why did you or did you have faith in new hampshire as a place that could sustain and bring you back as a candidate and when did you actually begin to cents-off the was going to happen or was possible?

>> i thought it was possible because at least in new hampshire i had that relationship i had established with the people of new hampshire in 2000, but also the context i would like to mention our focus now is on jobs in the economy and by understand that and this campaign is going to be about jobs in the economy in the election was about jobs in the election. in 2008 there was a surge, and i believe that we had to support the research and we had to weigh in in iraq and i believe we could win an iraq with that strategy. and so i really did these a lot of my campaign not just here in new hampshire but in south carolina as well and florida on the issue of whether we should

support the surge or leave and face the serious consequences of losing a conflict in that part of the world. so i think that matter, too. and i think it helped to galvanize some of the veterans vote which is very significant here in new hampshire as well. >> senator kerry, in your campaign as the video clearly showed the fall was very, very difficult for you. you made a strategic decision that was a little different than senator mccain, senator mccain hundred on the new hampshire you decide that iowa was also important in order to facilitate coming back in a hampshire. why was i was important to you and how did that contribute to how you are able to do here? >> it was important because it was an event that came before new hampshire, and i thought to get people to listen again it was important that i shake things up and change the

dynamics. my problem, the problem that occurred for me was i think to fold. one most importantly on the iraq war in the united states senate i did what i believed was a presidential decision. if i had been president of the united states and we were trying to leverage saddam hussein in order to give inspectors in and do what they needed to do to protect the country i would have wanted the power that the president was asking for, and because of colin paul, brent scowcroft and a couple of other people who went very public about how the power could be used i thought we had elicited from the president of the united states guarantees specifically that we would only go to the war as a last resort, we will only

go to the war if we built the legitimate coalition, and that we would only go to the war based on the other countries and the sort of an primm utter if you will of the country's, and i thought i was really important to us because john and i learned what happens if you go to war and you don't have the support of your country. i regret to say, and i don't want to interject the partisan here, but in my judgment everyone the promises made by the president is not kept. we didn't go to war as a last resort. we went in the collision complete and so on and so forth and as is now a record about of the weapons. so, i knew what was going to happen. i had some people on my team who advised me and said senator, if you vote for that you were going to have a hell of a hard time

winning the nomination of the democratic party. well, i know that and that is probably true, but i am going to do what i think ought to be done as a matter of interest to the country, and you know, i -- howard dean, it's very easy. if you're outside the senate to say i would have voted against it and very easy if you are in the senate you have to vote, actually vote. so i lean toward that from the entire spring and fall and the money started going crazy, and i think frankly i was not as good a candidate. i was still talking senate ps. i hadn't broken out of that as a legislator and it took me awhile to do that. people like jean shaheen and other folks here tonight and others, space beans and others and they beat me up enough. it just changed. throughout the campaign i changed. i was a better candidate toward

the end and i'm sure you felt the same way. you learn as you go through that and i think as i came into the debates with george bush and so on i felt like i was on top of the game. but my conviction was like could turn it around if i had a chance to meet people and explain my thinking and really talk about what my priorities were. in the and i think that is where i said the people of new hampshire listened. did you to the test. they didn't just buy into the story and that is the value of what happens here and it's interesting because john -- you know, it happens in this state in both sides of the nile. that's the interesting thing about new hampshire. it has a capacity to serve a separate and discern according to the space values, but it also does the same thing with respect to the republican party values and so forth and again and again new hampshire is able to choose a winner, not always, but again

and again and it's an interesting process. >> what would you say is unique if there is something about campaigning in the state compared to other states? >> very sick simply as possible they expect to see. they expect to see you and the expect to be able to question you. they expect to examine. like the old joke the guy in manchester said to the other guy would you think about him for president? i only met him twice. [laughter] in other states do not expect that. in california and you think they are going to go to every town and village and city and it's something that people do reserve judgment but it's more important than that is that people in america believe they should vote. people in hampshire believe they

have the responsibility to examine the candidates and to make a judgment. and i'm not saying that people in the rest of the country don't feel they have a responsibility to vote. if they don't have a unique responsibility that people when new hampshire have about how important and how what a determining factor what happens here in new hampshire is all about. that's why it is so key that this first in a nation status be preserved. [applause] >> and bob dole one night was at someone's home and after he finished an hour and a half or two hours he said that was great but people in my neighborhood are mad because you haven't been to my neighborhood and you better get to my neighbor defeating you were going to get their votes. give me your address from your name and address. she lived two blocks away. [laughter] what you think would happen to

the process of nominating the presidents of there were a change in the calendar? i know neither of you is going to come out in favor of moving the new hampshire primary, but what impact would it have if the hampshire and iowa were not front-end of the process. >> some state has to be first come and i think this proven process has served the country very effectively. i know john will agree with me. there is just way too much money in american politics. we have to get -- i mean this is a state that succeeds in getting the money out of the process. this is advertising and yes deer is still money spent but i don't think the hampshire is as enslaved by that as they are the personal inquiries about the process. bye getting to know people, and if you are going to make real decisions in the country you don't want to empower the money and some other place. what state are you going to choose to be first? california where it will be all

mauney? new york, florida, some other place? this state has proven its ability to also have a spectacular diversity that i think is marked down in the country. high-tech, low-tech manufacturing, lightning factoring all of these different components, education, and i think it is a terrific balance it is obviously a strong, strong tax and tip of the which reflects an awful lot of the country and it is a good debate to have put new hampshire is historic we also found a way to do the things it thinks it needs to do for its citizens. so i think there are a lot of reasons that there is a virtue to the state and would be hard for somebody to convince me that an unknown state with an unknown sefton genex is somehow when to replace that more effectively. >> i just would comment, and i don't mean this as a criticism of iowa but i think history shows the winner of the new hampshire primary more than

likely is going to be the nominee of the party or has more than likely it is not in the iowa caucus and don't get me wrong i enjoy the iowa state fair and having the pork chop on a stick. [laughter] and the deep-fried twinkie. don't get me wrong. [laughter] >> [inaudible] [laughter] >> anyway. but it does seem to me when you look at it results over the past modern times in the way the last 30 or 40 years the iowa caucuses are not the determinant and the greatest ripoff of all are the straw polls which are the worst thing since probably ethanol. [laughter]

>> i remember being in iowa when you're telling people you felt a great because you had your glass of ethanol that morning. [laughter] >> and chuck grassley. >> senator mccain, you won here twice, both victories were instinctive. which one was more satisfying? >> i think each were satisfying in a different way. the one here in 2000 obviously was a huge upset. the one in 2008 was survival, and so they really are very different and each had their own. after winning here in 2000i knew we had a very tough road to get the nomination. after 2001 was reasonable confident it was pretty well in hand if we didn't screw up which i had never done. [laughter]

>> in 1999i was up and they said how would you like to meet him? he was 101i believe that the time so i went inside his home as many of you know and i said what was your favorite candidate? evin all of these people. they will come up here and met with you. who is your favorite of all of them who impressed you the most? he said mr. roosevelt. really? fdr was quite impressive. no, it was teddy roosevelt. [laughter] >> not making that up. [laughter] >> is there a particular moment that you remember first from your time of here either in a moment of humor, a poignant moment, a moment you learned something you hadn't known or was driven home to you in a

different way? >> i will never forget waking up on the 27th of january at the hotel and the water had frozen. we couldn't take a hot shower, couldn't shave. i had to keep my water in a microwave, and there was something i said just doesn't feel right this isn't good. but they came together. there were these great moments. remember visiting the house to get new support and there was a refrigerator covered with all these photographs of every democrat that has ever been there and i was looking for space. i said i'm not going to win this race. [laughter] but there are so many different things. so many different parties where something happens. people open their homes the kids

are wonderful. there's just so many of them you can't pick between them. but it is a life changing experience. i can't help but sit here and listen to john all might talk about it twice and i only did it once. my juices are flowing. [laughter] >> so many wonderful and amusing and entertaining science. there was a convenience store there was a woman very important -- >> mary hill. >> they said you have to go see mary hill. she's very important. so i went down and she came walking out and she had a hillary clinton button on. [laughter] i said thanks for sending me over there. [laughter] spinnaker the author of course

was the mother who, you know, asked me to wear this bracelet and i always have. [applause] >> we have a couple minutes left. i want to turn this around a minute and ask you to talk about my side of the business because we spend so much time appear as reporters were trying to get right and very often don't get it right but thanks to the independence of the voters to keep surprising as from time to time i want to direct this first senator mccain with a specific question but i want senator kerry to also talk about it. in 2000 or in the fall of 1999 you launched the street talk expressed and you got on the bus and invited all of us to the back of the bus and yousaf for

hours answering questions on the record to the point the dalia occasionally had to get off the bus and get on the other bus to get some work done because you were your stamina was quite remarkable and you were willing to take questions about anything and it was always on the record. we are now in the age of twitter and blogging and i wonder could you do that again in a new hampshire primary environment? how different is it today in the media environment that we are in and how is it changing the presidential politics? >> i regret to say that it would be much more difficult today, and olive regret saying that. and i have to say that if you remember the people that were on that bus again with all due respect to today's media they were pretty seasoned, pretty experienced, pretty mature judgment members of the media. let's face it the top people are

assigned to the presidential campaigns, the top individuals. i have to say i don't think that is the case today. but having said that, i do believe that as opposed to the 2000 campaign or even a 2004 campaign or even to some degree the 2008 campaign there is now access to information in a way that is like drinking from a fire hose. there is a myriad of opinions. there is a plethora of information. we have as you say twitter and facebook, we have all of these different ways of people getting information. in 2002 they got the information about what the reporters on the boss told them. now it's pretty obvious that they can get -- you can remember and i can remember when we all waited for the evening news. does anybody wait for the evening news any more? and could i just finally tell

one brief story coming and that is that i tweet and a lot and i get in trouble every once in awhile, but the tweet of the year last year in 2010 was snookie that i'm so mad that president obama for raising taxes on tanning beds. she said senator mccain would never do that because he's so pale. [laughter] so why tweeted back your right, snookie i would never raise taxes on tanning beds. it's a situation. that was the tweet of the year. [laughter] but i just want to finally mentioned the air in the spring wouldn't have been possible without the social networking. and there's a tremendous downside to the social networking but there's a tremendous upside also to the flow of information which then gives knowledge and i think probably a better informed vote at the end of the day.

