[inaudible conversations] good morning. Good morning. So i will welcome all love you to the liberal arts faculty in day Research Fellow at the war and peace center and will welcome you to this timely end be enormously importantt presentation. Give this is a great pleasure and honor to be with this crowd. With waging war. I do want you to know that there was a time for president s to declare war. From the university of vermont and the legislature met and they said did you hear about this fellow is injured monday named hitler that is terrorizing neighbors and priority groups and before they knew it they declared war are in germany so i just saw that. [laughter] is a the constitution States Congress to declare war but more often the president takes us to war. And with his book judge opens with the Continental Congress because of thein british invasion congress ordered him not to do so and he obeyed and that takes us through all the wars that followed. 1812, a mexican war, a civil war, spanishamerican, world war i, a world were to occur viet vietnam iraq. He criticized george to view bush for being too aggressive and president obama said not to be aggressive enough. But by a recounting of our presence to show these executives get their way without defining congress. I am particularly interested in the section of the book that follows the iraq war and i know there will be a lot of questions on how this applies on the age of the drone with the ada we may not have a large wars in the future like a Second World War if they go to get authorization to make that obsolete so his and vice. Judge barron is a circuit judge court of appeals for the Fourth Circuit that includes maine, massachusetts, rhode island and puerto rico and is from Harvard Law School previously serving the Obama Administration as acting attorney general in the office of Legal Counsel and the department of justice and coauthor of the commanderinchief and is the author of the book that won this years call the prize, of waging war. And ope i would could ask that thoseth of you who wish to do so, please wait for the microphone. The floor is yours. [applause] thanks for that introduction and for having me here as he gets into this institution over the last couple of days. Also for wealthy me here. So i want to you talk about the book and give some context soar around 2004 and 2005 it caved in the midstf thea with the war on terrorism with the broad scope of the president s power of commanderinchief so i thought that history was rich enough so it is a particular pleasure so with a few exceptions it is a great pleasure to do it. But it sometime after i was asked to join the Obama Administration and theed office of Legal Counsel so i came out of office my perspective was different not because of my views had changed but more because isthe u it was or what is the right to answer the the league . Rather than that very real dilemma over how to fight a war and a really just wanted to tell the story of what president s have done so they have an understanding how they grapple with those problems so now i want to start at the end of the book to give you the perspective that was in my head of tavis and the office of Legal Counsel bin i will walk the the 33 president s who dealt with this problem to give you a sense of the pattern of how they are managed but to talk about the imperial president but that narrative is very powerful but not solely accurate so i want to lay down that history so before there was a constitution with lincoln during the civil war and the reno decided cherry pick myhi president s. So with that, i will start at the end of the book the first day january 20th, s return 2009 returning to the department of justice did the office of Legal Counsel and most people assume ann to beva somewhat mystified. Here i am thinking about my parents in particular but not after the controversyby the about the president s constitutional power to interrogate the wiretap. I spent the better part of three years working with colleagues to try to show American History offers little support that congress had no right. But now with what seemed to light the operation then i you could be because something that never happened that mandela be likely to find myself over the next 18 months and tell i step down. That was not in the abstract. One thing i am struggling with is what it should be eaten by the legal positions good new president and that was as a kid eight so no one is of an even but that could depend on the cooperation of congress. But if we were confronted with an effort to to conduct but if not then what wouldos he do . That was not in the forefront. So that is the nature of the dilemma adjust to highlight this point that we are living at the time to have the Armed Conflict and have been for decades and likely will be four years to come. 9 1 to overwhelmingly pass authorization for military force that has led to operations in afghanistan and a number of countries throughout the globe. Who gets to start . And who decides how the war is fought . So what tactics. With that will start with the first heat to it have not far from where i used to teach and the first bid to capture a the highranking british officers and could live there is a massive but he sees no possibility. And i ne and i need to do it and the. Ke why would we want to leave this city . Slow deciding to burn down schumer so that is a leading question so you could expect why would you want to be fit . That is not the answer that you get the very next day but under no circumstances are you to burn this status given so right there in the immediacy of the moment. Darr thinking but if you burn that to the ground they are also with the kings crimes are listed some ofte relish period ins with a kit and washington is serious that thinking they would be forced enough to let theirt british takeover new york the u. S. Also respect their order. He got retreats but he will be under the tree to. But some days after the retreat but any sensible commander with deborah the ashes into the ground but after the investigation there is no evidence from washington and in fact, there is a letter that said sounded more than what were willing to do for ourselves so showing he had no part to. So to move on a little further a 18th there is a complete model. Following the battle of new york, the british even capture an American General cow the Continental Congress decides they want to make hay of this captured. One means to do that was to complain about the treatment