And so the final text of the bill that passes both houses on friday, september 14 and a signed into law by the president the following tuesday, the final text refers specifically to those nations, persons, or organizations that the president determines committed the attacks or harbored those who committed the attacks. In other words, this was not just a general authorization to use force against terrorist groups who gives a specific authorization to use force against whoever it was publicly determined to be responsible for 9 11. This was signed into law and to desire the present goes on National Television and says we determine its alqaeda and supported and harbored by the taliban regime in afghanistan. Its important because what it means is in context what we now call the 2001 are sometimes a 9 11 aumf to distinguish it from the 2002 iraq aumf that he was focused at alqaeda and the taliban. The statute doesnt say that and i think we are continuing to reap the consequences of the fact the statute doesnt say that but i dont think theres any question at least in that moment that is who congress was thinking up, thats what the statute was directed towards and was how the president reacted and responded. When the u. S. Started using offensive military force in afghanistan about five weeks later in the middle of october, towards the end of october, it was under the ages of the aumf because of you and understood that the taliban in afghanistan was clearly part of what cogs and intended and the working assumption was the harder question and a longerterm questions would be fleshed out and subsequent legislation. Congress was very busy in september and october. There were a number of statutes enacted relating to the 9 11 9 1 attacks and response thereto, leading up to him that aumf on the way to the patriot act on october 26. The working assumption was colleagues would continue to be just as engaged going forward. The reality we are seeing is that over the last nearly 18 years that actually hasnt been the case. That for a host of Reasons Congress has largely sort left as you put in place in those first days in place and thats part of the problem that has led us to all of these continual debate about whether the 9 11 aumf, will get to iran that doesnt even cover alqaeda and the Arabian Peninsula . Does it come alqaeda this only question that it think congress has enacted the original aumf never thought it was answering in that 60 sentence, or 60 word, one sentence operative provision. I want to turn to jean right now as i think steve gave a great summation of like 20012002 as the Bush Administration considered other potential military operations, always iraq was on the to do list. Can you talk a little bit about perhaps theyre thinking coming back to congress again for an aumf specific to iraq and Saddam Hussein . Sure. One of the things thats interesting about the current debate about whether the 2001 amf applies to iran is that when the 2001 aumf was young, barely a year old and Bush Administration had iraq in its sights and there was a lot of talk about, you know, from vie president cheney and others, about iraq and alqaeda links, most of which, the important elements of which turned out to be bogus, but they were promoting this idea that mohammad altai with iraqi intelligence agents in prague. They were making a lot out of the suppose it connections, but even, and for a hot moment they did float the idea publicly that they didnt need authorization to go to war in iraq because, among other Legal Provisions it might be able rely on the 2001 aumf because of the suppose it connections between alqaeda and iraq, most of which turned out to be bogus. But the actually decide, you know, in the end to get, that that was a little too cute, that that was too big a bridge too far, that you needed a separate authorization from congress, at least politically. They never acknowledge that they were legally required to get this authorization. But at least politically, a year after the 2001 aumf is passed, they concede that they at least need some, for political reasons if not legal reasons, some authorization from congress. This is an administration that famously was not shy about aggressive legal interpretation interpretations. But it is strange, i think this episode shows how strange it is, you know, nearly 18 years later to be talking about a legend iranian and alqaeda connections as a basis for war under the 2001 aumf. It was too much of a a stretchr the Bush Administration. So heather, lets talk about that 2002 aumf. Its still on the books. Can you talk about now, many years past Saddam Husseins demise, this still remains intact and how has it been employed by successive administrations . How is it still utilized . Yes, sure. So the 2002 iraq aumf that was passed in october of 2002, youre really offers force against the Saddam Hussein regime. In particular, that piece of legislation authorized the president to use force to defend the National Security of the United States against a threat posed by iraq and to enforce all relevant u. N. Security Council Resolutions against iraq. And those Sacred Council are really talking about weapons of mass distraction. So this is the predicate, the reason for going after iraq, if they had these weapons of mass distraction and that as a result of that they were breaching u. N. Security Security Council resolution and they were posing a threat to the United States. That was what congress voted to authorize, so the u. S. Went into iraq. Saddam hussein was defeated and yet now 17 17 years later we sl have that law on the books. And just as with the 2001 aumf that weve seen being interpreted far beyond what congress intended, we are seeing that as well with the 2002 iraq aumf. This most notably happen in 2015 when the Obama Administration went back into iraq to fight isis. Prior to the time actually Obama Administration official had been calling for the 2002 iraq aumf to be repealed. That was the policy. Once they went into iraq and they said actually you know what, were going into iraq, its really, 2001 aumf that authorizes that. We can get into how they made that legal argument a little bit later, they said the 2002 aumf also provides additional authority. They were not very specific though. But then they also said but still a position hasnt changed. Wed like to see it repealed. Now were in a situation where the Current Administration is interpreting the 2001 2002 aumf more broadly. Basically sort of to bring stability to iraq type of aumf, much broader and to defend the use against sort of immediate threat posed by a particular regime. So last year has there was a report that said the 2002 aumf authorizes the administrations use force both to instant from iraq. In syria or elsewhere so weve gone from this very specific part of the lease we thought it was a very specific resolution for for a particular country for a particular purpose, and now that is getting more and more broadly interpreted. Can i say real quick . Its worth addressing that come in both the 2001 and 2002 aumf this is a substantial break from what it been the consistent practice of the United