general james jones of the

obama administration testifies about u.s. strategic interest in pakistan. that is live at 9:30 a.m. eastern on c-span3. >> coming up on c-span3 later today the future of oil and gas and pending legislation and a senate energy and natural resources committee hearing. can salazar and deepwater horizon incident commander admiral fat alan at 10:00 eastern on c-span3. now a look at the u.s. economy and jobs. this hour-long event is part of a new america foundation conference on the future of the federal reserve. >> a direct the asset building program at new america foundation. we are a program that will set policy packages for economic security and opportunity especially in ways to help

families build up assets over time. we have a longstanding concern about proliferation of financial products that often target lower income families and low income communities. being able to manage your money effectively is one of the essential components of charting a path toward economic security. this is something that extends up and down the income scale. in recent years a bunch of things have gone wrong with our system of delivering financial services. we have got this ray of high cost low-quality products that are out there. they created new centers for banks and non-bank actors but they really hurt the rest of us and played a real role in creating the recession. and played a role in the housing

bubble as well. before the recession took hold at new america talking about the idea of creating a financial products safety commission. we got this idea this morning, household names, this was a concept we thought had a lot of value. the edwards campaign endorsed this to work in the last election. this was a concept that got into a debate around financial reform that led to the dodd-frank bill and created the consumer financial protection bureau which i do think is a fairly significant and meaningful achievement that potentially can remake the financial service's planned case. the fed had major responsibility for protecting consumers. it wasn't their primary concern and they didn't do a good job of it. it laid the foundation for the

argument that you needed to do cost on the beat which is what we have got now. so we want to see how this new agency will rollout. it will be house that the fed but by statute be given a lot of autonomy. what is at stake in the rollout and how can the fed in short it is an effective and to the, how will other issues of accountability be addressed by the fed, the community reinvestment act that still requires a major fed attention. how will they regulate each other in the new landscape and find out examinations and what are the residual responsibilities of the fed that we should expect them for in the future?

those of the questions for our panel today. they are going to look get these and other matters. we have an excellent set of them for you. lisa donner plays a major role in the financial reform debate and helping public discussion unfold in a productive way. travis plunkett is at the consumer federation of america, very effective advocate for consumers and one of the most lovable people i know on a lot of these issues. we are pleased to have him here. and ed mierzwinski has been at u.s. perg for a long time, another go to experts with a lot of background for reporters, analysts in these discussions so we are happy to have him here.

i will pop up and moderate the discussions for all of you. so lisa, why don't you come up? >> which one of these to worry about? thank you for the opportunity to be part of this conversation. reid asked me to talk how we got where we are today and about consumer stocks and briefly about community investment. to state what i think is obvious to this group, failures of consumer protection by the existing bank regulatory agencies, one fundamental source of this financial crisis and economic disaster. wall street's finances whether borrowers can repay them seating in to the securitization machine created an explosion. the closer you look the more obvious it seems to me that

adequate consumer protection should have turned off that's the get. the more you look the more you see calls to do that. they were ignored. it wouldn't have taken remarkable foresight or remarkable toughness or resistance to captured acts. it took a pretty remarkable blindness and ideological commitments to inaction and a remarkably high degree of identification with the institutions but that was supposed to be regulating. that is discouraging in some ways but probably encouraging in others. in terms of the possibilities of doing better in a new regime. as is now widely known, the fed had the authority, the authority two times over to act to rain in abusive and fraudulent lending and was shown evidence of the problem and asked to do something about it and failed to do that. one piece of that is rulemaking

authority under hopa which gave the fed authority to regulate unfair or abusive lending practices in the purchase and finance loans regardless of the interest rates as well as by statute and making certain things illegal on a tight group of the highest cost loans. the fed knew they had this authority. the fdic report talked about a meeting in cleveland in 2000 or 2001, where folks in the community laid out evidence of the doubling of the foreclosure rate in that city from 1995 to 2,000 as a result of abusive lending in the front of a wave and governor graham talked-about hopa authority and power not to be illegal. nothing happened.

the fed contemplated using that brought hopa authority and failed to do so. they contemplated action and failed to do so making for a good picture. the contemplation of action was around a specific case of borrowers -- homeowners not being refinanced out of habitat for humanity, zero interest rate loans in the high rate refinance loans people promised a lower payment by virtue of debt consolidation and rolling your credit card debt into this. people were families who got their homes with what equity and a zero down payment habitat for humanity loan for using -- losing their home. the fed put out a proposal to make that illegal and they withdrew the proposal without comment. the one will they did take to climb on any of this, taking --

using their specific authority to see if they did the side single premium credit insurance should be defined as a point, this was a product that charge people for insurance that pay off their lines if they died or got sick for lost their jobs. below 15,000 jobs--$15,000 upfront with point and fees and a huge equity for these. after fannie and freddie divided they wouldn't buy loans with north carolina essentially -- calif. in a major battle. there were almost gone, the fed acted in that one way. so hopa was not the only place in which they have authority to act to curve sub prime lending. they could have acted under their equal credit opportunity act authority and as a picture of what was presented to them and not act on, in 2010, the hud

and the treasury put out a report on sustain organizing and pressure and among the conclusions of that report were the sub prime loans were five times more likely in black neighborhood than a white neighborhood and home owners in high income neighborhoods were twice as likely than those in low-income neighborhoods to get some prime loans. and had it is included, their analysis demonstrates need for timely and concerted federal action in this area for access to prime lending in these communities and protect sub prime borrowers from dangers of predatory lending. authority under the equal opportunity act, nothing happened. in addition of the fed has supervisory authority of and by bank holding companies but not under directly or indirectly by banks and this ultimately included the biggest and most dangerous sub prime and all day lenders including acp finance, countrywide, wells fargo financial. large group of firms the federal

reserve took one public enforcement action before underwriting in 2003 and 2007. as a last category of inaction in a way, having many economists, studied the problem but it was in a notable feature, my personal experience i know many people's experience that evidence of abuse of lending was present the -- the answer was throwing at consumer advocates and community residents show us the data. that is just anecdotal. we can't act with more data than that. rather than taking action, they set an impossible bar from the public. we all know the consequences. the market exploded. wall street didn't tolerate risky mortgages but the absence of action preferred them. sub prime mortgages generated higher profit margins. according to the times profit

margins at countrywide where 2% right before the bus versus 0.82%. by 2006, home-equity lending and some prime or more generally -- home-equity lending had reached 48% total lending volume. 44% of sub prime loans were not sold and nearly 25% of all borrowers were taking out interest loans loans. it is no wonder failures in the mortgage market can be disastrous. in 2006 more than $10 trillion of mortgage debt outstanding in the u. s. u.s. bond market is something like $35,000. it is a very big market. that is not the only place the fed failed to take action or have consequences for consumer pocketbooks and therefore the economy as a whole. and overdraft to take one other

example. regulators including the fed identified the problem eight to ten years ago and put out a guide including many good ideas like requiring customers to opt in and limiting it to overdraft fees but they called it best practices, made it an explicit there and not going to enforce it but many practices they recommended against have only gotten more frequent since then. it wasn't until congress started to act post-crash that the fed and other regulators took action though their problems left. you get a sense of the size of the problem on overdraft. in 2009 consumers begin to mostly low or moderate income folks spend $24 million on fees. that is on cash advances of $24 billion on cash advances of $21 billion. for perspective on that number,

