and purchase them on the first floor. >> thank you, christopher. [inaudible conversations] >> you are watching tv at c-span2. c-span2. for a complete television schedule visit booktv.org. you can follow along on social media at booktv, , on twitter, instagram and facebook. >> in the wake of several iranian attacks on oil tankers the koch institute held a discussion on congressional war powers regarding iran. experts looked at past authorizations for use of military force and how they could be used by the trump administration to justify military action in iraq. this is one hour and ten minutes.

>> okay, so good afternoon. my name is reid smith and on behalf of the charles koch institute i'd like to thank you for joining us today or what promises to be a substantive and timely discussion about the applicability or lack thereof of existing legal authorities to use of force against iran. it's great to see so many staffers here today. we are encouraged to see a full house. you guys that so much to do with the way that we approach the broader matter of congressional war powers, so it's encouraging to see an interested room that's looking to get informed by some expert jurors up here with you today. for the sake of time and discussion i'm going to keep these introductions perfunctory in no small part because our panelists reputations undoubtedly precede them. to my far left, stephen vladeck is the professor in law at the university of texas school of law and austin, a graduate of

amherst college and yale law school, both degrees earned with distinction. his teaching and research focus on federal jurisdiction, constitutional law, national security law and military justice. his affiliations are numerous as are his appearances in broadcast media and in print. a founding member of l'affaire, he cohosts the national security law podcast with his colleague bobby chesney. >> it's a great name. >> it is a great name. to his right and our left, heather brandon-smith is fcnl legislative director for militarism and human rights where she works to repeal the 2001 authorization for war,, promote respect for human rights and international law, and reduce u.s. armed interventions. an adjunct professor of law at georgetown, heather earned her ba in politics and international relations from the university of new south wales where she also

received two law degrees before receiving her masters of law from georgetown university. finally, gene healy is vice president at the cato institute. his research interests include executive power and the role of the presidency, as well as federalism and over criminalization. a prolific author and editor, gene earned his bachelors from georgetown university and a j. d. from university of chicago law school. i'll just note briefly on everybody's seats we prepared a small packet with what i think are substantive reflections and commentary from our speakers today. also from our colleagues at concerned veterans from america, statement on the desired repeal of the 2001 authorization for use of military force. i just want to state the different station between the charles koch institution,

institute which is a c-3 organization and doesn't take position on legislative matters and the concerned veterans for america which is a c4 and does what in on those matters. and now to our conversation. in a way i think we should start at the beginning mere hours after the tragedy of 9/11 as congress debated, drafted, and ultimately by an overwhelming majority voted to enact the 2001 authorization for use of military force against those who had planned, authorized, committed, or aided the september 11 attacks, or those who are offered these persons safe harbor. nearly 20 years later, one sentence, the key provision, at the heart of this joint resolution continues to provide the legal foundation for virtually every action taken by three successive administrations

prosecuting the global war on terrorism. that's everything from invasion of afghanistan in 2001 to the downing of a syrian airplane in 2017, and everything in between, from gitmo the secret tribunals and extraordinary rendition. in sum, an estimated 41 military operations in 19 countries. so now some within the trump administration may be looking to link the islamic republic of iran to the underlying logic of the 2001 aumf. as i take my seat, stephen, press you would like to provide some introductory thoughts about the remarkable circumstances that help this bill still into its existence. >> thanks for hosting this event. thanks everyone for coming. i think it's really important to

start not just at the beginning but also in context with what was going on. so september 12, september 13 come september 14 while congress was considering the bill that would become the aumf, this is still very early on. it's not until september 20 that the the president will publicly acknowledged that the united states determine that al-qaeda as sponsored and harbored by the taliban in afghanistan was even responsible for the attack. this was still very early days. i suspect some of you were not even alive yet but will get back to that. so part of why that really matters is because the statute was written in context where it wasn't publicly clear who had attacked us and it wasn't necessarily clear what the goal was going to be beyond ensuring that whoever attacked us could not similarly attacked us in the future. so to that end the bush administration's and national draft language had been this very open-ended text that would've generally authorized use of military force in order

to prevent future acts of terrorism. that really would've been a statutory authorization for a global war on terror. and congress i think to its credit especially given the circumstances did not go that far. really jim sensenbrenner leading the way congress pushed back and said that's too broad. even though we haven't yet figured out who's responsible, we want the forced we are authorizing to be targeted at those who responsible. and so the final text of the bill passes both houses on friday september 14 and is signed into law by the president the following tuesday, the final text refers specifically to those nations, persons, or organizations that the president determines committed the attacks, or harbored those who committed the attack. in other words, this is not just a general authorization to use force against terrorist groups. it was a specific authorization to use force against whoever it