States for the first 200 plus years of its history. Just to take account step, during world war ii when i think there was no question that war powers were all on the table, that we are at war, Congress Without its way to declare war separately against every single country against whom we were fighting or who was a cobelligerence of germany. One of my favorite trait aggression, was the last country with which the u. S. Declared war . The answer is romania. Go try that at home. It proves the point there was never a thought that simply because we are at war with germany we were there for, congress and signed off within what might be supporting germany. Congress took upon itself to go and seven authorized wars against each country we would use force against. That was the model that present all the way up through 9 11. This is a problem we are confronted in the 18 years since. One of the curious evolution of his 2001 aumf is the instantiation of the notion of associated forces. Because in that short key provision, that 60 word sentence, theres actually no mention of associated forces. Can we talk a a little bit abot how that has become part of our preventing rhetorical logic . Sure. So i believe that term was first in some legislation i think in 2006 in the detention context. So it was really about who could be detained, who would been captured sort of on the battlefield. So not just alqaeda and the taliban but if you other groups you were fighting with them, they would also be detained at all. Now, the Obama Administration took that term and really ran with it, and they developed a definition of it which is sort of, its a twopart definition which is they use the term cobelligerence in the conflict and us entered the fight alongside alqaeda or the taliban in the conflict. But is still a very malleable term. We dont know what entered the fight means. Now we will talk that were as the not the traditional war. Not just battlefields with soldiers fight against each other. We dont know into the fight could mean someone, help giving advice to someone on how to make a bomb or something. Its a term we dont know what the definition might be. But against the main point is that that term has now been read into the law by the previous administration, accepted by the Current Administration and it has now led to the situation where weve been fighting dozens, over a dozen groups in 19 different countries. As as a result of the term of associated forces, and its one of the problematic terms out there which is led to hearing now the topic today about the administration potentially trying to say that the 2001 aumf cover iran . One of the theories we are hearing, sort of the ruminations of what might be if there is some kind of connection between alqaeda and iran so that iran could potentially be an associate of force. Its a really problematic term. Its not in the 2001 aumf itself. We have definition out there. The parameters are not very clear, and it is usually sort f open to abuse. Its worth stressing, heather alluded to this, the extent to which the detentions of socalled enemy combatants drove a lot of the policy initially, but how thats changed. In 2006 the terms associated forces became important as the government was certain to try to get how to win a psk says brought to guantanamo detainees and how to defend the detention of folks who might only have a peripheral connection to alqaeda. The problem is as time went on the detention cases receded in the importance and the more kinetic uses of force, especially during the Obama Administration when there were no new detainees took freely and thats what on the mushrooming of this definition. Its worth stressing. Congress in i think fiscal year 2012 National Defense authorization act specifically authorized the detention of noncitizens outside the United States if you are part of associated forces but didnt bother to define what associated forces were. Actually the most important statutory reference to associate a forces is to the term devoid of any context. And itself is only applicable to military detention, not to targeting. Associated forces is this critical important issue that has never been fleshed out by statute. Its never been fleshed out by the course because there hasnt been a single case where a court has been asked to side is group x and associated force . So its left entirely to not just into executive branch terminations but often classified into executive branch determinations where the government will not even concede on the record which groups under the 2001 aumf. Not exactly the way to run a railroad. Out open discretion to the panel. One of the other developments we have seen in the years since 2001, most recently with the naming of the Iranian Revolutionary guard corps as a terrorist organization is that, and alluded to by chairman royce in the Senate Foreign Relations Committee hearing on the applicability of the 2001 aumf of the ongoing concerns, we are now seeing state actors being named under the 2001 aumf. Where does that go . Where might that lead us perhaps more important a is this new president , isnt this uncommon or otherwise not understood as being normal prior to the most recent development . I mean, so i think its worth trying for as long as we can to reserve the distinction between groups that are designated Foreign Terrorist Organization like the irgc, the iranian revolution guard corps, which is a must rotter definition and does not depend upon the same connection to military hostilities, for example, that the aumf does. But as a poster whos an associate force. Im not sure where to a point where its clear there are any others state actors were covered by the 2001 aumf although that maybe where we are drifting. I think the larger point here is that this is a conversation that as an original matter of constitutional interpretation and as a historical matter is a conversation in which congress is supposed to play the central role. With regard to the process, congress has by statute i think it is eight usc section 11 a dunk that whole bunch of a specific criteria that the secretary of state is supposed to use and deciding whether group x is a Foreign Terrorist Organization, to designate them. Once the group is designated theres a process for the group to challenge to see if the criteria were applied in a manner that was procedurally fair and subtly correct. Thats the which it work and thats not at all the system we have under the aumf partly because congress has acquiesced so completely in however these recent administrations have interpreted this now almost 18 euros statute. The problem is not just the drift toward nationstate as hostile. I think the general abdication of any responsibility for policing the scope of the statute. Yeah, i would just add to that as well because we know congress is a body that is supposed to determine when the u. S. Goes to war and against you. We have sort such things so now the president makes a determination, this group comes under the aumf. If congress does nothing, then we are at war with this new group. It is dangerous, its dangerous in and of itself but to drift into now