total spending for the food stamp program was a little more than twice that in 2009. real money out of people's pockets. we could go on with credit cards and prepaid cards, a source of banking for low-income people. bank fees, heyday lending and $20 billion in auto markups. why? some combination of ideological commitment to not regulating. chairman greenspan said he did not use his authority under hopa and didn't want to limit financial innovation. making this was arbitrary and he believed market sources would be fair. identification with the industry, not focusing on consumer protection, subservient to bigger pieces of the mission and protecting the banking system as folks less important than macroeconomics and thanks of the primary focus and failure

to allocate resources of consumer protection, split responsibility and competing responsibility for things. we will let travis talked-about the ways in which the new regime is designed to take that on. one other thing and i will turn it over. the sort of perspective on the community reinvestment act from consumer and community groups on the one hand there is tremendous success attracting trillions of dollars in investment to communities that would have happened otherwise. on the other hand the sub prime mortgage crisis was evidence of all its failure to do the full job it should have and over time problems have gotten worse including problems that require statutory change like more assets, and a bunch of regulatory problems. 99% of the biggest banks getting outstanding ratings, no longer making sense, agencies including

the fed not taking seriously their responsibility to enforce the law because enforcement is so fragile. it is a fundamental problem with weathered has any meaning at all. [applause] >> it is good to be back. the want to thank new america for the relentless and long-term focus on the need for financial reform and increased consumer protection in the financial arena. lisa focused on the past, held mistakes at the fed led to the creation of new consumer financial protection bureau. i will focus on the present and how the cftc will react with the fed and other members going forward and then we will talk about the future. what responsibilities the fed

has left in the consumer protection and fair lending mary at and what we can expect from them and how we can affect them. on the cftc the three underlying causes addressed in the creation of this new agency, as she mentioned repeatedly consumer protection fell through the cracks. not a priority for any of the seven federal agencies that had some jurisdiction. second, she didn't mention it so much but it comes up constantly. the fed and particularly other regulators consumer protection to a very narrow and poorly defined definition. profitability seemed to be the top priority of the financial institution they were regulating rather than protecting consumers and a number of practices were exceedingly possible. but not good for consumers or the financial institutions or

the economy. the third major factor and this was an ideological -- with other prudential regulators there were sexually a conflict of interest. they weren't independent of the institutions they regulated. with other regulators we shot a chart jumping to avoid tougher regulation. we saw assessments of the industry being used to take funding for the agency elsewhere. with the fed it was primarily an ideological bias against regulation. the over focus on macroeconomics just ignoring consumer protection so what do we have under dodd-frank? given those lessons we have a single agency with authority taken away from the seven agencies. over 20 existing consumer financial protection and fair lending laws, and some new

authority -- this is not new. some new authority for unfair and abusive practices. we also have massive new authority over large non banks and some specific categories of non banks usable is to regulate these players similarly. doesn't matter -- whether you are a threat or a small institution regulated by fed or the fdic, the goal is one standard and hopefully a similar approach to enforcement and supervision. as i will mention in a minute, it will be done by prudential regulators when it comes to some small institutions.

another big lesson learned, the agency will be accountable. single agency consumer financial protection for single director. lots of checks and balances on that director but single mission, single agency, single director. if there is the mistake in either direction and ignore consumer protection problems as the fed did or if they overreach and impinge on access to credit in a way that is not constructive or not desirable, they are accountable. it will be very clear who made a mistake. i mentioned checks and balancess. single agency led by a single director has some unprecedented check on their power. i will take off three. first, only example in federal law of any agency being subjected to a veto by other

agencies if they overreach. second, they have accounts on funding. in many ways, the model for the cfpb does not have a cap on its funding. third, the cfpb has to go for a very long, compared to most of the regency, time-consuming rulemaking process. they have to convene panels before ever issuing the rule to look at the impact of their role on small-businesses. so they will get a sneak peak before consumers ever see it. we have an agency that is accountable and the goal is independent. that is why they are -- their funding is not appropriated. the funding is -- the agency will be housed technically with and the federal reserve system. the fed has to lop off percentage of total operating expenses every year for funding. not appropriate. and the fed has statutory

prohibition on what it can do regarding the cfpb. it can't interfere in any decision in any way. occ is the model. similar prohibition on treasury interfering on the otc. of day. what do they have to do in terms of working with the fed? there are many provisions in dodd-frank that means prudential regulators and the cfpb have to work together. we should mention that small institutions with fewer than $10 billion in assets are carved from agency authority to supervise, check the books of the banks and also to enforce laws. so that requires coordination. they can't initiate enforcement measures.

they must coordinate their supervisory activities with prudential and state regulators and they have to consult on examinations schedules and reporting requirements. the cfpb can ride along with these regulators, the fed examines its institutions on a sampling basis that means they will be able to pick out the representative sample of examinations to ride along. the document has to go both ways. the cfpb has to share with other regulators in large banks. and other regulars have to share their data and paperwork on their examinations to small banks. if the prudential regulators don't enforce the law properly, the cfpb can act notifying the potential regulator they have reason to believe a smaller bank or credit union has violated the

law. and must provide a written response. i may have misled you. they can act in terms of identifying the problem. bottom line, they can't enforce it but they can draw attention publicly to lack of enforcement and that will be a significant factor getting financial regulators to do the right thing. did go the other way too. if the cfpb fails to act, any other regulator has authority under the statute, can record. -- initiate enforcement proceeding. if they don't do so within 120 days the agency contract. they can go out and and force. there are some other requirements under the statute. you see a picture emerging here.

these are not -- it needs to the consumer protection and prevention regulations but both impact the other end need to talk frequently and hopefully this will be collaborative and cooperative which we didn't always see previously. the final thing to say here before i turn it over to ed is this is not exactly written in dark black ink. there is this whole arrangement. there is some significant attempt by republicans in both houses renegotiate dodd-frank. last week senator shelby and 43 other senate republicans said that they would not confirm any director for the cfpb, the same position that must be nominated by the president and confirmed by the senate. they would not confirm any person, doesn't matter who, a substantial changes are made to

the funding, there's diction of the cfpb. they want an appropriation process. so unlike any other bank regulators they want to appropriate money to the cfpb to beside their focus on the debt and deficit. they want a commission of five people instead of a single director. and third, they want federal safety regulators, the folks who did so well in the previous crisis, to have even more authority over the final rule issued by the cfpb. all three of those issues were well debated during dodd-frank and rejected because they would undermine the accountability of the agency.

thank you. [applause] >> thank you. i am at mierzwinski. i want to thank you for the opportunity. i am the consumer program director ready u.s. public surged group, a nonprofit nonpartisan public advocacy group. we are on the web at uspirg.org. we are the leading senior and other concerned groups of americans for financial reform. that is the coalition that was formed to help pass the consumer side of wall street reform and in the creation of the consumer financial protection bureau, achieve a great deal by getting this for consumers. for the first time in federal law we actually do have the federal financial agency with only one job, protecting

consumers and as travis pointed out we are trying to protect the cfpb before it starts work on july 21st. i was asked to talk a little bit about the future of consumer protection that the fed itself. of course the cfpb will be housed in the fed and that is the most important rule, as has been pointed out, the cfpb will be and the fed but not under the fed. it is in the financial stability oversight council but not under the board of governors. its budget is set by congress as a transfer from the fed of 10/11 or 12% in the last year of the budget but it is not under. the fed has other important consumer protection responsibilities that it will need to carry out. travis and lisa have mentioned the most important.