was publicly determined to be responsible for 9/11 this was signed into law and two days later the president goes on national television us as we determine its al-qaeda and as a board and harbored by the taliban regime in afghanistan. it's important because what it means is in context what we now call the 2001 or sometimes the 9/11 aumf to distinguish it from the 2002 iraq aumf really was focused at al-qaeda and the taliban. the statute doesn't say that and i think we are continuing to reap the consequences of the fact the statute doesn't say that but it don't think there's any question at least in that moment that is who caucus was thinking of, that's what the statute was directed towards and it was how the president reacted and responded. when the u.s. started using offensive military force in afghanistan about five weeks later in the middle of october, toward the end of october, it was under the ages of aumf because edwin understood that

the taliban in afghanistan was clearly part of a -- the working assumption was the harder questions and a longer-term questions would be fleshed out in subsequent legislation. congress was very busy in september and october. there were a number statute enacted relating to the 9/11 attacks and the response thereto, leading up to from the aumf all the way to the patriot act on october 26. the assumption was congress would continue to be just as engaged going forward. the reality we have seen is over the last nearly 18 years that actually hasn't been the case. that for a host of reasons congress has largely sort of left the regime it put in place and that has led us to all of these continuing debates about whether the 9/11 aumf, we'll get to iran, that doesn't even cover al-qaeda in the arabian peninsula? does it cover al-qaeda in the monograph?

congress enacted and never thought was answering in that 60 word, one sentence operative provision. >> i want to turn to gene right now, as i think steve gave a great summation of like 2001 21 into 2002 as the bush administration considered other potential military operations, obviously iraq was on the to do list. can you talk a little bit about perhaps they're thinking coming back to congress again for an aumf specific to iraq and saddam hussein? >> sure. one of the things that's interesting about the current debate about whether the 2001 aumf applies to iran is that when the 2001 aumf was young, barely a year old, and the bush

administration had iraq in its sights and there was a lot of talk about, you know, from vice president cheney and others about iraq and al-qaeda links, most of which, the important elements of which turned out to be bogus but they were promoting this idea that mohammad outside met with iraqi intelligence agents in prague. they were making a lot out of the suppose it connections, and for a hot moment they did float the idea publicly that they didn't need authorization to go to war and iraq, because among other legal provisions they might be able to rely on the 2001 aumf because of the suppose

it connections between al-qaeda and iraq, most of which turned out to be bogus. but the actually decide, you know, in the end to get, that was little too cute, that was too big, a bridge too far, that you needed a separate authorization from congress, at least publicly. he never acknowledged that they will they were legally required to get this authorization. but at least politically. a year after the 2001 aumf is passed, they can see that they at least need some, for political reasons is not legal reasons, some authorization for congress. this is an administration that famously was not shy about aggressive legal interpretations, but it is strange, i think this episode

shows how strange it is. nearly 18 years later to be talking about a legend iranian -- a legend -- iranian at al-qaeda connections as as a bs for war under the 2001 aumf. it was too much of a stretch for the bush administration heather, let's talk about that 2002 aumf. it's still on the books. can you talk about now, i mean many years past saddam hussein's demise, this still remains intact and how has it been employed by successive administrations? how is it still utilize? >> yes, sure. so the 2002 iraq aumf, that, that was passed in october 2002. you are really authorizing force against the façade of losing -- the saddam hussein regime. in particular that piece of legislation authorized the forced to use force, defend the

national security of the united states against the threat posed by iraq and enforce all relevant u.n. security council resolutions against iraq. those security council resolutions are really talking about weapons of mass distraction. this is sort of the predicate, the reason for going after iraq, that they had these weapons of mass distraction and that as a result of that they were breaching u.n. security council resolutions and they were posing a threat to the united states. that was what congress voted to authorize. so views when it iraq. saddam hussein was defeated, and yet now 17 years later we still have that law on the books. and just as with the 2001 aumf the we've seen being interpreted far beyond what congress intended, , we using that as wel with the 2002 iraq aumf. this most notably happened in 2015 when the obama administration went back into iraq to fight isis.

so try to that time actually obama administration officials have been calling for the 2002 iraq aylmer to be repealed. that was the policy. and actually even once they went into iraq and they said actually you know what, we're going into iraq, it's the 2000 aumf that authorizes that. we can get into how they made that legal argument a little bit later. they said the 2002 aumf also provides some additional authority. there were not very specific though. but then he also said, but still our position hasn't changed. we like to see it repealed. now were in a situation where the current administration interpreting the 2001 -- 2002 aumf more broadly come basically sort of to bring stability to iraq type of aumf much broader than to defend the u.s. against a sort of immediate threat posed by a particular regime.

