The Heritage Foundation. You can join us on our heritage. Org website. For those here in house, we ask that courtesy check to see that mobile devices have been silenced or turned off. Of course for those watching a mine, we remind you is those as well as those joining in cspan that you are welcome to send questions or comments at any time, you know and the speaker at heritage. Org us the program on the heritage home page the following todays presentation for everyones future reference. Manager of the National Security law program in their Senior National defense. Its a nationally nice the national. Homeland security prime control, drug policy, and immigration. He also writes pictures widely of policy. Law firm conflict, terrorist policy and interrogation, the geneva conventions, military commissions, the patriot of isaac, and others. Before joining us here in heritage 10 years ago, he served as Deputy Assistant secretary of defense for detainee theres secretary Donald Rumsfeld and robert gates. He has also been a prosecutor at local state and federal levels. He is a thirdgeneration navy officer and served as a military prosecutor defendant counsel. And, recently served as deputy chief of the Navy Marine Corps trial judiciary. Please join me in welcoming calling stimson. Colleen . [applause] john, thank you very much for that, way too long but from introduction. Speaking of warm, airconditioning will be turned on. It will cool down the room a little bit. To welcome pleasure a former intern, now senator young heritage. As the great state of indiana, but i held my first job in indiana covert academies back in 86. He is a fifth generation he grew up watching his parents work car to support their family. Was delivering newspapers, boeing wants, providing Janitorial Services after graduating from high school, he enlisted in our great United States navy. He wasure later, offered employment to the United States naval academy. On graduation, he accepted a commission to United States marine corps, where he served as an intelligence off there. While based in chicago with the navy, the senator put himself through night school at the university of chicago, where he earned his mba with a concentration in economics. He later received a masters from the school of advanced study in london, before returning to the United States. Later, as a legislative assistant in the u. S. Senate. 2003, the senator returned home to indiana, he some met his wife emma jenny. And again put himself through night school, this time earning his jd from indiana university. Togetheried and worked at a Small Law Firm started by his wifes greatgrandfather. Today, they reside in bloomington is not here attending to his responsibilities. Young children, like i do. A son tucker, and three daughters, and police, abigail, ava. Va abballa i will say as a point of personal privilege, the senator and i first got to know each other when he was a congressman. Behas been kind enough to part of the congressional soccer caucus. We played soccer together in a fundraiser. He supports charitable institutions, as many senators do. Todays topic is one that heritage has taken a keen interest in. And, congress has taken a keen interest in every now and then. That is the authorization for use of military force. One of the most awesome powers that the congress has under the constitution. Hasthat congress have authorized force five times in our nations history. Times inared wars five our nations history, and operates use of military force over 40 times. The question today, were delving into the the very fascinating and interesting topic of senator youngs proposal for an isis specific authorization for use of military force. Reading,ommend to your a paper which we just released, and michael offered coauthors here. On analyzing all the cases out of guantanamo. The kbs cases, to see whether if President Trump brought isis members to guantanamo, whether the old 2001 a limit would actually apply. And if not, what the litigation risk would need. I hope you read that paper. We are not going to talk much about it today, thats not the point. The point is to hear from the senator who has some excellent prepared remarks. He has been kind enough to agree to answer a few questions afterwards. Then we will thank the senator. I will introduce our introduce are two excellent analyst. These 8 give a warm welcome to senator todd young. [applause] its really privilege to be back here here at heritage. I want to thank those who helped make these events possible. Heritages leadership, ly forularly poly paul your leadership and respect and you respect to love four, policy, development, all of the thoughtful things that you produce and say to help inform our work. Today, i like to offer some remarks about whether tom for congress to pass a military source force authorization. Myt many of you may not know tenure at the Heritage Foundation came as a historically significant moment, not just to extort leaks in the afghan, because he gave me taste my scholarship under here. My heritage was supposed to beat. Eptember 10 2001 my successor my ministry of the system role here at the Heritage Foundation had not formally been trained, and turnover did not occur, so i volunteered to come back on september 11. A bagel for breakfast at the corner bagel shop, its now closed. There was a Television Screen in the corner. A noted on the screen, there is breaking news. Plane hit World Trade Center tower. I arrived here at heritage, not certain what had occurred. I had some suspicions. We were told that a second plane had hit a World Trade Center tower. We too much after that were looking at the window besides the most spoke smoke with the which appeared to be rising around the mall here in washington. We later found out the pentagon. Theres never a full circle moment, i feel like im in a to thew respect war on terror and our responsibility as congress to make sure that it is carried out in in a responsible way. I come to this issue as someone who who spent years in the marine corps. Spent six years in the u. S. House of rep candidates, two of which on the Armed Services committee. I now sit on the Foreign Relations many, which of course has jurisdiction over authorizations for the use of the military force. With that said, i realized us debate has been going on for some time. There are a number of my colleagues who have shown real leadership, with respect to this matter. Particularly, i would like to commend senator kaine of virginia, senator flake of arizona, for their efforts to be champions, the need to make sure that not only covers does its due diligence, but committee kits but the importance of this issue but acts. For those reasons, i, i, i, i come to this issue with strong opinions. Understand,know, im not a law more expert. But myined in the law, opinions are 11 with a great dose of