>> senator kerry, what is your vote on that? >> i agree with john, but i also would say that there is no accountability to date. i say this with all due respect you are an exception. there are few reporters who, like david broder, were not impacted by all of this outside. but frankly, you know, you've got seven candidates or eight running for president of the united states to think that planet earth is only 5000-years-old and there is no sense of accountability here. you have a complete discounting of what is absolutely factual. john and i and others have been struggling with this for years. the changes in the climate. the 48 states in the united states are now currently dealing with disasters because the floods and fires and it's just enormous, but people can assert that the earth is flat and it's

reported some and so say that it's flat it's got equal footing there is no accountability for the truth or for science or what has been established as a and accepted norm for years and we have a problem in this country as a result of that. you know, you read the paper yesterday and today and the peace corps is down and revenue is the challenge we have in the education system. you go to china and other countries that speak our language fluently as kids find out how many kids in america speak the second language. so i think that the lack of accountability in the system for some the six standard of truth allows this chaotic kind of confused non-dialogue to take place which is based on anything but their real needs and concerns of the country so where else are we going to find if we

don't have the papers of record or the institutions of record with respect to the news getting actually help people discern or hold people accountable the things that are just absurd there isn't any accountability to things that are patently absurd and it's getting harder and harder and in the democracy if people don't get good information or there isn't accountability you can say anything big money has the ability to say what it wants to say. it can buy the message and that is what is happened under the citizens united decision where people can now secretly put unlimited sums into the effort to the condition of comes and as a result the average person's concerns are not as well represented as are those who have the ability to get out there and change it. that is what threatens our democracy in my judgment and you guys in the state or what stands

between us and neither anarchy or ignorance or bad decisions were so forth and that's where we are today. [applause] seabeck the only caveat that i would get to that coming in by understand exactly what you're saying and there's a polarization and the likes of which we haven't seen before but there's access to information or you have to do is have a computer or a cellphone and i agree with you about the citizens united decision and the thing that scares me most about the decision is a lack of transparency. that is what is really dangerous about the citizens united. [applause] but i do think that information is available to people that in a way it was never available to

people in times past. whether that information is distorted or not or whether -- it is out there. one glad to hear your response to that but i do agree with you about the lack of accountability spec senator mccain gets the last word. thank you both very much for all letting me be part of this this has been a really wonderful evening of the for a rarity here we wanted to very and for the senators three posthumously my great friend david and we think you. [applause] >> senator mccain, senator kerry, john jeff broker for all the people here and the people of new hampshire, thank you for being here tonight on the commitment to have made. we will once again in a few months prove to the rest of the country a serious hampshire voters are in taking this

responsibility that we have and demonstrate here tonight by bringing democrats and republicans together that we really do cherished the primary and hope we have it forever. thank you. [applause]

from today's washington journal a look of the future of the health care law and the possible legal challenges to it. this is about 40 minutes." >> susan dentzer is editor-in-chief of health affairs journal. thanks for being here. want to talk about the future of health care policy, and one ofts the big influencing factor of that may be the supreme court. tell us about what the court agreed to take up earlier this month and how the time line of that will unfold. that time andcord will unfold. guest: the court agreed to a

decision on the appeals decision -- specifically, one that was conceived of that was being the most important was whether the so-called individual mandate provision of the affordable care act was in fact constitutional. in addition to that, the court said it would review other matters that many were not inspected. a particular one is that under the affordable care act that in estimated 16 million people be expanded to the medicaid program. court will look at whether not the states are being coerced into that. that was completely unexpected. it also said it will look at a couple of other issues. one was whether the individual mandate provision -- that is to say, if the individual mandate

were invalidated, would the entire law fall apart? host: does the rest of its standard as the rest collapse? guest: exactly. finally, a third of another issue that many were not inspecting. -- expecting. of his collected out later, because it is a little bit more complicated. -- i will go back to that one later, because it is a little bit more complicated. host: whether you expecting experience to be when the supreme court takes this up? it sounds like it will be a long argument. what kind of window we have into that process? guest: in terms of what the corps will actually argue about? what the court said it will do is take up an unprecedented five

hours of argument on this. that really and truly is unprecedented, including a lot of time spent on the aspect of the decisions that we did were not expecting. -- we were not expecting. what we will know is the kind of questions that were being asked as this is argued. we know they have spent a lot of time thinking about these issues. they have been looking very closely at the various decisions of the appeals courts. up until they are hearing the arguments in front of them and asking, there will be very pointed questions. host: al queda susan dentzer -- susan dentzer is joining us from "health affairs journal." that fits right into the political season. guest: indeed it does.

to go back to one of the very important incisions. it is extremely important whether or not the individual mandate is of help or not. there's a lot of debate about the impact would be if the mandate were found unconstitutional. the courts would then have to decide this whole question of several ability of the individual mandate from the rest of the law. it is possible the court could decide the whole law will go down as we said earlier. it is possible that it could be invalidated and the rest of the law would stand. then the clear situation will be that if you do not like the rest of the law, and elect a new president and a new congress. the corps will essentially be saying in effect that that the affordable care act is constitutional and therefore you may not like it politically, in which case you need a new president and new congress.

but in fact, it was in the balance of the constitution to enact the law and the first place. the fourth one was going to say is that the court was going to take up the question of whether you sue against the individual mandate, whether in fact -- if in fact the individual mandate has not gone into effect yet because of the penalty has been considered to be a tax. host: that means the individual would have to wait until the individual mandate came in, would be taxed for would have to deal with it, which is not for a couple of years, and then could file a lawsuit. guest: because under the so- called anti-injunction law, the individual would have standing because it would have been injured by the penalty. what is complicated all of this is that these pieces of this decision are interlaced.

if in fact the court said that nobody has been injured yet, you have to come back in a couple of years and su, that would put the entire case of. -- and sue, that would put the entire case off. it does not look very likely. there really has only been one of hill's support that so far has decided the anti-injunction law applies. host: we're talking with susan dentzer, editor of "health affairs journal." the number to call for our republican line is 202-737-0002. the number to call for our democrat line is 202-737-0001. the number to call for our independents line is 202-628-0205. let's hear from mark, a republican in hawaii, hawaii. caller: it seems like the courts have a pretty simple deal. if they rule that the mandate is

constitutional, i think the majority of the citizens will look at the court as being corrupted if you understand history. host: why you think that mark? caller: there seems to be a confusion. we were taught constitutional law in high school. i am 63 years old. we look at how they could form a judgment on something. if you have been taught that the separation of powers, the federal government has certain powers. there is nowhere in there that they have the legislative power to instruct citizens to buy or purchase anything, even of war bonds in world war ii. host: markets making an argument that opponents often make. guest: that's right. again, what most of the courts have said is that the central issue here is about the ability

of the congress essentially to act within the so called commerce clause of the constitution, which gives congress the right to legislate in the case of something that involves commerce among several states. it is very clear that health care falls into that category. with the courts have said is that it may in fact be somewhat different than other decisions, but in fact this is an interstate market and essentially this is within the rights of the congress or the constitution of the congress and congress has the ability within the constitution to undertake this stuff. host: let's hear from laura in massachusetts on the democrats' line. caller: good morning. i have a question about the private health insurance and where your children can stay on until they are 26. would that be affected with this

going to the supreme court? host: has that impacted your life? have you benefited from that? caller: yes, my son was laid off. he was under my husband health insurance, and now none of us will have insurance at all. but if i do get on a local health insurance, with a family plan, he would be able to get on my health insurance. but if they take that away, then that is something that i thought was good that was part of the health-care reform act. host: let's get a response a susan dentzer. guest: the answer really is, it depends. for example, if the court decides that the individual mandate is unconstitutional but that it can be severed from the rest of the law, there would be no impact on that particular

provision of the affordable care act. if, in fact, they decide that the individual mandate is constitutional, then it obviously does not have to decide the separate ability question. the bottom line is, and we have to step back and look at the big picture. more people willthere for the ee law will be upheld. -- there for the entirety of the law will be upheld. "the: a story in washington post" -- talk us through this story. guest: in essence was that scripted what this is about is this the fact that justice taken work for the obama

administration invalidate her decision. justice thomas wife has been involved, and so involved a major debate has broken out over whether these justices need to recuse itselthemselves. host: they both have said they did not plan to. who ultimately has saying over this? guest: i believe it is the court themselves. >> de you believe this will have a debate over the legality of the law? guest: the supreme court has been deeply enmeshed in politics, whether it likes it or not, for quite some time, and certainly from the 2000 presidential election on, it has been perceived as being in step

with or i should say if not overcome, at least in gauge with politics of the time. this will not be any different from that situation. host: editor in chief of "help affairs journal" = = "health -- "health affairs journal." caller: good morning. i keep hearing from republicans to repeal obama care, but i hear nothing from them about what they would replace it with. guest: that has been an issue. there are some individual republican lawmakers that have proposed replacements of the affordable care act, but generally speaking, there has

not been a major effort, notwithstanding the fact that there were boats very early on in the current congress to repeal the affordable care act. there has not been a major piece of legislation mark appeared in many of the lawmakers who have headed the committees have said they simply were not going to waste their time doing that. everyone understood that as long as president obama was in office, that he would veto any effort to repeal or replace the affordable care act, so really it was going to be a show trial to do much of anything along those lines. notwithstanding that, i think we also heard from republican lawmakers that they are very interested in preserving some provisions of the affordable care act. the insurance changes -- the changes in private health insurance. we have one calller noticed it provision that allowed children up to age 26 they on their

policies. those kinds of provisions are very popular. a number of republican lawmakers said they would take pains to preserve those. that gets into the question of how much of the law you can preserve and still say you will preserve the individual mandate. the bottom line is we have not seen a major provision come forward with a lot of republican backing to replace the affordable care act. at this storyok by david jackson -- guest: that is true. it is also the case that the affordable care act, it looks like the affordable care act is at an all-time low in terms of popularity. a lot of support has fallen away

on the democratic side as well as the republican side. because we also see that many continue to have confusion around the affordable care act, it looks as if the real problem here is the general problem, the economy being week, the president be very unpopular. and the dissatisfaction is tied up with the broader dissatisfaction about the economy. the major provisions of the affordable care act have yet to go into effect. why people would be so dissatisfied with it at this point seems to be problematic. it could be on the democratic side people are dissatisfied it is not fully in effect yet. >> let's look at he althcare.gov.

what has yet to happen? you mentioned getting your children covered up to age 26 is now in effect. the individual mandate is still in the future. can you give us details about other elements of the law? guest: yes, quite a bit has gone into effect. the pre-existing restriction can no longer be held against children, so that if you have an infant born with some terrible set of issues or something develops when a child is one or two, that child cannot have pre- existing conditions omitted from the parents' insurance policy. that has also gone into effect. we also have something called a medical loss ratio regulations that has gone into effect. this essentially says health insurers have to spend a certain percentage of their premium dollars that they take and on

actual medical claims as distinct from administrative expenses or marketing expenses or even salaries. that is already going into affect. we also have throughout much of the country now a pre-existing conditions program so people that could not buy insurance because their pre-existing conditions, can access coverage either through a state pool or some other arrangement. so just on that entity insurance side, we have those things that are brought into effect. we look over the other aspects of the law that are very important. one of the things we know is that health-care expenditures have gone up very substantially in recent years. we also know we spend for per capita -- more per capita than any other industrialized country on health care. a lot of that is tied to the way

we run the health care delivery system. we need a lot of change so we achieved what people have said is the triple game. battle -- better health and better health care in all at lower cost. a lot of changes are beginning to play out with than the medicare program to try to figure out new ways of organizing care so that it is more aimed at keeping people healthy so that it is also lower costs, and these changes are starting to drive through the delivery system and forcing a lot of change, change we hope in the end will make health care costs much more sustainable for our country. >host: , joins us from albany, kentucky, on the republican line. -- tom. caller: i wanted to comment on how successful our country has been in medical care and reform.

and how important saving lives and the quality to life is. they have the numbers of what actually is required to save more lives around the world, and how history is being good to us for saving lives. and how important this is, and the courts are making decisions about health care, which are not necessary for the courts to make. the courts need to add just -- address the lawyers and people better detracting against the fight of saving lives. it is not really in their decision to make those decisions.

guest: it is true we have an extremely effective health care system in many regards. if we take the larger issue of the health overpopulation, we note things do not look so great. we know if we look at our life expectancy, it is like we're losing ground in much of the united states for much of the population as opposed to gaining ground. that gets to a broader set of issues, not health care perce, because health care is very good, it gets to issues around income inequality, and inequality in educational attainment. we know the main things that drive our help as individuals have nothing to do with health care and everything to do with our behavior, how well we take care of ourselves, how educated we are, because more educated

people tend to be healthier. we know we a long way to go. we know even though we spend a lot on the health care system, it does not correct all the problems we have in place in this society. notwithstanding the fact of the health-care we provide is in many instances as effective as it is. host: austin, texas. mike on the democrats' line. caller: good morning. my call in in question would be in regards to cost retain it. that was mentioned earlier. we have seen in medicare today where there is discussion or debate about privatization or using the insurance market within the medicare system. under the affordable care act, the insurance industry won that debate in the affordable care act, and there will be private

insurance out there that will sell to americans under the affordable care act without a public option. essentially you have medicare that has traditionally been a public option that doctors are moving away from, because they can make more money out and open insurance market selling their services to our broader population of americans. >> all of these things are very complicated. just to set out a couple of facts, already one out of for medicare beneficiaries chooses to enroll in something called medicare advantage, which is getting the package of medicare benefits, but getting them through a private insurance company, so it looks like a number of people are voted with their feet because nobody is coercing them to buy coverage -- private coverage that is backed by medicare.

