My name is rita smith and on behalf of the Charles Koch Institute i like to thank you for joining us today for what promises to be a substantive and timely discussion about the applicability or lack thereof of existing legal authorities to the use of force against iran. Its great to see so many staffers here today. We are encouraged to see a full house. You guys have so much to do with the way we approach the broader matter of congressional war powers. Its encouraging to see an interested room looking to get informed by expert jurists up here today. For the sake of time and discussion im going to keep the introductions perfunctory in no small part because our panelists reputations undoubtedly precede them. To my far left Stephen Vladek is the a dalton cross professor and law at the university of texas school of law in austin. A graduate of Amherst College and yale law school. But distinction is teaching and Research Focus on federal jurisdiction, constitutional law, National Security law, and military justice. His affiliations are in numerous as are appearances in broadcast media and print. A Founding Member of laffaire he cohosts the National Security podcast with his colleague bobby chesney. Its a great name. Its a great name. To his right and are left Heather Brandon smith is fc nl legislative director for militarism and human rights. She works to repeal the 2001 authorization for war with respect for human rights and International Law and reduced u. S. Armed interventions. An adjunct professor of law at georgetown heather earned her ba in politics and International Relations from the university of new south wales. Where she also received two law degrees before receiving her masters of laws from Georgetown University. Jean healy Vice President of 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 in editor jean earned his bachelors from Georgetown University and jd from university of chicago law school. I will note briefly that on everybodys seats we prepared a small packet with what i think are substantive reflections and commentaries from our speakers today. Also from our colleagues at the concerned veterans for america a statement on the desired repeal of the 2001 authorization of use in military force i want to state the differentiation between the Charles Koch Institute which is a c3 organization it doesnt take position from legislative matters and the concerned veterans for america which is the c4 and weighs in on those matters. Now to our conversation in a way i think we should probably start at the beginning mere hours after the tragedy of 9 11 is congress debated drafted and ultimately by an overwhelming majority voted to enact the 2001 authorization for the use of military force against those whod planned, authorized, committed or aided the september 11 attacks. Or 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 a global war on terrorism. Thats everything from the invasion of afghanistan in 2001 to the downing of a syrian airplane in 2017 and everything in between. From get mode to secret try funerals and its extraordinary rendition in some an estimated 41 military operations in 19 countries. Now some within the Trump Administration may be looking to link the Islamic Republic of iran to the underlying logic of the aband as the title of this event suggests we will certainly get to that matter but as i take my seat stephen perhaps youd like to provide some introductory thoughts about the remarkable circumstances that helped this bill into existence. Sure. Thank you for hosting this event. Thank you everyone for coming. I think its really 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 auo math. This is still very early on. Its not until september 20 that the president will publicly acknowledge that the United States determined that al qaeda as sponsored and by the taliban in afghanistan was either responsible for the jury attacks. This was still very early days. I suspect some of you were not even alive yet but we will get back to that. Part of what really matters is because the statute was written in context where it wasnt 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 attack us in the future. To that end the Bush Administration initial draft language had been this very openended text that would generally authorize the use of military force in order to prevent future acts of terrorism but really what had been the statutory authorization for a global war on terror. I really would then house just did judiciary chair leading the way congress pushed back and said thats too broad. Even though we havent yet figured out whos its whos responsible we want the force for authorize him to be targeted and act whos responsible. The final text of the bill that passes both houses on friday, september 14 and 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 attack or harbored those who committed the attack. This was not just a general authorization to use force against terrorist groups it was a specific authorization to use force against whoever it was publicly determined to be responsible for 9 11 signed into law september 18. We determined that al qaeda and supported in harbored by the taliban regime in afghanistan. That was important because it means that in context what we now call the 2001 or sometimes the 911 au mf to distinguish from the 2002 iraq amu f. Was focused at al qaeda and the taliban. The statute doesnt say that and i think we are continuing to reap the consequences of the fact that the statute doesnt say that. I dont think theres any question that at least in that moment thats who congress was thinking of, thats what the statute was directed toward and how the president reacted and responded. When the u. S. Started using offense of military force in afghanistan about five weeks later in the middle of october toward the end of october it was under the aof the aumf because everyone understood that the taliban in afghanistan was clearly part of the congress had intended. I think the working assumption was that the harder questions and the longer questions would be flushed out in subsequent legislation. Congress was very busy in september and october there was a number of statutes enacted relating to 9 11 attacks in response thereto. Leading up to brett from the aumf all the way to the patriot act october 26. All of these continuing debates. We will get to iran but does that even cover al qaeda in the Arabian Peninsula . There are so many questions with the original amf it never thought it was answering in that 60 word proposition. Actually