humility. The hearing law for experts momentarily. Its in that spirit that i offer the following comments. Its long past time for congress to consider passing one. Let me give you three reasons why. The first, in doing so we send a clear message to our men and women in uniform, that the American Eagle have their backs. Ourhey have done throughout nations history, members of our armed forces are again bravely serving and fighting over should to keep all nations should cure. I attended a15, Memorial Service outside of memphis, indiana. Memphis, indiana, the hometown of the first marine who fell in our war against isis. Indiana now has thousands of our men and women in uniform who are directly engaged in one for the government or another with 266 members of our Indiana National guard were directly supported the fight against ice isis. Well it to all of our Service Members and all of our branches, our air and marine, soldiers, sailors and what they are active to become a corridor as they they have to know that america is that the representatives of what with them. In washingtontalk about supporting our troops drew as for the top, its important on a regular basis we commend, celebrate, recognize the extraordinary sacrifices that the men and women in uniform make it over half, recognize their families sacrifices, their caregivers. In addition to talk provide resources and training. We also need to put our rhetorical support into legal action by passing and a umf. , relates toeason congresses cant to show responsibility, and the allegation of work hours between the executive and legislative branches. Knows, audience well article one section eight of the constitution clearly state that congress has the power to declare war. Yet 2. 5 years after the u. S. Began bombing isis congress has failed explicitly exercise this fundamental constitute research constitutional responsibility. Congress all parties, have introduced legislation, make an aumf againstss isis. The simple factor made the congress as an institution has pulled failed to fully honor its constitutional responsibility. As students of history here know, our vendors understood founders understood that the decision to go to war represents one of the greatest, most serious responsibilities and decision any government faces. Onavoid foolish, hasty, necessary unnecessary wars, and erode liberty, the founders wisely divided war powers between the legislative and executive branches. James madison, who was rightly known as the father of our constitution for his role in drafting the supreme law of the what thelained founders gave the power to declare war exquisitely to congress. The pen name health videos, madison wrote, a declaration that there shall be war is not in mexico should of laws. An actot in any respect merely executive. Madison continued, those who are justnduct a war should not cannot editor of the cut would be proper or save judges, but very were up to be commenced, to an discontinued, or concluded. They are barred from the latter functions by a great principle of free government. Now gets to that which separates the sword from the purse. Or the power of executing from the power of enacting laws. While defenders clearly intended the present to Service Commander in chief president to serve as commanderinchief, the founders ran into congress an impressive list of numerator powers related to war, centering on the power to declare war. In my view, the founders intended, and the constitution demands, that Congress Play a decisive role in the decision to go to war, not to act as a rubberstamp or a passive observer. History,of American Congress took that responsibility seriously. According to my numbers, the Congressional Research service, congress has passed 11 separate declarations of war against ofeign nations, and dozens authorizations for use of military force. Since world war ii, congress bets generally seem has generally seemed less inclined to fill constitutional duty and explicit what not surprisingly, this congressional advocation has resulted of a consolidation of war powers the executive branch. Madison would have arguably found this concerning and most unhealthy for our republic. Most agree that the present can use military force in the eminentrm, and cases of national emergency. But no reasonable definition of such an instance should include engagements of the u. S. Military forces in protracted hostilities. In foreign countries, absent a declaration of war or authorization of use of military force from congress. Short, i believe that this failure by congress to fulfill its Constitutional Responsibilities related to war powers is not good for our country. I share concerns with my colleagues regarding the ability to detain isis fighters in guantanamo. In a well argued legal memorandum last month, they argue that a new something is needed to live eliminate legal impunity related to the authority to detain members of isis. Lot of war detention is essential to keeping enemy combatants off the battlefield. I said as a former intelligence officer, together intelligence. We need to protect our country. The scholars argue, if the Trump Administration chooses to detain members of isis and guantanamo, these detainees will likely challenge their detention on grounds that the 2001 a umf doesnt extend to isis. Its not clear at all to me the courts would rule. We have a legal risk here that needs to be addressed. Of an authorization for use of military force targeting isis could address this concern. I realize that some very smart people disagree with me on whether or not to dozen ones aumfozen ones 2001s authorizes force against isis. Ofs is something that people its avoid high intellect will but mr. Stimson, mr. Preston, mr. Savage were here today will be able to share their views on this momentarily. I will leave that debate to the panel for today. I will simply say, for reasons related to supporting our troops, congresses were constitutional responsibility and lastly, eliminating doubt related to walk love for detention congress should act. I will conclude my thoughts here, by briefly summarizing my legislation. Rather than being a member who sat around and amended the fact that congress has failed to pass this, and said no action whatsoever, i wanted to put pen to paper, put out what i thought isis they do math could look like. A march 2, and she deuced Senate Joint Resolution 31. This a umf would authorize the president quote, use all necessary and appropriate for second al qaeda, the taliban, the Islamic State state of iraq and syria the Successor Organization, and associated forces, and vote. Legalminate any remaining uncertainty, i also included action that makes clear that the a umf include the authority to detain members of al qaeda, the taliban, and isis. Believing that congress should assertively, my the legislation would wire