so last year there was a report that came out which said that the 2002 aumf authorizes the administration to use force to address threats both to and stemming from iraq. in surrey or elsewhere. so we've gone from this very specific or at least we thought it was a very specific resolution for a particular country for a particular purpose, and now that is getting more and more broadly interpreted. >> can't i say real quickly? it's worth addressing that in both contest, both 2,012,002 aumf is a substantial break from what it been the consistent practice of the united states, for the first 200 plus years of its history. just to take a counterexample during world war ii when i think there's no question were powers were all on the table, that we were at war, the constitution allowed us to be at work, congress with out of its way to declare wars separately against every single country against whom we were fighting or who was a co-belligerent of germany.

one of my favorite tree to questions, what's the last coach with which the u.s. has declared war? the answer is romania. go try that at home. it proves the point there was never a thought that simply because we are at war with germany we were there, congress had therefore signed off. congress instead took upon itself to go in several authorize force against each country we were using force against. that was the model that prevailed all the way up through 9/11. this is the problem we have confided in 18 years since. >> one is a curious evolution of this 2001 aumf is the instantiation of the notion of associated forces. because in that short, key provision, that 60 word sentence, there is actually no mention of associated forces. can we talk a little bit about how that is become part of our prevailing rhetorical logic?

>> sure. so i believe that term was first in some legislation i think in 2006 in the detention context. so it was really about who could be detained, who had been captured sort of on the battlefield. so not just al-qaeda and the taliban, but if you had other groups who were fighting with them, then they would also be detained both. now, the obama administration took that term and really kind of ran with it, and they developed a definition of it which is sort of, it's a two-part definition which is they use the term co-belligerent in the conflict and as entered the fight alongside al-qaeda or the taliban in the conflict but is still a very malleable term. we don't know what entered the fight means. now we really talk about war as the doctor traditional war, not just battlefields with soldiers fighting against each other.

we don't know into the fight could mean someone, you know, help giving getting advice to e on how to make a bomb or something like that. it's a term we don't know what the definition might be but i guess the main point is that that term has now been read into the law by the previous administration, , accepted by te current administration, and it is now led to the situation where we've been fighting dozens, over a dozen groups in 19 different countries. as as a result of his term of associated forces and it's one of the problematic terms that's out there which has led to hearing now the top of today about the administration potentially trying to say that the 2001 aumf covers iran, one of the theories we're hearing, sort of the ruminations of what might be a theory, a connection between al-qaeda and iran, so that iran could potentially be an associated forces it's a really problematic term.

it's not in the 2000 aumf itself. we have a definition out there. the parameters are not very clear, and it's really sort of open to abuse. >> i will just add, it's worth stressing, heather alluded to this, the extent to which the detentions of so-called enemy combatants drove a lot of the policy initially, but how that's change. in 2006 the terms associated forces became a port because government was trying to figure how to win hades cases brought by guantánamo detainees at how to defend the detention of folks might have a peripheral connection to al-qaeda. the problem is as time went on the detention cases receded and their importance and the more than that it uses a, especially during the obama administration when there were no new dtv knees -- no new detainees and that's what he saw the mushrooming of this definition.

congress and i think fiscal year 2012 national defense authorization act specifically authorized the detention of noncitizens outside the united states if they were part of associate forces but didn't bother to define what associated forces work. the most important statutory reference to associated forces is to the term devoid of any context and is the itself on applicable to military detention, not to targeting. associated forces is this medically important issue that has never been fleshed out by statute. it's never been fleshed out by the court because there hasn't been a single case where the court has been asked to decide is group x and associate of force, so it's left entirely to not just internal executive branch determinations but also classified with the government will not even concede on the record which groups it treats this wit way under the 2001 au. so not exactly the way to run a

railroad. >> one of the of the key fob once in the years since 2001, most recently with the naming of the iranian revolutionary guard corps as a terrorist organization is that, and a litter actually buy chairman risch in the form senate relations committee to the ongoing concerns is we are now seeing state actors being named under the 2001 aumf. where does that go? what might that lead is perhaps more importantly is this new high-speed, new uncommon or otherwise not understood is the normal prior to this most recent development? >> i mean, so i think it's worth trying for as long as we can to preserve the distinction between groups that are designated

foreign terrorist organizations like the irgc, the iranian revolution guard corps, which is a much broader definition and this that depend upon the same connection to military hostilities, for example, that the aumf does. but as opposed to who is an associate forster i'm not sure which would point where it's clear that or any other state actors who are covered by the 2001 aumf although that may the where we are drifting. the larger point here is that this is a conversation that as an original matter of constitutional interpretation and as a historical matter, is a conversation which congress is supposed to play the central. with regard to the designation process, congress has by statute set out a whole bunch of very specific criteria that the secretary of state is supposed to use in deciding whether group x is a foreign terrorist organization, to designate them. once that group is designated as

a process for the group to challenge to see if the criteria were applied in a matter that was procedurally fair and substantively correct. that's the way it should work and that's not at all the system we have under the aumf partly because congress has acquiesced so completely in however these recent administrations have trumpeted this now almost 18-year-old statute or the problem is not just the drift towards nationstates as hostile. i think the general abdication of any responsibility for policing the scope of the statute. >> yeah, i would just add to that as well that we know congress is a product that is supposed to determine when the u.s. goes to war and against whom. we had sort of things so now the president makes a determination, this group comes under the aumf. we are at war with his group. if congress does nothing then we are at war with this group.