so we see that happening. we know that much of the country is enrolled in private insurance provided through employers or that they're by themselves. when we go to the full-blown affordable care act, much of that will happen through medicaid. even people that are on medicaid today typically are getting medicaid benefits through a managed care entity, that is to say a private insurance company. you need someone to organize those benefits in the delivery system are around individuals. the bottom line is when we start to talk about private versus public and health insurance, it gets very complicated very fast. what the government is essentially doing in medicare and medicaid mainly is writing

checks and writing checks often to individuals to buy coverage, but very often sending that money to a private insurance entity to supply benefits to individuals. it is a little bit more complicated than just the strict, public/private dichotomy we sometimes fall back on. host: a story from "the l.a. times" last week about dr. ronald burwick.

this overseas government health- care programs that insures close to 100 million americans. was this a surprise? guest: it was very long in coming. it was very clear that when don berwick was appointed, it was good to be a tough haul. he was appointed right after the affordable care act was put into law. immediately he became the punching bag. he was the personification of the things people did not like about it. there was an attempt to get him confirmed prove the conventional process. hearings were never scheduled. there was some dragging of the speech, even among democratic lawmakers that were not eager to see hearings happen fast.

president obama decided to appoint him in our recess when congress was out in 2010. it was very point of -- very clear about his tenure would be limited. >host: who has been picked to replace him. the washington post profile her today and says she is known as a pragmatist. tell us about her. guest: she is known as a pragmatist. she was a nurse for many years. she worked in virginia. she let hospitals and rose to become a hospital ceo. eventually she became the top health official in the virginia state administration. she is definitely considered a pragmatist. she is considered a person that very much cares about participation. most of the people consult with her say you better be prepared

when she ask you questions about why you came in to see her, you better be prepared to say why your perspective will advance the interest of patients. host: she is a relatively quiet interest in the administration. and they had taken remarkably different paths to the same job. the conflicts that have arisen are unlikely to play out with her. her health care experience lies much more in management than in policy. what does this say about the choices of a manager rather than a policy expert? guest: i think that is a little bit of an overstatement. if you look back at dawn for what he essentially was doing was very much involved with figuring out a way to make a halter system functioned better. he was a pediatrician of long standing.

his own wife was seriously ill for a long amount of time who was in and out of hospitals. some of the finest countries in the hospital. he became aware of the errors that were happening in her care, the fact that the care was not extremely patient focused. he became very concerned about preventable events in the nation's hospitals, the fact that many of the people go and for one thing but end up dying of something else -- go in for and of dying of something else. he led a major national effort to try to reduce the preventable errors and hospital. one of them was called a 5 million lives campaign. frankly there is every reason to suspect there probably have been 5 million lives saved as a consequence of the force that was unleashed to improve care in

the nation's hospital. that is not that different from what maryland was doing for many years to actually deliver very good care as a front-line nurse, and then to basically run a hospital in nature the care was provided optimally. she also went into policy, leaving the virginia state government. i am not so sure i would say their paths were that different. i think they both come out to the same place, which is we do not have a health care system that is focused on the patient. >host: let's go to texas. carolyn on the independent line c. caller: good morning. i am in texas, you know my situation and health care is not good. rick perry has proposed to exempt texas from the benefits of the affordable care act, and

we did not even get to vote on it. i am very worried about this, because if anyone can do this is the legislators and rick perry of texas. will all of the benefits not be available to texans who have the most uninsured patients in the nation? thousands of people die because they do not have access to care in texas, and they do not care. thctsbout the compaq'tc that states can get out of? guest: it the supreme court finds the affordable care act is constitutional, that the individual mandate is constitutional, then all of these state provisions will fall by the west side, because we know we have of federal

government and the rights of the state's essentially are assumed by constitutional acts of the u.s. congress. it is bound to be constitutional, it will not make any difference. by the same token, a lot in virginia that said virginians will be exempted from the individual mandate, that will no longer have an effect if the court finds the law is constitutional. >> long island, new york, republican calller. caller: i have two questions. the first one is it this is such a good act, why has congress exempted themselves from the health care act? they feel they are entitled to their private insurance, but the other health care insurance is mandated on the rest of us. second question is, if you say there are at least 16 million

uninsured, probably now there are more due to high unemployment in this country, and we have the same number of doctors, doesn't that pretend -- portend the government will regulate how much health care individuals get? we have ezekiel emanuel that has written extensively on this subject stating that a 40-year- old person, since they have many more years left, has more of a right to a hip operation or other types of health care than a person said to be five or 80. it seems to meet this person is intimately involved in the health-care law, and given his philosophy, there will be rationing. guest: you mentioned a lot of things, so let me take them up in sequence.

members of congress are covered under the federal employees' health insurance plan. hey have ivateer ..-- already. they have not exempted themselves from the wall. to the decree was to exempt people who did not have it, they did not extend it to themselves, because it already has that coverage. also, there are closer to 50 million americans that are uninsured. when we look at ways to get those individuals covered, what congress said its we are going to do that through two avenues. we will expand the medicare program for people that are at 130 percent signed party level or below, and for everyone else we will create a more functional private insurance market so they can buy coverage, and we will give them subsidies if they are below a certain level of income to help before that.

that is the overall constructs for the affordable care act. to the question of are we going to have enough doctors, there is a concern as we bring more people into coverage how the health care system will accommodate them. we do not have an especially efficient or well-organized health care delivery system, certainly one that would be state of the art. today is cyber monday. millions of americans will buy coverage on line. health care is not even organized enough that you could buy health insurance protect relief very efficiently on line. in many instances you cannot even e-mail your position because your position will not take your emails-- in many instances you cannot e-mail your doctor because your doctor will not take your emails because they're not paid to do so.

if we're able to do that, if we are able to see more patients, we will be able to extend the reach of the current number of positionsphysicians we have. i think you will see our reach to make a more efficient to get more care to more people come and do it more cheaply than is the case now. finally come to the point of ezekiel emanuel, what he is really arguing there is not a question of federal policy, nor is a related to be affordable care act. it does not speak to any issues around our rationing or figuring out whether we will get coverage to this person or that person. he is really talking about a broader set of issues, which is how we expand the health care dollars, and should we spend so much of our health care dollars in the last phases of life?

those are legitimate questions to ask, but they do not have anything to do with the nature of the affordable care act. host: pa., democrats line. caller: i have a question. i have a lot of health issues. getting insurance is almost a nightmare. we do have insurance through my husband's job, but this last year it went up 50%. i do not see how any of the new electoral laws have helped me out or my family. we're almost financially wiped out because of health care problems and outrageously high copays. i have looked for alternatives, something cheaper. in my county there is only to help insurance companies i can pick from. -- only two health insurance

companies i can pick from. you cannot even afford the premiums. you are lucky to even have that. i am not complaining that i have insurance, but it is so expensive, i really cannot even use it. i did not see what has been done for someone like myself. i know there are plenty of people like myself. guest: it sounds as if you are getting coverage now through an employer, but it sounds like it is a smaller employer. under the affordable care act, there will be, assuming it is upheld and goes into effect, individual states will be organizing new marketplaces of health coverage called health insurance exchanges, so that small businesses will be able to buy coverage through their employees through the exchanges, as well as individuals that do not have coverage. there will be new marketplaces.

it will depend on how the states set them up. they have a lot of leeway to do things in different ways. in theory estate would have the ability to say we want 15 or 16 or 20, or maybe even everyone to come in and compete for the business. you will have to provide us certain package of benefits. the whole point being to give individuals choices among a variety of health insurance plans. if you are in fact below a certain level of income, you will have assistance from the federal government in terms of assistance to help you buy the coverage. in theory a person like you will have more choices at some point down the line. as to the question of cost, this is a real issue. we see health insurance getting so costly.

i saw our recent projection that in california an hmo coverage could be $40,000 per year for a family. we know it is getting increasingly unaffordable. we have to look at ways under the affordable care act, as well as through other measures, to try to make health coverage more efficient, more effective, and to cost less. it is precisely the situation that you described that is going on across the country where come up to relieve those that are giving coverage through employer years, we are seeing premium increases of 20%, 30% and higher from year to year. obviously that is not sustainable over the long run. >> genie on the independent line. good morning. >> i want someone to explain why it the insurance companies are

so necessary. it seems like they are a big middle man. guest: it probably often does seem that way too many people, because many people are not fully familiar with all that the scenes athind insurance companies to make sure you were getting appropriate care. we know the way we pay positiohysicians in this countra fee-for-service system. everything they do for you, he or she may be paid more. the vast majority of doctors and nurses in this country are extremely honorable people, but there are certain percentage of people that if you are faced with do i give this patient something, it may or may not help them, i get paid for it,

some of those individuals will make decisions to do things that are not always necessary, and are not always safe and effective. insurance companies can step in often and say, i am not so sure that is appropriate. i am not sure of that patient needs a ct scan for a headache with their record to get additional radiological exposure. very often patients do not perceive that. patients tend to put a lot of trust in their doctors. often that is very appropriate, but not always. someone often needs to step in to the stature ration and make sure thing step -- make sure things happen better for patients. there are many cases where patients -- insurance is have gone in the way. so this is always a game of a little bit of pole and tug to figure out what is appropriate.

we can only hope in the future there will be a better alignment so that people are not necessarily paid more, providers are not necessarily paid more to do more for patients but paid to do better for them. figuring out a different way to run the system. we hope that will achieve the kind of environment where everyone is on the same page about doing the best thing for patients and having providers paid appropriately for doing that. host: susan dentzer from

>> within 90 days of my inauguration, every american soldier and every american prisoner will be out of the jungle and out of the south and back home in america where they belong. >> george mcgovern's pledge in the 1972 democratic convention came nearly a decade after being one of the first senators to speak out publicly against the vietnam war. the senator from south dakota suffered a landslide defeat that year to president nick's and that is groundbreaking campaign changed american politics and the democratic party. george mcgovern is featured this week on c-span's the contenders

from the mcgovern center for leadership in mitchell, south dakota live friday at 8:00 p.m. eastern. >> the center for study of responsive while recently held a debate on whether the afghanistan and iraq wars are lawful wars or war crimes. arguing in favor of the war crimes position, attorney and constitutional scholar bruce fein and u.s. army intelligence officer lieutenant colonel tony schaeffer arguing against the war crimes charge are david rivkin and lee casey, both with the baker and hostetler law firm. this is almost two hours. [inaudible conversations]

>> good day to all of you. today we are sponsoring through the center force duddy of her sponsored by the third in a series of debates on taboos. we define taboos as significant subjects that are not often discussed in political, electoral or mass media circles. the subject today is president george w. bush and president rock obama, war crimes or lawful wars? all societies have taboos. they are systemic forms of censorship. they often serve as the powerbrokers in any society and in our country, they are antithetical to the full expression of the first amendment. if taboos are broken as they have been in our past, we then

can discuss them. if they are problems we can address them straightforwardly. there were taboos against discussing the slavery, the women's right to vote, spare labor standards, the rights of farmers and many others throughout her history. once the taboos were broken we were able to discuss and debate and treat these problems. today, we have many taboos in our country. the legal profession itself has turned its back in my judgment on a lot of taboos affecting the subject of the rule of law. in our debate, we have most acknowledged experts in this field, which i will shortly introduce. but i do want to say very briefly a few words about the function of law. the function of law is the discipline power.

