Transcripts For CSPAN2 Debate On War And The Constitution 20140921

War in the middle east. Tonights debate could not be in more timely. Our debaters also could not be better suited to giving us different points of view. Here below we have john yoo on the left. John, stand up. Jen was Deputy Assistant attorney general for the office of Legal Counsel and the bush Justice Department. John wrote a number of key legal memo supporting bushs post9 11 counterterrorist policies. Then bruce, standup bruce was associate Deputy Attorney general under president reagan and also was chief policy adviser to rand paul during the 2012 president ial campaign. And harvey is going to be our moderator. Harvey is currently the dean of the national war college. Harveys last job was director, the Less Government job you worked for the director of national intelligence. So thank you Harvey Rishikoff. [applause] there wasnt a single founder who doubted that going to war with the most important decision a republican made. The war power is the most important are because war is the greatest threat to the public. Since the executive has more incentive to go to work in the legislature the founders placed the power to declare war in the legislature, not in the presidency. The founder who understood were better than any other founder was George Washington who upon leaving as retiring as the first president of the United States he gave a long farewell address in which he spelled out the foreignpolicy of the founders. Washington said we should stay neutral in foreign wars. We should shun military alliances but with all foreign powers because they would entangle us in their wars. To support neutrality washington said we should be wary of overbroad military establishme establishment. He said we should not borrow more money in our generation than we can pay off and of course avoid political factions. It sounds pretty good to me. Im sticking with george. But lets see what our speakers have to say tonight. Harvey, why do you come up. Youre the moderator. We are going to do 10 minutes each. Bruce you are going to go first and then john and then harvey is going to ask some questions of the panelists. Then we are going to open it up to all of you to talk. [applause] thank you for coming out. I wish they could do this with bruces microphone. There it is. Good evening. Thank you for coming out tonight. I want to thank the press club for being so generous to have the motivation to do this. We have a number of times honored person myself. After make a caveat im with the National Bar Association on one National Security but im here on my personal capacity and not representing big organizations per se. We think its very important to have events like this and we could not have two more experienced debaters. What we are going to do is we will have 10 minutes on each side and then well have five minutes for rebuttal and that i will pose a few questions that may have been raised by the speakers. Can i borrow a pen actually . Does someone have a pen . The Founding Fathers were press and in recognizing that facts. They understood that only congress not the executive branch could authorize the initiation of war. Congress doesnt have the brandeis power and the power diminishes in times of war. What is it that makes war so threatening to our republican dispensation . First the power of the government concentrates in the executive. Its a a customary separation separation of powers principle. The commerce and the judiciary are reduced to the virtual and blocks and the courts never interfere with National Security decision of the president. We can see today the president claiming power during the socalled war against Al Qaeda Isis iraq or otherwise. The power unilaterally to kill any american citizen on his sayso alone if he declares them in imminent danger to the United States, the most awesome power entrusted to any individual. There is no judiciary review and no congressional review. It is final. Thats not the only awesome power of the president wields as well in times of war. Think of the powers of surveillance by Edward Snowden. Even before then shortly after nine 9 11 the president claimed the power under his terrorist Surveillance Program to intercept emails and conversations of americans internationally without any statutory authorization whatsoever, not even a fisa court. Then we have the detentions without accusation or trial at guantanamo bay. We dont have customary due process and we have a chance to confront your accuser. You are not accused of any particular crime or wrongdoing. These are examples i think of how the powers of the presidency climbed during wartime and president s Never Surrender that power back. Theres a second wrench in our system during war and that is customary transparency. At the heart of the idea of government by the consent of the government yields secrecy. Government by the consent of government is mocked if the people do not know what their government is doing. How can they give consent . You find a discrepancy between what the government does and what the people would want if they knew what was going on. I think that is shown dramatically with Edward Snowdens disclosures. Ever since 2006 the American People were ignorant of the Telephony Metadata Program run by the National Security agency. Congress knew but they were too frightened in invertebrate to disclose it to the American People even though they had a future debate clause that protected it. They were alarmed by the fact that the nsa was collecting data on every single phonecall domestic or international. There were no exceptions. The collection was made without any suspicion of any other data indicated involvement in terrorism crime or otherwise. He was just collection. Now think of that program when it was revealed to the public they were generally aghast. It was the public pressure that forced president obama to curtail the program by executive order and followed by congressional theory. They were all provoked by Edward Snowden and measured a lot of conversations you had over liberty and the right to be left alone. Because of Edward Snowden not because of congress. This kind of secrecy is characteristic during wartime. Secrecy also i believe leads to misguided decisions of the type of the bay of pigs where we have the cia for casting people rising up against fidel castro and it was a disaster. President kennedy said he wished the New York Times had beaten them to the bay of pigs the board could save him from that kind of folly. Aside from that its basic principle that in the United States fleet of people are sovereign. We get to decide their own destiny and how does that occur . We dont even know what the government is doing. And then a third major is invariably cripples Civil Liberties. Safety is always viewed as privy so the right to be let alone crumbles. Due process and we had military commissions that combined the prosecution and adjudicative function with the Founding Fathers is the definition of tyranny superseding civilian clerks. We have surveillance with the nsa but recently these of Surveillance Drones to watch we are going when we walk outside. We have a sense of Government Programs that are initiated by the president do his claimed executive story that we are still clueless about. Edward snowden didnt have access to all the spina government was undertaking and is probably true that there are additional intrusions on our privacy that we still dont know about because of secrecy and the general tendency during wartime is to coordinate everything to safety. Thats not the Founding Fathers believed. The Fourth Amendment was based upon the idea that we take risks that other people dont take in order to be free. Captured in the 1760s. Dress William Pitney and this was a the spark of the American Revolution british as you how distant we have been from our roots when we think and listen to these ringing words. The poorest man may define all the forces of the crown. It may be frail, the ref may shake in the enter, storms may enter, the rain may enter but the king of england cannot answer. All the courses may not cross the threshold. Think of how at variance or lives are today compared to the understanding of the right to