it is dangerous, it's standard in and of itself, but to drift into now being able to say that a nationstate could potentially and everything all the entire military force that that nation has behind could potentially than also come under the 2001 aumf is really a significant expansion from what we've seen so far. like, so for associated forces have been limited at least publicly, there's a lot of classification -- classified information we don't know about at least publicly associate forces have only ever been nonstate groups. they have never been nonstate before. >> just to underscore that point, the significance of the 2001 aumf i think it really did change, it changed war into america's sort of default setting. it's not a departure from a peacetime norm. it's what goes on in less data stopped.

presidential wars are hardly unknown before 9/11. there were tons of them, short,, sharp engagement like grenada and panama, even enforcement of no-fly zones over iraq, but these are usually historically they were a departure from a baseline of peace, and what has happened over the last going on 18 years largely because of the 2001 aumf is that it was sort of one congress one vote one time, and war has become the new normal. my favorite recent example of this is the, over labor day weekend in 2016, the little story in the "washington post" about how, over that weekend the obama administration launched a nearly 70 airstrikes over six

different countries, and the "washington post" story, to its credit, covered it. well, this shows how pervasive war has become. i wasn't a store anywhere else. it was just sort of this interesting news item. two decades before that, 70 airstrikes across six countries would have led every nightly news broadcast. here it is just sort of an afterthought, that it's even noticed. it's become such the backdrop of u.s. policy with so little congressional involvement that we were barely able to notice when it happens. >> i would just add that one of the things we don't talk about very much, the cost of these wars, how may people have been killed, the financial cost. is to give you an idea of the

figure, it's about 500,000 people who have been killed, and about 250,000 of those have been civilians. there have been close to 7000 u.s. service members, about 50,000 have return home injured, and in the din about 300,000 have returned home with traumatic brain injury. that's not including of the people with posterior medic disorder or other mental disorders that have arisen as a result of these wars. the financial costs are now up to $5.9 trillion, and there's a really fantastic institute at brown university called the cost of our project at the watson institute at brown university and a getting ready to unveil their latest figures on the fiscal costs. it's very likely going to go over the $6 trillion mark. this is just information that we don't hear talked about anymore. it's just become the sort of new

normal, and it's troubling. >> steve, who described a sort of general abdication on the legislative branch. gene and heather, , you both described a drift towards permanent and unpleasant state of war. as an interested observer though i seem to see a degree of reawakening of congressional muscle as late. could we talk about that a little bit? there was some interest and attention to a new corker-mccain aumf discussed last summer that had some problems perhaps baked into it. i would like to maybe touch on that briefly, but also as the days and weeks have progressed this summer i think to the ndaa process we've noticed congress is perhaps feeling its oats again and perhaps this is activity we may want to

encourage, to bring better balance to the executive, legislative accord. >> i think it's certainly been nice to see this reawakening. i think i might call it a sort of stirring as opposed to reawakening because there's this formal institution in the way of actual legislating getting past called the u.s. senate. but i realized where i'm sitting that may be an unpopular viewpoint. it's worth stressing the proposal to reform and not just repeal both the 2001 aumf and the 2008 a have been on the table now for the better part of eight years. this effort picked up steam starting around 2011-2012. president obama himself sent a proposal to congress. it's virtually unheard of for a president to propose, to introduce legislation himself that would limit his war powers and get the obama administration

drafted a bill that went nowhere. it's nice to see the attention. the problem is i don't have the sense there's any consensus that it's a problem. that is to say, this is something urgent that requires congressional reaction in the way that other deserving topics have received that reaction lately. to me the real sign that this is going to have some momentum is not just going to be there's another new proposal with bipartisan support. it's going to be if leadership from both parties is talking about the importance of pushing this legislation through, and i made missed it. i live in austin, texas, now. we don't sort of live and breathe everything that leadership says, , but i don't think i've seen that from the leadership. >> i would agree with everything that steve said. i can talk a little bit more about where we've seen movement. i think it is because i am

dc-based i get excited when anything is happening. so recently to the ndaa process, last month we did see some movement in the house. we did get some good votes and some good aumf related votes. the 2002 am/fm which i talk about the iraq aumf, the house voted i think it was to win a free two-180 repeal the 2002 iraq aumf, to disappear the first time in 17 years without a chamber of congress take that vote. another bill interesting aumf related amendment that passed was about the 2001 aumf. it was a sense of congress that the 2001 aumf had been stretched far been what congress intended and essentially had been used as a blank check for global war. and that it had a second part to it where it said any new aumf should have important limits to