want to turn to jean right now as steve gave a great summation of the 2001 into 2002 as the Bush Administration considered other potential military operations. Obviously iraq was on the to do list. Can you talk about coming back to congress again for the a ums quick spit a ums quick. One of the things that is interesting about the current debate whether the 2001 au m f applies to iran is back when the 2001 was barely a year old and the Bush Administration had iraq in its sights and there was a lot of talk font from Vice President cheney and others of the iraq and al qaeda links the most important elements turned out to be bogus but they were promoting this idea that meeting with the Iraqi Intelligence Agency , they are making a lot out of these but for a hot moment they did float the idea publicly that they did not need authorization for the war in iraq because among other Legal Provisions they might be able to rely on the 2001 au mf because of the suppose it connections between al qaeda and iraq most of which is bogus but then they decide in the end it was a little too cute for a breach too far that you needed to separate authorization from congress they never acknowledge they were legally required but politically one year after the 2001 au mf was passed they concede for political reasons need some authorization from congress for this administration famously was not shy about aggressively this shows just how strange it is nearly 18 years later to be talking about allegedly iranian and al qaeda connections as a basis of war under the 2001 au mf it was too much of a stretch for the Bush Administration. So lets talk about that. If that is still on the books now many years past this still remains intact. The amf cost passed in october against the Saddam Hussein regime. With the National Security of the United States with the threat of iraq to threat the unit Un Security Council resolution about the weapons of mass destruction and as a result they were breaching the Un Security Council resolutions that is what congress voted to authorize but yet now 17 years later and just as with the 2001 we have seen the interpreted we see that as well with the 2002 iraq au mf so happening in 2015 when they went back so prior to this time the Obama Administration officials called for them to be repealed and that was the policy. Even going into iraq to say were going into iraq with the 2001 au mf to authorize that we can get into how they made that legal but they said the 2002 version gives Additional Authority but they were very specific. But still the opposition had been changed then to interpret the 2,012,002 au mf to bring stability to iraq much broader than the us with the immediate threat posed by a particular regime there was a report that came out that said 2002 version authorizes the administration to address the threats to and stemming from iraq in syria or elsewhere. So now we go from being very specific resolution with a particular purpose now getting more and more broadly interpreted. And its worth stressing in both it is a pretty substantial break that had been the practice of the United States over the first 200 years of history. During world war ii there was no question that war powers were all on the table groups went out of its way to declare war separately but then every single country this is a trivia question whats alas country us declared war it is romania left left but it proves the point there was never a thought simply because we were at war with germany that congress had signed off on anyone instead it took it upon itself to separately authorize each country we were using force that is the model that prevailed all the way through 9 11. This is the problem in the 18 year since. So since 2001 aumf is a substantiation of the forces. Because in that short key provision 60 word sentence there is no mention of associated forces. Can we talk how that has become part of dealing with rhetorical logic . I believe that term was first in the legislation 2006 and the detention context. Really about who could be detained if they were captured. Not just al qaeda or the taliban and but other groups who were fighting with them and they would be detained a ball. Now the obama Edward Administration developed a definition that they use in the conflict to end the fight alongside al qaeda with the taliban but still a very valuable turn we dont know it into the fight means now we talk about war it isnt battlefields with soldiers fighting against each other so it could be giving advice to someone or how to make a bomb. We just dont know what the definition might be. So that term has been read into the law by the Previous Administration accepted by the Current Administration and is now with over a dozen groups and 19 Different Countries as a result in one of the problematic terms to hearing the topic today of the administration that the 2001 aumf covers iran so what we were hearing the ruminations could be a connection between al qaeda and iran so that iran could possibly be in the period ended is a problematic term and its not in the 2001 aumf itself. We had a definition out there but the parameters were not very clear. And heather alluded to this the detention of enemy combatants drove a lot of the policy initially but how that has changed 2006 that is important because the government tried to figure out how to win the heb as cases and how did that have a connection to those that were only a peripheral connection to al qaeda but as time went on they receded in their importance and the more kinetic use especially during the Obama Administration military detainees took priority and Congress Fiscal Year 2012 specifically authorize the detention they are part of the associated forces but did not define what those were. The most important statutory reference to those forces is devoid of any content so it is a critically important issue never fleshed out by statute because there hasnt been a single course on a single case so it has been left entirely not just internal executive branch determination but often classified where the government will not even concede on the record which groups the government will not treat with associated force. Not the way to run the railroad. One of the other developments we have seen in the years since 2001 naming of the Iranian Revolutionary guard as a terrorist organization as alluded to by the chairman of the Senate ForeignRelations Committee to ongoing concern concerns, we now see state actors through the 2001 aumf. Where does that go . Where does that lead us