it's to make sure power is productive, fair, and accountable. when the use of force and power goes beyond the reach of the law, the system of rule of law begins to break down. it begins to shatter. it's interesting however that most users of power and force want to route their activity in the legitimacy of the law. they are always trying to argue that in our society, that the actions are constitutional, statutorily supported, robert executive orders or observing international treaties. this in a way is a recognition of how important legal legitimacy is in our society even by those who some feel are beyond the reach of the law. here we have a focused today on

presidential power. it affects the separation of powers and of course the execution of the use of military force. our debaters today are debating this very central question that is very rarely publicly debated, have backgrounds of such detailed experience that i can't do justice to divulge their polar wireless that will be on our web site, debating taboos.or which also explains why we have started this series on debating taboos. but i do want to briefly describe the background of these participants. bruce fein is an attorney and constitutional scholar. he is serving the department of justice on the republican administration, is associate

deputy attorney general. he was following this he was up pointed general consul of these idle communications commission. in 2005/2006, he served on the american bar association's celebrated tax for some presidential signing statements. these were three actually white paper sent to the president, george w. bush by the largest bar association in the world on what they thought were unconstitutional positions by the white house at that time. he has been associated with the american enterprise institute, the heritage foundation and the brookings institution. a regular contributor to the mass media, he has testified over 200 times before congressional committees. lieutenant colonel tony shaffer is a highly experienced intelligence officer and recipient of the bronze star

with 25 years of field experience including undercover combat tours in afghanistan. he is well-known as what is called a subject matter expert intelligence collection and policy person on matters such as terrorism, datamining, situational awareness and adapted disruptive technologies. obviously there's a whole new dictionary that can be built around these activities. his book, operation dark heart, was very controversial, heavily redacted. the department of defense bought the first 10,000 copies and recycled them. and he is very well-known at this time in intelligence operation circles. he is an eyewitness observer of what was going on in afghanistan, where he served two to worse. lee casey is an attorney with a firm of baker and hostetler here

in washington d.c.. he served in the justice department and at the u.s. department of energy. his work at the justice department office of legal counsel involved advising the attorney general and the white house on issues of constitutional law and statutory interpretation. he's an expert on their foreign corrupt practices act and from 2004 to 2007 he served as a member of the united nations subcommission on the promotion and protection of human rights. he has co-authored many articles with his co-author david rivkin and "the wall street journal" and other publications. david rivkin jr. is a attorney with baker and hostetler environmental groups and has extensive experience in constitutional, administrative international law obligations including national security related matters. he also has worked in the justice department. mr. rivkin has filed suit in

court and appellate amicus briefs in several leading post-9/11 national security cases. and he is a frequent contributor and guest on national television networks. our moderators are both steeped in the subject today. stuart taylor jr., a lawyer, reporter, author, teacher and prolific writer for national publications. he covered the supreme court for "the new york times" in the mid-80s. is very broad range of studies includes the subject of terrorism, civil liberties and affirmative action. jonathan turley, rather moderator, is a professor of law at george washington university law school. he too is a prolific author, litigator on behalf of those who challenge official power, including a for 80th national security and terrorism cases. a frequent witness before

congressional committees, he has worked as a cbs and nbc legal analyst during highly controversial events in recent history. as i said, there are i/o's -- full bios -- professor turley would now open the floor for each debate. professor turley. [applause] c. thank you very much route. is an honor to appear with ralph nader and with this esteemed panel. we are going to be starting the debate with opening statements in which each individual gets five minutes. i've been given the task of keeping everyone honest, so i have brought a stopwatch so that i won't be tempted to favor one side or the other. we are going to start with esther brimmer's fine. [applause]

mr. bruce fein. >> thank you and let me begin by paying tribute to ralph nader. i can guarantee you if he was around several centuries ago he would offer the podium to copernicus -- copernicus and colegio to challenge the universe. as postulates for my presentation i want to begin with two ideas. one, war is the most important decision any country makes because what cicero said 2000 years ago is true today. in times of war the allies silent. the second is the most important idea in the history of civilization is due process, the prospect that you could get it wrong. you require certain procedures to make sure you don't err, you don't harm civilians, you don't harm innocent people. that is why it is so important that we entertain this particular discussion with the

greatest variety because it determines the fate of the united united states as a nation. now i would submit that the united states has engaged in aggressive war in violation of international standards on at least four occasions since 9/11. verso although it a sound jarring to many of you, certainly those in congress, i would submit that 9/11 was not war in the international sense, that there was not the same level of danger required in order to unleash the fury of arms and violence against the population, civilian or otherwise come engaged in hostilities. i wanted to submit a lease by inference a conclusion in that regard by suggesting 9/11 was unique in two major respects. number one, because of the alleged offender belligerent was not a nation. there is no endpoint that can be conceived to the so-called war. that is we have by definition a

perpetual war. no one has even insinuated wrench marks whereby someone would say alright the war against international terror is over so that suggested this may not really rise to the level of the war because permanent war and freedom are irreconcilable. the second element about 9/11 as unique in the element of warfare is the battlefield becomes everywhere on the planet because what you are fighting is a tactic, not a prescribed geographical territory. so that means military law and military rule can be imposed anywhere on the planet including in the united states. it's just a matter of discretion with the president. he made it with military law and the united states now but under the framework that 9/11 a fight against international terrorism is war in the international sense, he could do that today, tomorrow or otherwise. so in my judgment on 11 itself was a horrible murderous,

criminal operation. there've been those trite as mr. moussaoui for complicity and he has been sentenced to life imprisonment, but to conduct warfare in response to crime seems to me its out the crime of aggression. secondly if we can go to the issue of invading iraq in 2003, remember the crime of aggression was established in the nuremberg principles post-world war ii and when one country invades another, that's not threatening it, it's sovereignty of its people. that customarily is viewed as a crime of aggression just as hitler's attack on poland or otherwise. i submit what was happening when we invaded iraq in march of 2003? that was dangerous to the united states and created an imminent or actual threat to our sovereignty. i don't believe that it comes close to satisfying any reasonable definition of an eminent danger. many thought he was possessing or seeking weapons of mass destruction but that was so

remote they would never satisfy a requirement of eminence to justify war to protect national sovereignty. in addition iraq was a crime against the constitution because the congress of the united states did not authorize the commencement of hostilities. i delegated in my judgment unconstitutionally the decision whether not to go to war at the president. the founding fathers were unanimous. not one person or group of people to cross the rubicon between the state of peace in the state of war. fastened that responsibility solely on the congress of the united states and the united states supreme court said in treaty cannot override that obligation so whatever the united nations said it could not exclude congress from the decision-maker and nevertheless we invaded iraq. then we move onto concession to the shortness of life and i will wrap up with the libyan war. it equally if not more so

unconstitutional, crime of aggression, no threat by libya to the united states of america, no authorization from congress, no money appropriate by congress. the president went to war unilaterally flouting both international as well as constitutional obligations and i think it's time for the american people and the congress to stand up and say you need to stop that or we will impeach you for high crimes and misdemeanors. thank you. [applause] >> thank you very much, bruce. i wanted to note that galileo couldn't come here with the ralph since we have a picture of the moon going around the sun on the ceiling so we could use that debate. our next speaker is mr. david rivkin who will speak for five minutes. >> thank you champlin and it's a pleasure to be here in my appreciation to ralph nader and others who make it possible. let me begin by pointing out that indeed war is wars the most larger than rule driven activity or rules may be complied with

that law is not silent in the time of war and war is not preempt to rules. i would submit to you that we think -- has been divided into two parts. yusef bell and four prescribing war for and when as well as governing how war is prosecuted and how the complexes bought. i would briefly address the first part. there's no doubt under expected use of bella moral the united states has engaged in conflict against al qaeda taliban and affiliated entities. to begin with ladies and judgment as a defensive war, which in response to the 9/11 attacks consequently bullying complaints with traditional international law as well as the relevant sections of the u.n. charter, particularly article li was fully recognizes the right to self-defense. with respect to my college bruce the fact that it sorkin to

nonstate actors not legally significant. such wars have occurred throughout herman history. in addition, the hostilities of nature intensity and duration more than sufficient to meet the customary impression of comfort. i will submit to you it is actually from a danger perspective and by the way that's not a factor in international law, how dangerous is the attack a war being waged against but i will submit the level of danger here is quite high and may be much higher in many traditional wars against sovereign actors. indeed the fact that this is not complex has been recognized not just by us but by nato which for the first time in its history with nice the attacks of peasant aggression both in article v of the north atlantic treaty. from a domestic law perspective of course the use of armed forces been authorized in the case of a war against al qaeda and taliban by the authorization to use military force which pass on september 18, separate authorization for iraq and i'm

sure we'll talk about it later. the fact that there've been no declarations of war is not, repeat not constitutionally significant. indeed given this authorization under the teaching of -- the person is acting at the very height of his conscious national powers. a couple of points to dramatize for you why this is an armed conflict and not a terrorist attack al oaklawn the city. the attacks came from abroad. it was not a homegrown attack and is legally significant. the attack was carried out by hijacked aircraft dramatizing the fact that this is an event of a size insignificant and if you think about the physical loss of life more americans than any of the time except for pearl harbor. the purpose was political just like the japanese attack on pearl harbor and of course the kite is acting politically, driven by the desire to wage jihad and fundamentally reshape the balance of power in a large

chunk of the world. war has occurred on the global scale covering what was then known as the civilized world throughout him in history as a matter of fact going back to antiquity. al qaeda actions are criminal and nation because it is not saverin entitled to use force in any circumstances not legally -- to use other paradigm in appropriate circumstances, lots of poor paradigm in other circumstances. this does not lock us in. the fact that this war has been recognized in every case since 9/11 including in the case of -- where in the opinion of five justices specifically knowledge the point. the thing about iraq, not time to get much into it but we are entitled to exercise the right of collective self-defense. iraq of course invaded kuwait and that whenever and because iraq violated the cease-fire applications and there were other reasons why was a lawful or including firing on planes

controlling the no-fly zone. with absolutely no deficiency as far as the basic use of -- use of bella and principles for any of the wars that have been discussed. >> thank you very much. david gives the current record of giving up 30 seconds of his own time. a redeeming act on his own part. we are now going to turn to colonel shaffer who also has five minutes. >> thank you all for having me. tonight to be here and mr. nader thank you for sponsoring this. defensive war. let me hit a few points and we will talk about the specifics in a second. what does a tribal warlord in northern waziristan have to do with 9/11 or the attacks of 9/11? this keep in mind some of these guys live and die within five miles of the village and we -- they think we are the

russian so again the legality of the action is completely unfounded, unconnected to the realities on the ground. how many number twos does al qaeda or taliban have? it seems that we are killing one every but so what are we really doing here? how is the law and the application of the law helping us win? some of you seen me talk about this before. i'm not antiwar, and anti-stupidity and the fact that we have such an unwavering push to punish those, not really involved but they don't like us, so does not liking us justify extensive war against them? big about that for second as we go through the issues tonight. also when we talk about the idea of defense, what does defense really do? one of the things i hope we will talk about later today is on war al-awlaki, u.s. citizen. by all accounts a pretty bad guy. but again if we are talking about dissent -- defensive war

how does a it extend. under what authority does anwr a lucky assassinated? what is more perk you your as an operator is one of the guys, with my contacts tell me we could have arrested him. so when you put this in legal context, all u.s. citizens, whether you like them or not our do some level of their day in court. so why are we not now you know, applying rigorously the very laws which would allow that? and oh by the way i'm going to tell this officer i can't talk to dead people so there is also a real loss of capability here to do the right thing for the community so these are things we have to consider. i'm a practitioner as pointed out. i've been living for the past 30 years -- title l, title x are the two bodies of law which i live with them. these are laws that are driven to the larger constitutional issues. effective leave i can live

within those. frankly i've worked a lot over the last 25 years to avoid having to follow laws to accomplish operational judgment so i've clearly there are always disconnects but you have got to look at what you gain when you avoid following the law regarding the american people. is in your best interest to do that diversion or will it become a habit that the next guy, the ex-politician will take advantage of? that is why intelligence collection has to be pure. the idea of setting up laws, title l being the covert action locked title x being what we call traditional military actions have to be rigorously put down in process and those who practice this understand what the good and bad points are. i have seen over my time in service what i would consider war crimes where women and children are not considered as a stayaway target. let's talk about drones for one quick second. let's talk about mexican drug wars on the southwest border.