being able to say that an nationstate could potentially, and everything to him and tired military force, that nation is behind it could potentially then also come under the 2001 aumf, it really isnt a significant expansion from what weve seen so far. So far associated forces have been limited, at least publicly as steve mention. Theres a lot of classified information we dont know about. But at least publicly associated forces have only ever been nonstate groups. They never been nationstates before. Just to underscore that point about significance of the 2001 aumf, i think it really did change, it changed war into americas sort of default setting. Its not a departure from a peacetime norm. Its what goes on unless it is stopped. President ial wars are hardly unknown before 9 11. There were tons of them short engagements like grenada and panama, even a forest of nofly zones over iraq. But these are usually come historically they were a departure from baseline in peace. What has happened over the last going on 18 years largely because of the 2001 aumf is that it was sort of one congress one vote one time, and war has become the new normal. Favorite gruesome example of this is the over Labor Day Weekend in 2016, the little story in the Washington Post about how, over that weaken the Obama Administration launched a nearly 70 airstrikes over six different countries, and the Washington Post story, to its credit, covered it, this shows how pervasive war has become. It wasnt a story anywhere else. It was just sort of this interesting news item. Two decades before that, 70 airstrikes across six countries would have let every nightly news broadcast. Here is just sort of an afterthought, that its even noticed. Its become such the backdrop of u. S. Policy with so little congressional involvement, that we were barely able to notice it when it happens. I would just, i completely i cook everything gene just that and i was at his will that one of the things we dont talk about very much echo everything the cost of these words, how may people of been killed, the financial costs. Just to give you an idea of the figure, its about 500,000 people who people who have been killed, and about 250,000 of those have been civilians. There have been close to 7000 u. S. Service members, about 50,000 have returned home injured, and then there are a bit about 300,000 who have returned home with traumatic brain injury. Thats not including other people with poster medic stresses or other mental disorders that have arisen as a result of these wars. The financial cost are not up to 5. 9 trillion, and theres a really fantastic institute at Brown University called the cost of our project, and theyre getting way to unveil their latest figures on the fiscal costs. Its very likely going to go over 6 trillion mark. This is information we dont have talked about anymore. Its just become the sort of new normal and its troubling. Steve, you described a sort of general abdication on the legislative branch. Gene and have, you both described a drift towards permanent heather. As an interesting observer, i seen to see a degree of reawaking of congressional muscle as lay. Can we talk about that a little bit . Obviously there was some interest and attention to a new aumf that was discussed last summer that had some problems perhaps baked into it. I would like to maybe touch on everything, but also as the days and weeks have progressed this summer, i think few the ndaa process with Notice Congress express feeling its oats again and perhaps this is activity we may want to encourage, to bring better balance to the executive legislative accord. I think its been nice to see this reawakening. I think i might call it a sort of stirring as opposed to a reawakening, because theres this formidable institution with actual legislation getting past called the u. S. Senate. But i realize where im sitting that may be an unpopular viewpoint. Its worth stressing the proposals to reform and not just repeal both the 2001 a method and 2002 aumf had been on the table now for the better part of ages. This effort picked up steam starting from 2011, 2012. President obama himself sent a proposal to congress. This is, its virtually unheard of for a president to propose, to introduce legislation himself that would limit his workouts and yet the Obama Administration drafted a bill that went nowhere. So its nice to see the tension. The problem is that i dont have since theres any consensus that theres a problem here this is something urgent that requires congressional reaction in the way other deserving topics have received that actually. To me the real sign that this is going to have some momentum is not just going to be theres another new proposal with bipartisan support. Its going to be if leadership from both parties is talk about the importance of pushing this legislation through. I may have missed it. I live in austin, texas, now. We dont sort of live and breathe everything the leadership says but itll think ive seen that from the leadership. Other thoughts . I would agree with everything steve said. I can talk a little bit more about where weve seen movement. Its because i am dcbased i get excited when is anything thats happening, so recently to the ndaa process last month we did see some movement in the house. We did get some good votes, some good aumf related votes. The 2002 aumf what to talk about the iraq aumf, the house voted i think 242182 repeal the 2002 aumf. The first am 17 years without a chamber of commerce take that vote. Another really interesting aumf related amendment that passed was about the associated 2001 e a sense of congress that the 2001 aumf had been stretched far beyond what congress intended and essentially had been used as a blank check for global war. Then it had a second part to it which said any new aumf should have important limits to ensure this doesnt happen again and types of limits in there were sunset, so an expiration date, something that would force congress and administration to come together, look at a how fe is being used and determine whether to continue to reauthorize it, too refined it, to let it expire, that sort of thing. Also specificity about the groups were targeted. As steve said congress tried to do that with the 2001 aumf. They try to be very clear about who was force was authorized against. We did know for sure if those alqaeda who said those spots before the 9 11 attacks. So the recommendation or the sense of Congress Said we need to be clear about who forced his office again. Also geographic limits. So we dont hit into the situation we are in now or weve had operations in, i think its operations in 19 country since 2001. That was another provision that was adopted by the house. And really like the first time that weve seen Something Like that the adopted. Also through the defense appropriation process, there was an amendment that passed in committee from barbara lee was the only person to vote against the 2001 aumf way back when, and that an inmate, it would repeal the 2001 aumf eight months after enactment. The purpose of that is to give Congress Time to look at the current scope of operation, yet