i will tell at least one more story. i came to washington in 89. i came with the savings-and-loan bailout cleanup and as part of that, i worked on a number of issues related to the law passed in 1989 and the federal deposit insurance corporation improvement act in 1991 and after it that i was invited -- invited to come over and have coffee with a senior fed official and it turned out to be a little job interview. not to work for the fed but to see if i would be invited to be on the so-called consumer advisory council. so i did a three year term, let off for good behavior on this so-called consumer advisory council. i bring this up of the perspective of the way the fed's culture was not a consumer culture. i granted the 1976 legislation creating the council did say it

was supposed to be an advisory board of consumers and creditors but that meant consumers didn't have a voice. the fed already had plenty of other advisory committees solely comprised of industry members. for them apparently they asked congress for the cac and asked it to be structured in this way. it meant consumers when i was on this call will never had more than 1-third votes. dirksen senate office building always wondered consumers and one third purely industry players and one third free agents, people that travel in between both industry and consumer groups worked for various other operations, journalists, whenever. it was difficult to get anything done at the consumer advisory council. looking back, i know members still exist, it was an example of the fact that the fed had a safety and soundness culture and

banking culture. really has not had a consumer culture. for better or worse i believe it is keeping the cac. one of the other important fights in wall street reform was the fight over expanding and improving the community reinvestment act and moving the community reinvestment act jurisdiction over to the new cfpb. it remains with fed and other banking regulators. there were some political reasons but champions of wall street reform chose not to have the fight over the c r a. in many ways i think the sea are a is an important piece of consumer protection left with the fed. the community reinvestment act simply requires thanks provide services in the communities where they take deposits. enforcement of this law is in

two ways. first, it is in the form of public report cards. public report cards are simply transparent. they are the only part of bank examinations that are public in any meaningful way. as lisa said there's a problem with rate inflation. almost everybody gets that. it needs to improve -- really bad. c craoffers potential to be improved but the offers potenti improved but the real reason it is important that the fed is keeping it and maybe the fed will do a better job is the other part of the enforcement is one of bank wants to move with another bank. won a bank wants to change its structure. they're serving requirements for a review and that review is -- i have been thinking about this. it is the only place where the

fed is forced by the law to engage the public. if a community group makes a meaningful complained about the failure of a bank to comply with its cra responsibilities the fed has to take it seriously in the merger process. heads to hold a public hearing and listen to the public. i think they could do a much better job of that. the law itself is a unique law because it has resulted in trillions of dollars in investments in areas that otherwise might not have been made but it provides an opportunity to pierce through the walls of a culture. i don't know if anyone here has been to the fed. whether the fed in d.c. or regional banks. there's a lot of security everywhere you go in washington for good reason. but the fed is set up like a feudal castle on the plains,

these buildings are gigantic and very imposing and i am not sure the public ever goes inside any of them or would want to go inside any of them. something about the fed's culture that needs to change. for better or worse they are keeping authority not only over their 800 or so banks that are fed member banks. the largely smaller institutions but also obviously because they are a bank holding company, anytime there is a merger there is an opportunity for the fed to take a good look at what the public wants and what consumers want. third is as travis mentioned the fed retains supervisory enforcement authority over those 800 banks. the fed actually has 819 member banks. about 19 or 20 of them are

bigger than $10 billion so the rest of them are smaller. it is important that there be an opportunity for culture of relationship between the cfpb and other bureaus as they continue to share that authority. the fed retains authority over interchange or urban swiped the amendment. this is an interesting one i could talk for hours about. there's market fell your in the bank card business that allowed visa and mastercard to impose their will on mergers and collect two -- and collect $0.02 out of every plastic dollar on average when you go to the store or the public. because of the contract will relationship between the thanks, the networks and the mergers they're forced to pass that cost to all their customers including they're arguably lower income of

cash customers. there is a reverse subsidy to affluent reward cards the owners. and come of with a rule that makes their reasoning and to bust through the antitrust law. we will see what happens. the fed is under tremendous heat from both sides as is congress on that. there are couple small centers that could have consumer protection in their work around the country. the philly fed has a payment card research center. the boston fed has expertise, my main closing point would be if we're going to change the culture of the fed we have to rely on a lot of transfer from the cfpb to maybe get these

operations mayor running to be more consumer -- to think more about aligning the interests of consumers and regulated entities and i think those of you who have been to the cfpb i look at it like a new peace corps. the culture that is being developed by prof. warren and her staff. they are excited and wanting to work with the people in creating a new thing. they have a vision and i hope some of that trickles back because of all the relationships travis describe that the bureau is going to have to have with the fed ended important the president is nominated and approved new fed governors. particularly governor sarah nebraskan who has a background for the culture from the top. the fed needs culture change at all levels. and whether it is being pushed by consumers through the cra

challenges for the cfpb relationship or being pushed by new governors there's a lot of work that needs to be done to make the federal reserve think about consumers. thank you very much. [applause] >> thank you. we are going to jump right into questions. i would note there has been some accountability in both panels, this shows how much can be done to raise the accountability structure and even once we are working with like the cra from another era and that is the nature -- not really lending your community or your region because organizations are operating around larger areas so we can explore that. we will start with a break and come up here.

[inaudible] >> i know from recent reports that the racial disparities are emerging, there's an increase of lending in white communities than black or latino communities and the declination data shows whites are increasingly accepted and a blacks rejected. i would like to know how to interact with the civil-rights division of the justice department and other civil rights enforcement agencies to address these and particularly as we talk more and more about qualified mortgages have a 20% down payment we are going to make it more difficult to low income people to get loans. raise once again is an emerging problem that run the risk.

>> a very important set of questions. it would be ironic if it wasn't tragic for the lesson learned from this round of the financial crisis, return to lending standards that penalize people with out wealth or people in minority communities rather than trying to get rid of loans that people can't repay. there is a lot the consumer bureau can do in this area partially because it has equal credit enforcement responsibility, partially because it has the holistic look at the market, being a war writer and enforcer and looking across the range of products makes it better situated than a more fragmented approach had been. we need to look at the absence

of good products and the presence of bad product and part of the mission is making sure consumers have clear information and clearer choices, is very connected to what you raise. it is a big task and there will be a lot of work. another piece that plays into at and that we have been watching closely is mandated complaint system that the cfpb is required to respond to. existing regulators have been dismal failures and a bunch of ways including that they don't work so why would you tell anything that you never heard of the agency? complaints that people do know about and is transparent and collective information that has information for consumers and folks who are paying attention to patterns in markets that they

serve has potential to provide information that can be followed up on in ways that get ahead of the problem. >> c f a shares your alarm as to whether interest groups with proposed down payment requirements you mentioned. the civil rights community as well. that is the wrong lessons to be learned from this crisis. the issue is sustainability of the loan and improving traffic features in loans, not stopping low wealth families from bringing on sustainable loans for paying them off over time and numbers show that did happen even in the lending crisis. >> one more thing people may not be aware of is the cfpb is gaining authority over credit bureaus. this authority to supervise and examined them that the ftc has never had.