x. ago as a foreign country, so what if we decided the mexicans are now with monitoring strikes. we decide to put a predator drone on the southwest border legally within our airspace but we see something going on in mexico. we see a drug lord, really bad guy, a mexican mexican national suicide we are going to take him out. we will shoot the predator and he is gone. so when it happens we take out a -- from minot north dakota. five citizens have to be in the wrong place at the wrong time. too bad. how long will he accept that? probably about 10 minutes so why is life in afghanistan or pakistan less relevant texas is what we have to think about when we look at the realities of the application. thank you. [applause] >> thank you colonel. now he set the high mark. he gave up 42nd so we are going to see if mr. lee casey

can do better than that. >> have an extra 70 seconds? >> i'm afraid not. >> i can thank you mr. nader and thank you all for being here. i will argue that the u.s. has prosecuted this war lawfully particularly with respect to al qaeda, the taliban and their associates and allies. the laws both customary and treaty-based establish a set of asic rules about how war may be prosecuted and about how enemies may and must be treated. here are the great dividing lines between combatants who are legitimate targets and noncombatants who are not. the most basic level and enemy combatant is a combatant on the other side. this is a well-established category and was not invented by the push of administration and it is also sometimes known as an

enemy belligerent. this classification is not limited to servicemembers, duly enrolled in the armed forces of the state but also includes the regular forces, operating like al qaeda independently of state authority. those who are part of a regular national force which has a regular command structure uniforms, carries their arms openly and otherwise in their operations are known as lawful or privilege combatants and they are entitled to a number of important rights and pro-pitches in particular the right to be treated as a p.o.w. upon capture. those like al qaeda and the taliban who did do not meet these requirements are considered unlawful order on privilege combatants and they have far fewer rights on defeats or capture. in addition, as was suggested the category of combatant is

rather than the actual front-line fighters budget includes both regular and irregular forces, those engaged in activities that support to let terry operations in some tangible or material way as well as those in command and control rules. where to draw these lines in any particular conflict can sometimes be difficult especially in this conflict where the opposition deliberately has adopted a very secret and non-transparent method of organization and command. there is actually law however being built up on that issue since the supreme court in a case called boumediene said individuals held at guantánamo bay are entitled to habeas corpus proceedings. the d.c. circuit and the district federal court here in the district have been building up a body of law on who actually

falls properly within these categories and we can talk about that if anyone has questions. but i would like to emphasize because already mr. al-awlaki has been raised a couple of points on that. the fact of the matter is if you are combatant you are emulated to -- military target anywhere in the world that you may be found. it is not limited to the battlefield and not limited to the trenches of the front-line, however you want to define it. now, to carry out such an attack there are certain rules. you have to did follow the rules of discrimination. you can't do liberally target civilians. you have to follow the rules up her personality. that is the military shift of you are trying to achieve has to be relevant or has to weigh properly against potential for damage to civilians and civilian objects which often are called collateral damage, perhaps to

anodyne of the term but nonetheless when carrying out an armed conflict, you are not guilty of war crime if you kill civilians. you are only guilty of war crime if you do it deliberately or do it in a way that does not follow the rules with respect to proportionality. mr. al-awlaki was inoperative and al qaeda. he appears to have been a command role. that being so he was a combatant and he was a legitimate target. in fact that he was an american citizen does not change that. the supreme court made it very clear that your sedition chip is not the determining factor but rather your status as a combatant or a noncombatant is. and i will stop there so we can get onto questions. maybe even i have saved 20

seconds. >> nine seconds. and counting but thank you very much and thank you everyone for those opening statements. before i start our rebuttal period each person is entitled to two minutes to rebut what was said by others. i do want to know that there are cards which you can write down a question and my colleague, stuart taylor come is going to be selecting some of these questions and asking them if our participants. if you fill out those questions and cast them up to the front they will be collected for that section which comes later. at this point i'm going to turn to bruce fein for two minutes on any rebuttal that he would like to make. >> stating that in our post-9/11 conflicts, the wars have been highly regulated by law is like praising communist china for adopting the international covenant on civil and political rights. there may be professions out there but they are honored in

the breach rather than the observance. for example, when there are been laws that are brought challenging things like torture and kidnapping against the administration, constitutional violations come the state secrecy rule comes and says no you can't even file the case because it disclosed the culprit and therefore these cases become dismiss. i think with regard to mr. casey mentioning mr. al-awlaki, he pronounces the mr. al-awlaki was engaged in hostilities against the united states. what that is based upon, president of the united states has not released a single fact to the american people, to congress in executive session or otherwise that demonstrates the truthfulness of that and that is why we actually have trial. what is described as the queen of hearts in alice in wonderland. sentence first, verdict afterwards. we don't do that if you are complying with the rule of law. then we have got the violations of the foreign intelligence surveillance act, the terror

surveillance but from irrespective of the foreign surveillance provision to operating time so far. the presidents tens of thousands of calls come in or sections of e-mails and telephone conversation without a judicial warrant whatsoever. after five years ourselves of the statute and became, the practice became regulated by law. that is a huge number of invasions of privacy. what about -- we subcontract out interrogation to countries like egypt or syria to undertake torture or otherwise that we are not complicit in the violations and the last i will mention his torture is so. waterboarding which senator john mccain a p.o.w. has described as torture. it has not been prosecuted. anyway i think a sample of honoring the rule of law in a time of war is a breach. >> thank you bersin now we are going to turn to david rivkin u.s. two minutes for his rebuttal. >> thank you very much. a couple of points to clean up. first alteration of conflict.

if we look at history, long wars are not an exception and indeed we have a 30 year foreign to the 17th century and a award that occupied a big chunk of the 14th and 15th century. how would we know when the war would end? is certainly would not end with a surrender on a battlefield or a ship but the redefinition that would have to be met is the ability of the enemy to offer effective persistence and to project power -- power which is not mean you kill every single one but i am hopeful that it would probably undoubtedly take a long time. ladies and gentlemen it is indicative of a threat we are facing. nobody is said because the wars long it does not become that. geographical scope eye i eye of the size again if you are an enemy combatant with a legitimate target anywhere in the world 24/7. who determines the enemy combatant. with all of due respect to my good friend or is this is an

issue that is exclusively with the promise of voluntary commanders and the president president as commander-in-chief. outside of the narrow context of habeas which also by the way his post-9/11 there's never been any judicial engagement in that determination in large part to cut its a judiciary judiciaries not equipped to do that constitutionally but also as an institution matter he will not be able to ask a corporate the corporate opinion before you unleash machine-gun fire, drop a bomb or plunge a bayonet to put it -- -- and somebody's body. now as far as a lot of techniques that mr. feynman should know i can tell you is this. this is the most carefully prosecuted war in human history. the collateral damages below the number of people prosecuted for violation of the laws of war is the highest. there's never been a war in human history wage with greater attention to the rules. >> thank you very much david. now we are going to be turning to colonel shaffer for his two minutes of rebuttal.

>> well, i have seen directly that rules have been avoided, where they gave a green light to an operation that resulted in the death of civilians and it could have been avoided. i don't know how that is following the rules and avoiding civilian deaths since that is one one of our objectives. let's go to proportionality first. you all might member something called the cold war, a long more. as a counterterrorism guy back in the 80's. i was up against a group called the raf, the red army faction in germany. they killed u.s. soldiers and a proportionality we were very precise into things, or use of intelligence to dig out who they were, where they were and deadly force. we didn't kill german civilians because we thought five guys of raf pour down the block. we didn't. so proportionality was used successfully to prosecute

efforts of intelligence and special operations against an adversary which was by the way supported by the russians. so the threat that threat was dealt with precisely within the bounds of law without collateral damage. now, derek and that we have these individuals who are combatants is i find unsupportable within the constitution. no law, no rule that i understand anywhere allows for the government to unilaterally say anwar al-awlaki is no longer a citizen and no longer afforded the protection of the constitution. within the context of a the constitution it is in our interest to prosecute him based on the violations. the current standing order regarding, as i understand it, the criminal authority to go after these global combatants has to do with annie directly affiliated involved in 9/11 attacks. dod has continued to deny that

anwar al-awlaki had anything to do with the attack so what exactly was he doing to be a threat based on the current authorizations? >> thank you very much colonel. now we are going to have lee casey have his two minutes of rebuttal. >> a couple of things. first, with respect to two al-awlaki, citizenship as i said is not relevant to the question of the constitution of course is always what process is due winning gauged in a legal armed conflict like we are? the government is not required to prove beyond a reasonable doubt that the individuals had planned on attacking r&d combatants sent in they have to have a reasonable basis for that belief. but it certainly does not need to go to trial. the fact of the matter is, that

is true regardless of whether it is a conventional or unconditional war and keep in mind people that wear uniforms and run tanks for human beings too. if indeed the constitution provides due process for individuals who fight unlawfully and ignore the laws of war certainly provide the same protections for individuals who fight lawfully. our courts have never suggested that we cannot run a war without first attempting to prove the individuals involved. bystanders in the, chord arc combatants. very briefly, with respect to libya, as a war of aggression, the crime of aggression is very ill-defined but in this instance, the action was taken to protect the civilian population of libya from their own government, taken in connection with their own nato

allies and did not violate the u.n. charter and hence could not the in my view considered aggression. >> thank you very much lee. stewart? >> i have 15 minutes in which to ask questions. i will ask in the order in which the debaters have already spoken and their answers are supposed to be less than two minutes or less than that. let me ask you first bruce. you mentioned that 9/11 was not a war. congress as you know voted in the au math, the authorization for the use of military force, to authorize warlike measures in response. a was it appropriate, was a constitutional and was at the equivalent of a declaration of war and if i could add one more,

suppose a nuclear bomb had gone off on 9/11 killing 50,000 people. would that make it different? >> it seems to me that as a provisional matter, it may have been authorized by the constitution but remember that it was limited as tony said, to pursuing those who were involved in 9/11 or harbored those who did. it has been applied well beyond that in both the courts and the administration treats the au mfs authorizing legal force against anyone who is part of al qaeda whoever that is. the has never developed benchmarks for knowing who is or is not al qaeda and tony could recite verse the basis whether someone is connected with that organization. my view is that in the aftermath of 9/11 and able after the fall cleared in 72 hours or more, certainly after month, it was clear that the danger created by

this organization abominable as they are, was not sufficient to justify war. i don't believe that congress could stand up and say well we believe that because her is a great demand in brandy we can attack ruined it because it's a attacks of the united states. it's all a matter of degree at that particular point that the time that elapsed and signed 11 years ago demonstrate our knowledge and dimensions of al qaeda are not such that entitle congress to place us in the state of war and if i could just borrow a few times, if we use the same troop to al qaeda racial and afghanistan in world war ii against the germans and the nazis we would have fielded an army of 3.5 billion, multiply the entire preparation by 126 and conscripted everyone. it accompli begin manufacture to go to war when it doesn't meet that threshold of threatens to sovereignty. >> david rivkin, you mentioned the 100 year war. this turns out to be a 100 year

war, should know it is pending in congress a bill that i think has come through armed services that were not only authorized but require attention of accused terrorist captured in the united states? should that go on for as long -- is that okay? should it go on for as long as the war did and suppose al-awlaki had been in italy and the italian government would not arrest him marks of that i camp but the italian secret service was okay with us killing him. what about that? >> fair to dissing questions. one is whether or not your status as an enemy combatant makes to a legitimate target and the answer is yes number and we are. to the extent that we attacked mr. al-awlaki not in the badlands where there's no effective government but a place like italy where frankie we be committing a violation of international law against italy. as far as the basic legality of an attack, he did not lose your status as an enemy combatant because you are found somewhere.

you are german officer in switzerland on occasion you would still be a legitimate target. one thing i want to emphasize clearly with all respect to my good friend roos, the notion that this is not a serious threat is absurd. this is a far more serious threat if you consider the basic function of a government military establishment is to protect the people, the homeland from attack. this is the worst attack that took place on american soil. are talking about entities and organizations trying to use other attacks and massive structure in. what would it take for us to appreciate the seriousness of the danger? it is not a question of racial -- troops. this is not a mysterious argument as a matter of law but a matter of military analysis and thinking and planning. waging war against a small but insidious group that is able to penetrate from time to time and american homeland and bring death and destruction and mayhem to thousands of americans and trying to do it at the level of

dozens of thousands is horribly dangerous. any normal person would see that. is not a question of how many of them are out there. >> thank you. tony shaffer, what about the killing of osama bin laden? was the decision to kill him rather than capturing him, whoever made it, a war crime and by the way who do you think made it? what is the state of the evidence on that? >> good question. let me answer that in two parts. first the bin laden question. who made the decision? i do believe it was made i a senior official. i think the decision was to kill. i have no hard evidence of that for the to the folks i've talked to have said bin laden come unless he really kind of stood up and walked across a room with his hands wide appeal is not coming out of there alive. secondly i don't believe it was the correct decision.