be left alone. An essay for that i will address quickly and really is at the heart of who we are as people. We believe that its more acceptable for us to take the risk of being the victim of injustice than to be complicit. We dont want to take stupid risks but let me explain one situation where the point is made graphically. About a year ago there was a hearing held by congressman Allen Grayson of florida which featured a 9yearold granddaughter from pakistan. She related on one day her 16yearold grandmother asked her to pick vegetables so they are out picking vegetables. The 9yearold son of darkness in the sky and then she began to run and she thought she heard screams. She looked at her hands and they were bleeding. She ran and looked at her hands again and try to get the blood to stop the cooking. Then she looked into grandmother was exterminated by a predator drone. That is complicity in injustice. Sometimes its impossible during wartime but thats another reason why we try to resist going to war except in selfdefense authorized by congress. Thank you bruce. Bruce has painted a rather bleak picture. [applause] executive excess and john what is your response . Greetings everyone from the peoples republic of berkeley. I enjoy the chance to come to more conservative cities Like Washington d. C. [laughter] i also want to thank the committee and bruce fein and Harvey Rishikoff for putting this event together and for having me come along. I have to confess im not an expert debater. I have never actually debated in a setting like this where we look like president ial candidates. Im very excited about this but i have every expectation of losing this election. I wish more candidates would say that during the debates. I want to start by saying i think bruce has won this debate. In 2008 at the time we elected a president who agrees with much of what bruce stands for. We elected a president who during the campaign told the boston globe that he did not believe the president has the Constitutional Authority to go to war, to use armed forces without the permission of congress or in selfdefense. What did he do when he was president . He withdrew from iraq come he withdrew from afghanistan and did not interfere in serious. On drones and surveillance which bruce is unhappy about it should be noted that those are policies that have met with congressional support. The complaint is that the executive, the president has gone on these adventures alone. I dont actually think that characterizes the administration we have had, the Obama Administration. These are policies where congress has voted to support them. I dont think this has resulted in a good policy if you look at the results of the kind of policies we have now. We are right now confronting a terrible terrorist threat. I think its worse now than it was two years ago and we should ask ourselves whether we are more secure now than we were six years ago. I think the threat of isis in iraq is much worse than the way iraq was left at the time. The reason why we are in these bad straits and the reason why i disagreed with bruces argument is because i think its the mistaken view of president ial power. In brief my view is that the constitution gives the president the power to respond quickly and energetically in the face of crisis, in the face of war emergencies and in pristine circumstances. In fact this is characterizing our most successful president. Our kind host mentioned George Washington at the beginning of our proceedings. George washington issued a neutrality proclamation and he said it was his authority as the chief executive to be able to define the Foreign Policy of the country. Keep the United States out of war between britain and france. This was seen as a great by his critics as an aggrandisement of the president articulated in the civil war. Lincoln response to the civil war not like his predecessor James Buchanan who most historian experts think of is the worst president in american history. James buchanan i think what bruce would recommend i should ask congress what to do about this secession crisis and congress for those of you who have worked there as i have few can predict what congress did. Congress set up a special committee. I think theyre still meeting in the basement of the capital right now. President lincoln comes into office. He read his president ial powers broadly may be more broadly than many that people in the south wanted. He sent into combat in the south and put up a blockade in the cell and most notably he issued the emancipation proclamation two years later freeing all the slaves under his commanderinchief authority not with support of congress. Congress actually never authorized or approved of the emancipation proclamation and for those of you who get your history to movies as you saw in the movie link and it required the 13th amendment to validate it. The last example i will give you as Franklin Roosevelt in the years before world war ii. Congress passed a series of neutrality acts to prevent us from getting into conflict in europe. President roosevelt did everything he could to aid the allies to prepare the country for war even in direct conflict with the statutes. I think roosevelt was right and we are better as a country if the world entered world war ii. I would contrast that with presents like buchanan who have responded to crises and wars by following exactly the argument that bruces laid out. Let congress decide. Congress should have a initiative. A presence there to zaki execute. That has led to some of the worst problems we have had in our countrys Foreign Policy and National Security. Thats not the same not arguing the president s power has to be large and energetic at all times. It depends on the circumstances. President nixon is a good example of someone who tries to exercise excessive president ial power at times it was not called for. Let me just step back from looking at the practice of our history and look at the constitution itself. I think bruce talked directly about constitutional tactics. Congress has the power to declare war. Only when congress has decided can the country go to war and can the president then uses powers to leave the armed forces. I think thats actually a mistake. I think it reads too much it reads into the atmosphere of the problem. Many people thought the revolution it gone too far and reducing executive power and sought some sort of balance. The executive power was invested with the president. That would have would have drawn on the discussions of what was the executive power in the series of john locke and the fingers have influenced him. One thing they made clear is the reason you have executive and the reason why theres even a president is because some part of the government has to be able to respond quickly and swiftly and decisively to the events of the legislature could not foresee and the legislature could not handle. There were many members and it was hard to get a consensus. When the framers went to the American People to seek ratification of the constitution thats how they explain the presidency. It was a controversial topic in that day too. It was an innovative first of its kind institution. Most countries today still of have a parliamentary system. But the framers said Alexander Hamilton in particular the executive power, the executive is there because the executive can be swift, decisive and secret when times call for it. Hamilton then said what are the powers listed and one of the once he named, the most important one he said was the administration of war. Again im not arguing that our constitution creates an unchecked executive that can do whatever it wants but i think that check has to come from the political process like when congress uses his powers to struggle with the president for control over policy. This was again the idea of the framers and it talks about ambition must be made to counteract ambition. Each branch would be given the tools and constitutional weapons to fight each other. If congress doesnt want to use those powers have found a constitutional problem. If congress doesnt want to stop president obama from bombing isis thats not a constitutional defect. Thats because congress chooses not to use the ample powers it has at