ensure that this doesn't happen again, and the type of limits that were in there were sunset, so an expiration date, something that would force congress and the administration to come together, look at how forces been used to determine whether to continue to reauthorize it, to refine it, to let it expire, that sort of thing. also specificity about the groups who were targeted. as steve said, congress tried to do that with the 2001 aumf. they tried to be very clear about who force was authorized against. we didn't know for sure it was al-qaeda so the said those responsible for the 9/11 attacks. so the recommendation or the sense of congress said we need to be clear about who force is authorized against. also geographic limits. so we don't get into the situation where we're in we art were we've had operations in, i think we that operations in 19 countries since 2001. that was another provision that was adopted at the house. and really like the first time

that we seen something like that be adopted. also through the defense appropriation process there was an amendment that passed in committee from representative barbara lee who was the only person to vote against the 2001 aumf way back when. and that amendment would repeal the 2001 aumf eight months after enactment. so the purpose of that is to give congress time to look at the current scope of operation, get sufficient information from the administration, hold hearings, determine where we should be using force anywhere, and take a vote as to whether to continue any current operation. that's what's been happening. it's all on the house side at this stage. there is an arresting with a to repeal the 2002 aumf. it would also repeal the 1991

iraq a you met, the goal for aumf. there's concern, let's just get both off the books. that is a bipartisan bill, so that is senator kaine, tim kaine, todd john-there are a couple of other cosponsors, senator mike lee and senator chris coons have also signed on to that bill. >> that's helpful. i wanted to get to a couple of matters that were raised recently at a senate foreign relations hearing a couple weeks ago today actually led by chairman risch. there were a couple of points that i took note of from the acting legal advisor testimony, namely, the applicability of the 2001 aumf to iran. in his estimation it did not apply to date. that was an interesting caveat.

likewise, a reassertion of certain administration consistencies about what would entail the in to a 2001 aumf, namely, a new aumf that would be a replacement that would come before repeal, as i understood it, and would not place any geographic or temporal boundaries on the commander-in-chief's latitude moving forward. i would if we can touch on those points and then maybe focus on what the future reform efforts might look like but i wanted to reply to this committee hearing in particular, namely the matter of whether or not the 2001 could apply some point in the future and also some of the presidential consistencies about strictures on a replacement aum

aumf. >> outgo first and then you guys can clean up my mess. i think to the former, i think heather alluded to one possible line of reasoning, to try to shoehorn i ran into the aumf which is to treat it as an associate force. into the forest or increasing alignments perhaps between iran and al-qaeda especially in certain parts of that part of the world. i've always thought and my colleague bobby chesney and i talked about this on a podcast, i have always thought the more plausible, still not very plausible argument, is to go back to the harboring language in the 2001 aumf and basically say it's not that i ran is actively engaged as a co-belligerent on the battlefield. it's that iran is harboring at least x number of al-qaeda soldiers and fighters, either physically within its territory or through the assistance it is providing here because there's never been any flushing out by the harboring language in the

aumf means. i still think that's really going far beyond what congress intended. but because there's no real mechanism for congressional push back because these are not indicated in the course, i don't know what would stop and aggressive assertion by either the state department or ocher -- or olc or the two of them together that iran had harbored. as for the objections, my reaction is i'm not sure what a new bill is accomplishing. if it doesn't have any restrictions. i guess it's theoretically possible you could have a bill that literally lists groups and says these but no others, and otherwise doesn't touch the 2001 aumf. to me that would be an improvement over the status quo that i can't think of any other bill between what we are today and what the administration says is a nonstarter that would be a

positive development as opposed to a negative one. >> and even the bills, the replacement aumfs that event introduced in the last few years, , even those that do have geographic or temporal limitations in them, most of them seem to grandfather in a lot of the grounded, the executive branch seized by force, corker-mccain, if i remember correctly, had a process whereby the president could just designate new associated forces and congress have the ability, which it would have regardless, to try to de-designate them if they could muster vetoproof majority. that's what strikes me any

replacement for you mess up that i've seen that came up during the fight against isis, most of them would just start the clock on a new authorization that itself can be tortured into new delegations of congressional power. >> gene, you mentioned the executive branch had seized some of these authorities by force, but one thing we haven't talked about yet is the commander-in-chief's purview, given article to authorities. can we talk a little about what that means in terms of maybe the offenses -defense -defense of ba congress or the executive may try to accomplish? and then i think, i have about five minutes left before go to the q&a and i may want to end with a russian about necessity of a aumf based on this article ii authorities and powers so to