as you stress this uncommon or not understood as being normal product . I think its worth trying for as long as we can to preserve that distinction between groups designated as terrorist organizations like the Iranian Revolutionary god guard corps that does not the pain depend on the same military connections as opposed to the aumf im not sure we are quite to that point if there are any other state actors. The larger point is this is a conversation of an original matter and historical matter that congress was supposed to play the central role. So congress has by statute to send out a bunch of specific criteria that the secretary is supposed to use to decide if it is a terrorist organization and then once that group is designated there is a process they could challenge to see if the criteria was applied in that procedure and if that was correct that is not at all like the aumf because congress had acquiesced so completely and however they have interpreted this now. The problem isnt just the drift to nationstates that the general abdication of any responsibility for the scope of the statute. I would add as well that congress is to determine when the Work Congress goes to war and against who so now the president makes the determination to come under the aumf if congress does nothing then i think it is dangerous to drift into say that a nationstate could potentially in the entire military force behind it to come under the 2001 aumf . That is a significant expansion from what we have seen so far. Those forces have been limited publicly with a lot of classified information we dont know about. But they have only been groups that have not been nationstates before. Just to underscore that point, the significance of the 2001 aumf really did changed war into a default setting not a departure from a piece time norm those wars were hardly unknown with those engagements and then forced into the nofly zone for iraq but historically for the baseline and what has happened over the last going on over 18 years is because the 2001 aumf it was one vote, one time and is the new normal one gruesome example over Labor Day Weekend 2016 the story in the Washington Post about over the weekend the Obama Administration launched airstrikes over six Different Countries in the Washington Post story covered it to show how pervasive or has become. It wasnt a story anywhere else but an interesting news item. Two decades before that those airstrikes across six countries would have led every nightly news broadcast here it is just an afterthought that it is even noticed and has become such a backdrop of us policy was a little congressional involvement that we are barely able to notice it when it happens. I echo everything in one of the things we dont talk about very much is the cost of or how many have been killed with the financial cost just to give you an idea it is about 500,000 people who have been killed about 250,000 were civilians 7000 Us Service Members have but came home injured in 300,000 with traumatic brain injury and with those that have risen as a result of the war and the financial cost was five five. 9 trillion and Brown University for anybody that unveiled their latest fiscal cost that will go over the 6 trilliondollar mark and what we dont hear talked about anymore it is a new normal and it is troubling. If you describe that general abdication on the legislative branch you both describe day drift toward the state of war i see two have seen the degree of reawakening of congressional muscle. Can we talk about that . There was some interest to a new aumf discussed last summer and to touch on that briefly but also as the days and weeks have progressed through the process we have noticed that congress is sowing its oats again and perhaps activity we want to encourage to bring better balance to the executive legislative court. What has been nice to see this reawakening i would call it a stirring because in the way of actual legislation of the u. S. Senate but i realize where im sitting that can be an unpopular viewpoint but in order to reform and not just appeal that this effort picks up steam starting 2012 actually president obama himself sends a proposal to congress this is personally unheard of to propose himself to limit the work hours and that went nowhere. Its nice to see the attention i dont have any consensus it is a problem but it is urgent with congressional reaction the way others have seen that reaction lately. There is a real sign it will have momentum not another proposal with bipartisan support but from both parties talks about the importance to push the legislation through we dont live and breathe everything the leadership says but i have not seen that. Other thoughts quick. I would agree with everything i can talk a little bit more because i get so excited because recently we did get some good votes the 2002 aumf the house voted 242 182 repeal the aumf and thats the first time they have taken that vote. Another was the 2001 aumf that it was stretched far beyond what congress was intended and used as a blank check for global war. But then any new aumf needs to make sure this doesnt happen again and with the Expiration Date to look at how if they authorize that and we find that with that specificity of the groups that were targeted so who tries to do that with the 2001 aumf we didnt know for sure it was al qaeda from the 9 11 attacks. But with that recommendation we need to be clear and the geographic limits so we dont get into the situation we are due now operations in 19 countries that is another provision adopted by the house and also through the defense appropriation process there was an amendment from representative barbara lay he and you actually repeal the 2001 aumf eight months after enactment. This gives Congress Time to look at the current scope of operation to get the admission on information from the administration and determine where and take a vote. That is what has been happening there is a senate bill to repeal the 2002 aumf that the gulf war aumf and that is the bipartisan bill and a couple of other responses from senator the signing onto that bill. That is helpful and want to get to a couple of matters raised recently at Senate Foreign relations hearing a couple weeks ago today actually there were a couple of points i took note of with the testimony with the applicability of the 2001 aumf to iran it did not apply to date and that was an interesting caveat. So the reassertion of Certain Administration what would entail the end of the aumf a replacement that comes