i do believe that in a situation like that you actually -- it is not about him, it's about us, our rule of law. the idea is that if we capture things come, let's go do noriega real quick. we went out of her way to go and capture the leader of panama as i recall. he was holed up in the vatican papelbon or presentation. we use music to get them out. i think that was probably appropriate way. he was brought to justice. this is about us, not them and the other thing about bin laden, when you look at this as a military issue, we have had a lot of experience dealing with capturing people and bringing them back. anwr a al-awlaki is another example of that. anwar al-awlaki had snuck back into new york what would have been would have been the default position? would we have used a predator drone in times square or would we have arrested him? the proportionality here here's the back of me to bring people

to justice in one form or another. anwar al-awlaki or bin laden. the bottom line is you have to bring them back and put them on trial. is the verdict is to kill them you kill them but you do it legally. we talked very briefly, the idea threats against us, there are threats out there however we need to do it in such a way that we only kill the bad guys when necessary necessary and otherwise bring them and give in and give them justice. >> thank you. i have to complain that you have my mindset on what kind of basic we would have used for bin laden. you mentioned the limitations on the rights of unlawful combatants. which raises the question of that it may be more historical but the torture allegations. waterboarding and bush are troop -- approved interrogation methods war crimes and by the way would it be a warm crime now to use similar methods after the hamdan decision in article iii

of the geneva convention applies tataris? >> well, with respect to waterboarding and the other aggressive interrogation methods that were approved, waterboarding obviously is the most troubling. you are certainly sailing is as close to the wind as you possibly can. vis-à-vis the actual definition of torture when you do that, whether it's done in three cases to three individual so we are told and whether in any of those cases across the line, i'm not sure you can make that decision without knowing exactly how was done it was done in each case. but it could have come i submit it could have. whether that would result in a war crime or rourke kind prosecution is a much more carbongate story because you have to look at intent and knowledge and lots of issues

that don't necessarily come are not necessarily clear. with respect to other methods, again the question is are they severe enough to be torture? are they severe enough to be cruel, or degrading or such? the treatment we have new definitions of those cents the original authorizations were given some years ago. congress has defined better both cruel and degrading treatment as well as those that are torture. again, whether at this point waterboarding could not be used because it is not in the military manual which congress has incorporated, whether it would did, where there would be a war crime would depend on whether it is done in a manner that is so severe to meet what congress has adopted which still involves how severe it is the

pain comes the discomfort or whatever you are doing to the individual as opposed to a lanky it in hair and prohibition. thank you. ..

and otherwise. i think given all the circumstances it may well have been justified the issue than pardons given the time and uncertainty about qaeda being pardoned does not exculpate the crime only the recipient must accept culpability. it can't be foisted on them. that's something that was apparently never considered by president obama he forgot about the situation and sublimely forward looking, not backward which would put a and and to the rule for all. it then becomes into a memory hole like mine 11 itself so it is an infantile just the vacation -- justification. i would need to know a little more of the facts to decide if i would exercise the power certainly was worthy of great consideration but that's how i think it should have been handled. >> david, given that in libya i think the justice department correct me if i'm wrong told the

president he didn't have power to the extent of the bombing campaign because of the war power resolution is there any limit on presidential power to make the war without congressional authorization or is that the core constitutional presidential authority? >> there are really two parts to the answer here. one, the types of the uses of force the president cannot use in his own authority. second, to the extent there are those issues recognizable i would submit to you the congressional involvement of the decisions really does not have to do with operational and implications it has to do with bringing about and those issues have been debated and the founding that has a lot more to do with changing the legal rules that govern the power society and the perfect war of domestic law we as a matter of international law. as a practical matter the president can use force any time

he wants to and the issue is not recognizable that is a political question that is beyond the institutional confidence of the oracle three courts the president is not a czar. two ways in which congress can discipline the president one is you can cut off the funds. the congress was near plenary power and second of all that is what in impeachment is for. if the president is acting in a way that there is a sufficient concern in the coequal legislative branch you go for the process of the house trial and senate trial. the high price to pay by the way that it is again they were not meant to be easy that is how the framers intended us to proceed. >> thank you. >> as you know the senate armed services committee has approved legislation authorizing the detention without trial and as a suspected terrorist in the united states, which we've been giving any way for a long time

and would also mandate that would be military and the question is what you think of all of that including all along. >> there's a habeas corpus issue that needs to be examined in more detail and when you look at this a look at it from the practical perspective and the traditional perspective during world war ii with the saboteurs show up one of which was the u.s. all of which recently tried in secret and some level of tribunal they were tried and the idea is they were not going to be lingering indefinitely as combatants entel the war was decided. they've been captured it's not, that they were wearing civilian clothes which then at that point in time they lost all geneva convention protections. they were spies, but the

decision of our judicial system and executive branch was to still give due process. the result of that due process was somebody and some went to prison but the bottom line was there was a resolution, so i find it an abomination of the system that we've been at the war for ten years and there is no clear resolution to the idea that an individual, no matter who they are, be it enemy combatant come on combatant based on our own principles and traditions is a question right now on what to do with these detainees. there needs to be a resolution holding people indefinitely i don't see how it is legal or practical. >> my last question will be for lee. as president bush or president obama done anything that you think is illegal in this area or particularly troublesome if not illegal and if so what would it be?

>> in terms of knowing based on what i know about what both presidents of authorized i would say no. there have been abuses obviously that are being dealt with and are being dealt with in terms of president bush's decision to go to war after 9/11 in terms of president obama's decision to use force with libya those are well within their presidential powers. i think one with respect to president bush is the compensation for congress as david mentioned earlier puts them at the very height of his authority with respect to libya given the nature of the conflict i think that also was well within the president's authority to use military force without a specific congressional

authorization at least as far as it went. >> thank you. i yield the floor with a policy of going over two minutes. [laughter] >> thank you. okay. i would like to start with actually bruce. we talked about the international obligations to investigate and prosecute torture on a lot of different treaties including also domestic law. do you believe that president obama has violated international law when he appeared in the cia not long after he took office and assured the employees of the cia that he would not allow them to be investigated or prosecuted for these type of abuses? >> yes i think that is an admission of his good faith requirements that he would attempt to enforce better than seventh of the treaty, and this comes with the background of him having stated and echo by his

attorney general that in his view waterboarding was torture. how do you then make it consistent his obligation to investigate what he thinks is torture his statement that waterboarding is torture the cia was involved in the waterboarding unless you have abandoned the back as far as aristotle the inconsistency is blatant and it is another i think tarnishing of the rule of law and i want to repeat it is stated that the rules of the war are regulated by all sorts of a highly intricate stipulations and principles. if you write them down and you don't enforce them they really are not worth anything and that is what happened in post 9/11. >> thank you. you can claim to take notes from galileo say it's enough to snap your neck.

i am now going to turn to david rifkin. david, i want to see if we can get on to where you are standing. your colleague mentioned that he thought that waterboarding can close to line you can answer yes or no and then i will ask a strong opinion to see if we agree on these and if not that's okay, too. first of all, in 2008 the total defeat could you told al jazeera that basically my view is waterboarding is torture. do you still hold that view? >> waterboarding in most circumstances is indeed torture, but again we have to be granular and precise. that is the point that i think my colleagues are missing. waterboarding is capacious and if you take somebody and shove their head under water and hold it there until the person suffocates it is clearly torture. you have two or three drops of water covered with gauze to

induce psychological fear but it's not. we have to be very clear about what happened. >> by understand that. let's try to look the foundation a little further lead out. do you agree torture is a war crime? >> not to be legalistic but torture is a crime because it can take place outside of a context it's not necessarily a war crime but yes torture is a crime, absolutely it is a federal crime penalized not only in the international law but on the statutory law. >> and use it penalized on the international law it means that our international treaties that make it a war crime, correct? >> there are circumstances if you engage in the domestic law enforcement is also a crime. >> april 18th, 1988 president ronald reagan signed a convention against torture, and

in the signing statement, ronald reagan emphasized, quote, each state party is required either to prosecute torture and in its territory or to extradite them to other countries for prosecution. first balch's as a general proposition do you agree with president ronald reagan to the obligation to prosecute anyone that committed torture? >> one of the issues was whether or not given the nature of the signing statement whether or not it applies as committed in the territory for the party and of course the cia cite to the best of anybody's knowledge wouldn't take place on american soil. second of all the language relevant in the context of the legal system if for example even if he felt tortured on the american soil but ladies and gentlemen know admissible evidence to establish that. you don't go forward engaging in the prosecution's.

they wouldn't want to have the justice department prosecute something. there are provisions in the manual about what level of certainty you have. portable criminals go free in this country all the time because the prosecutor doesn't feel that he can present a sufficient case in the grand jury and eventually to the jury. specter want to clarify one thing because we have to prosecute torture who are prone to in the territory but if they are in our territory we have to prosecute them. do you agree with that? >> that isn't technically correct. there is language in the ratification of the torture convention and if i am not mistaken that was the position of the bush administration. the first question in the context of the criminal prosecution as the scope of jurisdiction. jurisdiction can be territorial and nationalities and the bush administration's position was i believe that it apply to the actions that took place in the

united states. >> and you agree to that position? >> we could have taken a broad position but if that is what -- that's the basis remember all the debates about the meaning in the treaty and what is the significance of the ratification statements as to the old met scope of obligations we believe in the rubble of law if that is what the senate was told at the time that it was ratified that is what was met. >> am asking about your view because that is contested many people say that it is not true. >> let me just say this, it is a debate proposition. it is certainly not a clearcut position but again, all we want to -- our listeners in the viewers to understand there can be circumstances you don't go forward with the prosecution if you feel you cannot make a case and remember this is a specific and intent crime. they require specific intent in the constitutional system but this is a specific crime and as you know, there was a big issue in the so-called anno what was the intent of the prosecutors interrogated but if i can

indulge for a second we spend all this time talking about waterboarding and it wasn't to free people instead of looking at the totality of the conduct and i want to emphasize for everybody that no other country in history, human history has ever been this restrained in dealing with this problem since 9/11. >> i understand that. let's push this further to the other panelists. the -- in this case in terms of what happened with waterboarding coming you had people like khalid sheikh mohammed who ordered 183 times. another person -- i'm sorry, i think 100 times and another person was actually waterboarded 83 times three times orie that is not true. sheik mohammed was waterboarded with 83 times in one month. now this went beyond what was described in the o.j. minow and the session went beyond 40

minutes. this information we have confirmed. so, given the fact that you have the sections going over 40 minutes, 183 sessions in one month. what did you consider that to be credible evidence to support a formal investigation of torture? >> with respect, jonathan, there were of leased to investigations we are aware of and as careful lawyers, we knew something now including the lawyers in the justice department and believe me it's been a love to prosecute people they believe broke the law and would like to make the case. but to set of korean prosecutors who investigated this and decided not to go forward. if we believe in the rule of law and there's enough political people we have a considerable level of credibility to those results. >> we can still prosecute for the war crime so do you believe right now that waterboarding 183 times in 30 days and for the sessions that went beyond 40 minutes would be enough to you

to say we need to investigate this new information? >> again presented this week there's a troubling fact that we are missing here again and i know it is the sense of devotee people living in that mcpherson century but if calling it 180 plus waterboarding sessions describes an application of a few drops of water to somebody if that is what it means it is a much more difficult question if you take somebody and shove their head underwater and one thing which everybody seems to forget we waterboarded thousands of our own people. if that is true nobody seems to care about it. >> [inaudible] >> but forgive me. you cannot consent to torture or slavery and this prosecution some things are not subject to consent, so it is not at all a clear-cut picture.