someone what julie on the grenade first? >> i think the president clearly retains under article ii some defensive military power. at the philadelphia convention, madisons notes reflect a discussion where they talk about it as having the power to repel sudden attacks. nobody, you know, the strictest constructionist, the staunchest congressional list on war powers wouldn't say that the president has to call congress into session if the country is attacked. now, what the parameters, you know, how far this defensive power extends is something that can be debated. the executive branch, some of this came up at the senate foreign relations committee

hearing where there's a a notin that the president has sort of a residual article to power -- article to my power to use military force that is constitutionally short of war to advance important national interest. some of this came out of the olc memo, the office of legal counsel memo, written to justify the libya bombing. and there's a notion that if it advances, the olc opinion which was since adopted by the trump administration to justify military action in syria, the notion is that if the president is advancing important national interests and the nature and scope and duration of the operation is expected to be short, in libya it was seven months, he can do a little light

bombing and things like that. i think this is, it goes far beyond what the original understanding of the president's defense of war powers are. >> to sort of, to drive the point home, i think there's a critical but very subtle shift in how olc, which is often times, ends up being the definitive expositor of the executive branch is positioned, approaches this question. where a time article to the cost of president to use force on a relatively small skill. when you have a situation where u.s. personnel or what is a clear and imminent harm to the u.s., and important national interest justifying use of force, and that has become an or. or. the starting with libya and then with the syrian air strike again in 2017, now imminent harm to the u.s. or in our important

self interest. that subtle but that takes us away from article two because wherever we draw the line between offense and defense, things that are in our national interest but are not a response to imminent harm to the u.s. or u.s. persons clearly is not the kind of -- madisons talk about not what the supreme court blessed the one-time it is talked about this in 1863, so i think it's a weird because on the one hand, the breadth of this article two arguments do, i think what your final question is getting us to come mitigate to a large degree the need for these aumfs. they also become divorced from any possible reading of the original understanding. >> in the final thoughts on the panel or can we turn it over to q&a? i see a couple hands up front.

thank you to my colleague for bringing the microphone out. a friendly reminder if you would be so kind to state your name, your affiliation, and if you would be so kind to state your question and a form of the question that would be greatly appreciated by our panelists. >> everybody has talked about the successive administrations tendency to want to go to war, and then also about quote-unquote national interest. but nobody has spelled out what is the motivation, whitey think these administrations are going to war? is the economic? is it the military-industrial complex? is it their donors, their base? what is the reason they are straying so far? >> i mean i guess, yes. everything is irrelevant. i think one of the things that gene mentioned before is that we

have since 9/11 progress of develop this over militarize approach to responding to terrorism. we talk about war is supposed be the last resort but it's almost become synonymous with war is the best resort. it's not the case. there are other nonmilitary tools that are under resourced. we are not using diplomacy as effectively as a should be. we are not looking at develop work, humanitarian assistance, even of the ways dealing with counterterrorism. using intelligence sharing, law enforcement all of these other tools in the toolbox we had a much more militarized approach to managing foreign affairs i think that's a big part of the reason why it's become so easy for three initiations now to choose war as way to try to solve a foreign affairs, a foreign relations problem. >> i would just add i think we said i think we all agree that

the bottom line across across e street demonstration have largely been consistent. i think the motivations have not been. i think there are different explanations for why at different critical point they government went in particular direction. i think inertia in this context is a much more powerful force that it ought to be and that we often appreciate. it's worth going back to the very beginning of the obama administration. president obama came into office and on the second day signed an executive order to close guantánamo, had an opportunity to in the military commissions and really to try to move was off the war first footing. i think to a large degree failed to do so. i think that was one of the most important failures of the obama administration, what you think that's a good thing or bad thing, it was clearly a failure. to the point where by the time isis really emerges in 2014, the

administration just sort of defaulted to the notion that of course this is something going to address with offensive military force and we don't need to go to congress. we will embrace arguments that we ran against in 2008 because it's so obvious this is what we have to do. some of it is a reflection of broader themes and currents in sort of cross partisan approaches to foreign policy. some of this is just the politics of national security are deeply toxic and there's almost no significance, lyrical value as opposed to moral rectitude in being the peace president and in being, you know, let's get us off the war state. president obama was immensely successful in reducing our footprint vis-à-vis guantánamo but there are still detainees there. that's a microcosm for the broader shift we seem. i don't think it will be

surprising that the current administration is not interested in these arguments at all. >> the gentleman right here, beard and glasses, please. >> when the administration answered our committees question of whether or not the 2001 and 2002 aumfs could be applied, they said those authorities could be used as congressional authorization to defend partner forces that were threatened by a grant. so i'm curious what you think we should make of executive branches claim that it's a noncontroversial and unremarkable assertion that congress has authorized the executive branch to defend partner forces against any enemy that they may face. >> go ahead. >> yeah, i mean come is really interesting, that latter, because on one hand he said today the 2002 amf and -- have been used to interpret to use