the submission to congress for conference of strategy to defeat isis. I believe congress should act neither express an eagerness to work with them in a bipartisan visibles well as making the compromise is in focus. I believe this issue is are two important to be mired in politics. As i wrote in an offand earlier this year, and a umf against isis would synthesize greater congressional scrutiny and oversight of the executive branchs strategy to defeat isis , establish greater accountability by congress to the American People, and preventing further dangerous erosion in the congressional war powers, that undercuts the ability of the American People to influence our nations decisions related to war and peace. Timeis why i believe it is past time, for congress to vote hassan a umf focused on isis. Thanks again for having me today. I look at your question. [applause] thank you for those excellent remarks. The check is in the mail for the plug on our paper. Im kidding, obviously, but we appreciate that you and your staff have read it and we did put a lot of time into it, analyzing all this cases before the d. C. Circuit. A couple of questions. Is there any appetite on the hill for an aumf . President obama introduced an aumf on the hill. It didnt really get a full hearing. There have been hearings in the years before. What is your general sense of whether theres an appetite today for that debate . Congress remains an institution that is driven by its numbers. Most recently we saw 46 members of the house of representatives and a letter to Speaker Paul Ryan that was a bipartisan letter encouraging consideration on the house side. I expect those numbers are a lot larger. On the senate side i noted a couple people who have been out front with respect to the need to pass an aumf and there are others in my private conversations. Leadership will respond to the concerns of their members. I can tell you, as i speak to hoosiers, they are concerned about this. My suspicion is that americans from every state understand that the American People themselves need to have a say about this fundamental and consequential decision about whether or not we send our nations best in harms way. I do think there is a growing appetite. Now is the time to lean in on this as the world appears to be getting more dangerous on a number of fronts. You correctly pointed out obviously that the Congressional Research service noted there had been 11 specific declarations of war in congress history. We lay out those 11 in our paper in five major conflicts. 40plus authorizations for use of military force, some of which were very narrow. This 2001 aumf is rather capacious compared to others. Do you see as a member of the senate Foreign Relations committee, a path forward on your committee . Is there an appetite to take this up and move forward . When i first brought this up in january, i wasnt certain, i saw some affirmative nods as i discussed the need for us to finally pass an aumf. In private conversations, i realized that i think everyone recognizes it would be optimal for congress to speak on this particular issue. There are some pragmatic concerns that are legitimate. That we would unduly constrain the ability of this commander in chief or a future commanderinchief to conduct military operations against isis or other groups listed in the authorization. In in a manner required to actually defeat them and achieve our objective spirit so our objectives. So there is tension here between those who. We have to do everything we can to sanction the use of military force and members who dont want to tie the hands of this for or a future president. Through compromise we could end up in a good spot keep faith with our men and women in uniform and still make sure that we dont just delegate the executive branch warmaking powers. I think theres Something Else i needs to be said. Merely going through the debate in a public forum requires us in congress to sell the need to go into battle to the American People. If we cant do that in a democratic republic, perhaps we ought not be going into battle. That is the responsibility of the president , but not the president alone. It is the responsibility of each of us in congress. I think merely having this debate would be a real service to the American People. I appreciate that. In talking with your staff in panel, theto this role we play is trying to stimulate debate and discussion. I am very grateful. Can you stay for a couple of minutes . Absolutely. The rules of engagement are the same. We would be delighted to take your question. Just please raise your hand, identify yourself by name in ask aganization and question. Thank you, senator. , a fellow heren at heritage. In your opinion, what is the difference between an au msn one would you choose one over the other . In the use of military force, my colleague sort of alluded to, can either be fairly narrow in scope. One example would be the class i wore in the 1790s, where was limited with the action be taken against the barbary targets who were targeting our merchant textiles. Another would be the tonkin resolution, which some scholars have argued that was essentially a declaration of war because of the breadth of the legislation. But if one were to declare war, it is essentially it is incredibly broad in scope. It allows the president raordinary discretion there is almost nothing circumscribing it. And i would note that there is an excellent harvard law going article on this through the declarations of war and they could include among other things the declarations of war tend to be out of favor because of the change in national law. I know you love all the cash i know you all love law review articles, so i will send you a copy of it when i see you. Who doesnt love review articles . I am jim payson, foreignpolicy director of the committee on National Legislation and i want to first thank you for the letter you s last week onudi the human rights situation in yemen. I wanted to ask you particularly this because mr. Simpson mentioned it is very broad and seems to be going on without any congressional review at all. In your legislation, do you consider the issue of when it might be sunsets and how congress revisit the issue . We do not. I struggle with this frankly because the downside to sunsetting is you allowed the enemy to grasp when youre going to disengage. You prefer the enemy might not know that. They lay out the object is in and accomplish those objectives. There is another side to this and i think this is a healthy debate. I think we can avoid a perpetual war by the going by delegating to our commanderinchief, ensuring a robust strategy, which is resourced, and if there is another an emulator that is defeated or degraded, we take up a distinct aumf. Time for one more question. I am Charlie Savage of the New York Times. I wanted to follow up on