there's an issue of disparity and credit scoring among people of color versus whites and we hope the new relationship, the new ability to look under the hood that credit bureaus will investigate these issues a little bit further. >> right here? other questions? hands? >> i am president of international investor. quick comment. it shakes our confidence little bit that the occ might be the model. >> structurally. that is it. >> it is also concerning to think the director him or herself would be so important making things public when they don't feel there's enough actually taken. looking decades in the future,

seems that could be politicized. the heart of my question is our happened heard any discussion. we have a hard time understanding. if there's anything going forward that would curtail what was at the heart of this problem, that is the profit commission's structure here from the mortgage broker to the loan officer in the bank to the wall street derivativesmaker, all of them were passing along the risk and accumulating commissions and is there anything within dodd-frank to address that issue or at least balance the risk/reward issue? >> one piece of the answer is in dodd-frank, and payment of

fields and direct employees, low -- prohibition on steering to higher cost loans. >> when you get rewarded -- >> you will start premiums with a kick back for putting bar within a riskier and higher cost loan and incentive to make more expensively and less sustainable loans. the fed has a rule outlining those agreements that came out on track before dodd-frank's new law passed and cfpb will return to that. that and the steering with statutory language now in place. >> i am certain you are familiar with other titles of the act dealing with derivatives and credit rating agencies etc.. as i recall, there was i provision in title ken which set

up the cfpb to look at compensationten which set up the cfpb to look at compensation and incentives to brokers. there's some authority there as well. >> just to point out another part of dodd-frank, title ix section 953d requires all public companies to disclose the ratio between their ceos and media employees pay. there's a bill to repeal that provision. nobody wants to disclose how much money these guys make. >> following on travis's point looking at compensation, one of the things that has been interesting to think about for transparency and product in a deeper way than this closure, you have to -- interpret it to mean you have a product that is

not designed to be deceptive in structure and pricing in a way that is sold. that very much gets it. the question of how incentives are structured at every level of the institution. >> you brought up the interchange fee issue and gave a quick summary. the fed is making his ruling because they were instructed to by the legislation. if they weren't instructed to going forward, where would they -- is this an issue they would have emerged? how would it have gotten their attention and what are the processes in place that give them a mandate to take consumer interest into perspective? >> the dodd-frank lot included as i described the girl sponsored by senator dick durbin and supported by americans for financial reform and a number of consumer e economists as well as

the merchants we ended up in a situation where it banks get $0.02 out of every plastic dollar and again, the customer's, pay for that. thanks refuse to negotiate or make it transparent. -- the merchants only bit of part of a problem extending from credit cards to debit cards or atm cards that can be used anywhere and prepaid cards all have a certain amount of interchange. the same smaller institutions that are not under the cfpb are not covered and they can have

higher interchange. the second part is big institutions have to have interchange that is reasonable and proportional. prepaid cards, small banks are exempt. the current average interchange according to the fed's voluminous rulemaking proposal around $0.44, the proposed rules $0.07 to $0.12 they went back to the drawing board and didn't meet the deadline. most people -- a little bit more much more than that. the question -- how are they supposed to consider serious issues they have done some focus groups i understand and they have done their normal rulemaking. they have allowed us to meet with them, consumer groups, and many industry groups. i don't know what the fed would have done if they were not

ordered to do this. >> this conflict of room for more oversight where congress gets involved and says this is an issue to deal with. we are not sure whether they are going to end up in the right place but how issues are identified in the market and how it rises to the level -- >> one other matter that may be the previous panel or the next panel, congress had a left/right coalition led by ron paul and bernie siemens, the odd couple that increase transparency and audit oversight of the fed but in the interim when the lot is being enacted the fed is fighting tooth and nail against freedom for of information from noted journalist organizations such as bloomberg which led the fight to open information about who got all of the injections of cash from too big to fail and

other provisions that the fed had following the collapse. their culture is not to do anything unless ordered to do it. that is why i think congress is important and the president making good nominations. that is why groups such as all of ours are important too. >> we will ask ben bernanke about that too. >> national community reinvestment coalition. i have to make a comment and a question. i want to reinforce what you said about cra. i think cra is a unique opportunity for the public to, and of the activities of banks not just that merg

but cra exams. even within the regulators responsible for cra there has been a shift away from taking those exams seriously. regulators are going through the process right now to examine regulatory changes to cra. if anybody would like to be involved in that i would be happy to talk about it but my question is even though the cfpb didn't get enforcement power over cra, what opportunities do you think there are with cra in terms of aiding the consumer protection culture at the fed for the cfpb to positively influence, you point to a few things. the disclosure act, and leave the cfpb gets the power to release that data from now on and there are ways to make that more useful or throw attention to some of the issues smaller

institutions, are there ways for the cfpb to empower consumers to comment on cra exams? >> improving cra. ideas for accountability. >> also for the cfpb to positively influence the role the cfpb had. >> that is a good question. we are running out of time. the big banks are required to have a loan investment and service task under the cfpb. that incorporates a lot of features of deposit accounts and basic banking opportunities that people have. why are there so many banks per-capita, so few banks per-capita in the other places. why are the offerings in the affluent district better than in other places? i think the cfpb could help to look at the greater detail. too many people get as. it is shocking.

>> one other thing to mention that hasn't come up at all is usually important. the cfpb has a large research mission under the statute. we could sit here for others and lay out greater research relevant to their jurisdiction as fair bending clause that if done properly what has an impact on analysis done by the fed and others related to the cra. one thing is to make sure the research is done in two separate tracks by the agency. proper demographic analysis, every aspect of what they do. >> i think we're going to shift gears and thank the panel for their contributions. it will take two minutes to set up for the next panel.

[inaudible conversations] >> this june on in depth the balance between security and liberty, difficulties of a climate change treaty and limits of international law. questions for opera at university of chicago law professor eric pose their. this includes the perils of clover -- global leadership. live on sunday, june 5th on booktv. >> i am newt gingrich and i am announcing my candidacy for president of the united states because i believe we can return america to hope and opportunity. >> with the field of republican presidential hopefuls taking place all the candidates's announcements and speeches on the road to the white house.

will, at the c-span video library. click and share with everything we have covered since 1987. it is would you want when you want it. >> former cia director porter goss on whether u.s. military action is constitutional without authorization from congress. one of the speakers include the assistant to the attorney-general of the george w. bush administration. this is a little more than two hours. >> welcome to the woodrow wilson center for scholars. i am director of the congress project and your moderator today. for those of you who are not familiar with the wilson center we have quite a few people and our c-span audience watching this on our web site and another time. let me tell you a little bit

about it. the wilson center was greeted by an act of congress as a living memorial to our 28th president. he is the only president to have earned a ph.d.. he was professor of history and government before he became a politician. in 1910 the leader and he was president of princeton, ran for governor of new jersey and served two skiers in that post and then eight years but wilson was a great believer in bringing together the scholars and politicians and thinkers and doers that both would benefit from an exchange of ideas on issues of the day. that is the spirit in which congress modeled this living memorial rather than one more marble statue. we have 800 meetings a year in this facility. this is just a small drop in that bucket but we are very pleased with the type of programs we do. we bring together members of

congress, government officials, journalists and scholars and study and talk about specific policy issues and how the process plays out on those issues on the hill and hopefully enlighten the public cause as to how the congress really works. the two year series we have been holding on the general theme of policymaking, media and public opinion. next we launch a new series on foreign policymaking so there will be of interest to many of you. today i should mention the series is sponsored in part by grants from chevron for which we are very grateful. today our program is co-sponsored by the international security studies program under the able direction of rod lidback. raise your hand back there. the program is on the subject of congress, the you and and the