>> let me ask one last question and i appreciate you moving through these quickly. i know it's not easy. in 2003 george w. bush told the public before the iraq war iraq that the crimes would be prosecuted, criminals will be punished and would be no defense to say i was just following orders. and as you know, the just following orders defense was rejected at nuremberg and we helped create that precedent. president obama as you just heard me ask went to the cia and said by understand that you were following orders, and i am not going to allow the employees of the cia to be investigated and prosecuted. do you believe that president obama was correct in his view or is he in violation of the principal? >> let me vociferously defend president obama. i think you and about other people are misconstruing what he said. he did not say i am convinced that it is broken. but for some political reasons

or just following orders i'm not going to prosecute. there will be troubling. i think let's use the word groningen office. after the campaign having come to office and having gotten access including previous investigations he must have been advised. i see no other way to be. to be advised by the legal what pfizer's there was no basis to proceed and he went forward and reassured the cia about it. the other interpretation is i think highly insulting to the president and is not supported buy any evidence i am aware of. >> thank you very much. i am going to now go to colonel shaver. you have a unique position on the panel was someone that has been should we say boots on the ground, and as i'm sure you are probably aware world war to the country prosecuted a japanese officer who was accused of an incident in which a u.s. citizen

was tied to a stretcher with water poured over his face and caused him to gasp for air until he agreed to talk he received 15 years of hard labor for that to read to you see any distinction between our case against this and the case you read about involving the united states program? >> if he would permit the consensus we could correct and go to the death bathroom downstairs and some of our own waterboarding to test about because i don't think it was just a few drops of water and we could replicate that if necessary. not to be over dramatic, no i don't think there is any less devotee in the context of all of the land and don't forget i practitioner to read i have to go out and do things. there was a classified program which allowed this to exist. i've done a lot of classified black operations work and less who were on the inside

understood fundamentally that this is probably illegal by the fact that the international law says you can't torture people and some of us may not have known the specifics of the outcome of the waterboarding but let me be very precise in this. most of us as practitioners understand that torture doesn't get you anything except information people are going to tell you to make it go away. a special operations will remain nameless give it up after being authorized to do it. why? because they had to go through and sort through everything someone will give them because half of what they were getting, more than half was off. so the application was and matching of the outcome or anything talking about the jurisdiction and the personality the idea that you are doing something proportional to achieve the objective. so i would stipulate we should go to the principle if the act

of torture worked with the information that came out of that is representative that and then the results of that that is we stop the terrorist action and define them and that would make it legal in my judgment nobody can show that. >> thank you pierrick i'd like to turn finally to the casey. you talk of with regard to the military, but since the military may target anyone anywhere in the world where you are found call and they are talking about in any combatants. but there are rules. the president of the united states is saying he had the right to take out a list and write the name of its u.s. citizen on it and that citizen would be killed and you said that you can kill that citizen anywhere in the world even just outside of the stores. so if the president has discretion to do that what our rules limiting it?

secure distinction wouldn't be such an issue because in enemy combatants. the proportionality would be. the question would be how much collateral damage would there be. >> who enforces the rules as i'm asking. >> the rules are enforced by the courts, by the congress and by the president. but let me finish -- before we move along, let me -- in addition with respect to the tax either see in this country or in another country we also have to respect the rights. we cannot simply launch an attack into a country we don't have permission to do it. in addition it is also true that you cannot attack even someone who is an enemy combat and if they are not capable of resisting which is to see for a simple one of the earlier cases the individual called the dirty bomber jose padilla was surrounded by fbi agents in

chicago when he arrived in this country. he was an enemy combatant but no you couldn't just shoot him because it would be the technical term for it he wasn't capable of resisting any such cases you have to be afforded. you can't go ahead and just kill someone. and so, those -- all of those rules would also have to be taken in do you disagree? >> to the president decides to target i think the court -- the d.c. district court is correct that was a political question that the fact that in that instance the court stepped aside and said we are not going to

review whether this individual can or cannot be attacked doesn't mean that there are not legal rules and it does not mean that those legal rules are not applicable and can be enforced perhaps in this case by congress if the president is incorrect to impeachment. >> the court can review the names on the list and who would have standing to go to the court and say i would like a policy review because they also rejected that and said you don't have to stay in touch with al-awlaki. they said he himself would have to come even though we were told that if he appeared we would kill them. so would anyone have standing who is not on the list? >> welcome actually with respect i think the judge actually said that he was not -- he was not showing up at the courthouse or at the u.s. embassy and the judge said and saying i would like to surrender, please accept my surrender in which case obviously his surrender would have had to have been accepted. with respect to the enforcement

it may well be in this instance that the policy -- again, it may be the congress as opposed to the courts on that particular issue. >> my last question, and i'm out of time, but you mentioned that you cannot kill someone if they cannot resist. did that include vaporizing them with a drone? they have got people that are vaporized without even knowing they are under attack and in the case of bin laden all of the reports are that he was shot immediately when they came into the room. were those unlawful killings because the seals could have captured him and more importantly for some of these people they didn't get a chance to resist of all? >> to answer the question they were not unlawful killers. but first of all when determining whether someone as capable or is not capable of

resisting, you do not have to accept danger to yourself which is to say in the case of bin laden he could have been well capable of resisting. he was not ordered combat. he was not surrounded by fbi agents and the fact that the individuals who went on that operation chose to shoot him as opposed to trying to taken prisoner was perfectly legitimate since -- unless he actually again came out and was actually not only willing to surrender but not capable of resisting and there was obvious. with respect to the predator drones it goes back to whether you have to give someone notice before you attack them, and that is simply not what the law requires. under the law of the war again that there would be no particular reason that that rule if it existed wouldn't apply to any one.

>> thank you. >> thank you very much for that. you want to keep us on time so we are now going to turn to the debate today. your questions have been given to stuart taylor who is reviewing them. we are now going to start a short period where each can mask another debate in question but they're limited to two minutes and we are going to start with bruce. >> this is a question for david rifkin. do you believe that any detainee held the ball from prison afghanistan is entitled to have any judicial review even when they are under our custody in afghanistan through habeas corpus to the supreme court extended to the gitmo detainee's or are they just outside of the universe of the law? >> it is not actually what i believe what matters is articles record namely the d.c. circuit and the decisively rejected you

and again i want to emphasize this is a first time in american history this level of the judicial engagement we talk about the fact there is not a judicial engagement in the use of force but in the hideous decisions hundreds of cases now are rising out of the detention in guantanamo, the decisive rejection of the proposition that the individuals held in custody and in american custody or joint custody overseas outside of the union conclave of guantanamo and have access to habeas corpus and in the world of law, bruce, we have to take the answers from the courts with the we like the outcome or not. >> are you suggesting the courts are beyond judges the right one to suggest to you is it your view, and this is consistent with the rule will fall at any detainee held at guantanamo could be circumvented in the right to habeas simply by shipping to dhaka on and saying maybe you've got your freedom and habeas out of gitmo but in bader and you have no rights and we can detain them forever. they are irrespective of what

the court rule with regard to the detention. >> it would press home, bruce come as you probably recall in the oral argument before the panel of the judges in the d.c. circuit. that view did not carry the debate because again, we have a very unique constitutional regime. we are talking about a general proposition as the constitution applies to read globally with regard to u.s. citizens the constitution applies with regard to aliens only when the u.s. soil. post 9/11 we put guantanamo on a different sebastian. by and large, actions by the u.s. government always seizing is not citizens. not subject to the constitutional norms and i'm not enforced but the article 3 courts. that's how things work. >> you know what guantanamo bay citizens are maintained at guantanamo bay. >> they've got the two minutes. >> i would like to pose a question to either of them to say to tony my question

basically is this. under your logic about bringing people to justice, can you conceive of any war where in all instances you would be able to go and a best without putting a new risk to the team or any other team the obligation to bring somebody back but you can never use deadly force against even a person like bin laden under your own logic about the scope of authorization responsible for 9/11 they couldn't use deadly force against them not as a matter of rule of engagement and what we see with surrender in but basically set to appear did i did wrong? >> your colleague has now given draft excuse by the fact that if you use this standard of the individual being able to resist the capability to resist if you're able to do that apparently if they can do that you are going to put yourself in danger, means that from here on

your being employed and going after bad guys that can resist you don't have to go. we do understand the capability of resistance and what you are asking related to the individual who was to target of legitimate operation but by all accounts a legitimate target. he was a combatant. however within the context of eight guys coming at you and coming out of sleeping, the question to come is not a practical one. there was no -- at that time i understand and i think the open court that any steel was ever felt that he was threatened in that event. so the idea here that we should apply deadly force standards just like we would apply any law enforcement officer on the streets of america. at the time of an event the first thing you do is to take them off the street and deutsch and evaluation of the standards and where the standards followed and is it a legitimate kill. i don't believe in any military

setting this would have been a legitimate kill on any other normal circumstance. >> with respect you are suggesting that a bunch of the best soldiers just committed a war crime? you believe the operational judgment, the situational awareness on the balance field at that time is better than yours is that what you're suggesting? >> we are out of time and i am told to hold the line here rigidly. i thought were talking about the tenure of the process until he said the seal. we are going to have to go to -- >> my question is for mr. rifkin. [laughter] it has to do with the idea of the black sites and i am going to put it in the framework so you know where i'm coming from. the statute, you know, when he directed something to happen and something happened he was still held accountable. so in the context of the black sites if we actually go around creating them in the foreign

countries we use u.s. tax payer dollars and set up the sites we use taxpayer dollars to have the cia or special officers capture someone in the rendition. the use the cia contract aircraft and getting to third country and say here is the guy go torture him and we are culpable for that torture. >> there will be the liability. but you were doing is of course respect to the fact nothing illegal about running the black sites. this nothing illegal about using the tax resource or about cooperating with friendly intelligence services in the operations. it's only in a situation where you order somebody or substantially direct somebody to engage in the acts of torture you may have a problem and leave no basis to agree that is to occur, but as a statute does not apply to the government allow activities. there are some that may be involved but he is irrelevant

here. >> 30 seconds if you want to use them to read >> bet sample of the call but the concept of government and the understand we cannot be held accountable, but for the concept here is we spend congressionally appropriated money to conduct things which would be held as a legal and even if we don't correct it, we know what's going on. >> congress was briefed in the operations in the oversight set to its fully the gang of the staff of the both committees. so this is again an instance where the executive fully complied with irrelevant -- >> was the executive telling the truth information on conagra's? >> i believe there is a lively dispute took the completeness of the briefings. >> thank you very much, david and tony and will now turn to we casey.

>> actually my question is for bruce, and i guess it is sort of a two-part question. one, what level of violence you think is necessary for the act of the war, and second, do you believe that congress can authorize the use of military force short of a declaration. spec congress can authorize the use of military force. military forces and indicate the war. the congress authorizes the military use on ten occasions. war however puts you into a new architecture that say despite the globalism the law is generally silent because courts don't generally do anything and the politics is holding ever won a council. with little choice was the war? there are with respect to habeas corpus and the times of an invasion were rebelling in that level of threat sovereignty and of course that is not met when

the supreme court held habeas corpus had been illegally suspended by the military commissions act and the actions of the executive branch. now this is not a question of the geometry where you count specifically the number of soldiers or whenever. it's going to be a matter but my judgment if you look at 9/11 certainly what we know now beebee 50 al qaeda by the counterterrorism task force in afghanistan, 50 alone you could fit them in the auditorium and have lots of space left over. that is not a level of violence as is indicated by the last ten years the justifies throwing away all of the customary trappings and due process. the precious liberty that is on the debt of the united states, and i think that is all the question that we need to confront presently. >> 20 seconds. >> very quickly, what will we do you think applied to the four chemical applied to that? >> de aaa de war?