both of those questions. It seems to me there is little bit of tension between your desire not to have a perpetual war but also including explicitly successful organizations and who you are authorizing military force against. Also, i was curious when you raise the colleagues, some of them thought that to pass an authorization like what you are talking about, might constrain President Trump. Constraints weve heard has been obamas suggestion of sunset and limitation on ground forces. It doesnt sound like you had either of those. What constraints are giving your colleagues pause, and what would prevent it from being a perpetual war . Thank you. The constraints we have our congressional oversight, which we have advocated to the executive branch. The American People can hold people like myself to account for the decisions we make and that is not a oneoff deal. That is moving into the future, recognizerican people the congress has ownership over the decision to go to war and they indicate they are not happy with the conduct of that war, we try and reflect that. In policy, if we cant persuade them of the merits and going in another direction. With respect to the perpetuity possibilities and our version of indeed include Successor Organizations to al qaeda or isis, recognizing that if one merely changes their name or if another organization is tightly affiliated with one of those entities, then the war can continue. This leads to this could lead to a longer conflict without doubt. The mission isnt really accomplished, lets face it. If a Successor Organization continues to threaten the safety, the welfare of the American People, our allies and partners. And so, all of this is consistent with my belief that when the United States goes to war, we go to war to win. Set artificial timelines, and we ought not establish an artificial barrier to go in after a hostile organization which may have slightly changed over a period of years. Please join me in thinking senator young. Thanking senator young. [applause] thank you so much. Give us a few seconds while we switch things out. Mr. Savage, could you come up please. A few years ago during the Obama Administration, i had a very high honor and privilege to befriend jeh johnson, who was at the time at the pentagon running the transitions before the Obama Administration came to power on january 20. Discussionsies of over several years and he was kind enough to come to heritage , and gave a fascinating speech on the administrations position with respect to retention policy. This was one of many speeches that the Obama Administration senior Government Official scale Government Officials gave over the course of eight years, all of which have been pulled together in various publications. That is why i am particularly pleased that Stephen Preston and Charlie Savage, but Stephen Preston in particular who was in the Obama Administration, kindly agreed to come by and spend some time with us. Mr. Preston is a partner at a firm that handles government contracts practice. His work includes investigation, federal procurement, civil fraud , Foreign Investment in the security,tes, cyber strategic counseling and crisis management. Until 2015, mr. Preston served as general counsel of the department of defense and before that, general counsel of the cia. I would note the only person to hold both positions. During his six years in the administration, he played a leading role in ensuring the United States intelligence that committees and military operations fully complied with the law and was a key Legal Advisor on many of the countries ys most challenging inconsequential endeavors. He previously served in positions at the pentagon and the u. S. Department of justice until 2000, including as general counsel to the department of the navy from 19982000. When not in government, he practiced law between 1986 and 1993 and of course again today. Not surprisingly for his contributions on office, he has received the highest awards presented to civilians by dod and cia as well a state department, director of National Intelligence and department of the navy. He writes and speaks widely on topics related to law, national 2015, receivedn an adjunct faculty teaching at the law school at the oscar he Rubin Hansson lecturer in International Conflict and security law. He was appointed to the intelligence Advisory Board in 2016. He received his bachelors degree from Yale University and law degree from harvard university. Savage,ntroduce charlie who by the way, wrote this among other excellent books. Entitled power wars. Charlie savage is a pulitzer prizewinning journalist and the washington correspondent for New York Times covering post9 11 legal policy issues since 2003. Also a hoosier, he graduated from Harvard College and holds a masters degree from yale law school. , afirst book, take over bestselling account of the administrations efforts to expand president ial power was named one of the best works of 2007 by the washington post, esquire and other institutions. Join me in welcoming both mr. Preston and mr. Savage. [applause] i thought we would start off by going back in time a little bit if we could. The senator gave his three reasons for congress, for congress reasserting what he believes is their constitutional role in the authorization for use of military force against isis. He said that one, it sends a message to the troops that it is their constitutional duty, secondly and third, he thinks that with respect to the more limited issue of guantanamo, it might add more legal clarity to that. Let me start broadly with your reaction to his comments and anything you want to add to them. I will start with you mr. Preston in the move to mr. Savage. Before i do that, let me thank you for the opportunity to be here. And thank you for your contributions to the debate, the public debate about National Security law issues as evidenced by your most recent paper and of course for your service as a naval officer. Very grateful for that. Let me also say what a privilege it is to share the panel with my friend, Charlie Savage, who has done so much to report on the role of law and legal policy and National Security, but also elucidate those issues for the reading public. Im very happy to be here. To respond to your question, and not surprisingly to me, i found myself very much largely in agreement with the senator. I think we can all remember in summer 2014 when isil, isis , whatever you want to call it, captured the attention of the United States and of the world with appalling displays of brutality, including the gruesome murder of u. S. Listens held captive in syria. Great swaths of land, territory falling to isis in iraq. Times imperative at that the president on behalf of the United States for military force to address the threats of the region into our interest as well. The president did so