its disposal. The primary one is the power of the purse. Congress doesnt want any war to occur. They just need not fund it. This was a perfect check back in the 1780s and 90s. Of course the country didnt have the Standing Army or navy and thats when the president never wanted to fight a war he would have to go to congress and say please build me military. Today we have a military thats the mind. Its an expeditionary military and that is the design of congress. Congress has created a military designed to prevent war from getting here by fighting in other peoples countries. I have would say that we have had decades of agreement between the president and congress. Just to conclude, so let me conclude. I think we should have concerns about executive power. I think many of them this room are more concerned about president obamas executive power domestically and their refusal to enforce law and select the use of the irs and so on. There i think he is in violation of the constitution. The Domestic Affairs of the president were not designed to play a leading role in the initiative. The president is supposed to enforce the laws of congress. I think its safe to assume and conservatives and liberals make the mistake to consider a powerful president tom has to be a powerful president abroad. But we have had is john has evoked hamilton and invoked federalist 70 and bruce invokes madison in federalist paper 1551. Where do you stand now . With hamilton and madison . Is fair to say that those attracted to ratify the constitution constitution were virtually uniform in believing one that executive power abroad was the most dangerous and where was the most threatening delivery. Secondly that was why congress was entrusted with that decision. George washington aside from making the neutrality proclamation also made the proclamation moving congress can authorize the use of war. Thomas jefferson when the congress on repeated occasion occasions barbary pirates. James madison made it clear both as a member of the house of representatives and communicating with Thomas Jefferson as president when he went to congress to fight the war of 1812 that the reason was congress was entrusted with this power is the executive had an incentive to concoct excuses for work because the executive gets the power. Not only was that true in 1787 but all of history shows wars typically begin with executive decision. John jay points out they all have the ulterior motive to get the brand to go to war. I think its fair to say that those who were primary and were primary in drafting the constitution all agreed only congress can authorize the initiation of war. If you want to save declare war Something Else because executives when they thought of the option of executive power unilaterally they said the president needs to respond to repel invasion. That was something that could be done whether pearl harbor otherwise. We go to the idea of the executive power that john has been making with regard to mr. Lincoln. The confederate bombed and shelled fort sumter. He was the initiated he was the one that initiated 43 was the equivalent of the attack on pearl harbor. There was war initiated against the union forces. Moreover with regard to his extraordinary executive power he has to receive congressional ratification for what he had done. He recognized that there was an illegitimacy with unilateral executive action. I also think where we have got all these great things have happened by giving the president this unilateral authority, for example take vietnam. The tonkin resolution that said the president wants to gogo to war so he goes to where now we have a vietnam war memorial put 50,000 names of people wonder why did they die . The south china sea, what did they die for . John kerry said before he became secretary of state and before he entered the secretary who was going to tell the last soldier in vietnam what he died for . Whos going to tell the last soldier who died in afghanistan with the diaper. By the way president obama did not remove from afghanistan. Indeed he increased troops in afghanistan. Theyre still there today. What will happen in 2015 but what he knows that ought to be a decision that congress makes. I dont think simply because congress is derelict in exercising its responsibilities but that exonerates president ial lawlessness as well. What we do have a third branch of government called the federal judiciary. Two branches abdicate their responsibility of the court can hold things unconstitutional. One of the great oversights happened in world war ii. Remember pursuant to executive Order Congress ratified president roosevelt, created concentration camps for 120,000 japanese american citizens and resident aliens. Based upon the intelligence that they got from general dewitt on the west coast that even though he couldnt find any evidence of sabotage or espionage amongst the japanese americans it was a confirming indication that treason was they were so clever to hide what they were doing. Heres an example where the Supreme Court gun cases cases claremont to an arab he made at the outset. In any event i dont think we can wash our hands just because congress and the president dont understand their constitutional responsibilities. John bruce argues about a judiciary that somehow loses its way in the conflict of war. What is your reaction to that reasoning and argument . Well first i think that it might be an artifact of the modern time to assume that the president who is the most warlike and its congresses that are pacifists and therefore we should give them a check on the presidency, obviously we have lived in times where the exact reverse was the case where congress has been more warlike and congress is not one word. We have had five declared wars and two of them fit the war of 1812 in a war of 1890 and a war where congress was more warlike in the prison was not and to say we have to design the system went the framers designed the system because they were worried about executive along being to warlike managers did in military ventures and congress i think fast pacifists is mistaken. Second there will always be mistakes in government decisions and there will be mistakes and worse. I think what bruce is focusing on and harveys question raises this it only talks about one kind of error. What social scientists now the city who are not interested in social science can leave the social sciences will call this type one errors. Errors were you go to war by mistake so people would say iraq or vietnam or bruce i would disagree him but he seems to think afghanistan fits into this category now. If i can take your quote about the soldier dying in afghanistan. Those are wars where we shouldnt have gone to war. The framers could have been equally worried about what we call type two errors, errors of omission. Times we shouldve gone to war that we didnt. I would say world war ii is a good example is that where we delayed going into a war that was just in that we shouldve gone into earlier. I think that the framers did not want to have a paralyzed government on this and i worry that creating a system like the kind bruce is in favor of which i might add is not fun president s and congresses have followed when they put the constitution and practice that this would lead to a paralysis of our ability to defend ourselves. The last thing bruce made reference to the framers agreed about this and about war and someone i dont think thats true either. I would take a look at the constitutional tenets and i have a free copy someone just gave me. I expect some place like the committee of their public whale of a copy with us at all times. Article i section 10 says no state shall without the consent of congress engage in war unless actually invaded or such imminent danger as not to delay. That is the constitutional balance of power that bruce believe should allow allow between a person in congress. All you would have had to to do his grammar was to take out the word faith and put in president and say no president ial without the consent of congress engage in war. With the exception everyone thinks of the everyone thinks thats a vietnam was wearing faded or there is imminent danger of attack. Why cant our framers have written that exact