the way the british aree treating them so what they know to be in control of a highranking british officer the way they were treated at the time was better than you might expect in was allowed to roam within a 6mile radius. So the Continental Congress sees this you have to treat this guy badly and they order washington to retaliate in treat him as badly as the American Generals did. This means to put him in close custody and in the dignity of the people he is holding in the gentleman had an officer nevertheless he gets a letter from the captured british as commanderinchief, you are a dictator. , you dont have to put up with this. View dont think it should be treated this way go back. Is a you might might think he writes and not have the authority or the but remember washington thinks it is a terrible idea. And then in the way that theyre not treating badly . So to see that develop over time in months and forth backandforth he convincesvi them. That is before we have a constitution but it sets the model for the prerogatives of congress but also hostility and the desire by the commanderinchief to fight the war on his terms without having that provoked out and part of that into the commander in chief at the time when congress is out of town. At. So then you can do pretty much what you want and there is nothing they can do about it. You were not supposed to dono that much but that first issue is when do i Call Congress back . They will not come back for many months given the recess. Of rh they cannot come back the next day. It will take some weeks but how many but he decided not to call them back and told to lie with ted believe he will adjust the fennec there is a lot of different degrees he had done quite a lot but essentially it will go all the way up. Dramati. With lincoln and presses the case and what he tells them its either the abolitionistis either theabolith congress or you run the war as commander in chief. Lincoln was in the right with the secretary and told him for the first time i think im going to issue an emancipation preparation. And that emancipation proclamation actually goes further than the second act. Other than telling me congress is against me and threatening me, they are setting a policy of the emancipation that i was worried the public wouldnt be ready for that i now see they are and hes decided to issue it. When he issues the emancipation corporation, he wraps it up in confiscation act, which he quotes an old in the preliminary proclamation just to show the connection between what he does and what congress has done. Last story comes from world war ii and as many of you know, roosevelt was leading the country that was reluctant to get back for many of the reasons we will probably talk about. In that dilemma, roosevelt was more interested in helping the european allies then the countrymen. It made it hard for the americans to legally give support to the british and in particular churchill is begging him for some amazing destroyers that they have control of. But hhe feels they cannot get to the british without committing a crime potentially given his aiding another country that engaged in a wartime conflict at the time. So he says do i really have to follow these statutes because i would like to give aid to britain. And they say yes, you pretty much do. It would be a problem if you did. And by the way, you cited some of the statutes, so it would be awkward now to defy them. Over the course of many months, the system is worked out whereby the lawyers in the administration concluded that through the relatively indirect room, lincoln will be able to give aid to those in the trade and give some basis in return for the destroyers and when it is structured that way, they sign off on it. Congress has declared war and the question is now runs at, and by what. The way this arises is in two parts. Some of it has to do with action by the president , and some of it has to do with actions by the Supreme Court. And they sort of come together. So, keep your eye on these two actors that are going to come together at the very end. Starts first with a set of saboteurs that hitler has sent over and maybe some of you have heard of. Some of them land off the coast of long island. Become a german submarine and plaland on the beaches and the german uniforms. They take them off and bury them in the sending of explosives with them and they head out with a plan to sabotage the like. They have the same mechanism of the coasoffthe coast of floridae had about. Many of these peptide to the america and unfortunately for the germans they also have a former interest in america but they decide to look up once they get there. Some of them go shopping rather than blowing up bases. The plan doesnt work out very well. One of them turns in and calls the fbi. Roosevelt ordered them to be tried not as civilians that enemy combatants and that military commission was held by one of the offices i worked in the office of Legal Counsel so that this person as you are working on these issues. The trial gets to the emergency session into the court is very sympathetic to the argument that the military commission is appropriate. They treat it as the invading force and argumen of each argumy when the analogy makes it imagined if the plane came in and dropped them in by parachute you wouldnt have to treat them as trust Law Enforcement criminal activities. And this is no different. They came by submarine rather than an airplane but its still an 80 of th endorsement of thet as commanderinchief should be able to treat them that way. Complicated issue that arises is what should be the rules for the military commission. And congress in the articles of war passed some that are supposed to govern those commissions and they are allegedly favorable. They required the jury unanimity and other procedural things that roosevelt had not included in the rule for this Commission Said the justices start asking the government lawyers how can you have a commission with rules that are stacked in your favor when congress has set forth rules in the articles of the war that are not so friendly one answer is they are not bound by statute in the time of war and thats what the justices get interested in wha that they are leaping over the bench to say is that something we have to decide. And the government says i dont mean that maybe you dont have to decided. I didnt mean that either. I wished i never said any of this. [applause] [laughter] as it goes is ruled for the president and gives no real reason