expressly on the authority as president and commanderinchief under article ii of the constitution. Era war under the nixon powers resolution, there was raised the question as to whether Congress Needed to authorize the use of force against isis, or whether that authority, congressional authorization was embodied in the existing legislation. Lawyers in the administration to examine that issue, which we did intensely. The 2001ncluded that provided authority the president was ordering in iraq. I believed then and i believe now that was the correct conclusion, and i assume it is that conclusion that provides a basis for our government to continue to prosecute the fight against isis. I also firmly felt then and feel strongly now that it was important, i would even say ,mperative for congress to act for congress to carry out its constitutional role in the war fighting decision that takes this country to war. Not because at the time it was necessary in order for the military action to be lawful, but as the senator underscored, it is important in our democracy for congress to play its role and fulfill its comic fulfill its responsibility here. Also important as a practical matter to demonstrate that our government was fully behind us fully behind this fight, to demonstrate we were behind our men and women fighting the fight and also demonstrate to the American People that our government was united in its support for the fight. Also importantly, the senator didnt meant but i expect would agree, to demonstrate to our partners in adversary that this government in our country is united in the fight. To circle back to your question, i think that seems to be what is animating the senators resolution and it is certainly the theme he was sounding in his remarks. I will agree with that. Charlie, the question is on the table. Two things. The senator didnt make the case about why some people are uncomfortable with the idea that the existing use of force authorizations cover the conflict with isis. Just for the audience or whoever is watching on cspan, to , isis crew outze of iraqs al qaeda affiliate and ran the insurgency from 2003 on, but it is no longer part of al qaeda. The two groups have had a leadership split, a disagreement not just about who should be in charge and the rightful heir of bin laden, but also deep strategic issues. Your should there be a caliphate . Are we being too brutal to other muslims when we should be keeping the muslim world united against the west . They are literally at war with each other. What used to be until 10 minutes ago known as al qaedas affiliate in syria is literally being killed by the Islamic State. It seems bizarre from that Vantage Point windy Obama Administration first brought out a theory, that these groups were literally at war with each other. Clearly no one in 2000 and one, use of force was thinking about syria. The Obama Administration senator didnt bring this up and is still the cleanup from the decision to invade iraq in 2003. The discomfort with the Previous Administration was they declared they had gotten out of the iraq war. Susan rice said explicitly the government was no longer relying on that authority and congress should clean up the books by rescinding it. It seemed odd to be relying on it or saying he was in saying it was an available reservoir of authority. So that is why this is been an uncomfortable thing. Why did the Obama Administration first put forward the theory i that was described . I think that resonates with Something Else in the senders remarks, which is that he didnt actually say it was necessary. In his first argument for why congress should not do this, it will make the troops feel better, which is a very soft argument. And aesthetically nice thing to do and maybe if the Trump Administration wants to bring in isis detainee to guantanamo, it would remove some of the litigation risk of whether the authority doesnt extend to any detainee. He didnt say he was unwilling to say, that authority does not cover the war. This is an unconstitutional thing that now two president s have been engaged in and weve got to clean it up and do our constitutional duty by providing Real Authority for this thing happening for two and a half years. I think the reason he didnt do that is he doesnt trust congress to do its job. He doesnt want to go out on a limb and say, if you dont come up this war has to it is unconstitutional. In the same way, back in 2014, president obama was faced with a National Security imperative as stephen described it, and did not trust congress to come back heading into the 2014 made 2014 midterm and actually pass something. So the decision was to do , or do something and come up with a good enough theory, and that is what they did. I think the unwillingness to trust congress to actually move continues to infect us debate. If you dont say its necessary, its very hard to get congress to act on something so controversial. And who knows how it will look , andfive years from now look how much john kerry suffered for having endorsed the iraq war. In less unless enough members of congress are willing to go there, which apparently theres not going to be a really resounding sense of the and this must happen because otherwise they get turned off. Let me add to that and i will ask either of you to jump in. If my recollection is correct, when your boss, president obama the aumf to transport up to the hill, there is a transmittal letter. If i recall correctly, is that although i have the authorization to conduct this war, i still recommend blah, blah, blah. You are putting your finger on part of that, that there is this upon the body of the senate and probably the house too, but if it aint broke, you dont need to fix it. They do adequately cover this and why do you do this if its not legally required . Could you speak more to that . Here you are in an administration that is taking kinetic action against the enemy , in my opinion fully covered by mf, but from what i can from what i can see in, the outside looking wanting to engage congress to get engaged and fulfill their Constitutional Responsibilities. That they are recognizing that isis grew out of al qaeda and iraq in 2004. They are really going off in their own direction and this makes more sense. Could you put some more words around that . It seems to me to be careful aumf washat a new was not necessary at the time for military operations to be lawful is not to say its merely desirable to have an aumf appeared to use the word earlier imperative. It is imperative not as legal necessity but a proper function of our government and a number of subsidiaries that there is that we discussed. Another sense in which time passes, it may go from not just desirable or imperative in the sense ive described, but legally necessary but as the adversary evolves. At the time we addressed this issue, we