sufficient information from the administration, hold hearings, determine where we should be using force anywhere and take a vote as to whether to get you in any current operation. Thats whats been happening. Its all on the house side at this stage. There is interestingly a senate bill to repeal the 2002 aumf. It would also repeal the 1991 iraq aumf, the goal for aumf. I think theres a concern, lets just get them both off the books, you know . That is a bipartisan bill that that is senator kaine, tim kaine, todd young and that also couple of other cosponsors, senator mike lee and senator ted cruz have also signed on to that bill. Thats helpful. I wanted to get to a couple of matters that were raised recently at a Senate Foreign relations hearing a couple weeks ago today actual that by chairman risch. There were a couple points that it took note of from the acting Legal Advisor testimony, namely the applicability of the oh one aumf to iran in his estimation it did not apply to date that was an interesting caveat. Likewise, a reassertion of Certain Administration insistence hes about what went into the into and oh what aa . Namely, a new aumf would be a a replacement that would come before repeal as i understood it, and what not place any geographic or temporal boundaries on the command in sheets latitude moving forward. I wonder if we can touch on those points and then maybe focus on what future Reform Efforts but look like but i wanted to reply to this Committee Hearing in particular, namely the matter of whether or not one could apply some point in the future and also some of the president ial consistencies about strictures on a replacement aumf. Ill go first and then you guys can clean up my mess. I think to the former, i think heather alluded to one possible line of reasoning, to try to shoehorn i i ran into the aumf have which is to treat it as an associate force, insofar as there are increasing alignments perhaps between iran and alqaeda especially in certain parts of that part of the world. Ive always thought and my colleague Bobby Chesney and i talked about the podcast, i Voice Software possible, which is still bring a very plausible argument is to go back to the harboring language in a 2001 aumf and basically say its not that around is actively engaged as a coal pollution on the battlefield. Its that iran is harboring at least x number of alqaeda soldiers and fighters, either physically within its territory or through the assistance provided. Theres never been any flushing out of what the harboring anguish in the 2001 aumf means. For all the reasons weve discussed, i still think thats really going far below what congress intended. But because theres no real mechanism for congressional push back because these are not ending up in the courts, i dont know what would stop an aggressive assertion by either state department or olc or the two of them together, that iran had harboring as for the objections, my reaction is im not sure what a new bill is accomplishing, if it doesnt have any restrictions. I guess it is theoretically possible you could have a bill that literally lists groups and says these but no others, and otherwise doesnt touch that 2001 aumf and to me that would be an improvement over the status quo but but i cant thif any other bill between where we are today and what the Administration Says is a nonstarter. That would actually be a positive as opposed to a negative one. And even the bills, the replacement aumfs pediment introduced in the last few years, even those that do have geographic or temporal limitations in them, most of them seem to grandfather in a lot of the grounded, the executive branch by force, corkermccain if i remember correctly remember correctly how to process whereby the president could just designate new associated forces and congress had the ability which it would have regardless to try to de designate them if they can muster vetoproof majority. Its what strikes me that the knee replacement, of any other replacement aumfs that i seen that came up during the fight against isis, most of them seem to just sort of start the clock on a new authorization that itself can be tortured into new delegations of congressional power. Gene, you mention the executive branch had seized some of these efforts by force, but one thing we havent talked about yet is the commander in chief purview given article to authorities. Can we talk a little about what that means engines of maybe the offense if defense of what congress or the executive may try to accomplish . And then i think, ive got about five minutes left before we go to the q a and i may want to it with a question about the necessity of an amf base on this article to authorities and powers. The somebody want to leap onto grenade first . I think that, the president clearly retains under article ii some defensive military power, that the philadelphia convention, you know, madison notes reflected a discussion with a talk about it as having the power to repel sudden attacks. Nobody, you know, the strictest constructionist, the staunchest congressional list on war powers wouldnt say the president has to Call Congress into session if the country is attacked. Now, what the parameters, you know, how far this defensive power extends is something that can be debated. The executive branch, some of this came up at the Senate Foreign Relations Committee hearing where there was a notion that the president has sort of residual article to power to use military force thats constitutionally short of war to advance Important National interest. Some of this came out of the olc memo, office of Legal Counsel memo, written to justify the libya bombing. And theres a notion that if it advances the olc opinion which is since adopted by the Trump Administration to justify military action in syria, the notion is that if the president is advancing Important National interests and the nature and scope and duration of the operation is expected to be short, in libya it was seven months, he can do a little lit bombing and rings like that. I think this is, goes far beyond what the original understanding of the present defense of war powers are. To sort of try the point home i think theres a critical but very subtle shift in how olc which is often times in something the definitive dispositive of the executive branches position on this, approaches the question. Wherefore a time it was article to allows the present use force on a relatively smallscale, when you have a situation where u. S. Personnel are u. S. , where theres a a clear and imminent harm to the u. S. , and Important National interest just find use of force, and that has become an board. That starting with libya and then with the syrian airstrike opinion in 2017, now imminent harm to u. S. Or inner self interest. That is subtle but that takes away from article ii because were ever we draw the line between offense and defense, things that are in our National Interest but are not a response to imminent harm to the escort to u. S. Persons, clearly is not the kind of madison was talk about, not with the Supreme Court blessed the one time its talked about this in 1863. So