war power from korea to libya. what prompted this was the u.s. participation, authorization approving the authorization of the security council for enforcing a no-fly zone over libya in march. the president set up a letter to congress in compliance with the war powers act but they are doing that voluntarily because they all said the war powers act is unconstitutional. it was signed into law over president nixon's veto in 1973. the biggest problem is the provision that says if they commit troops to hostilities without authorization of congress or imminent threat of attack on the u.s. they must withdraw those forces within 60 days. that deadline comes up this friday. will be the 60th they on the 20th of this month. will be interesting to see what

the president does or if the congress will move in the interim to authorize continued presence of u.s. participation in the no-fly zone enforcement. this is what prompted me to think a bit more about this subject and what our relationship is with international organizations that use troops from time to time for humanitarian or peacekeeping purposes and relationship with congress. the president did not ask congress for authorization for this particular mission. this has been the case in many instancess in the past. we have a hand out that points out what some of those instancess were. we are pleased to have a stellar cast making presentations from their perspective on this topic of congress, the un and the war power and we are pleased to have as our keynoter porter goss who for 16 years served as

representative of the fourteenth congressional district in florida. very lovely place where he lived. we visited florida and he was a member of the house rules committee being staffers on that committee. as many of you know he was also chairman of the house intelligence committee and became director of the central intelligence under president bush in 2004-2005 and was appointed under terms of the new intelligence reorganization as director of the cia in 2005-2006. he currently works on the farm and is also chairman of the office of congressional ethics which was an independent bipartisan screening body the house uses to stream complaints and pass them on to the house ethics committee. .. is keeping him very busy as well. he is chair of that bipartisan organization. david skaggs of cal -- of colorado is the vice chair. the second speaker the day --

will not going to a lot of detail -- john yoo, a professor of law at the university of california at berkeley. he has been there since 1993, but in >> in 2005-2006 he was at the office of legal counsel in the department of justice. he is also currently a visitings scholar at the american enterprise institute and, it th think, came from a program there this morning, in fact.a but he is the author of several books, and one of which is thebk powers of war and peace: the o constitution and foreign affairs after 9/11. after 9/11. we have shared in your hand out a recent piece he did for the wall street journal on the case of libya and the president's actions, both his statements as a senator and his actions, statements now as president, which many of you will conclude

after hearing presentations the day the old washington axiom is alive and well where you stand depends on where you set. things look different when you are unclear -- when you are on the other end of have an avenue. the third speaker is louis fisher, who i had a prisoner -- pleasure of working with for several decades, and he is retired and with the constitution project. he has offered more books than i have had a chance to read, but they are on my shelf. i have read them, including this one, "presidential war power." there is a more recent addition in 2004. we are going to save for the fourth speaker, cleanup hitter across jonathan broder, who is the senior editor for national

security at the congressional quarterly weekly, and jonathan had 20 years as the correspondent all over the world for a variety of news organizations. in such hot spots as beirut, lebanon, and they are all listed in your hound out, but he has that at the center of a lot of action around the world. he returned to d.c. in 1990 as a washington correspondent for " the san francisco examiner pit " in late march he did cover stories on the proposition of congress and the war powers and the president, looking at it since the libyan crisis arose. we are pleased to have jonathan here as our cleanup hitter. turn the microphone over the porter goss -- though i will

turn the microphone over to porter goss. >> thank you. this is like church. the applause starts and from the back and comes forward. that makes me feel comfortable. i started on this subject and read the works of these men sitting on this panel, including the works of dpm. i am very impressed, because there is plenty of information. i have come to the conclusion there are more opinions than questions and more questions than answers, and it is not going to end anytime soon. you can probably come back anytime and have the same discussion. i want to set a context because we will talk about this, in context, the first context, i will make stipulations which i will ask you to agree with. the first is the world is a sorry mess. the second stipulation is we are a superpower. the third submission is we're

gonna to be asked to help out to do all kinds of things. the fourth stipulation is politics are more partisan than they have ever before in my life and perhaps years as well, and we do nothing to doing better than that. we no longer have the old practice of partisan politics stopped at the water's edge. partisan politics have gone global. the last stipulation i would make is something we all have known is relations between congress and that hill will all vote -- always have this version in them, where we cannot decide how many members of a different root committees we will brief from the white house and congress on a given subject or how many we will release classified information to and can have another debate about that and stop legislation from going forward. you can see that even a small minutia of what goes on on that daly relations have great significance. that is since it was meant to be

-- separation of powers. i will ask you to participate for a moment and this is a question i asked every time i speak about which is quite often these days. it is the question -- are we at war? how many people in this room think we are at war? by your neighbor. how many really think we are at war? it is divided. it looks like more think we are at peace. the fact of the matter is we do not know whether we really are at war or not because we have not answered all the questions get about what he is that is a war into the's context that i have given you. declaring war is one thing. congress -- we could talk about congress declaring war all along. what do we mean when they declare war? is it an incursion or world war ii or something like that with the next thing has to do when you start talking about things like war, you have to start

looking at things like if we are having a war, who is the enemy? do we have an enemy? can we identify an enemy? a state, a despot, a militant etiology out there, a group of rebels, freedom fighters, pirates off the coast of all of these things suddenly are manifest the us and we try to find out what are we going to do with these people who are making trouble? the next question you have to ask is where is the battlefield. we have come across this one recently -- is the battlefield that we thought we approved in 17 september in 2001 just iraq and afghanistan and that area, or is it elsewhere? it is the battlefield global because what we're doing is fighting an enemy that believes that at least the -- part of the globe is the battlefield, and i

do not think it is restricted to the caliphate part, the people whose not thinking about things the way we see it. where is the battlefield, and did you get to the hard part, the part that i have lived, difficult, what are the rules of engagement what are the legal rules? what is the policy that works those are important points because it is no longer a world war ii. we're not in a conventional war. unconventional operations. the idea is no longer go out there and sap the energy costs will to fight. that used to be the way we w on wars. the people we fight against the they say the only way you can stop me is to kill me. if i don't kill myself first with a bomb and but you ought

to. this is different. this is a philosophy that we have got to deal with and think about, and there are not a lot of conventions. we go along and we take a look at the fact that there are big conventional threats out there and you have to be prepared, so maybe some of the old dialogue about war powers is a good dialogue that have. we still have russia, china, we do not know exactly what the future is gone to be, but this might be an area where we have something more conventional in terms of organized military that we are facing off against. we do not know a lot of things about how we are going about dealing with this enemy. let me take one second to explain. this enemy is a brutal enemy. as the enemy fix on innocents. steny utilizes terror and brutality the score points, and usually penske the most vulnerable -- and usually pits

the most formal targets. they take advantage of our freedoms and decency. they exploit our tolerance of them, and they are not tolerant of us. i'm talking about radical islam, of course. i am not talking about the great religion of the world which is is live. i'm talking about the ones who have hijacked it, and a conclusion is there is complete incompatibility between radical islam and gao-christianity as we know it and understand it in this country. does this matter to us? it does as we start going along. when we start trying to have decisions made about how to go about this war and deal with these kinds of people, we find we have come to unsettled times. we have a lot of a decision,

hesitation, that has been going on for a lot of years now. it goes across the board because this is new. do we treat these guys as lawbreakers who are the combat that? i am in the intelligence business. the idea of mirandizing does not help me with my intelligence mission a lot. you have these things out there that we have got to deal with. perhaps the most lucrative flow of information we have got about the enemy has come from professional interrogation, and i mean professional interrogations, down lawfully and properly. that is for the great body of her mission has led us to the successes we have had and the