before repeal repeal and would not release any geographic or temporal boundaries on the commanderinchief latitude moving forward can we touch on these points with future Reform Efforts might look like if 2001 could apply in the future and also some of those president ial inconsistencies on the replacement aumf. To the former heather alluded to one possible line of reasoning of associated force that there were alignments between iran and al qaeda in certain parts but actually i have always thought the more plausible argument is to go back to the harbinger language to say that its not that iran is actively engaged on the battlefield but x number of al qaeda soldiers and fighters either physically through its territory because for all the reasons we have discussed to go far beyond what congress intended but because there is no methods of pushback i dont know what would stop the aggressive assertion by the state department that iran had harbored. After those objections my reaction is i dont know what a new bill accomplishes if it doesnt have any restrictions. I guess it is theoretically possible that could save these but no others and that would be an improvement over the status quo but i cannot think of any other of where we are today and what the Administration Says is a nonstarter. Even the bills replacement that has been introduced the last few years the geographic or temporal limitations and the corker cane whereby the president could designate new associated forces and the ability regardless to d designate them through that majority is why it strikes me of any of the replacement of the aumf that came up during the fight against isis. Much would seem to spark the clock on a new authorization that itself with the conditions of delegation of power. So to see those authorities but one thing we havent talked about is the commanderinchief purview given the article to authorities. Lets talk what that means with the offense and defense analysis and then i have five minutes left before q a. With that necessity based on article two. The president clearly retains under article to some defensive military power at the convention and how to repel those sudden attacks in that strictest constructionist and on war powers wouldnt say to Call Congress into session if the country is attacked. How far that extends is something that can be debated with estella with the Foreign Relation Committee hearing with the residual article to power and then to advance Important National interest, coming with the memo there is the notion and it advances and since adopted by the Trump Administration to just have military action in syria the notion is and then to have the National Interest and then it is expected to be short, over seven months he can do a little light bombing that this goes far beyond the original understanding of what the war powers are. Is a very subtle shift and to approach this question where so for time article two allows the president to use force when you have a situation when clear and imminent harm to the us and the National Interest at the end starting with libya now it is imminent harm to the us and that takes us away from article to with offense and defense. These are National Interest not with what the Supreme Court blessed in 1863 but on the other hand and that is different from the original understanding. Now he will turn it over to q a. I see a couple of hands up front state your name and affiliation that would be appreciated by our panelist. Everybody has talked about the success of the dependency to want to go to war with the National Interest. Is it economic or military industrial complex. Yes. Everything is relevant since 9 11 the over militarized approach we are so stupid a lender of last resort its not the case and not using diplomacy so dealing with counterterrorism and intelligence sharing to meritage foreign affairs. And thats why it is so easy for those administrations to choose the formulations problem. We have all this said and we agree the bottom line has partially been consistent. And the inertia is much more powerful force is worth going back to the beginning of the Obama Administration and to close guantanamo the opportunity to end to move us and to a large degree failed to do so and that is one of the most important failures of the Obama Administration to the point whereby the time isis really emerges in 2014 they defaulted that we would with military force and embrace arguments because its so obvious its what we have to do. And with those cross partisan approaches but the politics of National Security are deeply toxic and there is no significant political value as a poor post tomorrow fortitude to be the peace president president obama was immensely successful and that is a microcosm and the current president is not exactly interested at all. When the administration entered whether or not they left themselves a very large exception and that non remarkable the assertion that congress has Partner Forces for what they may face. And in the 2002 aumf and as necessary to defend those services and the democratic iraq the 2001 and 2002 aumf with that purpose was intended by congress it is incredibly dangerous and a huge caveat to get into more wars just because of the breadth of it so that means into al qaeda coming under attack for some reason by iran and the 2,012,002 aumf would authorize forces to defend either against itself against iran in that situation and the worry then are you dragged into another war and one that is constantly evolving of the aumf and if that was a replacement so that does need to be reconsidered every few years. But it is a real problem and it opens up the administration to say far beyond what was ever intended. I am the director of win without war but to pick up on the article that was handed out that talks about the need to repeal but not replace go back to the more First Principles question what is the natural interest in the middle east and do you think the problem actually has a military solution if we should rethink that paradigm we find ourselves in quick. I am more of a legal analyst and National Security analyst but it does seem to me conceivably there was a military response of september 11 that could be justified as a Security Matter you could make a good argument for what it was originally designed to do in those thought it would do i dont know why still 18 years later but steve touched on this in the article to discussion to the extent the military response threats emanating from the middle east and to make a good case has that