were dealing with what had been called al qaeda in iraq , a terrorist organization that was a component of al qaeda but didnt tell the differences between the leadership that was operating in area and iraq. Now we have isis manifestations of isis in libya, afghanistan. I dont know where boko haram is nowadays. Both the 2001 aumf and the rationales are not infinitely elastic to reach the adversary no matter what it is or how it manifests itself. I think if you take a longer view, it is imperative to our democracy, but there is also legal reasons it would be wise and advantageous to the Current Administration to secure a new and express authorization. Charlie. I quarrel with the notion that it is not legally necessary but still part of the core constitutional functioning of our government because it is not legally necessary, that means the core constitutional function of our government is that congresss war powers are just ceremonial. They need to be seen to be blessing the thing that can happen without them. They could repeal the transfer of the exercise their constitutional role that war should end in exactly the same manner they can act to endorse the fight as it has evolved post9 11. I disagree with that. But if they dont repeal it, then everything is fine. The other piece of it for education purposes is the fact that congress has acted repeatedly in this area since 2014. Knowing how the executive branch interpreting, it has repeatedly authorized funds for the counter isis operation. One of the very complicated things about all this is even if you are among the faction that thinks the administrations original assertion was edgy and maybe stretching the aumf too far, it may be that the problem has healed over time because congress has essentially ratified that theory by continuing to appropriate funds explicitly for the counter isil operations, which amounts to authorization. This is one of the problems that ander senator young , because ase have they passed to have years now, three years, whatever sort of reading fred madisons comment about the need to separate the power to decide whether to go to war or execute a war, it increases power to the executive and so forth. The damage is done if there was damage. This point, it may be that the scar tissue has already formed. So the cleanup explicitly say isil and explicit organizations, whatever that means. Im not sure what problems are being fixed today if it ever were to happen. One of the things i argued before the senate Armed Services committee when they had the hearing in 2013 on isis, aumf , washe loss of conflict that the 2001 aumf is self limiting. And that its not as broad as some would argue. Now this gentleman asked the question many people have, which seems like its gone on forever. One associated force becomes the next associated force, et cetera. Your predecessor and our friend, jeh johnson, gave his speech at yale law school, which you talk about in your Excellent International law speech in 2015 where you said talking about associated forces that an associated force must be an organized armed group that has andred the fight al qaeda against the United States and coalition partners. And then you go on to say it doesnt mean every group that commits terrorist acts as an associated force. And i argued the same. Most scholars believe that. We are not talking about has blah, hezbollah for this group over here to change their name to Something Else that theyre not associated with al qaeda. Im not going to burden you with this question. Ill ask you, charlie as a reporter, what is i mean, i asked the senator with the appetite on the hill was for aumf and i agree that senator king, senator flake and others have done a good job trying to tee up the question. How would you answer the question i gave the senator . Is there any appetite there . I have argued that a aumf is not a substitute for comprehensive strategy, it is simply the legal underpinnings to authorize the strategy. You want to pick up any part of that question . Observationally, the thing that prevented congress, everyone in congress essentially supports fighting and feeding isis. Fighting and defeating isis. There are no proisis or even might stay home and let them solve their own problems because they cant hear and attack paris and everyone can see that. So why did Congress Pass an isis authorization in 2015 when the Obama Administration set it up . The reason was there is a split between what the administration wanted and what republicans who controlled both branches wanted. The administration wanted a sunset. The administration wanted a limit on the use of Common Ground forces entering offense operations and for emulation that was intended to allow some rescue or whatever, commando raids, but not occupation. No, wereview was going to go to war. You dont tie your hands in the hopes that you do everything. Because of the experience of the 2001 aumf and the forever war that has grown out of it, on the left there was less appetite. Lets not do that again. In because there was no one saying we have to stop if we dont get something, because the administration was saying the existing authority was sufficient, the conflict could not be resolved. There was nothing that president would sign. Its easier to not do anything. Now we have a new administration that would presumably sign a more openended aumf without ground forces. It seems like the conditions are there to clean this up as part of the next National Defense authorization act or something. Very few people are talking about it. Theres a lot going on in the world and a lot going on in washington that may be seems more urgent. Nevertheless, i would not be shocked to see some language not unlike the one he was proposing folded into what congress deals with at the end of this year despite the fact we are not hearing much about it. I dont see where the opposition to it is organized in the sense that obama wasnt going to sign the bill. Trump will sign the bill. What do you think . So, as i think about judging a new aumf, from my perspective , the highest priority is on a certainty and clarity as to what the authority is and that resides in terms of a followon aumf on defining who the enemy is. You also want it to be adequate and sufficient to meet the about that and tailored to the immediate and foreseeable threat. I think there is a concern at least among a good number of members about a blank check type authorization. That then leads to consideration of various limitations. Geographic limitations, and a mode of fighting limitation, temporal limitation and others. The former i think are particularly problematic in that they tend to erode clarity as to what the authority is and may erode the utility of a aumf to meet the foreseeable if not present threat. I think the time limitations, the sunset concept is entirely different. And