Transcripts For CSPAN2 David Barron Discusses Waging War 201

Transcripts For CSPAN2 David Barron Discusses Waging War 20170513

Relationship between the president and congress with regard to war. Good morning. Maybe there is an on off switch . Dont touch it. It is working . Okay. Good morning, everybody. Good morning. Good morning. It is just for the video. Let me welcome all of you. The liberal arts Faculty College of liberal arts, Research Fellow at the war and peace center. I would like to welcome you to this timely and important presentation by judge baron. It is a great pleasure for me, and honor to have you address this crowd about your new book. Waging war, the clash between president s and congress, 1776, i do want you to know that you are speaking in vermont and there was a time when vermont Beat Congress and the president to declare war. Three month before the Second World War the university of vermont ran out of money, the legislature called special session to help it out and legislature met sometime during the hearings. Any of you hear about this nasty fellow in germany, this hitler guy, he has been going around terrorizing his neighbors and minority groups and before you knew it they declared war on germany. Three month before pearl harbor, i just thought that might be of interest. The constitution states that it is congress who declares war but it is the president s more often taken us to war and decided how to wage it. In his book, judge baron opens with an account of George Washington and the Continental Congress over washingtons plan before the british invasion. Congress ordered him not to do so and he obeyed. Baron takes us through all the wars that followed. 1812, the mexican war, the civil war, spanishamerican war, world wars one and 2, iraq and the war on terror. Congress criticized george w. Bush for being too aggressive and barack obama for not being aggressive enough. And recounting how our president s declared and waged wars, baron shows these executives get their way without openly defying congress. I am interested in the sections of the book that follows the iraq war, there will be a lot of questions on how all this is in the age of the drone and the idea that we may not have large war like this in the future, going to congress and making it obsolete. They came here in the 19th century, his advice the american president has more power under the americans dont know it. Is that true . Judge baron, the United States circuit judge, court of appeals. It includes the district of maine, massachusetts, puerto rico and rhode island, the professor of public law at harvard law school, previously served as acting assistant attorney general of the office of Legal Counsel, the department of justice, commander in chief, at the lowest end, the books that won the prize of waging war, clash between president s and congress. Judge baron will take questions, open the room for discussion. I would ask that those who wish to do so please wait until you get the microphones and so, judge baron, the floor is yours. [applause] thank you for that introduction and for having me here and the awarding of the prize, a wonderful institution, it has really been a privilege particularly the students who have escorted me around, that is it for his role in welcoming me here and my fellow writers who are with me. I want to give a little context. It began around 20042005, it came in the midst of the war on terrorism, through the administration in office for broad scope of the president s power as commander in chief. He thought history was written up for stories that a nonlawyer might like, a particular pleasure to address a room of people with few exceptions, the dream of every legal academic, it is a great pleasure to do it. Some time later, i was asked to join the Obama Administration, working for real, and my perspective on the questions were different, they had changed as a legal matter so much but more because the question i was interested in was the right answer legally. And how do president s and their legal advisors deal with the real dilemma that is posed when congress is clashing with the president over how to fight a war and i went to tell the story and the history of how those concepts played out, what president s have actually done so people understand how people grapple with a very vexing problem. With that background i want to start at the end of the book and give you the perspective i had when i was in the office of Legal Counsel that led me to think history might matter and i will walk through three president s or three commanders in chief who dealt with this problem to give you a sense of the pattern or tradition i see about how these problems are managed that i think is not as well understood in the age when we talk about the imperial president and the president can do what he wants. That narrative is a powerful one. And talking about George Washington when there was a constitution, lincoln during the civil war, fdr during world war ii, i am cherry picking so the story will sounds better if i pick some others. Let me start at the end of the book, i joined the Obama Administration its first day january 20, 2009. I was returning to the office of the department of justice where i worked as a young lawyer in the clinton administration, the office of Legal Counsel. It was an obscure office, most people back then assumed it was in the white house and they were vaguely disappointed and mystified when they learned that it wasnt. Thinking of my parents in particular. The office was not obscure anymore after all the controversy that had been stirred up by the positions it has taken on the president s unchallengeable constitutional powers to interrogate, detain and wire top. Putting forth those constitutional positions that first appeared, i spent the better part of three years working on a long pair of scholarly articles, it