i think its weird, on the one hand, the breadth of these arguments do as i think your final question is getting us too, mitigate to a large degree the need for these a mess. Understand, the become divorced from any plausible reading of the original understanding. Any final thoughts from the panel or can we turn it over to q a . I see a couple hands up front. Thank you. To my colleague for bring the microphone after a friend reminder, if you would be so kind to state your name, your affiliation and if you would be so kind as to stick your question in the form of question, that would be gratefully appreciated by our panelists. Everybody has talked about the successive administrations tendency to want to go to war and then also about quoted quote National Interest. But nobody has spelled out what is the motivation . Why do you think these administrations are going to work . Is an economic . Is at the the new transnational complex . Is it there donors, their base . What is the reason they are straying so far . I mean, i guess, yes. Everything is relevant. I think one of the things gene mentioned before is that we have come since 9 11, progressive developed this over militarized approach to responding to terrorism. We talk about war is supposed be the last resort but its almost becomes synonymous with war is the best tickets not the case. There are other nonmilitary tools that are under resourced. We are not using diplomacy as effectively as we should be. We are not looking at development work, you make an assistant other ways of dealing with counterterrorism. Using intelligence sharing, Law Enforcement, all of these other tools in the toolbox. We have a much more militarized approach to managing for affairs and think thats a big part of the reason why its become so easy for three administrations have to choose war as a way to try and solve a Foreign Affairs come a Foreign Relations problem. We have said and i think we all agree that the bottom line across the three administrations have largely been consistent. I think the motivations have not been. I think there are different explanations for why at different critical point the government when in particular directions. I think inertia in this context is a much more powerful force than it ought to be and then we often appreciate. Its worth going back to the beginning of the Obama Administration. President obama came into office and on a second a signed an executive order to close guantanamo, had an opportunity to end the military commissions, and really to try to sort of move was off of the war first, and i think to a large degree failed to do so. That was one of the most important failures of the Obama Administration, whether you think thats a good thing or bad thing it was clearly a failure. To the point where by the time isis really emerges in 2014, the administration sort of defaulted to the notion that of course this is something weve addressed with offensive military force. We dont need to go to congress. We will embrace arguments that we rant against in 2008 because this is so obvious this is what we have to do. Some of it is reflection of broader themes in a sort of cross partisan approaches to foreign policy. Some of this, the politics of National Security are deeply toxic and theres almost no significant political value as opposed to moral rectitude in being the peace president and being, you know, lets get us off the worst day. President obama was immensely successful in reducing our footprint visavis quintana mo but theyre still detainees different thats a microcosm for the broader shift weve seen. I dont think it will be surprised at the current rise is not interested in these arguments at all. I want to make sure we hear from staff. The gentleman right here, beard and glasses, please. When the administration answered our Police Question of whether or not the 2001 and 2002 the mess could be applied elephants of the very large exception which had those authorities could be used as congressional authorization to defend Partner Forces that were threatened by iran. Im curious what you think we should make of the claim its a noncontroversial and nonremarkable remarkable assertion that congress has authorized executive branch to defend Partner Forces against any enemy that they may face . Yeah, i mean, it was really interesting, that later, because on the one hand, i said today the 2002 aumf and 2001 aumf have been entered to authorize force against iran but they had this huge caveat saying we will except as may be necessary to defend u. S. Or Partner Forces engaged encounter some operations. And said to establish a stable democratic iraq. So again it is reinterpreting the 2001 and 2002 aumfs to have this purpose that is entirely not intended by congress. Its incredibly dangerous and its a huge caveat, and its a potential slippery slope to really get us into even more wars. Because of the breadth of it. From my understanding that means u. S. Or Partner Forces are conducting operations against alqaeda and they come under attack for some reason i ran in this particular situation, and 2001 and 2002 aumf would authorize the u. S. Forces to defend either against themselves or against Partner Forces against iran in that situation. And the worries and is that what you have used force to defend the u. S. Or Partner Forces, then to just get dragged into another war . Its one of the issues of evolving interpretation of the ams. Really, the only way to address that would be to repeal them. If something was a replacement to be incredibly clear about what congress is authorizing and then have a sunset in there so that does need to be reconsidered every few years. Its a huge caveat. Its a real problem, and it just opens up the administration to be able to say can you far beyond what was ever intended. Im sure she will put us on the spot. I hope not. Im kate kaiser, policy director at win without war. Gene, i want to pick up on the article that was handed out so youre familiar with it. The talk about repeal another place to go back to a more First Principles question of what are the u. S. National interests in the middle east, and do you think that the problem of violent groups who perpetrate terrorism actually have a military solution . And if we should be rethinking this entire paradigm that we find ourselves in . Thanks. Sure. Well, im more of a legal analyst than a National Security analyst, but it does seem to me that conceivably there was a military, a military response to september 11 of some sort, could have been justified as a security matter. You could make, go to argument for what the 2001 aumf was originally designed to do and what the people who voted for it thought it would do. I dont know why we are still there going 18 years later. But i think steve touched on this a bit with come in the article to discussion. To the extent that a military response to threats emanating from the middle east from terrorist groups is necessary, i think you can make a good case that the president has some residual defense authority, what ever repelling sudden attacks mean, it didnt mean you have to wait until they get the first punch. If