>> that is what it was conducted by thomas jefferson >> even though not against the state. >> in the party states they have their existence and north africa even though we didn't draw the boundary as today that they are operating as steve factors. >> it may be the status of the barbary pirates. stay tuned for next month i'm going to turn over to my friend. >> thank you. i have 15 minutes to leave the audience questions and i would like to apologize in advance there are more than 30 questions. they all fought for an excellent and i don't think i'm going to get to 30 but if you gentlemen will answer briefly we would get to more than otherwise. the first question i think might be appropriate for you, bruce, does the fact the justice department tells the president waterboarding is legal means the president can be prosecuted for

waterboarding and related does the united states have the right to define, torture in ways that do not comport with international law? >> the first question is whether or not the president relies in good faith on the legal what voice of the justice department that immunizes any criminal prosecution. there is a good state rule built into both now the statute as well as implied in the common law and was applied in watergate with regard to one of the burglars i figure was bernard worker so if there was a good interpretation of ball the answer would be he would be ultimately shielded from a prosecution but oftentimes is very fact specific. adolf hitler relied upon all sorts of advice he thought about the invasion of poland and that didn't immunize him or his subordinates from nuremberg. with regard to the finding torture the united states can certainly defined torture under if the president cannot be defined torture as is specified in the title 18 in the u.s. code. that is quite specific with

regard to the international interpretations of torture it's in the treaty there is no indication that there was any effort to try to differentiate between the definition of torture so i don't see that there is any leeway. it is true that one of the more blurry elements of torture as defined in the statute is whether what was done with calculated to create in imminent fear of death that would cause protracted or prolonged mental searing or trauma and in that time it can become a matter of difficulty and application but i believe the standard cannot be manipulated by the executive. >> a question i will direct to david. if the u.s. is free to take out assassination anyone it feels is a so-called combatant anywhere what is stopping other countries from assassinating their enemies on u.s. soil such as iran wanting to kill the saudi ambassador in d.c.? >> to the answers. first of all assassination is a

term of the international law. there's more than just the killing. it only applies to the international protect a person, circling the ambassador even ambassador of the enemy country is an assassination our actions. you are asking me however if the country believes the release date of war with us and attacking our soil in the world an american official living in the chain of command, the secretary of health and human services but american military officer or secretary of defense to the extent they believe that they are not committing the international law it would be an act of the war. but on the other hand, iran has been engaged in a low grade activity engaged in the numerous soldiers in putting the town was and the blown up marine barracks. they've been engaged in the war to read those things happen in the international arena.

we chose if you will not to take them up at an invitation and engage in the next war with us but to me again with all due respect when we believe the seat of war and objectively we are and we carry out military operations against enemy combatants the fact that somebody can do it to us does not diminish the legitimacy of what we are doing. spec the question i will direct to tony what do you propose is the next step given the political reality and the congressional reluctance to address the violations? >> which violations? >> all the violations that you think have occurred on any of law. >> i think that there are two primary violations to be clear on what's been violated. first the scope and promise of the authority for the military force has to be better defined. if you're a carpenter and have a hammer everything looks like a nail therefore if you leave it

to the commander to determine what their actions are regarding the quote on quote combatants, they will set up an arbitrary standard which has no relevance to the original authority. i don't believe that is a valuable course for the country to continue because now we are targeting sheep herder sood never lived more than 5 miles from the village as a potential terrorist because they support we believe by some length, some way al qaeda so we have to standardize what that really means because we cannot kill 20 million pashtu in. second, regarding the dtv operations, the detainee individuals. this the two factors we have to clarify first habeas corpus when someone is captured even if they don't have the convention protections you have to figure out what you were going to do. the intention is not final and it doesn't represent us as a culture, period. so there for the other way we have to clarify and then what is torture? i say in my book we talked about

the operation there may be a moment in time i would do something like jack power there may be a situation. colonel alan west did something i support. he took a gun and shot it over someone's head to get information that was tactically relevant and it worked so i'm not saying you shouldn't intimidate but the question becomes should we systematically tortured people or have a program that allows torture to our own hands that is what we have to define. >> thank you. the question i will direct is what are the criteria for determining a person to be combatant where is the burden of proof the d.c. circuit decided in the case there would be the presumption of regularity for all of the government evidence. isn't there some history that shows the government evidence is often all the way and reliable? >> in terms of the criteria, traditionally the criteria are

you associated with an enemy force? and what is the nature of that association? you don't need to carry a gun you can still be a legitimate target and a radio operator there's all sorts of different jobs. with respect to this conflict all of that i think applies but it is also true the d.c. circuit has been in the process of enlightening us to some extent elucidating the rules and has concluded a number of cases that you have to look at it holistically in any case by case basis. with respect to the presumption of regularity, keep in mind that with the presumption of the regularity means is that the evidence the government brings in is accepted as having been regularly gathered and put

together. in other words, you don't have to prove that the agent who wrote the report actually did interview three individuals in afghanistan. there was a presumption that was very well taken. it's not a resumption of the truth of what those three people in afghanistan said. the court can still review that and consider them to be inherently incredible or whatever and indeed the detainee can also challenge it. >> bruce if one accepts the argument that the war is illegal, what are the obligations of u.s. citizens under nuremberg? >> the first obligation under nuremberg in my judgment is in teaching the president for high crimes and misdemeanors subject to a trial and articles of impeachment against president obama for the illegal war and

lydia. it hasn't gone very far but that is what we can do with citizens. as a matter of principle the declaration of independence says that at some point in time of every act of a government is designed to reduce we have the right to resort to arms ultimately and to establish a new dispensation. i think we are certainly not there by a longshot, but i think with the founding fathers it is that the impeachment process was to be a surrogate for what was earlier the coup d'etat like against julius caesar. that is what our obligation is to insist members of congress stand that we will not elect them anymore. one observation. we refer to this overwhelmingly redacted. so how we can be so confident with the conclusion is in the mystery to me because most or all these classified. >> thank you this is a question was directed to lisieux will go out of sequence for a moment.

question, proportionality, question, estimated dead in iraq range from 150,000 to 1 million. do you accept that this is an acceptable amount of collateral damage and a civilian on terrorist casualties? >> you need to look at it with respect to each operation. the concept of the proportionality is one that is indeed applied military act by military act. what you are asking is whether the war itself was worth it. whether the amount of damage done was done to the civilian population, the amount of injury and damage the was done to our people who fought the war was worth it. with respect to that, only time i think will tell. was it worth it to establish the space government in of least and as the key and in perfect as it

may be and will put in the future lead to the positive change? i don't know. >> thank you. i will direct this to tony. how should the united states against defeat could defend against them on nations and the drone attacks ever lawful? >> the latter question first. join the talks are unlawful. the heart attacks as night raids are a tactic like any tactic, like any weapon, it's all about the legal application of that is a capability. so that is something we of the arsenal, the technology is not developed at the point that it is a valuable technique for taking out the leaders in remote locations. that said i think that we've become an over reliance on the technology as a metaphor for progress sharing if we are killing people we must be making progress and that goes to the second answer regarding the targeting individuals in the

third countries. my answer is it should be the tactic of last resort speaking both as an operator and having lived within the legal construct of the defense committee the past 25 years the default position should always be and was during the times i've come up to the service captured rather than killed. the cia shooter who killed the cia officers they captured him in pakistan. captured, didn't just look, the captured. that is the position we should do. frankly that should be our standard. only should we go to a third country and do something if we can do reasonably well the rendition to bring them to justice. otherwise, i think no matter how you define combat, combatant i don't feel we have sufficient understanding of what the combatant is and frankly if you are leading the commander to determine that they are going to go with whatever they can. i don't think it is being transmitted well aboard.

that said there you have to go to the capture rather than kill whenever possible. >> david. >> the questionnaire asks that you answer this and here are three or four question the door of the same nature. you saw it 9/11 as the legal foundation for the war of aggression in afghanistan and iraq. how would your argument change if it is shown as it is becoming increasingly obvious by the scientific trenches and the 9/11 commissioners themselves that 9/11 was not the event that was described what is the so-called conspiracy theorists are right now? >> derwood deacons like the assassination they've been looked on and i believe, i'm not a forensic scientist but all the theories about 9/11 are not an

attack while al qaeda had been proven to be united states government but in many countries that don't wish us well including russia and china and falls to the position of al qaeda. so we have a super conspiracy in history where everybody is inspired to bring this about. >> thank you. >> bruce, i will interpret the question a little bit and you may have touched on an already. two citizens plays on an assassination last citizens who are targeted let's say have the same right prior to the killing that they would prelude to the trial if they were captured i suppose the question is what it draw an attack but was done to al-awlaki ever been legal if was clear he could not be captured?

>> i think if you are examining the parallel in the justice system you would first expect there to be a warrant issued for the arrest of mr. al-awlaki for the crime and it is said that he was complicity and all sorts of crimes including the fort hood killings and what ever perhaps in citing the crimes against americans. but the fact was he wasn't subject to any indictment, any charge whatsoever on say let's say osama bin laden who was under indictment by the federal grand jury. so at least you would have by requiring the war on some check buy simply having the president or wycherley identify anybody in the world and putting any of us that secret evidence come secret all i will kill you and then afterwards we will decide whether congress wants to impeach me, but i will have any inquiry by saying state secret you can't know anything about what i did. so i would say you could put them up with a system of warrants with a kind of force once it is shown. in the warrant process an

attempt to capture would be futile and i want to emphasize on this idea that it's been to the other side any time we can avoid the risk to ourselves we can use the force to prevent that risk from occurring. that would suggest if we are not borat with iraq and we don't want to risk any danger to our soldiers, we just launched the icbm with a nuclear warhead into iraq and incinerate you kill all the civilians yeah but we couldn't fight the war without risking the danger of the soldier's life. this would mean nagasaki become a staple of how we fight the war to reverse the mix before. we are past time for audience questions so i regret all the ones i wasn't able to ask. br the phase of summation and david has agreed that they will summarize for up to two minutes. and then after that, you can directly follow bruce, two

minutes to read my beyond local ladies and gentlemen and on balance the entire record it makes me proud. we spent too much time for the most difficult and jarring questions but this is a small part of the overall spectrum. i would submit to you know their war in human history has been this unprecedented level of the political attention to how to do things right. even with regard to the torture memos that have been very unpopular. in the country they would not bother to ask difficult questions and try to reconcile the statecraft and dictated the wall. serious debates within the justice department within the executive branch between congress and the executive and the enormous level of engagement. the debate during the campaign. the prosecutions of people who

violated the loss, numerous prosecutions, but those are the people who didn't commit the crimes themselves but failed to report crimes or allow them to occur. so we should look at the imprisonment of level to the collateral damage. numerous times not using force, then there was the concern that pretends to be civilian. had mistakes not occurred of course the ocher. in the war the most difficult environment and which to always be great but there can be no other war i can think about where every country has done better. we close by pointing out the danger once again this is a debate there is no debate about bill law it is about the nature of the military threat. we live in the world where a small group of people, very small can inflect unprecedented levels of destruction and mayhem. unless we do that and abide with

the job and the establishment of the shah for the leaders are to protect the american people. if we are not going to appreciate proposition and if we are going to pretend to speak cause we don't have tanks or thousands of troops marching in lockstep on the of the side that is not the danger. we are forfeiting any basis upon which the government has came into being. so again, that is the threat we face by the approach with care and dignity and i am pretty proud of everybody that has been involved in this war. i'm also proud of the fact we continue to debate those because many democracies including some of our good friends tend not to debate them. thank you. >> i believe the war has been unprecedented in their assault on the constitution of the united states. the very first casualty. we have established a set of principles to borrow from justice robert jackson in the

nordenberg prosecutors that will fly air around like loaded weapons when they decide to take in principle and extend them here at home care of our rest on the benevolent of the president of the united states and the principles we have established and have been taunted by that year are the dissidents a president could go on television today and announced he has evidence suggesting there's even going to be worse have a station unless we suspend the, but to the constitution. he's going to suspend conversations to save us from doing duty and that would be lawful according to the principles that have been announced during that stiff war.

ascent tangy that is frightening in the winter in america that if we had certain principles because of what this says about us, irrespective of what this says about the enemy with the anniversary is that abraham lincoln said as we would not be a call the miser and we would not want to torture, we will never stoop. that's basically what this is about putative we want to stick to the invitation of the enemy but a jewish raising ourselves. with the united states was about one leader after the constitution use that as long as it is better than king george iii we are okay. the americans. this will flock