office for skins are meant but had this huge at saint it may be necessary to defend u.s. or partner forces in intention counterterrorism operations and the city established a stable democratic iraq hurts again they are reinterpreting the 2001 and 2002 aumfs to have this purpose that is entirely not intended by congress. it's incredibly dangerous and it's a huge caveat and it's a potential slippery slope to really get us into even more wars because of the breadth of it. from my understanding that means that if u.s. or partner forces are conducting operations against al-qaeda and then they come under attack for some reason, by iran in this particular session, then the 2001 and 2002 aumfs would authorize u.s. forces to defend

either themselves or partner forces against iran in the situation. the worry is once you've use force to defend the u.s. or partner forces, then do you just get dragged into another war? it's one of the other issues where seeing evolving interpretations of these aumfs. really the only way to address that would be to repeal them. if something was a replacement, to be incredibly clear about what congress is authorizing and didn't have a sunset in there so that does need to be reconsidered every few years. it's a huge caveat. it's a real problem, and it just opens up the administration to be able to say can you spot a a force far beyond what was ever intended. >> my friend kate kaiser here as

a question. i'm sure she is going to put us on the spot. >> i hope not. on the policy director at win without war. gene, i just want to pick up an article that was handed out, so hopefully you're familiar with that, the talked about the need to repeal but not replace the umass and go back to kind of a more first principles question of what our the u.s. national interest in the middle east? and do you think that a problem of violent groups who perpetrate terrorism actually have a military solution, and if we should be rethinking this entire paradigm that we find ourselves in rex thanks. >> sure. well, i more of a legal analyst than a national security analyst, but it does seem to me that conceivably, you know, there was a military response to september 11 of some sort, could

have been justified as a security matter. you could make, go to argument for what the 2001 aumf was originally designed to do and what the people who voted for it thought it would do. i don't know why we are still there going on 18 years later. but i think steve touch on this a bit with, and article two discussion. to the extent a military response to threats emanating from the middle east from terrorist groups is necessary, i think you can make a good case that the president has some residual defense authority, whatever repelling sudden attacks means and the modern context, it needn't mean you have to wait until they get the

first punch. if you had good intelligence of an imminent, where imminence actually means imminence, you would have the president i think would have a strong argument for being able to take military action in the absence of any statutory authorization. .. or are we just -- we're already engaged and the military is usually not keen on taking on big new projects, but we're usually keen keeping doing what they're doing. and i think a lot of the costs of this, which as heather

mentioned are substantial, are hidden from americans not in prior wars. it seems to me that whatever national security interests we have in the middle east that require the use of military force, i think they are far narrower than what the current executive branch interpretation of the aumf would suggest and i think the united states and its interests could be perfectly well-maintained if the aumf, if both the aumf's were repealed and not replaced with anything. >> i think to implement that, the question historically would have been and was indeed after 9/11, what would a statute allow you to do that you can't do under existing authorities. that's how we used to think about this.

why should we pass a new statute compared to what you can already do. in the presence of the president's article two powers, from the recent administration, i'm not sure what the answer is to what the government today needs. either aumf four in contrast where it believes it has the possibility under the aumf, there could be an answer, but that should be the dominant question, does it cover iron, does it cover-- no, no, why do you need the aumf beyond the force to protect the u.s. troops, u.s. installations? what are you trying to accomplish? that's what they would require to be answered instead of assumed it was signed, sealed and delivered. >> i want to exercise the moderator's privilege, one item i want to enter into the record is the war powers resolution

because that's floating around there, it's obviously been more prevalent in congressional deliberation and debate, and even in a couple of votes or more than a couple of votes recently. how does that matter of the 73 war powers act, and i see steve laughing because i think this is a question that may demand more than six minutes or whatever. we probably still want to hear from a couple of staffers. can we briefly touch on where the war powers act fits in and-- >> it doesn't. i won't need six minutes. the war powers solution sucks. and there's an article, suppose congress wanted a war powers resolution that works. the promise of the war powers resolution, it has interpreti interpretive-- what it creates for strain in executive uses of power, the provision, either both houses of powers can pass a concurrent

resolution, it's probably -- i think it's telling that this debate is almost never about the war powers resolution because presidents don't feel constrained by the war powers resolution and if anything i think it's a drafting exercise because it requires them to write memos differently, but that's about it. >> could i just add to that as well, i've often heard it say that the war powers resolution gives the president power to do x. the war powers resolution doesn't actually give the president power to do anything. if the president has any power, that's the power that the president might have under article two of the constitution. the war powers resolution sets up a framework, whereby if the president can use force under article two, can only do so for 60 days before congress can sort of bless that.