youre good intelligence of an imminent, where eminence actually means eminence, you would have the president i think would have a strong argument for being able to take military action in the absence of any statutory authorization. What the perpetuation of the 2001 aumf seems to have done so is to empower this endless whackamole where we keep doing what were doing. Do we know if alshabaab in somalia is a great threat to the United States of america, or are we just, we already engaged and the military that you do not keen on taking on big new projects project but theyre usually keen on keeping, keeping doing what theyre doing. I think a lot of the costs of this, which as heather mentioned has been substantial, are hidden from the American Public in ways that they were not in prior wars. It seems to me that whatever National Security interests we have in the middle east, that require the use of military force, i think they are far narrower than what the current executive branch interpretation of the aumf would suggest, and i think the United States and its interest could be perfectly wellmaintained if the ams, the old aumfs were repealed and not replace with anything. Why do you need beyond the use of force to protect the u. S. , to protect the u. S. Troops, what exactly are you trying to accomplish, thats the question that would require congress to be something periodically as opposed assuming this is all done and said and signed and delivered for engineers. I want to exercise moderators privilege briefly. I want to enter into the record is the war powers resolution, its floating around there. Prevalent and congressional deliberation debate, more than a couple votes recently. How does that matter of the 73 wars powers act. This may demand more than 6 minutes, we probably want to hear on a couple of staffers. It doesnt. Okay. Supposed congress wanted power resolution that worked, the problem with the war power resolution is that it has all the loopholes and the principal mechanism that creates for executive uses of power, the termination provision where, you know, where both houses of congress can pass a concurrent resolution is probably unconstitutional and, you know, i think its telling that this debate is never about the war power resolutions because president s dont feel constrained by the war powers resolution and congress doesnt feel empowered by the wars power resolution, its a draft and exercise that requires olc to require differently but thats about it. Ive often had to say that the war powers resolution gives the president power to do x, doesnt give the president to do anything, the power the president has is under article 2 of the constitution, sets up the framework, what teef is talking can only do so for 60 days so congress can bless that or they have another 30 days to withdraw troops. The war powers resolution doesnt give any power, i will say, though, in a little bit of defense [laughter] it has been useful, you know, in terms of some of the votes that we have seen, for example, on yemen, you know, the war powers resolution, you had both houses of Congress Voting to say that we need they want u. S. Involvement in saudiled war and yemen to end, they did stop refueling saudi aircraft, congress has been able we could still refuel on the ground. Question from the audience. Gentleman right back in the blue shirt, bearded. Ethan paul, senator caseys office n likely event that they dont alter aumfs, what role we would have that the administration is interpreting the war powers, article 2 . To make a long story short, the courts have been allergic not just after 9 11, and so in the nondetection context there, hasnt been a single decision where theres been a decision. The context where the court had been acted at the Supreme Court lead had been in detention cases when you actually have somebody in custody and government says we can detain them because aumf allows us to do so. Weve had fair amount of law, the Supreme Court in 2004, one time the court really interested umf did authorize additional force in afghanistan, allowed for detention of u. S. Citizen as long as captured for taliban there and dc circuit decisions with detail rules for noncitizens. The problem is class of military detentions is a close set of dwindling cases where none of the 40 guantanamo detainees are being held of part of taliban. One citizen held over a year in iraq after captured fighting on behalf isis and syria and might have led court decide whether its covered aumf. Im the first person to defend that the courts have a role to play in the context and the last person think its going to happen here because the government can avoid all of that by not subjecting any one who is part of any of the sort of questionable marginal groups to longterm military detention. To turn it back to war powers resolution discussion, a lot of proposals that you see for strengthening the war powers resolution including if i recall correctly war powers act that would work, combat authorization act, whatever you call it, depend on the courts in, no, you should really hear cases and rule on the merits. If thats a nonstarter, do either of you think there are ways that the war powers resolution could be strengthen, tieing to funding, narrowing or overspecifying the definition of hostilities, anything that would help in that direction . Sure. I think among other things we learned how to involve hostilities, not just when theres hostilities but use of force, clarifying, funds cut off would be big part of that, for all argument that is sunsets are bad, the constitutional itself, the one sunset in the constitution military appropriations has to be reenacted every 2 years. Every congress has to separately to vote for army appropriation. There are ways to do that i think would put the right levers played in the right direction but it would require not just a congress that puts institutional interest ahead of the politics of the moment, its going to require probably a congress with majority of both houses or a president who is willing to surrender more executive power than any president has only surrendered. I agree with everything, i agree with everything that steve said. You have it so 60 days past where the president is using force without congressional authorization unless Congress Votes to authorize that the president is supposed to stop, you know, you could have it so that instead of sort of veto by silence essentially congress is required to vote yea or nay about whether military operation should continue. One last question, gentleman right here in the ball cap. Thank you. Good afternoon, thank you all for being here. My name is jillian kyle lewis from the American University here in washington. Myself and some of my classmates were sitting in class one day and having a discussion and we said hypothetically if folks came from another planet and they demanded to all of us, you know, take us to your leader, we debated would the citizens of the world allow us to present the president of the United States on behalf of everybody around the world at that leader if folks from another planet came and asked, so my question