cause if that is what they intended that bruce said they didnt. They were provisions that gave some powers to the president some powers to congress and expected them to fight it out. We all have our copy if we are law professors but to bring the area argument to the contemporary. Both john you are involved with the authorization for military force and a broad power of the president. I will let bruce go gophers. Your understanding of the authorization and the president s current request that perhaps he requires another authorization to use military force in the current situation. Could you address that . The authorization to use language describes the universe of targets that the president can set as those who are complicit. Can be persons or organizations or organizations who were complicit. Its not an authorization to go after every terrorist in the world. Its an authorization to target those who are complicit in the 9 11 abominations. President obama is saying that amuf authorizes him to bomb and today their suggestion by military advisers and the Ground Troops if the air campaign doesnt work which it surely were not if we bomb the ho chi minh trail with more drums family dropped on germany and japan in world war ii. The president , and isis which is sort of an opponent of al qaeda, they clearly are rivals that didnt even exist in 2001 they fall within the amuf that congress thought it was organizing an organization that didnt exist at the time . That is an example i think of institutions that the president utilized in going to war without any congressional authorization. By the way theres a difference between maybe being sympathetic to war and voting for it. In 1812 it was the president of the United States James Madison who asked for a declaration of war. The congress didnt vote for it in the same thing happened in the spanishamerican war. But the congress is more aggressive than the present they could have had the bill. The war of 1812 remember correctly the british were able to successfully invade. Harvey is from canada. [laughter] but john the authorization historically is unique to occupy the military force as bruce pointed out not only for states but for organizations and persons. That i think was unprecedented in our congressional executive relational powers. Could you address that . Did forget to the amuf im not sure whether bruce is arguing for war are president s who had to go out congressional authorization because some of the examples you are given, drones and surveillance are terrible things. They are the use of force and those are things were congress would authorize for president ial action when the decision to come into congress. Sometimes i think your argument is against the idea of war or the harshness of war. I would agree that war is harsh and i dont see what we are debating about but if the president and congress have too great a something entirely different. I confess ive participated so i have some bias here, this would authorize the use of force and isis . This is a factual question. It depends on how connected they are to al qaeda. There are reports in the paper that al qaeda and isis are fighting each other. Isis is not part of al qaeda. They are in conflict with each other and it doesnt fall within the 2001 amuf. I think the attention to focus on the 2002 amuf to use force against iraq. If you look carefully at how the laws written it doesnt talk about force against Saddam Hussein and doesnt talk about the regime. It talks about threats to the u. S. National security from ir iraq. If isis represents a terrorist organization that has modern weaponry, that has Larger Population and resources financial and natural and they tend to attack us and they appear to have a sayso in public then i think they may fall under the 2002 amuf but its incumbent on president obama to go to the American People and congress to explain why he thinks the facts are such they fit under the statute. I dont think theyre blind checks. Theyre much broader than authorizations in the past because they are not limited by time or by geography certainly but that certainly puts us back into what it was like in the september 182001 when it was written in the past. We were not sure exactly who have attacked us yet and we wanted to make sure that shindo qaeda evolved or metamorphosis eyes and im not sure if thats a word, transform itself into different groups rename itself but the authorization would still be able to follow them and the people who are helping them. No matter what they might call their organizational chart or theyre changing goals. [inaudible] i promised i would save time for the audience and i usually try to keep my promises. Why dont you stand up and say your name in who you are and your affiliation. My name is patrick and im an adjunct professor at catholic university. The question i have, my understanding of the constitution was that there was a financial part of this too. They saw that the kings in europe or getting their countries into war and bankrupting them. And they felt they wanted to restrain the spending of the peoples money and bankrupting the company by engaging in these foreign wars. Therefore they put the authority and the congress because they didnt feel that the kings and executives have a tendency to get involved in foreign wars. Does anybody want to talk about the financial part of this . I know how much the war in iraq for example has cost the country. Professor i agree with you. I agree about why the power of the purse is in the hands of congress. Congress has given the authority to fund the military for a twoyear period. And i think thats the real check on any kind of executive warmaking or aggrandize me. I will give you one historical example which i think supports this. This is the basic constitutional mechanism doesnt work you are not the nuclear war caused for some kind of fake balance between the president and congress in specific spending power. When the constitution came up for ratification virginia which was the most important ratification today. Virginia hadnt joined the union and would have no precedent for the first 20 some years. Patrick henry i like to sta state skip over him. Patrick henry mr. Give me liberty or give me death, the bruce fein at this day i call him. Patrick Kennedy Henry made many the same arguments that you said you have created a potential monarch. He is going to the commanderinchief power and the power of the military and the opportunity for war to take our Civil Liberties and impose tyranny. James madison who is the guy who drafted the first draft the constitution is the leader of the fight for the constitution of virginia. His rely was not oh dont worry to declare war clauses there. Dont worry congress has permission. His answer was this pretty set on their constitution as it is in england the sword in the purse are separate and so the parliament can always cut off funds if the king chooses to fight a war. He said so will be the United States. Congress can have, always has control of the purse and without it the president cannot. I agree that a fat check however today congress has chosen to fund wars. Again thats my point is not a failure of the constitution for democratic set that the congress and the president are in agreement. [inaudible] theres more than one way to try to corral the president. Madison did state that the power of the purse enables congress to address its grievances. In fact it did so on one occasion. The vietnam war was brought to a close. Congress said theres no more money to fight the war in indochina and president nixon obey that law, not many others but he did obey that one. There still is a problem with that approach for relying exclusively on the power of the purse and that is we know what happened when the president sends troops into worse. And they are in some kind of danger and then if you cut off the funds you are creating danger for our troops. That script is played out repeatedly in contemporary politics. I dont see why theres anything wrong with understanding theres more than one check on president ial licentiousness and eagerness to go to war. And i dont think also with regard to what you said john that the congress is not authorize the president to use predator