protections of america that we have been able to exercise as well. the problem with this is, this is all created now a great debate and we do not know when we talk to our front line up for this whether they are special forces or intelligence agents or people out there. we did not know what to tell them what the rules of engagement are. we end up with situations like we just had with ubl. shoot him, bring him back here, and deal with the complex problems out there. where do you try him, can you talk to him, what can you do? it is a nightmare. this has become a martyr. is in decision has led us to point where we are not getting the best advantage of the sister that confronts us. i would have loved to have had a couple of days with osama bin lawton, questions about his

operatives, where the money come .rom sequoi we're not going to find out all the personal aspects of this that he has engendered with so many others out and about the world today. the last thing that goes on, and when i talk about the decision is congress in its wisdom said the cia is out of control. these weapons of mass cistercian stuff did not do too well. we need a new organization. we will create another organization, and we will overlay it over the cia because they are out of control, and we will call at the directorate of national intelligence, and they will solve the problems and coordinate everything beautifully. that way everybody will share affirmation and nothing can go wrong. it is interesting, the hallmark of intelligence is agility, speaker, to be able to respond quickly.

the whole purpose of the director of national intelligence to coordinate, make interested parties have a chance to look at something. from the time you see your enemy, say i could do something, but i have to go back to washington and get 15 agencies to sign back on it. how long does that take? it is hard to get osama bin lawton or anybody else to stand still for that long. we have created this problem, and if our mission is to find a needle in a haystack, the solution is washington, d.c., idea that the way to complete this is at work they did a haystack and pay a lot of money for the they. that is pretty much what we have done with the national intelligence director at the idea. it is supposed to be a smooth functioning coordinated rapid exchange of information. there is that what will benefit from that.

it is far from her. if you doubt it, what the -- one of the other parts of intelligence is sharing information is a no-no. you only share with people who need to know. the trick is knowing with whom you need to share. that is the trick. which he expressed to us that when you decide to open the door and say let's put this up out there for everybody to have a shot at, you see what happens. we have some embarrassment's gone on because of wikileaks, because we have that enthusiasm to get that information out and the overview on intelligence and make it work has a downside. something we used to call unintended negative consequences. we got to the next question about congress, and i will try to boil this down to what is the question for congress on war

powers. it is how much blood and pressure for how long is going to be out there. that is what members of congress have to think about and go back talk to the constituents about. you can lead, make people understand what the policy is, you can and line, and do a great job as a representative, but there is a time when you listen at town meetings and what you hear coming back at you is we do not like this. then it becomes we heat this. then it becomes stop that. and then soon we will pick you if you do not get it right. when we talk about congress responding and in the transmission to what our great society, the free democratic open society, wants, that is the hallmark of our democracy and freedom, but it is inefficient. congress has to get involved in dealing with these little brushfires, and some of them are big fires the state, that crop

up and say, how do we deal with what the people want, what the administration is what to do, and what is our job? how do we look at the many different things? i would say it is hard to be a member of congress these days. it is not about declaring war. we have not had that situation. limits of the purse, i will tell you flat out, denying our troops overseas money or armor or anything they need to do their job is an absolute non starter with most of the american public as it should be. the power of the person really is not just in the congressman's hand, it doesn't lie with the people, which is where it should be. as for questions for the president, i would say what the president is looking for and understanding he is not a hill with committees and chairman, and because we have redefined national security, i cannot tell you how many committees and

subcommittees and german and vice chairman and ranking members are involved. it is a long list of people that the president has to take into account when he talks about who does he notifying congress about what he is going to be doing. who does he try to bring in as an assistant to help his cause, and who does he have to and run to get around what he wants to do. the president's goal is can he get done what he wants to get done? that is his issue. i have to deal with this, can get this done, and how wide to get that it's the first question is defend the nation, and highs prairie, and we understand that. the question becomes is it necessary that this bill blood? does the british fleet have to be at that river and the white house burning before we understand we are under attack? do we have to have a 9/11 before we get it so we can say we do something because there is a real threat out there, or can we look at what is in front of us,

and the most of all decision a president of a united states would have today is making a pre-emptive nuclear strike. a pre-emptive nuclear strike because they had solid intelligence that something was want happen, and all the conventional wisdom and the war said so. you could very easily have a serious miscalculation, and that is one of the great worries in the nuclear world that you have this this calculation. i'm not talking about that. i'm talking about lesser matters. do we commit for some overseas for things like instability? we did not what areas to be embroiled. do we go into countries, bomb belgrade for 72 days because it is the best way to deal with a small problem over there, named milosevic? do we cocoa saw the destruction of commerce problem by doing something about pirates or do we not do something about the pirates pulled it is odd to me that we are not doing more about

the pirates because it seems to me our navy was started because we were trying to do something about pirates. i'm wondering when we are going to do something serious about pirates. are these reasons to launch -- those are important questions that we have not answered yet. there is so much going on, the libyan thing. we have talked about that. is it possible that people who are yearning for freedom and reaching out and so forth -- i give you a situation where an authoritarian relatively evil dictator, even though he poses as a democrat, is developing a nuclear weapon siegele, providing technology that works, and propagandizing heat against americans -- is that a reason to do is something? that is iran today. shall we acknowledge that or do something about if they are

reaching out for freedom in egypt, libya, everywhere, which ones do we help, and on the basis of what, and who makes that decision? you could down the line in using, if we went to libya to stop a bloodbath, why aren't we doing something in damascus what are we letting assad get away with shooting his own people? you go into these questions. these are very difficult questions, and when do we commit the force of the united states, because we can. we're the only force out there that can do that. they get to that extent. just for humanitarian causes -- should we commit for humanitarian causes ?

shame on america for sitting on its hands when that was happening. why weren't we they're protecting those people from those of extraordinary acts of atrocity? i ask the question that way. these are all totally legitimate questions that come right down under the question of who is the the site her? it is now fashionable to talk about regime change. regime change did not use to be t.shionable to talk about ahea regime change might be the reason -- not the legal reason we are in libya -- but the fact is the president said we would like to get rid of that guy, we want regime change.

when we start down this road -- who decides what regimes are trying to be changed? how is king abdullah in saudi arabia on to feel about that? the president in yemen might be useful, but this guy assad would seem to be a candidate, but what are the consequences of whom are making the decisions on regime change? how do you accomplish regime change? what is your equipment to do that. that is going to involve the congress of the united states. then you come to the rest of the question of who is the replacement for this regime change? any idea who will fill the seat? i remember papa doc?

it turns out he was better than some of the people who followed him. finally, the question of who decides all this and who picks and how the regime change happens -- that is a totally legitimate debate for the congress and the president have. the problem is they're usually there is not time and not clarity about how to go forward. we have situations that are new, policy uncertain, and we have a mechanism that is designed for last century. that is a problem, and we cut all go home and not worry about it anymore, thinks colors will face it, but wrong because will wake up tomorrow morning and figure out there is another challenge. my answer is simple -- there's something called military cia action agent program cooperation. it is -- this is being able to

deal with these brushfires and conflagrations lawfully, with policy, with understanding of members of congress, and you can make it work, can do things in the hours that takes weeks to do if you go to the big box, checking grafts, to safeguard it. i suggest that is the wave of the future, and my advice is to more fully develop that, and my view is that the work on the war powers will be endless because there will never ever be a settling of power. nobody will ever have as much as they deserve or want or need to do their job, so consequently, everybody's future is going -- is guaranteed for a long time who is involved in this debate. thank you. >> john, you can present from the podium or at your seat.