for call yall, do you think we need to revisit qualifications for what it takes to become the president of the United States since none of us can actually figure out how much power the president has to keep us safe and to declare or not declare war, thats my question, thank you very much. Its a great hypothetical to close things up. Scenario is only slightly weirder than what actually happens. The founders would not have been surprised that we had a bad president , right, it would not have come as a shock to draft of the constitution but the way political process is set up every once in a while a president that for whatever reason controversial, we may disagree on which president used the criteria. I think the founders would have been floors by the separation of parties has become more important in this town than separation of powers, given both founders believed the way to make this all work to have ambition, counteract ambition. To me its really i dont think the story is about george bush or barack obama or donald trump. I think its about congress increasingly not taken as First Priority the assertion of its institutional authorities visavis the executive and thats not a story about the current president , thats a decades long story about congressional essence. Wonderful way to wrap things up, i want to thank everybody who is in attendance for joining us today and all those friends working for the architect at the capital and catering and cspan also for joining us to help scale what i think has been a remarkably substantive conversation, so thanks to you all and most notably our panelists. [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] coming up this afternoon discussion on trade tensions between japan and south korea and threats post by north korea in the region. Live from Heritage Foundation 1 30 eastern on cspan2, online, cspan. Org and cspan radio app. Sunday night on q a. We were taken out of the hall and confronted mob of angry people. Political science professor talks about being physically atalked attacked in 2017 after appearance of Charles Murray. After end of discussion of Charles Murray what happened . I dont remember much of it. I couldnt even tell you what door we went out, but we were taken out of the the hall and confronted the mob of angry people, some wearing masks, they were shoving and target was Charles Murray. Sunday on cspans q a. Policy adviser for National Alliance offo mentalio illness, specified before congress on issue of t red flag laws and rik factors for violence, start to explain what red flag laws are and how they work . Okay, red flag laws we refer to them as extremist protection orders or gun violence restraining orders but basically civil orders not criminal which are based on risk, so they give they basically create mechanisms for family members or Law Enforcement officers depending upon out the law is written to move quickly and get the firearms out of the hands of people who are identified as as first of all having firearms and secondly of all based on real factors showing risks of violence to others. Theres not currently a red flag law . There is not, 17 states that have authorized them under very careful circumstances and a number of states that are considering them but theres no national law. Why isnt there a national law . Well, for one thing the procedures require local implementations so they really purview within state laws, the federal government could play a role, however, in encouraging them or providing financial escentives to states to implement them and thats in fact, under consideration right now. Thats the effort by senators Lindsey Graham and Richard Blumenthl has come together. President trump has seem today refer to the effort as well. What do we know what will be in the legislation or proposal that theyre coming up with . Well, ive not seen a copy of the draft yet so i cant i cant speak about the specifics, what i can say is first of all, encouraging that theres some bipartisan agreement on issues that are related to guns have tend today divide congress and second, i think the intent is to provide incentives to state. The devil when it comes to legislation is always in the details and we are hoping that they dont link these laws specifically to Mental Illness because there are a lot of risk factorss other than Mental Illness that increase risks of violence and, you know, to be honest with you, some to have rhetoric that weve heard recently concluding basically diagnosing the shooters in el paso and dayton, and in previous Mass Shootings, tragic Mass Shootings as well, diagnosing thess shooters as having Mental Illness without any sort of information supporting that, is not helpful, its ultimately hurtful, harmful, the last thing that we want to do is further disincentives for people who are seeking Mental Health, minor risk factoral for gun violence, homicide, maybe a little more of a risk factor for suicides, we can talk more about that if youd like. What evidence is there that red flag laws work . Well, pretty early in implementation at this point, theres really only been one definitive study in connecticut and that study interestingly atough shown that they have been very helpful in reducing suicides. Last data about what impact theyve sad in reducing homicides. Research in connecticut and indiana found that for every 10 to 20 confiscations under the laws there wasth one fewer death that would have otherwise been expected, that reporting from Timothy Williams in times today, red flags, we are talking about red flag laws in this half hour in washington journal if you want to join in the discussion, phone lines as usual republicans 202 7488000. Democrat 202748 8001. Ron, guest this morning, National Alliance on Mental Illness, i want to go back to something you said about how Mental Illness is being talked about in the wake of Mass Shootings, your thoughts when we hear after these kinds of shootings, nobody in their right mind would do Something Likeke this, whats your reaction for that kind of statement . Well, i understand that but do i want to make the point that extreme hatred and bigotry is not a Mental Illness, Mental Illness is a medical conditions, they are diagnosable and particularly the serious Mental Illness are characterized by symptoms, for example, schizophrenia, symptoms may include delusions and paranoia and had been certainly some Mass Shootings that have been linkedm with severe Mental Illness, aurora, the Movie Theater shooting, tucson involving congresswoman gifford but most of them have not been indication that is the individuals were delusional at the time of their shootings rather in the case of el paso, consumed of hatred, consumed with bigotry, racial hatred, perhaps, thats not a Mental Illness and the overwhelming majority of people are law abiding citizens struggling very hard to overcome the symptoms of their illnesses and live Productive Lives and its frankly very hard for people to access treatment and often times negative consequences associated with acknowledging that you have Mental Illness, make it s. Nonymous with violence, not only helpful, very, very harmful and set