if properly structured, isnt really a limitation at all. If properly structured, it is a public embrace of our democratic system where congress and the president have to agree to initiate conflict and this would be structured in a fashion to periodically reaffirm our commitment to that fight. So i think if it is a twoyear limitation, that may have the effect and may signal to others that we are not committed to the fight. But i could foresee a sunset provision that places the sunset somewhere, perhaps a president ial term away and create some mechanism for renewing the authority in advance of the sunset so that the public partners, adversaries messaged that we are not committed to the fight, but rather committed to our Democratic Institutions and we have set up a mechanism to fight this fight as long as we have to fight the fight. I think to the extent as a practical matter in congress, there are those that are uncomfortable with a blank check and there are those that are uncomfortable with excessive limitations. I think a properly structured time limitation could be a point of compromise. If i could add one thing. You are starting to put your finger on why this is so hard. So he names in his taliban hq and isis in the associated forces, whatever that means. So does the fact that he didnt name alshabaab or didnt name boko haram, that the congressman had an opportunity to do so or a whatever, the little ones no one has ever heard of that are running around, are they not part of it . Youre still giving the executive branch the decision to be part of the fight and youre not really solving the problem. So theres been various efforts to grapple with that. Do we need notice work conditions that must be met . The other part is the black ash link check problem. Its not Just Congress started as an authorized in al qaeda and afghanistan and 9 11. Now its being used in isis in syria and so forth that it sort of spread. There is a history of using that authorization to do all kinds of other things, like have a Warrantless Surveillance Program on domestic soil because the Bush Administration decided it authorized that. What else could it be used for . The linklso part of text anxieties. That maybe we need to put limits in it and its easier to go with the existing theory that everything is fine and lets not open this pandoras box. It seems very broad and open ended to me. It will attract alarm. I referenced jeh johnsons speech here and Obama Administration speeches around the country explaining legal rationale for various aspects of what some call the war on terror. Charlie, you are a journalist, you won the pool of surprise. Pulitzer prize. That must be nice. A long time ago now. Wroteote it extensively about power wars. Did you find that helpful and if so why . In other words, does it make more sense for an Administration Given the complexities of the war for senior Government Officials in a methodical step by step approach to go in the public and explain to the extent practical impossible, the legal rationale for the actions they are taking. And stephen, if youre able, looking back now, did it meet the objectives you hoped it would serve . Ill start with charlie. The Obama Administration did things that were edgy and controversial in the area of war power and National Security law. Proposition,ral a broad needt saw and advantage in trying to explain itself. It wanted to be seen as an organization that took seriously the rule of law and was grappling with these difficult issues in the 21st century where its not always clear what the law is. Often the law was written for situations different than the one we are facing today and you have to interpret by analogy and there may be multiple possible interpretations, but also implausible ones. And they wanted to show they were staying away from the crazy ones at least. They engendered through that a lot of public debate i think was good for democracy, even if people didnt always agree with what they were doing and where they came down on things. Like is isis covered by the 9 11 authorization. To date, this administration has not been that way. The great example of that, only trumpr whatever days in, shot missiles at assads force s in syria and offered no rationalization for why he had Legal Authority to do that without the international law, without a Un Security Council resolution, without a selfdefense claim, a very edgy thing to do. The obama people thought they came close to a redline episode, they thought they had an argument for why they could do it, but it was a thin one. This administration is saying is saying it doesnt have to explain itself. That is not good for democratic accountability in public debate and i hope they evolve on it. My sense of it is i first suggested, it was part of president obamas philosophy of government that there should be as much transparency as possible, and to include in matters of National Security within the confines of preserving National Security. From my perspective, it was a much more practical proposition. When i started in government in july of 2009, you couldnt pick up a newspaper without front page references to the latest strike in southwest asia pursuant to our governments illegal counterterrorism program. It was as if it were conventional wisdom that what our government was doing to fight the terrorists in afghanistan and elsewhere was part of a secret illegal program. It was disturbing me to have it characterized that way and i saw that as horribly corrosive , and again, in our system of government and in terms of public support for what our country was doing. But also potentially quite harmful for the rank and file people that we were asking to fight this fight, to have some widespread perception that these efforts were unlawful. It was also deeply disturbing to me that there is a constant refrain that this was unlawful and no one seemed to care. From my perspective on the inside, it was important to articulate for our government, to articulate to our people whine we were doing what we were doing and what the legal basis was for it. We saw that in speeches by the Legal Advisor in 2010 and the attorney generals speech. Attorney generals beach. Attorney generals speech. She spoke not only about the domestic and International Legal bases for counterterrorism program, but also addressed the lawfulness of using force to an american citizen and who chooses to take up arms against our country. And i think the end product, you ask about whether it was effective. On the matter that concerned me initially, this conventional drumbeat in the press and among some scholars, that our country was pursuing an unlawful counterterrorism program, that fell out of the public debate. Not that everyone was convinced and all critics would be satisfied, but i think there was a broader understanding and wider acceptance of our