it is your choice. c-span would prefer you at the podium. >> lou and i agreed to speak at the podium. it is the last thing we will agree to today. i to thank you for joining fort -- for inviting me to join you at the wilson said today. this is the 17th anniversary of the date when we first started the bidding war powers, and you will see 17 years that i have not been able to change lou's mind one bit. it is a great pleasure to be here with lou again and with mr. goss, and mr. broder. it is a pleasure to meet you today. i will give you a chance to

leave one wonderland which is the people of republic of berkeley and visit another one which is to come to washington, d.c., and defense the obama administration, which is not a position i'm usually used to being in. i'm happy to do it on this one occasion, although not for reasons that the obama agonists -- obama administration wanted. this friday the 60-day limit will pull on the obama administration, and that is the war powers resolution which says a president cannot have troops abroad in periods or informants of potential hostility for more than 60 days. unless he gets authorization from congress, they have to remove them. that means the libyan intervention is this friday. i think this puts president obama in a very tough position of his own creation.

when he was campaigning for the presidency at the end of 2007, he told a press and there was a nice piece that had a quotation, he said, of what the president does not have power under constitution to authorize a military attack in a situation that does not involve stopping an imminent threat to the nation." i would think as a candidate, president obama would have to think that the libyan intervention will be unconstitutional as of this friday. unless somebody here who thinks that the civil war going on in libya actually constitute some kind of threat to the country, i do not think it is, and i have not heard people make that argument, but that would be the only way that would be consistent with his earlier statement. i will say, when he took office, his views on executive power have changed, not just in areas

that -- most prominently in the areas mr. goss referred to, issues on terrorism, where many people have criticized by many people agree his policy started out very different from the former administration, and now they have circle back to be similar to the bush administration. let me read you the sentence from his letter that he sent to the congress reporting to them . " i have directed these actions pursuant to my constitutional authority to conduct u.s. foreign relations and as commander of else in chief. ed

keep the congress fully informed and consistent with the war powers resolution." he did not say he was acting in pursuant to it. this is the same language ever president has used since it was passed because every president has taken the position that the war powers resolution does not constrain their ability to use force of rot. what is going to happen on friday it does not look like he is on to receive any. it does not look like congress is gone to spend a funding bill he's withdraw our operations, which i think would be quite q -- which would do a harm to the nato alliance, and britain and france would have a reason to be upset

for leaving them in the lurch, or he will take the position of president before him since nixon that the war powers resolution is an unconstitutional restriction on the set of bridgett's ability to use force abroad. in the paper they're spending all kinds of tricks to get out of this. it is suggested that the president is thinking of stopping the war for a day and restarting it. the president loves basketball, but it does not work that way. when it comes the war powers, people talk about withdrawing but leaving an american command and control of the lovely, because that is what mr. goss refer to, in the past, nato has had trouble controlling these operations without command and control. where still telling the british and french were to drop the bombs. is that not going to be war?

in the time remaining, i would like to make the case that the president has the authority to continue the war and does not need congress' permission. congress could cut off funding and in with and tomorrow if it wanted to do that, but i do not think congress will do that. congress will do what it is done in these situations, which is do nothing. the salsa dance. he says you go to the left, right, and you are in the same place he starred in. the same idea? congress is not going to do it in living, but it gives congressmen and congresswomen the ability to criticize the president. what they do not want to do is take responsibility for the decision. the safest thing is not to take a vote at all and that the

president the other on a limb. three basic ways to interpret the constitution. most lawyers agree with its factionalism, and original -- functionalism. functionalism advises the courts to defer to the arrangements that have been arrived at for exercising powers. it is the great justification for the delegation of power for the administration state from congress. here it is functional and it is hard to say the should overturn what had been decades, if not centuries, a practice where presidents have used force without any congressional permission, and waited afterwards for congress to authorize it, not provide funding, but the congress' role

has been usually to give permission afterwards. the reason why is because congress' incentives are not to take any role before the war starts. i would say that the nationalism and an-- fu nctionlism -- the threat environment has changed. you could say maybe the constitution originally had a system in place to prevent the president from engaging in adventurism. i think that would be called the error, designed to prevent mistakes being made from commission. type two errors, mistakes of omission.

rwanda is a type two error, because we did not do anything. thousands and thousands of people were killed because -- obviously if the world war ii generation, the great mistake was not stopping hitler and japan. with the threat environment of terrorism and nuclear proliferation and human rights crises, our president and congress have moved to a system where the president can act quickly, rather than a system that slows down how fast the country can act, which is why we have a standing peacetime army for the first time in our history, one that if you look at it is built undertake offensive operations in other people's countries, not to defend the territory of the united states. second example, textualistm --

what can you learn by reading the text of the constitution? it is not that clear. the president and congress have to share power, appointments, treaties, it has a detailed provisions explaining how it is the happen. this is not the point mr.'s was making, but there is constitutional basis on it, because the constitution this is a party to the president and congress and expects them to fight it out. does not create settled congress ident goes and present this a second. the constitution is silent. the reason why that is is because in the constitution there is a procedure for going

to war that is detailed and specific. it does not apply to the president. it applies to states. for some reason i always thought that this is the most clever thing i ever found in the war powers area because i was reading my constitution in my office, you all have your heritage foundation constitution is on you, and look for any mention of war, and i found this provision that people never read about, which is about states making war. it says the state shall without the consent of congress engage in war. the framers wanted to have subjected the present to the same limits, they could have copied that language and apply it to the president, then they had something for sudden attacks. even though the constitution does not say that, if you think you have to declare war first, paone unless the states were

actually invaded or uttered danger that would not have allowed eight the lake. they knew exactly how to write a constitutional provision for that. if they want to have that same process, why did they not copy the same language? they created a different kind of process to be built on political fighting between the executive and legislative branches. i am at the end of my time, and i what to wrap up my time. you think that the people are wrote the constitution should understand it to govern, what was the practice of making war

at the time of the riding of the constitution. here i will point out a lot of other arguments. article 1, section 8 -- which is what everyone says congress can declare wars, it is not a domestic provisioned about who gets to decide whether to go to hostilities. it has another purpose of what is the state of our international relationships. the reason i think the original case for that is, go back and look at when wars were declared in the 18th century. we got the idea from great britain. it gave the power to declare war to the british crown. if you go back and look, the declare war power was not seen as some kind of domestic provision, it was about notifying the other country were at war.

i think one way to check that is, when did they declare war in the 18th or 17th century. i went back and looked. in only one war of all the wars that britain fought in the 1600's and 1700's, and there were almost that were more often than peace, they only declared war and once before hostilities broke out. it seems to me the original understanding was not that you need to declare war first before you could have hostilities. to me, the ratification debates were funding powers. when the constitution is challenged during its ratification, is giving power to the president and more time. the defenders of the constitution said it will work like it has in england. in england, it is the power by

the purpose, not any other formal powers we are talking about today. i will conclude by saying that it seems to me we have had many decades now since world war two, i would say earlier, at least since the korean war that we have had without congressional permission. that have worked out the arrangement. if you work or to overthrow the decades of practice, you ought to have 100% certainty that you are right about the constitution. in my view, there are a lot of arguments that point in the other direction. the last people i think will decide this in our lifetimes is the supreme court of the united states. they have avoided this question like the plague. i am afraid that means it will really get fought out on panels like this. there will not be any permanently winning party. thank you very much. [applause]