us back. Whats been happening this week . S i do. We would not do that with any other medical condition. Taking your phone calls this morning. First, alan, out of alabama, republican, good morning. Good morning. Good morning. I want to know if red flag laws are just for firearms only . Yes. And for ammunition as well. Some of them. It really depends on the particular state but but they andly get the firearmsar ammunition. Do you think it should include everything . Oh, yeah, i mean, why just firearms, i dont understand that. Ir we all know that the Mental Health of this country was deregulated so people cant get the help they used to and because back in the 70s, 60s we had the problem unless the government stepped in to mess it up, why are even penalized for having to fix our governmentsr messup . I understand your point but do i want to say that rates of Mental Illness do not fluctuate, they dont vary across countries, they dont vary from the u. S. To European Countries to asia or whatever, yet we see far c higher levels of firearms violence in this country than we do in other countries, so i e dont think its the Mental Illness thats causing or untreated Mental Illness although you are absolutely correct that its very difficult to get Mental Health care, now, ast far as your suggestion that red flag laws should apply to other types of devices, you know, knives, et cetera, your point is well taken, they are looking at this, they want to be very careful about how they the laws, they want to study them to see if they work, hence they are starting with firearms and ammunition. You mentioned 17 states have red flag laws in this country. Yes. More expansive red flag law that a state has and whats a moreag stringent version of tha . I will say that all the laws have two components of them, one i would have called ex parte orders, where you have someone thats an emergency, eminent risk, you can move quickly to remove the firearms from the individual and then theres a requiremente that there be a hearing after the fact to make sure we havent violated the persons f rights. And then the second part of it, again, the hearings in situations where either theres not ex parte or there has been, e tice to testify, provide evidence whether guns should not be removed and also there are theho laws all require careful review, so that if a person believes, these are temporary atders, that was a point i should have made earlier, the persons gun rights are restored after the threat that gave rise of removal is no longer existent, so the person has right to request review after the fact to have their guns restored and none of these none of the state laws as far as i i have seen allow these orders to last more than a year without a further hearing. Tom, out in california, democrat, good morning. California one to have states with red flag laws on the books. Yeah, im here. Go ahead. Here is the thing, we already have a 5150 law and any red flag law thats going to do is send more Mental Health people into hiding and, okay, say the red flag law, someone goes in for Mental Health, gets called out on it that has registered firearms, thats one thing, what about the guys or people that have firearms that are not registered, that will do nothing to them, you can go to Mental Health facility on 5150 and they ask you if you have any firearms, just tell them no, thats what theyre going to say, how do you proof that they have firearms . Let me try to address the different points that tom as made. Firstef of all 5150 is civil commitment law, that is when someone with a Mental Illness is is determined to be dangerous to self or others you can commit them to Mental Health treatment either in inpatient facility or some states provide treatment or outpatient basis, thats very different than what the red flag laws, the extremist protection order laws and i think its really important that we not confuse one with the other because as i said earlier, most people who who constitute risks of gun violence to self or others do not have Mental Illnesses, here are the risk factors that have been identified, we talked about the laws adopting an evidencebase approach, the risk of reduction, so what are the risk factors, past history of violence is a big predictor of future violence, alcohol and Substance Abuse have been shown to be predictors of potential violence, history of Domestic Violence has been shown as a predictor, conviction for Violent Crime in the past has been shown as predictor and in some cases untreated symptoms of paranoia, you know, untreated delusions and hallucinations can swhad somewhat increase violence, the operative word is somewhat, some people will not act violently but slightly increase risk. So its really important that people do not assume these red flag laws are focused on people with Mental Illness. Theres no need to identify the Mental Illness in the laws, its aboutnt reducing risks for whatever reason. Helpful map from website trace. Org on states that have red flag laws, you can see the red states there. We will leave the segment of washington journal, reminder you can watch all of our programs online at cspan. Org. Live now to a discussion on trade tensions between japan and south korea, the panel will look at threats posed by north korea in the region. Live coverage from the Heritage Foundation on cspan2. The path continues in, you know, the unfortunate direction. Now, often officials or journalists from both countries have often sought or depicted u. S. Support as, you know, pick one ally over the other, thats not going to happen. In the past u. S. Experts and officials have always had really private sometimes stern messages for both sides to take auction to move forward and we will see how are panelists come down on that issue today. And we really have a group of stiller panelists and i will introduce them later but first we have for what many of you will be a surprise guest, we only heard formal confirmation late yesterday that mike will begin the opening remarks, mr. Napper, his appearance may not be on the website yet and people may not have been aware of it, but mr. Knapper, member of senior Foreign Department of state and hes serving as the Deputy Assistant secretary for korea and japan and i first met mark when he was the head of the political military unit in the embassy in tokyo, well, probably more years than either one of us would want to admit and since then hes had any number of jobs, any number of business cards i think i have in my collection, its not to say he cant keep a job, expertise on so many areas has been recognized, he has served multiple postings in tokyo, seoul, hanoi and baghdad, director for Indian Affairs and more recently he was deputy chief of mission at embassy in seoul. Hes twice worked in north korea, in 1997 as state Department Representative and in 2000 as the advanced team for secretary of state to pyongyang, recipient of number awards from trust department of state including the secretary of states distinguished service award, the nations highest highest diplomatic honor, hes a graduate of Princeton University and also studied at university of tokyo