that says the opinion will follow in october. The reason it is significant as we chop back to the actions of the president. That has to do with inflation. The. His aide is to then maybe you should issue an executive order as commander in chief wartime leader that this is necessary for the safety of the country. The congress will not budge and give him the new authorities are now we are all going into the summer remember. Roosevelt now is telling the country that hes going to decide by labor day what hes going to do about the inflation crisis. The newspapers are filled with stories of arbitrary executive order claiming powers commanderinchiecommanderinco whatever he wants, basically to take over the control of the economy. What he says if i will give you a month to divide asked for or i will do what is necessary. And then what follows on the floor getting up and saying we have to give him what he wants or we will have a dictator. Very clever. And eventually he gets the legislative change that he needs. Interestingly, all a long roosevelt had an opinion from his lawyer explaining what authority to rely on if he needed to do it on his own end rather than advising they could justify. They found a different statute to effec affect the same price l to the rationing system. Controversial position that all the way back remember how they construed a those produced by te Continental Congress in his favor some hundred odd years later. So now that has played out and roosevelt has made his pitch threatening the broad powers to commanderinchief. They said they were going to issue the opinion in october and they have not written it yet. As they are preparing to write it he says his colleagues im having a problem. I cant quite square the procedures in the commission that the procedures congress set forth in the article of the war. And i have a bigger problem which is we already decided the commissions are okay and some of them have been executed. So we have to figure this out. One of the justices said no problem, congress canno cannot e the ability to decide how to treat an enemy force in the ongoing war. Thats beyond the power to control. That does not go over well with the other justices. And interestingly one of them is advised by the law clerk and given what roosevelt was saying about what he might do in a crisis as the commanderinchi commanderinchief. We write and opinion suggesting in the course of the war that is a green light for roosevelt to a search this kind of powers in the future. That is where the dilemma is set in the court and i just want to read from you help me get out of this dilemma. He writes to his colleagues a memo that is not like those i see from the fellow judges on my court and it is called a quality which is in odd title for a memo and he write writes. I know e men out in the field are going to be watching what we do. Its what i think they would think of the debate we are having now. It requires no imagination to think of their reflection is the unanimous result reached by us in these cases to be expressed by the opinions of the blackout agreement and resolve and the conflict about the manner of stating this result. I know some of these men very, very intimately. I think i know what they were deemed to be of constitutional adjudication in a place like this. They would Say Something like this but in the language hardly becoming a judges tongue. But do you fellows think you are doing. Havent we got enough of a job trying to lift them without having you on the Supreme Court decided the thoughts and feelings of the folks at home by stirring up who has the power when all of you agree that the president has the power to establish this commission and the procedures under the articles of the war congress set for the worst martial and military commission doesnt apply to this case. Havent you got any more sense than to get people fired up on one of americas favorite pastimes abstract constitutional discussion. [laughter] just relax and do not be able to your own interesting conflict because because the inroads and energy and National Unity is a pastime that are postponed until peacetime. Not long after, and they do all come together and its a bit of obfuscation about how it fits together that there is none to defy congress accepted as just the articles of war informed to the procedures. And i end with that to make a point that you can misread the comment into the wall doesnt matter. The bigger reading of it is for him to say we all agree that the articles of the war do permit the commission and we have different views on how to get there but what he is really saying is to not let this abstract question of who ultimately controls be the dominant that we need to resolve. There is a virtue in not fully resolving it so long as we all try our best to be prudent in how we approach it. With that, im happy to take questions. How does this apply to guantanamo, and obama tried to close it and it didnt work out and all that kind of stuff. There is different ways and i am not privy to it but in broad strokes, the president issued an executive order, president obama at the very beginning of the administration i think just a few days in ordering that they would be closed within one year. And over the course of his tenure, Congress Passed a series of statutes prohibiting him from transferring without certain conditions and from bringing any of them into the United States and those restrictions of the administration said for them being able to fully plan. So it is a classic example of the congress regulating the conduct in realtime and as a president responding to it anyway that you mighin away thae the way washington responded to the Continental Congress in his day. But i think the significant point also to recall in this rethink the way the secretion of power works as the president is the aggressor in congress. Congress as was the case in the civil war with a second confiscation act sometimes has a more aggressive approach to how the war should be fought in the president might. Much of what you have return addresses conflicts of interest and conflicts of the law. We are facing with large which there seems to be no unity of action either on the part of the executive or the legislature parties notwithstanding. What do you think is an appropriate approach to take to wind our way through these conflicts of the law particularly when they are domestic and sometimes even regional. One thing that is important to remember is the separation of power system. It