residual defense of authority in the modern context you have to wait until they get the first punch if you have where imminence actually means evidence you would have a strong argument to take military action with that authorization and with that perpetuation of the 2001 aumf seems to have empowered where we keep doing what we are doing we know our shabbat and somalia is a great threat to the United States or we are already engaged in the military. To do what they are doing. And the cost of this if it was substantial from the American Public in ways that they were not in prior wars. Seems whatever National Security interest that we have that requires the use of military force is far narrower than the interpretation of the aumf would suggest and the United States and its interest could be perfectly wellmaintained as they were all repealed or not replaced with anything. The question would have been so that is how so and with that authority im not sure what they need either the aumf there may be an answer but that should be the dominant question does it cover iran cracks why does it lead live beyond the use of force what exactly are you trying to accomplish cracks and this is been signed sealed and delivered 18 years. And then to discuss moderators privilege i want to be sure we enter into the record the war powers resolution. And with a couple of votes recently how does that matter with the 73 war powers act how does that fit in quick. It doesnt. In that perfect legislative view of the war powers resolution the promise is that it has all these interpretive loophole loopholes that defeat the core purpose and with the executive use of power and that is unconstitutional in is not about the war powers resolution in congress does it feel empowered required requires him to write the memos differently. I also heard it say the power to do x it actually doesnt give the president power to do anything in under article two of the constitution that the framework whereby if the president could use force under article two men have another 30 days and in defense that is a war powers resolution with the us involvement of the saudi led war. But then we could be so on the ground. And senator caseys office. That the courts could ensure that the administration is legitimately interpreting the existing aumf or war powers article to. That the court has been virtually allergic but historically with those scope of the war powers that they havent had a single decision with the aumf but the contest with the courts where they have been active and the governor says you can detain them because they are allowed to do so so there we have a fair amount of law the Supreme Court 2004 the one time the court interpreted the aumf to allow the detention as fighting for the taliban but the problem is the last of the military detention cases where none of the 40 detainees in guantanamo have been held under associated forces rubric up at all under the fact they are with the taliban and one us citizen was held for over one year in iraq after captured on behalf of isis and syria were that might have led the court to decide if isis is covered but the us did a deal to release him before we ever got there. So im the first person to defend the courts have a role to play but the last two think that will happen because just by not subjecting anyone who is part of these groups to longterm military detention. Back to the war powers resolution discussion and strengthening that war powers resolution of those war powers act with the combat authorization that you should really hear those cases that is a nonstarter that they can be strengthened trying to do funding or to over specify. And among other things we have learned a lot how to define the war power resolution may be not just when there are hostilities but the use of force to train the operation and the funds cut off and that argument that the sunset is bad. The constitution itself sunsets military appropriations. And it has to be reenacted every two years. The army. But every conflict has to go for appropriation. So there are ways to do it that i think would put all of the right levers pointed in the right direction but it would require not just a congress that puts constitutional interest in hetland ahead of the politics of the moment but the majority of both houses were president will surrender more than they have. I agree with everything but i would add that right now you have the 60 day where the president uses force without congressional authorization unless they have it so that and this gentleman right here in the ball cap. Good afternoon. I am from American University here in washington. Myself and those classmates were having a discussion and from another planet they demanded all of us take us to your leader. Word the citizens of the world allow us to present the president of the United States on behalf of everybody around the world as that leader . So my question is do you think we need to revisit the actual qualifications for what it takes to become the president of the United States since we cant figure out how much the power the president has to keep us safe to declare or not declare war quickset is my question. A great hypothetical to close things out. The founders would not have been surprised we have a bad president. It would not have come as a shock the way the political process is set up every once in a while a president is elected for whatever reason we could talk about what recent president meets that criteria but what they would have been floored by the extension of separation of parties is more important than the separation of powers with that the founders believed from federalist 47 to be ambition counteract ambition so i dont think the story is about bush or obama or trump but congress increasingly not taken as its First Priority its Institutional Authority to the executive branch. And that is not of the current president but of congressional acquiescence. What a wonderful way to wrap things up. Thank you in attendance for joining us today and all of us working in catering and sais cspan joining us to help scale what has been a substantive conversation. Thank you. [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]. Next, Tuskegee AirmenHarry Stewart recalled his life in soaring to glory. Ladies and gentlemen, can i have your attention please . Welcome to the Richard Nixon residential library and welcome to our beautiful atrium for this very special occasion. We begin tonight and currently Patriotic Program appropriately with the presentation of