governments counterterrorism activities then there was without that type of transparency. Yeah, i will just say as a person who spent time at the pentagon during the Bush Administration, we certainly did not do a very good job explaining rationale. In fact, we were pretty bad at it. Theurned a corner when Legal Advisor gave a series of speeches, one of which stands out in my mind, which is his halloween speech 2006 at the London School of economics, where he explained to our partners the legal rationale and i think we probably should have done more of that. But john did the work. Watching the Obama Administration from the sidelines at a think tank, i thought it was rather helpful, understanding where you were coming from and the legal justification. Obamas augustnt 2009 speech particularly helpful. That set the table on the detainee side on how they would try to solve that problem. These are tough issues. We have a little time for questions and if anyone has a question, raise your hand and identify yourself by name and organization and ask a question. Here in the front. Wait for the microphone, please. Chris harlin with the International Committee of red cross. Thank you very much for putting on the panel and thank you for the paper, as well, which was good and very interesting. You conclude in the paper i think that the United States should have an aumf before bringing Islamic StateGroup Fighters to guantanamo because of the risk you outlined. You mentioned i think that there might be a successful challenge and its unclear currently. I wonder if you might say a couple words about that. Maybe the other panelists discussed that potential risk as well. And maybe if you have any thoughts, there and some people who have been right in the fact that new detainees to guantanamo would not, under the current system, would not get a periodic review board set up under the executive order that does that for the current detainees. Whether you think that would the d. C. Judges in circuit and elsewhere in having to assess whether or not the people were there legally or whether that is simply a separate question. Thank you. I will take those questions in order. We didnt cover the periodic review board issue and i think important as a related concern. I dont have enough ink or space to cover it. You would think that in the time i spent at the pentagon and since then, i would have analyzed every single case out of the d. C. Circuit and come to some conclusion. , until we did the categorized tried to the buckets, for lack of a better term, that each detainee fell in as the d. C. Circuit analyzed and had to decide on their risk. I harken back when i was at the pentagon, as you know, we had a close working relationship with your organization and its a very important relationship. And the government still does as i understand. The bush administratiod the Bush Administration had almost a perfect record with the supreme court. They almost lost every case. You know, you tend to remember your losses and hopefully you think about why you lost and what set the table to that litigation and how you can avoid that in the future. So perhaps it was the litigation risk averse side of my personality, but having been a judge, ittorney and a think through hopefully all sides of the litigation. You know, we picked up on the dissent several judges said in the d. C. Circuit cases, and i think the further we get away from 9 11, and theres been an interregnum obviously in the times of people have been brought to guantanamo. The Obama Administration didnt bring one person. It was entirely their right not to bring anyone to guantanamo. So there has been no isis member brought to guantanamo. And so, i think we prudently concluded that the litigation risk is well above zero, that certainty is better than lack of certainty, which stephen and others have stressed, and the senator has stressed, it was kind of him to do so. I dont know what charlie and stephen think, whether they have read the paper, but i think when you look at the litigation, just abeus litigation and you look at these isis members, i dont know who they are. I havent been in the government for a long period of time. I can imagine that trying to connect the dots as a government lawyer between this particular isis member back to the people who could fall squarely under aumf, that might be a heavy lift for a government lawyer to do. So that is the conclusion. To your second part of your question, i dont know what this administration is going to do with respect to the periodic review board. We had periodic reviews as you know during the Bush Administration called something different, the annual review board, and i would certainly hope that this administration would review detainees, files on a regular basis. I dont know if they are. I suspect they may be. I think that would probably factor into a court analysis, especially if counsel for the detainee brought that to the courts attention. How that would turn out, i dont know. I would invite any of my colleagues to comment if they want. I did repeat, and as i mentioned earlier, i think it is a useful contribution to the debate. Analytically a sound treatment of those cases. I have no disagreement on it. I am concerned about the implication of sightings c iting the ability to put detainees in guantanamo as a aumf, forhave another the very practical reason that it is a political lightning rod. To hearken back and have the executive and congress agree on war fighting authority here and to have congress is participation be bipartisan if at all possible. Ot, hasamo, like it or ne become a political lightning rod. To the extent that if i were strategizing, i dont think i would highlighted as a reason to pass it enabling this administration to bring isis fighters to guantanamo. I think that might undermine the goal of trying to get bipartisan support. I totally agree. It is a tale lacking the dog tail wagging the dog problem beard it goes to charlies original point. Whats the real rationale . What is the real need to do so . I think that point assured and at the same time thats a place where you get a hook. You better do this because you are screwed up if you dont or you are taking the risk. If you take that off the table for political reasons, you are back to the purely aesthetic, wouldnt it be nice and send a warm and fuzzy message to the troops, which is its hard to get any individual lawmaker to then cast the hard vote that might come back to haunt him or her later when you dont have that, you better do it or if the government will be screwed up in some way argument. Any final thoughts for either of you . Thinks very much for having us. This is a pleasure. Youve been wonderful. He appreciate both of you taking time out of your busy days. Please join me in thinking this panel. [applause] good morning thanks for joining yesterday