contemplates politics and has a functioning democracy that is a healthy thing to. Its to ensure civilian control for democratic control over these decisions. It is some unaccountable entity for a very similar reason and it was not unknown to the framers that there would be disagreement both within congress and the president and tha into the soury would attempt to be political. It would be different and popular views. So i think its a mistake to see conflict and controversy and political decisionmaking as an occasion that weve gone off the rails. It was the first major damage of the International War of any kind in the politics were right between jeffersons party and federalists at the time and they were not even shy about suggesting that was going on into the Material Interests of the parties had into their own political wellbeing. At the same time, you are working throughout history and it is striking how often the debate is pitched at a higher level of principle, national interest, unity very much like the frankfurter memo that i just read to you and that is expect expected. You have a system of separated powerpowers that people would be operating under it and would take it seriously as a system that existed not just for themselves at the moment, but into the future so that the if would endure. And i guess i would say to the extent that some medium between the two ways of thinking about it can exist. The system will probably continue on as it has. It was striking to me when you read the ratification debate about the commanderinchief cof power, they were very, very worried about a dictator. It seems to me from some of the writing is now seems less plausible which is an uprising at home but the commanderinchief would try to put down with the federal forc forces. At once the commanderinchief would do that because he was literallwouldliterally leave tho battle personally commanding the troops on the horse. And then as the victorious military leader, he would be an Unstoppable Force no way anybody could control him after that and there were even proposals. They would see the congress to authorize the command of troops and they were so worried that otherwise he might just do it on his own independent beta unstoppable. It is impossible today. Sometimes they try to look like they are dressed up for battle but it doesnt always go well for them when they do that. Its a different world than they imagine it also which the force of American Power abroad is the main concern and in some ways less of a concern to a young nation that had world superpowers all around it. Its just a different world that they imagine. Than they imagine. But nonetheless, it is amazing to me at least to have as much war fighting as the United States is engaged in into something recognizable to us as a system of checks and balances and have separated powers and one that is plausible to debate where they should have to seek authorization from is he going to far with that language still seems resonant to us as one that is recognizable as the grammar in which we talk about these things. Thats as much as anything i would hope it is still true down the road is a testament. Since it was founded in 1819 weve been producing mostly for the army until recently and in my day it was all army. What would you say to the Second Lieutenants that are going to be in the service in iraq and afghanistan and some other trouble spots. How do they go about their daily business in the context of this historical argument between what the president and in turn the military can do and what they cant do . Is a great question and a version of that came up when i talked with the students in the classes. It wasnt obvious to me when i wrote it that it would be received that way. I think it has become more obvious why it would be the case and when i was in the government, i worked a tremendous amount of time with military lawyers and people at the pentagon. It should be something to take comfort of the one message would be for the future graduates to keep up with that tradition that the constitutional structure and these legal ideas are not irrelevant to your own understanding there at the very root of it in many ways and i think that message comes through and that will continue the tradition that has been going on for a long time. The second thing is just to appreciate an incredibly difficult choices that many of you may end up confronting. Its true for lawyers if any of you end up becoming military lawyers. Making very hard decisions in difficult times. The critique ends up being unlawful. They confronted the situations, not my favorite example just to give you a sense of it. Right at this moment once the session is coming to. Whether my power and commanderinchief in that event so he says to the attorney general what can i do. That is a big question. I would like to answer in five days. This isnt much time for such a big question. He said lets get through on what you are asking me. And he writes of the questions for the president , the same questions he understands himself to be asked. Then he asks them to sign the piece of paper that has the questions just to be sure that we are clear on what i was asked and what is not a. And i think that moment he is criticized for the answer that he gave, which was a very nuanced and sophisticated legal answer but was viewed as weak by many in the north. But ultimately they never adopted the position in a different way than what he had support and that is the subject of controversy. But what i think is significant about that is just for you each to remember you were asked to do many things that are difficult in these positions and the right way to think about it seems to not forget your own agency into the way that you participate in making these decisions. He didnt just say whatever you want. He tried to take control of asking what is my role and answer and are we clear this is what im doing for you and im not doing anything else other than that. That was the way of signaling he had his own reputation to defend and his own role to play even though he was in a formally support the position. And it doesnt mean that the right answer is no. Sometimes the harper answers to the great with the Commanding Officers and explain why they can do what they want. But you have to be aware of what youre doing in the states and get a device that you can be proud of. With as many centuries where a question this fundamental and rather than being frustrated by that as an academic trying to