offers little support for a sweeping Deal Congress had no right to check the president s conduct in war but i was walking down constitution avenue for what seemed like 1 Million People lining the Washington Mall as i began to begin running the office of Legal Counsel. I would be the acting assistant attorney general until the president s nominee could get confirmed. Something as it turned out that never happened. Over the next 18 months until i stepped down, addressing these to control the conduct of war. Not in the abstract but for real. The key question, through the transition in which i also served, with the legal positions taken in the prior administration, the powers of the commander in chief. It was implemented in consequences as he had done as a candidate and now that he was president in his own right he put on his own commitment to changing interrogation practices, limiting surveillance and even disclosing the facility at guantanamo bay. His success in making these changes might depend on the cooperation of congress. What was the new president to do if confronted with an effort by congress to block his favorite way of conducting this ongoing war . What he too content congress had no right to do so . If he wouldnt do that what would he do . Those questions were not in the forefront of my mind on that first day but if history was any guide they were sure to arrive. That is the nature of the dilemma. To highlight the point the unusual condition we are in and i was in when i was serving in office, we are living in a time in which there is an authorized conflict by congress and has been for more than a decade and is likely to be for years to come. Ever since the attacks in 9 11, Congress Passed an authorization to use military force by the president to take on groups responsible for the attacks on 9 11 and that led to operations in afghanistan and based on interpretations of that statute, in a number of countries throughout the globe. On top of that there is also an authorization for military force in iraq. The question was less who gets to start the war and more who gets to decide how the wars fought once it started. By what means, what tactics can be used, what is the scope of it. With that let me start with our first commander in chief, George Washington. He, as you know, takes his command from the Continental Congress, not far from where i used to teach at cambridge, massachusetts. His first major conflict goes surprisingly well. He captures a number of highranking british officers and moves to new york. By this time, britain is aware they are up against something more significant than they imagined and they have a masters naval fleet off the coast of new york, and washington is there with his troops and he sees no possibility of victory. He is thinking how do i get out of this . I need to retreat and do it the best way. His choices are a clean retreat or what makes more sense to him a retreat in which he burns it to the ground, the thinking is clear, if they are going to take the city i would rather have nothing to show for it then they take it because why would we leave this major city in the hands of the enemy . Washington received his commission from the Continental Congress and it said follow the rules and orders of that congress so before deciding to burn down new york which was his preferred tactical decision he writes to the Continental Congress in a letter to john hancock in philadelphia and says new york left his Winter Quarters for the enemy. You can recognize that is a leading question. He expects the answer will be no, why leave it, that is not the answer he gets. The next day john hancock right back on behalf of the Continental Congress and tells washington under no circumstances are you to burn new york to the ground. One that they would be foolish enough to let the british takeover new york when he also respected their order and although he retreats to Higher Ground and just as said they have predicted to set up Winter Quarters they had nothing and would be in retreat all the way to valley forge. But washington does not order the burning of the city but a fire does break out after the retreat because any said sobel commander of not bernie or to the ground but sensible commander would not burn new york to the ground. But it is what were willing to do for ourselves said he had no part but now to move on with washington without complete model following the battle things keep going badly for the revolutionaries. And the Continental Congress is demoralized they want to make hay of the capture and go behind the war effort. And so to complain about the treatment with the way the british are treating them but a highranking british officer but though way they were treated at the time is better than you might expect so he had 20 servants assigned to him and they to be within the 6mile radius of his homestead. So the Continental Congress sees this and says you have to treat him better. And they order washington into a new reality retaliate in treat him as as badly as the American General has been treated so they took away all but one of the servants so the highranking officer thinks this is an affront to the dignity of the people and his own dignity but nonetheless he complies and rights to washington as commander in chief and it says you are a dictator. You dont have to put up with this. If you dont think i should be treated this way then dont treat me this way. The you might think the commander in chief with throw that in the wastebasket but he writes back to the captured officer and says i did not have the power he suppose of the authority nor the inclination. That is a very powerful statement the remember washington thinks it is a terrible idea so even as he writes back he is also writing to john hancock and convinces them to relent and among the things that he says is the orders is that i am