>> john and i talked earlier that our first contact with his article in 1996 in the california law review. if you look at the people that johnson's thank you for looking at the draft, lou fisher is there. i did not keep my notes from the time. but i would suspect at that time, we differ radically. if john was to make the case that after world war ii, we are moving in some kind of fashion, i think the facts would support him. where we differ fundamentally is the period from 1787 up until world war ii, or the framers knew all about marquee and it rejected it. -- monarchy and rejected it.

i am going to focus on authorization. president obama says the authorization for the war in libya comes from the security council. you have to ask yourself, what kind of the system is that where the president does not come to congress for authority. i will say from 1789 up until 1950, that is the korean war, over the period, every major war the president either came to congress for a declaration or came authorization. all of them were either acted by statute, authorization or declaration, and there is nothing unusual about that.

in 1798, it was authorized by about 20 stat sheet. everybody knew they were born to go to war against france. that got to the supreme court. people say the supreme court does not get involved in war issues. they left it up to congress. alexander -- alexander hamilton said it one of the federalist papers. this occurred -- the supreme court's authorization, that is what we did. john talked about defense of acts, the framers understood that at the philadelphia convention. they recognize that when congress is not in session, the president may have to repel certain attacks. that was understood. but to go from defense operation into office operation to take the country from a state of

peace into a state of war against another country, that was done either by a declaration or authorization of congress. always. a couple of sentences from president obama. he talked to the nation on march 28 about libya. he says that the united states has done what we said we would do. the united states? no, president obama. congress has nothing to do with it. courts have nothing to do with it. president obama is the united states. he didn't talk about some supporting institutions. had a unique opportunity to stop the violence. a broad coalition prepared to join us. the support of arab countries, a

plea from the libyan people themselves. completely missing from this picture is congress and the american people. "history has shown us time and again, however, that military action is most successful when it is authorized and supported by the legislative branch. it is always preferable to have the conformed consent of congress prior to any military action." and we can start to talk about how the constitution is structured to go to war. the framers knew all about the executives not just holding all of the war power but foreign

affairs. that is what john locke would have supported. the better to of powers is what we would call the foreign affairs. john locke had this totally in the executive branch. the legislative had no role at all. the framers knew that model. william blackstone and his commentaries did the same thing. look at these powers, blackstone give them all to the executive. that would include the power to declare war. blackstone gave the executive power to make treaties, declare war, appoint ambassadors, raise and support armies and navies, power over the military regulations, the power to issue letters, mainly to have private

citizens help in military activity, then look at the u.s. constitution. it is very clear. the president does not receive one of those powers. not a single one. they either give them expressly to congress and article 1, or he has to share them with the senate. so the framers knew of that model, and for many reasons spelled out -- he said,, "the president will have all the qualities, but will not make war but support it." you cannot give that power to the president in a small "r" republican government. that goes for the people. it is not for the president. a lot of people have viewed the

federalist papers. one that does not get attention is no. 4. if anybody would have been sympathetic to a strong executive role in foreign affairs, it would be john jay. that was his specialty. listen to this language. he expresses here what the framers learn when they studied all the other constitutions and histories and experiences. he said ," absolute monarchs for often make war, the nation ought to get nothing by it. but for purposes nearly personal such as a thirst for military glory, revenge for personal friends, or support for their particular families.

he's in a variety of other motives often leads him to engage in war is not sanctified by justice or the voice and interests of the people." i would say particularly after world war ii when we have gone into war is not declared, we have gotten to a succession of wars that are costly to the nation. so i do not think any of us would say, oh, what ever the framers believed, we should follow. the framers got a lot of things wrong including slavery, not giving women the right to vote. on this one, not putting it to the president in one voice, the framers got that right then. what they thought in the 18th century applies even more, to me, now, in the 21st century.

let us look at the korean war. the same thing that obama did going to the security council to get authorization or harry truman did in 1950. my paper has a lot of details on this. the u.n. charter never gave the power to go to war to the security council as an authorizing body. you cannot do that. the un charter is a treaty that the president and the senate cannot give away article one powers to an outside body. it is impossible argument. the un charter did not do that. the un charter had no police force. the only way the security council could call upon a military force would be to have

the nation's who belong to the un contribute troops, equipment, and anything. they would do that. it meant that every nation who would do that would have to look at their own system and see what the constitutional process was. at that time, when the senate was debating the the u.n. charter. truman who wasn't pakistani, he pledged to the senate "when any such agreement or agreements are negotiated with the security council, it will be my purpose to ask the congress for appropriate legislation to approve it. everybody knew it. they did not go on the basis of truman's pledge, it put that in law. the un charter would be implemented by the u.s.

participation act of 1945. it is that these agreements should be subject to the approval of congress by joint resolution. i have in my paper the background of what happened to woodrow and wilson, the league of nations, the got into fights over reservations having to do with war power. wilson knew there was nothing objectionable to the lodge, reservation on war. he got into a personal dispute. as the newspaper says, he strangled his own child. everybody in the un charter new white the united states did not join the league of nations. we want to make it very clear that congress only has the as we all know, five years later, truman goes to war, never comes to congress for authority.

dean acheson, secretary of state, said that truman had done his "utmost to uphold the sanctity of the charter of the united nations and the rule law ." in fact, truman violated his own pledge that he had made five years earlier. i am sure some you remember what he was asked. i think you know what he said. he said he would call it a police action. secretary of state madeleine albright was asked by a student, how can the president go to war against iraq without authorization from congress?

she said you have to understand the terms. this is not war. it is military operations. they all make it very clear that for some reason, war they know is congressional, and they will call it anything other, humanitarian intervention. it was released on april 1. you can delay it by a day or two. i don't know why you have to go out on april fools' day with a legal analysis. one of the things i have not seen by any legal analysis yet that obama was justified in using military force against libya, because after the security council passed the resolution and libya

did not comply with this in full, then obama had to use military force against libya because otherwise, the credibility and reputation of the security council would be damaged. we care more about the reputation and credibility of the security council at than the u.s. constitution and the u.s. congress. that is a new one to me. john is probably right. there are hints of that in earlier documents -- earlier documents from the administration. congressional support for the war in libya -- on march 1, 2011, the u.s. senate passed by unanimous consent senate resolution 85.

a senate resolution is not legally binding, it is just from one chamber. toward the end, it talks about the no-fly zone. that is a big deal, military activity. unanimous consent, that is really something. what picture do get from that? all the senators out there on the floor debating this and so forth, and there is not one person opposed. i go into detail here in my paper as to what that was. it was introduced on march 1. passed on march 1, and the early version had nothing there about the no-fly zone. you can watch it on c-span. senator schumer is handling it.

senate action starts at 4:13 and ends at 4:19. no hearings, no committee report. it was just brought up. the no-fly zone was not there originally. when was it added? about 10 minutes before shimmers update, this is added. then there is a senate procedure called hot lining where when something is shooting through like a senate resolution, you tell the senate leadership what you are doing by automated phone call or by e-mail and people say there is nothing in the offline procedures to say we just added on a no-fly zone. nothing like that at all. nothing like that at all.