otherwise they have another 30 days to withdraw troops. i want to put out there, the war powers resolution doesn't actually give power. i will say in a little bit of defense on the war powers resolution, it has been very useful, you know, in terms of some of the votes that we've seen, for example, on yemen. the yemen war powers resolution where you had both houses of congress voting to say that, you know, we need-- that they want the u.s. involvement in the saudi-led war in yemen to end. you know, the administration, they did stop refueling saudi aircraft. so congress has been able-- you've got to take your wins when you get them. >> stop refueling in mid air. we could still refuel on the ground. >> any questions from the audience? >> gentleman right back there in the blue shirt bearded. >> thanks. ethan paul, senator casey's office.

so in the like high event-- likely event that congress doesn't do any, what role would the courts have in ensuring that the administration is legitimately interpreting the existing aufm's or war powers, article two? >> to make a long story short, what we've seen at least so far is that the courts have been virtually allergic, not since 9/11, but historically, to intervening in interbranch disputes over the scope of war powers. and this is true in vietnam as well. in the nondetention contest, i want to say in the nondoe tension context, the court hasn't made a decision as to the scope of aufm and whether it applied. in the context where the court has been active and the supreme court lead has been detention cases when you actually have someone in custody and the

government is saying we can detain them because the aufm allows them to do so. if that context we've had a fair amount of law. the supreme court in the hamdi case in 2004, the one time the court really interpreted aumf, held it did call for military force, as long as he was captured while fighting for the taliban there and there were fleshing out details for non-citizens. the problem is that class of military detention cases is right now a closed set of dwindling cases, where none of the 40 guantanamo bay detainees are being held under the associated forces rubric, they're held on the ground they're part of al qaeda and taliban. there was one case of a u.s. citizen who was held for over a year in iraq after he had been captured fighting on behalf of isis in syria and that might have led the court to decide whether isis is covered by

aumf. but got him released before we got to that case. i'm the first person who suspend that the court has a role to play in that context and the last person that thinks it's going to happen because the government can an n i -- avoid that and long-term military detention. >> to tie that back to the war powers discussion. a lot of proposals you see for strengthening the war powers resolution, if i can recall, the war powers act that would work or combat authorization act, whatever he called it, seemed to depend on roping the courts into -- no, really, you should really hear these cases and should really rule on the meritsment if that's a non-starter do either of you think there are ways that war powers resolution could be

strengthened, you know whether tying it to funding, narrowing, or overspecifying the definition of hostilities? is there anything that would help in that direction? >> sure. i mean, i think among other things, we've learned a lot about how to define hostilities in a way that won't allow the administration to avoid the war

right levers pointed in the right direction, but it's going to require not just a congress that puts institutional interests ahead of the politics of the moment. it's going to require a congress with supermajority vote of both houses or a president ready to surrender more power than any president willingly surrendered. >> i would agree with everything that steve said, but right now you have it so the 60 days passed, when the president is using force without congressional authorization unless congress votes to authorize that the president is supposed to stop. either you could have it so that instead of veto by silence, essentially, the congress is required to vote yay or nay whether or not military operations should continue. we have time for one last question. the gentleman in the ball cap? thank you. >> good afternoon and thank you all for being here.

my name is julian kyle lewis from the american university here in washington. myself and some of my classmates were sitting in class one day, we were having a discussion and we side hypothetically if some folks came from another planet and they demanded to all of us, you know, take us to your leader, we-- would the citizens of the world allow us to present the president of the united states on behalf of everybody around the world as that leader if folks from another planet came and asked? so my question for you all is do you think we need to visit the actual qualifications for what it takes to become the president of the united states since none of us can figure out how much power the president has to keep us safe.

>> that's a grand hypothetical. >> the scenario is only slightly weirder than what has actually happened. the founders would not have been surprised that we had a bad president. right? that it would not have come as a shock to the drafters of the constitution the way our political process is set up every once in a while a president is elected, for whatever reason, deeply controversy and we might disagree which president that might be. what they would have been floored by the separation of parties has become more than the separation of powers. given both that the founders weren't expecting there to be political parties and the founder believed as madison writes in 47, the way to make this work is have ambition counter act ambition. so i think to me, i don't think the story is about george bush or barack obama, or donald trump. i think the story is about congress increasingly not

taking as its first priority the assertion of its institutional authority vis-a-vis the executive branch politics be damned. to me that's not a story about the current president, it's a decades long story about congression congression congressional quiessence. >> that's a great way to end up in dirksen office building. and friends working in the capitol, the catering, c-span, and upscale what i think is a remarkable conversation. thanks to you all and most notably, our panelists. [applaus [applause]. [inaudible conversations]

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[inaudible conversations] [inaudible conversations] >> and we're live at the center for strategic and international studies in washington for a discussion this morning on u.s.-china relations since trade differences and negotiations continue. we'll hear from former treasury department officials. this should get underway live shortly here on c-span2. >> a crowd on an august morning. thank you all for coming