drones to kill american citizens on his sayso alone. When that issue arose in conjunction with john brennan brennans to the cia prove controversial and he got a waffling answer from eric holder as to what the president could do or could not but congress does not authorize we are operated prison to kill american citizen because he thinks theres a danger and theres no judicial review. Good evening. Im a retired u. S. Army colonel and also a former diplomat who helped reopen the u. S. Embassy in kabul afghanistan december 2001 and then i resigned in 2003 in opposition to the war in iraq. All of this is very personal to me as it is with many of you all. Either intended or unintended consequences of giving legal opinions to allow a president to do essentially whatever he wants to i think its been very dangerous for our country and the rest of the world. How can we control these kinds of president ial decisions backed up by john yoo on a host of lawyers who in my opinion did not serve the government while in the people will buy the allowing of this type of overreach by a president. Thank you. [applause] we argued no because it was conveyed about one year ago when president obama was poised to launch 600 cruise missiles into theory and American People to awaken from their in fortunate slumber and campaigned with members of congress and said no we do not want another war. The president retreated and the congress hemmed in hot and didnt do anything and we ended up with the amateurs believe that if we killed with chemical weapons but that shows the syrian example shows the congress and the president are responsive to what the American People think are the requirements of the danger of war by going to war. [inaudible] im sorry the colonel didnt think much of my Government Service. Im sorry about that however i respect your service to matter your point of view. [inaudible] thats not what you said in your question. However let me answer the question. First i would say my belief is that each branch of government is responsible for advancing its own policies and its own constitutional powers and i think there are lawyers in the executive branch who have maintained the position that goes back many decades thinking the president can use force even without any congressional vote for declaration of war. I expect congress to have its own own lawyers in its own institutions than they are supposed to fight back. That is what the framers intended our constitutional mechanism to work. So i dont think if you go back to 2001 you were there and i was there, this is not a case where the president would say im going to war dan congress and is not a please dont go to war. Congress is attacking the executive. For being too passive for allowing denial of attacks to happen. My memory is congress and the prisoner in a a fair amount of agreement in 2001 to be very aggressive in taking the fight into afghanistan and taking the fight against terrorists. I dont see this division of authority between the president and congress. We obviously have one now and we had one at least since 2004, 2005. That shouldnt detract from the constitutional system broke down in 2001. I dont think the president and congress are in disagreement and i dont see signs from that first year of congress trying to stop the president in any way from conducting award. In fact if congress wanted to they had ample powers at their disposal to do so in they chose not to exercise. Instead they pass the amuf and unprecedentedly broad authorization to use force. I need to give a counterexample because its importance of a model for Government Service. Its my involvement in watergate and there came a time i was at the Justice Department the time of watergate and the attorney general was elliott richardson. The president of the United States had the authority to fire unilaterally Archibald Cox was a special prosecutor who is getting dangerously close to uncovering criminal evidence against the president. Mr. Richardson said no im quitting. Im not firing archibald Archibald Cox. The deputies that im quitting too. Im firing Archibald Cox even though you are telling me to. The department of justice and the aftermath gave a standing ovation for that courage. Thats an alternate way. Judge bork, what happened is the department would have would have been a sapolis without a solicitor general and judge bork was approached by mr. Richardson and asked that the special Prosecutors Office would not dissolve. I cant let this example go. Now you know why they asked me to do this. First i think it was actually constitutionally incorrect for the attorney general and the deputy to say the president cannot fire the prosecutor so i think they are in the wrong i think judge bork did the right thing. He carried out the president s order. Congresss power to respond was to impeach the president was the ultimately did. The case went to litigation called nader versus bork and judge Gerhardt Gesell ruled that it was illegal and wrongful to charge mr. Richardson and the view of the constitution. Im at the institute for justice and speaking of justice bork i have a question about a role of the court. Keeping the executive in check. Korematsu was mentioned earlier and one of the things in the korematsu case of courses that the final report general dewitts final report supports the curfews and a relocation orders but later revealed based on deeply flawed information from the Justice Department knew was deeply flawed when it argued the case before the Supreme Court. Korematsu was pardoned after being sent to concentration camp. What im interested in is what the court can do to ensure that the executive insofar as its making factual assertions is doing so grounded in fact in evidence particularly given the facts and evidence used to justify the executive actions are largely hidden from the public and because of National Security allegedly we cant even know about them. I think that the courts should renounce the foolish doctrine of deference to the executive branch of Foreign Affairs because they reportedly are omniscient and they have all the sources of information. They surely have more information in the congress but they also have huge ulterior alter ego motives. The most famous case was reynolds versus United States in the claim of state secrets. The secret reports not used by justices show the secretary of the air force had lied and if you examine the after exam report you would disclose state secrets. He would disclose the negligence of the governments of the United States. This flying deference to the executive branch and theyll tear your motives are at work and likely. If i could answer too rv. I think i was a question hostile to my side. Its like they got to speak twice as long. No, no i will be very brief. The courts never decided such a question. They have consistently stayed out of the speech between the president congress because they think they realize one that they dont want to this slippery slope argument they started addressing the questions. They dont want to get pulled down reviewing all kinds of operational decisions and to copy good as they realize the president congress can fend for themselves. The courts if you are civil libertarian have a limited amount of Political Capital and you would think they would have voted towards individual liberties cases and not adjudicating cases between the two great great branches of government. Im not a big fan of judges and i disagree with many things they have done. Intimacy breeds contempt i suppose. I admire individual judges that the judiciary has done wrong things too. I dont think the answer to the war powers issues is to call for more judicial information. Is an economist and a member of the committee i thought bruce fein made a good point about transparency and the lack of it in the exercise of executive power. How you would prescribe to the president and whatever judicial procedures are involved in the exercise of war powers transparency which would satisfy the american voter. I dont know if i have the answer for the american voter. To that question because i think the countervailing concern is that you dont want to have premature release of information and public to harm Operational Security our armed