figure out the answer i appreciate there is a certain virtue to step back from the final resolution in that tech effort on the part of the courts to do that and it comes with cost with there is ambiguity when people take a vantage to say that all judgments that have come to us like the internment of the japanese how to conduct the war and to look back with regret so there is no reason to think there is a good outcome but as the system it has real virtues in one feature of that is a willingness not to push things. The military is moving toward a cyberfrontier and will be fought with keyboards and having more areas of ambiguity just as washington and fdr. One potential feature was the system of separation of powers that depend on accountability is hard to fully insurer. And the techniques that enable secrecy that could be compounding so that is an issue that is not entirely new because of communications were not always great so a lot of things today you cannot possibly tied that were hidden from people at the time. But also think back to lincoln going before congress and in their absence to seek the ratification but think of what he had done that with 75,000 troops that was not a secret. But some of those operations may be hard for people to know what happened and that is a separate set of difficult issues. So you have set a couple of things that are interesting somebody said that all this time later we still care about the topic but then also you talk about the seriousness of the legal teams from the of military and your administration so when people are at the dinner table when president is elected every single election that i can remember it is a major topic on the campaign trail so how should civilians think about that if they make that statement they truly dont understand the gravity or how much attention is paid to that . Have to we get that information to civilians or citizens so they know . Is there a couple of bullet points we could share with others . I love history in assure the people in this room to in just reading the history of the country that people are generally aware of the history of their country to make sure that history is taught well and thoroughly so people come to these questions with the general understanding of where we got to where we are. So that is a good question but sometimes that dilemma is presented. Is the civil war we never had that before a revolution every war we never had that before no the first time a total war with world were to so that requires a different way so we never confronted that before so we have to think about it differently and what strikes me is the way the Legal Community seemed to back off so there for the old rules do not apply so other people confronted something new and we did apply those rules so how do we apply the old rules to the circumstances . Just because you confront a new problem so that is the overwhelming scheme that is too long because dinner is over by the time i finish explaining it. [laughter] but the second is one reason ann wrote the book the imperial presidency and eroded at a time when the president in office, nixon had made claims about the commanderinchief as there was hostility to the war that was ongoing and as those things are coming together to say that these are not unrelated activities it is not surprising and then he would step back further that is the future of the presidency even that he supported that was the theme but it is ironic he announced the birth of the presidency when congress was asserting itself and at that point sometimes around the dinner table that narrative narrative, it is sometimes said as a critique but i do worry that narrative can be of vice to reset the expectations about what is possible, what is expected that a fuller understanding of how complicated the president s have not been willing have not been willing to present themselves as emperors so i guess reminding ourselves that they do have a more complicated relationship than we sometimes remember is important. So to their relationship with president truman do you have some thoughts that was a flash point . What is your opinion . There is a wonderful book about that by hw brand about that disagreement but my focus is on the civilian and military fight that is not something i am inexpert on truman is a striking figure not the least of which is korea with that large scale military conflict and it was done without a declaration of war and we havent had one since but at the same time we never had a conflict of that scope for scale. And truman shows how conflict can arise in which we dont declare war apparently but also at least not in practice has evolved with the first and goal for but in the operation in afghanistan did go to congress before the use military force at that scale thanks for writing the book. I thought it was great to have that armed intellectual combats and Better Things happen but also that second analysis if we dont have those debates and have that stampede effect, either those outcomes turnout as well . Because sometimes as a citizen of this track of the fact that is normally a more comfortable as they are fighting because the odds are youll have a better outcome in my view versus the idea we know what is right to stampede the head plus as a nonlawyer to bring up the fact the plan for the lawyers should be the hedge. [laughter] i will take the first question. So i guess one thing is important to remember that onetenth of the time horizon at particular moments you could see a stampede and if you look at many of these debates like churchill if there is any time to do it, it is now who needs a fair amount of time to make that decision and to approach over that period of time and the structure of the deal is different the same with lincoln and emancipation. The amount of time that is structured with the real cost with the time it takes to play out with anxiety and fear that they are not getting of protection that they wanted. But it is striking to me the patience that the practice in those moments theyre surrounded by people that have no time but then they find out there is more time than they thought so that enables the debate to play out in the spirit of your comments benefits. Gone the way over i asked if there would be a judge if he said no i never wanted to be a judge with said to want to be a lawyer he said no. Wanted to be a historian and that shows us why you have been so successful debut for coming and excepting this prize. [applause] [inaudible conversations]