supposed to retaliate for bad treatment but what if i can assure you there and not treating them badly that i should not have to treat this general badly so he was in the process to interpret in his favor. After months of back and forth they allowed him to do a Prisoner Exchange so that is the first real period of clash with the Congress Even before there is a constitution but it is such a model for the prerogative of congress but also hostility towards his choices that they could find some way to fight the war on his terms without having a provoked out right competition. Second story. The second existential moment for the United States that was the formation of the country when it was formed in Abraham Lincoln was president and commander in chief when congress is out of town. So congress is gone you can do you want what can they do about it . But it is also a terrible because youre not supposed to do that much when they are out of town. So the first issue of is when do i Call Congress . Theyre not supposed to come back for many months given the recess. They cannot come back the next day the kids they cannot fly back. It will take a few weeks but how many . He said a couple of weeks if he decides not to call them back until july for a special session i believe it would address on july 4. Why wait that long but no longer . There is a theory the one that i find interesting is Abraham Lincoln very much wanted congress to be the position to ratify all the he had done in he had done a lot. He ordered a naval blockade suspended habeas corpus although that would go all the way up said he had taken a very dramatic steps more than any other president and he wanted their approval. In particular he wanted the border state delegations purpose of the way the election rules were set the terms had expired and they could not have a new alexian and tell much later so he works with the governors of those border states to see if they can do the elections earlier so this session is set when they are in place to be seated in lincoln monitors that very closely so when they get their low and behold they support them in a special session. So already the commanderinchief has done more on his own bin any in history but from the getgo has his eye on congressional support. He is told when Congress Gets there visit deal in he may help and it proves to be true. They tell lincoln within a week we will pass the law. It will be in the senate and ratification of everything of all that has happened and lincoln is fairly optimistic but it is the bed of a train wreck all sorts of Division Within congress then they start debating if they should talk about what has nothing to do with the war and has to go up to the very last day of the session they suffered a tremendous setback in now to say we could business if we dont get support for the commanderinchief so that tips congress to the point to ratify what lincoln had done. Now 1862 has congress on his side congress was somewhat reluctant but now congress is even bolder than the president space much more aggressive action and emancipation and there is a statute that has been proposed that could effectively ordered a commander in chief to free the slaves from the occupied portions of the south that the enslaved people or property and they shed do a wartime measure so no congress is pressing so the debate is very strong in just to give you a flavor of that one of his friends who is the senator from ohio take steps to say this is an outrage that is the role for the commander in chief and this is matched by opposition by others that say think about it if you have a president making a calamitous decision to retreat from a battle that is catastrophic and then watch the country fall because of the debate . Pcs he does not have the votes in congress so he needs to work and he says go talk to lincoln so he tells him either the abolitionist will run the war from congress or you run it as commanderinchief otherwise your allowing congress to run the war. So he gives a very convincing speech in the next day lincoln signs the bill. But what is amazing about this the date they needed him to veto the legislation lincoln is in the carriage ride with the secretary of navy to say i think i will issue the emancipation proclamation and actually that goes further. And wellington has decided in his mind brothers are telling me congress is against me i think theyre giving me permission slip theyre sending a policy of the emancipation that i was worried but now i have decided to issue that when he issues it he wraps it in the language which he quotes in full just to show the connection of what he does and what congress has done some of the last tory story with fdr as you know, roosevelt was leading a country reluctant to get into the Second World War after we talk but how the First World War ended but it that the love the roosevelt was more interested in helping european allies but was hemmed in by a variety of statutes that they are hard for americans to legally give support to the french in particular and churchill was begging him for destroyers that the u. S. Had control of the he feels he cannot give them to their british without committing a crime without aiding another country during a wartime conflict so roosevelt turns to the lawyers in says there would really like to get the aid to britain and they say yes you do it would be very awkward reaches you define those statutes so eventually over the course of many months the system is worked out whereby the lawyers through the indirect route to appropriate a for the british through trade and they give us items in return so structured that way the lawyers sign off. So no fast forward with the attack on Pearl Harbor Congress has declared war it is 1942 so now who runs that . The way this conflict arises is some of that has to do

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