forces are asked to carry out. You dont have excessive details without defeating. Fighting al qaeda and terrorist groups which rely on secrecy and rely on attacks on civilians by disguising themselves for their success. With the president congress had have tried to work out over the last decades is better and is pretty good as we can hope for. The president congress often together and classified settings and the president can disclose that information to congress. This is how our system for cia covert action works. Congress has an implicit check on every single one. At the same time you have democratic accountability between the two branches elected differently at different times but you also maintain the ability to ask secretly. You could take the perspective of secretary of war Henry Stimson had. He became secretary of war and he found out that the United States had extensive extensive Surveillance Programs against germany and other countries. He said gentlemen dont read each others mail and they shut the program down the years before the rise of hitler and Imperial Japan and pearl harbor. Everything should be in public and we should not have the cia and we should have no secret parts of our government fighting these enemies. I think however that would lead to a decrease in National Security and would not commence our rivals and opponents and enemies in the world to stick its easy on us. John is suggesting that its acceptable. Are you kidding . President bush ran the terrorist Surveillance Program for years until the New York Times sat on a it for a year and published in december 2005. Its antecedent antecedent to what the nsa is doing now and was run without congressional oversight. There were no courts involved whatsoever. Thats transparency . And what the president said as attorney general we cant argue about having congress amend the foreign Intelligence Surveillance act. After the disclosure they found they couldnt discuss it in public and they did have foreign Intelligence Surveillance act passed only after disclosure the New York Times would someone up for a cicada under the espionage act. The general transparency, the members of the Intelligence Community will tell you they learned more what was going on from wikileaks and they learned from every single oversight hearing. Some of them like john conyers received refuse refused. He said per second read that in the New York Times about classified information than anything i listen to. Are we saying and institute for justice . To the whole office come . Is everybody here getting question . Supporters of the empire, are they a group . The constitution has a presumption of the parties in the enumerated that are the liberated. They cant raise capital on engaging issues for the engaging power and focus more on the division of liberty, but it does implicate division of liberty. Focusing on the authorizations post 9 11, how did the implications in individual liberty make their way into the analysis, how did the executive branch do that . From what we have seen of the aftermath, things probably did not go as planned. Obviously the president takes an oath to execute the law, to take care of the law faithfully executed and the supreme law is the constitution. The president has an obligation oh, thought he was given me singles like my manager telling me to throw a curveball. Obviously the president has to carry out the constitution that is the supreme law. The judicial decisions or executive actions which violate the constitution arent to be carried out, and so the executive branch has to follow the bill of rights as well, the primary is a Surveillance Program which has strong tensions with the Fourth Amendment and right to privacy and search and seizures. If you thought the executive branch was not Pay Attention to the bill of rights or the Fourth Amendment, they should have listened to not everybodys phone calls, why bother with the emails. There are different conflicting accounts of exactly what happened. The nsa look at the phone numbers. I didnt look at the actual calls, just the phone numbers, the headers of emails. For americans, for people outside the country they looked at everything could. That is consistent with the constitution Fourth Amendment. We may as citizens want to have much broader poverty rates is electronic surveillance solution of Congress Pass such a law. Saying congress is outrageous, when this came up after the Supreme Courts decision in the rise of electronic surveillance, Congress Passed a law in 1958 the crime control act setting up a system to regulate electronics bringing in privacy beyond with the court required. In this case they tried to exercise as broadly as they could for the Fourth Amendment as interpreted by the Supreme Court. A wellknown Libertarian Organization and so if you want to have a broader scope of individuals that is the job of congress. Michael hayden said after 9 11 was some in and told any powers he wants tell us and we will give them to you. I reason to know the nsa resources went from 80 focused on surveillance for terrorism purposes, how many lawyers to think recited task of determining whether or not the Fourth Amendment was complied with . When the president s own Civil Liberties were finally got around to looking at the progr program, the president trusted to him after Holding Secret for so long not only not authorized by statute, doesnt work and is unconstitutional. Now the cases are in the court, one District Court said it is unconstitutional, another went the other way. But we shouldnt always rely on the court to say whatever the last word is, the president himself and congress should be alert to their obligations to understand the bertie is the center of the constitutional universe, not empire. When there is ambiguity we choose not the empire. This gentleman, to the gentleman in the glasses, gentleman over here, the gentleman over there. That will be the order. And then we will end up with george. I was indicted by the Obama Administration for espionage. My question is this for both of you, is there anywhere in article two of the constitution, anywhere you can cite that comes National Security . Anywhere where article to is more important than National Security . I dont quite understand the question. It describes executive power. I dont believe using the word executive power means the president can go to work. If it goes down so far as to express power, why would it omit something to say the president can go to war unilaterally . When he is talking about what kind of language you would expect to be in there, that is all the responses. I am not sure i understand the National Security. What is your sense of the function of National Security . I dont want to misunderstand your question, but what youre asking more is where does it say National Security trumps article two or the constitution. That is how to take the question because that is an important and valuable question because i dont think a claim of National Security needs itself trumps constitution however i also dont think they create a constitution that would be effective that could not handle the challenge and threats placed on our government today on terrorism or by war. I dont know the particulars of your case, i am sorry the Obama Administration prosecute you, i just dont know. So paralyzed our government that cannot protect the national securities, more important question is how does the presidenpresident and congress t properly so that we maintain his balance between National Security. I dont want to say they get zero or 100, they are practical men and were supposed to be a balance between the two, sometimes our institutions might not work out the way the framers thought and how you strike a balance properly but i dont know the facts in your case. The french constitution raise the rates on the top which then allowed the states to act. It gives the crown extraordinary power. There is no clause, think that is what you are requiring, and it is an omission in our constitution. I dont mean to be associated with every who quotes french in debate. Somebody from harvard, i expected something a little bit more. My question is to ask both of you to elaborate on the point you made the articulation in section 10 has the implication of the presiden president in sei trust you dont agree with that and i would like you to elaborate why you dont. You seem to think the president s restricted when he goes too far. How is one to know when they have gone too far . It might help to explain the question. You mean the power to declare war. John marshall explained you dont need the constitution of the Internal Revenue code, you need to read it with an understanding of what the rod purposes were because they understood technology would change. All i can say is it is unmistakable to anybody in the debates of the constitution ratification process and all the worries about too many wars thats all those who voted to ratify believe congress alone had the authority to initiate work, immediate attacks. I dont think we ought to quibble about what you can do if you want to get really refined references in the dictionary but go to the main point and why they wanted congress to be entrusted with that power, because it doesnt have a conflict of interest the executive have. You dont put anybody on a pedestal as they are preparing for war. That is why i think they mean exactly what they say. I understand now why he doesnt like him, because just said we should allow the spirit of the constitutions, his telling us to override the text, i think i read it out accurately. I can tell you the spirit of the constitution is not no one would have thought the president could wage war and difficult to go to war. And so you could get people from revolutionary period against it, or from the constitutional ratification like Alexander Hamilton, but i think that stuff does not come into play until you have read the constitution. I am not reading it like a tax code, it says what it says. It is strange you have this very precise clause about starting war, and when it comes restricting the president who you think is in much bigger threat because of conflict of interest, why dont they repeat the clause again . Most are lawyers, why spectate the commanderinchief, he has the power of the purse. Let me reveal the interpretation. First amendment says Congress Shall make no law. Under the interpretation, courts can issue restraints because you read congress. In fact, johns approach took root when the Supreme Court initially said to intercept conversations was not a violation because not conversations, you can wiretap at will. It doesnt say anything about conversations. Turning it into a dictionary. Im not so confident i had a secret about what the framers thought. His approach requires you to agree with his version of the constitutional history. That is what was passed, that is what is writing, doesnt require us to resort to broader abstract judgments about what i think the purpose of the constitution is. It allows you all to hear the classic constitutional debate that takes place at the Supreme Court of how you interpret it area did the unenumerated rights. Everybody watching should get out there constitution understand enumerated power laws number one. Youre going to be really good at driving down ratings. I think it is more important to have education than ratings. I am stephen jordan. I run a Management Consulting firm. Are you sure does not institute of justice . No, have no affiliation. I want to go back to the heart of this debate which is not just about the present circumstances in afghanistan or iraq or isis. It is our executive and legislative branches in terms of what they can and cannot do. Earlier in the conversation he talked about the two major president s they were drawn from where the british civil war, the british army, the whole idea of parliament on the one hand, and the other one they were drawn against was the slippery, downward empire, which generated into a military hypocrisy in which they were able to interpret the law as they saw fit. On the other hand we had the militaryindustrial complex, and the idea all 50 states there is Economic Activity and special interest that has the potential to support congress in this way. In what way are you concerned about Institutional Corruption affecting the course of the future of these institutions . I think they are very profound and serious. The money and the status that goes to being a neocon or war hawk is enormous. You are very reluctant, you know youre going to go out and criticize the National Security state to get a 500,000 contract with somebody else, and people are worried about what they are after, with the government career will look like so they held on itself. I think we have a government now that exaggerates fear. Many, many mindful to get the money. Six months ago isis wasnt even a foot note. In the middle east. Then suddenly it went to a regional power, a global power, interplanetary power, intergalactic power, the worst danger a world has ever seen. Now the money is now appropriated there. I was about to sign up to be a member of the Free Syrian Army because the greatest danger is by isis but that is an example of where we now have an institutional bias to find not to multiply the actual danger of any Foreign Force and you can see it in china. We are going to say china is the great power we need to confront building more aircraft carriers because it builds militaryindustrial complex, but the chairman of the House Armed Service Committee Says tens but it is like a works program. That keeps the military in business. I think it is an important question. Our debate mostly has been about president versus congress, my argument has been the president has much more flexibility but for most of the things going on there is agreement. You go on to ask are there limits on what the government itself can do even if they agree . Is that the buzzer . You would do it that way by clanking wineglasses. I think that your concern is that war is breeding Something Like this class of the Roman Republic and the empire, unlike french i like to associate with people who can be latin and think that is a very valuable skill. I was going to say always wear underwear, which rhymes in latin, but i wont. I want to make sure you understand the, i dont think we are an empire, if we are in empire, it is a funny empire be at we dont have territory abroad, we can barely get a coalition of people to help with a terror group i in the middle. They studied the cold war, i think it is invitation to empire, the United States expansion stationed troops abroad is the demand of the countries abroad, it is just as much a pole as a push. We may have troops in germany, troops in south korea. I dont than those are palaces of the United States. I dont think we are republican in that we dont have a functioning power. I really disagree with bruces application the government officials are engaged in fear mongering to make themselves personally wealthy. For the people i work with in the government, i know only the people i work with the government, whether i agree with him, for the most part they are goodhearted public citizens trying to protect the nations security. Not saying im going to go work for lockheed now and get rich. I think it is a terrible insult to the men and women in the armed forces in our government, that is what is hurting our security. Making a personal fortune. This is just like the marxist critique of the vietnam war. I am surprised to hear peoples room adopt in the shallow critique o of the United States adopted by marxists. He left the government and Mike Mcconnell the same way. If you dont understand the revolving door of the Intelligence Community and government, you dont know what is going on. So you are saying people in our government, the highest leaders are intelligently fear mongering to become wealthy after they leave . Not directly that way, but listen, it is not necessarily a direct pro quick quote. There are subtle signals, they understand what they have power on, they will go back and have these contracts, that is what they do do. You think they are just as guilty as governor mcdonnell was convicted of corruption . That is not what i say, you can have understandings without quid pro quo. You think people in the governments dont know what is available outside the private consultant or otherwise . I think you are very naive, of course they know it. Rather than adding onto the attacks attacks instead of elevating the debate, when the complex as eisenhower said in his last speech, the speech originally drafted had the congressional military complex and eisenhower because the two people coming in to the presidency were camping with the two senators, i thought it would be inappropriate for him to have the two senators cascaded and spread out congressional relationships. The idea of the Iron Triangle has been embedded deep into policies. This gentleman is very patient, quick question. Thank you very much. I am senior veteran foreign correspondence for the washington. My question is primarily for bruce because i believe history shows James Madison was rogue with congress has the power of the progression, that is not enough, the problem comes with congress will in philly asks the case and ask the questions. He asked no questions from the 1950s. It goes down in history as a pretty fraction. That is what we got it led to us calling for war, which powers never did. He asked governments question on the resolution which we now no space on the history and the impact here for information given to congress. Before the two sides in the iraq war, Congress Asked no questions again in terms of a resolution, how can the last to go Democratic Assembly the state join those who legally voted given the parts george w. Bush needed to go to iraq, nobody wanted it. He made a key point before, bringing up the answer to this so we are likely to expand on it. One key followup, bruce made the file point they can be driven to carry out what their constitutional response ability ought to be about Public Opinion. Howd with stand the Public Opinion . I dont believe madison would easily surrender the power is beyond comprehension. One of the reasons, i only say one of the reasons because the party system wasnt nearly as in transit at that time, now the loyalties or more in Congress Rather than the constitution of the United States. Also i do think, and i call this a psychology of empire, that has emerged in the United States even if john does not agree with having the military bases abro abroad, i certainly do think that is an earmark of the empire even after we go in by bribing them in treatment commandment. Putting that aside, i do think that the whole country, and this is we the people have accepted to rest the ied is that we have to bring a church of monsters to destroy, and we are surrounding our liberty for ostensible safety. That is something that they couldnt understand because the whole idea of the revolution was liberty, individual liberty. And ultimately you are right, the remedy is not going to stick a backbone into congress, that is not going to happen, it is up to the American People through debate, through education, through seminars, through space like this, no, we are standing up and we will keep voting people out of office. That is what happens with regard to syria and what needs to happen again . I didnt think it was a question, i agree with bruce but heres more of what i had to say. Had this sentiment has been here for quite a while, he really wants to ask a question, so what i will do is give the microphone t both you, ask bothf her questions and i will let you have the last laugh. My name is george jamieson, im a consultant, lawyer and former retired cia lawyer. The better run out of here before they get to you. I am not wealthy, i did not become wealthy my Government Service or follow my Government Service maybe because i was not in favor of the war in iraq. Bruce may have answered part of my question by saying people can Vote Congress out of office because my comments, my question is am i wrong in thinking we had two different debates. John, i think, was arguing in favor of the constitution and the system is one that has tensions built into it. You may not like the answer. Bruce clearly does not like the answer. So my question since he trashed the executive and trashed congress, how do you resolve the policy differences when people abuse the system . Part of the answers you get members of congress who will vote the way you like but suppose they dont vote that way. You can have all the debate you want in the world, what do you do when you have a system . Are you seeking to change the system is my question. Is good mornay many more data points primarily generals and admirals no longer retire when they retire. They continue working in the matera militaryindustrial media etc. Complex so again this is a matter of fact, public record. Mr. Yoo you can have your opinions but this is about fact. Thank you. What ill be give you both the last word. We started with bruce so we will give you the last word. Ultimately in my judgment the destiny of the nation of war and peace rests with we the people. If we dont get it right, the culture doesnt get it right the government is not going to be superior. We had a period of time were White Supremacy where we had jim crow for 100 years. That was the ruling was that great but equal. He did make it right even though it was the rule. This was wrong. We did it a year ago in syria that has become the norm rather than the exception. Theres only so much that a much that the constitution and tax scam do but ultimately if the spirit of liberty doesnt. In our hearts and minds every day, it will die and no court or president or congress can stop it. [applause] i will answer the questions really quickly and summing up. The first question, i dont disagree or agree with you. I think we are getting the policies that we voted for as electorate. I get the sense the majority of the people of the room dont agree those policies but i think we are that a democratic process of multiple election since 9 11 and our elected representatives are making these decisions. So id do agree on versus part that if you dont agree the police seize we cant change represents. We dont have an empire where theres a Roman Emperor telling us what to do. We voted for president obama and voted for the members of congress. I advertised for the database, i dont like numbers. I admit that i dont do numbers. Im a lawyer specifically so i wouldnt have to do numbers but surely you know the difference between correlation and causation and just because they are generals or admirals who have the correlation of going to work for contractors as they retire does not show causation. Men and women are making decisions deliberately while in office to promote wars, and fear monger in order to enhance their employment prospects which is what i heard bruce to say. Just to sum up bruce as we have the constitutional system. Our job if we agree with him is to throw people out even if they are different branches have different policies and the constitution as interpreted by the branches differently than we would like. I would say thats what happened in 2008. We elected an antiwar president to take exactly bruces positions on these constitutional questions and i would just say look at the consequences. Look what has happened for National Security and defense posture in last six years and those are a direct result of the kind of policies versus promoting and i think we are much less safe now than we were six years ago because of it. [applause] i would like to thank people for their public service. One may not agree with what was interpreted that there are many patriots and the patriots are serving that i want to thank the committee the republic for helping to sponsor this on the press club and i want to say these are the types of events we think we need to put these issues in front and have a civil debate about what the true values are. This is a model of what we thought our democracy can and should be. I encourage you to visit more these types of debates. At the american Bar Association and the book called patriots debates in which 10 or 12 of these issues pro or con and try to put out the issues based on life and not anger. I think we have to be able to debate rationally and that is what we should do for ourselves and be a model for the rest of the world. So thank you so much for being so kind, being so civil. Thank you for staying very close to your timing and thank you and lets give another round of applause to our speakers. [applause] [inaudible conversations]