on, i think it -- more broadly. it more broadly. >> well, maybe if they reauthorize it after the judge's decision and before we say anything to the country if we were to, that would be the kind of thing that would be a typical ratification argument, right? the congress would ratify judge pauley's analysis of the pr collusion issue. but preclusion issue is not something otherwise before congress in some judicial opinion when they did one of these reauthorizations. >> and the preclusion point, your honor. >> there you're relying on the original legislative history of the beginning. but for the relevance argument, you're relying on in part the on the idea that congress reupped this statute, section 215. after the program had been

instituted, this court had approved it. and there was this process of briefing in congress. and i don't think there's anything classified. you can tell me if it is and if you can't answer it. but could you just explain to me. if i'm a member of the congress, an ordinary member, not a member of some special committee, what exactly was i told? i don't mean what was in the classified briefing. what was i told about you better go read this before you vote for this. what memo did i get from whom? >> so, i think, there were memos from the chairs of the two intelligence committees. and they are in the joint appendix. they identified within the connection of the reauthorization, information has been provided by the -- i'm paraphrasing -- but information provided by the executive branch that was important for evaluation of the reauthorization of this authority in section 215. >> and it was up to me to go and

figure out if it was worth it for me to go and read it as they were telling me i should. and i think of things like legislative vetoes and other issues where the supreme court has emphasized that legislation gets done when each house votes for it and the president signs it. this notion that the legislation has been accomplished because i as a member of congress got a letter saying you should go read something that's in a secret compartment before you vote on this. that it's therefore assumed that congress approved whatever was in the secret compartment. >> the further fact that we have here is there were members, including senators wyden and udahl, who were pointing to this very debate at the time. >> some people got up on the floor and said, listen, you bozos, you better read it, because we don't want to vote for it because of what's in

there. we can't tell you what it is in public, but you better go read it. and nevertheless, they voted. >> and so, in other context, the court has said, you know, supreme court has indicated that references and committee reports, for example, are sufficient. this, i think, goes beyond what you'd look at in an ordinary ratification given the classified. >> i think so, but justice scalia doesn't seem to think to as far as counts of legislation. >> and to your point, your honor, about the current state of discussions in congress and the president's position. i mean, i think it is certainly correct that the wisdom of this program in light of its nature and scope is the current subject of public debate and debate within congress. as indicated, there are multiple proposals that have been introduced and that process is working forward. the president has -- >> we could -- this i suppose is not a consideration that's

entirely appropriate for a court. if this court said we don't think this is authorized by congress, that would kind of put it to them, wouldn't it? to actually act on whether they think this is something that should be done or not. and then they could take their vote and that would put to all of these issues as far as short of the constitution. it would put paid about all the issues about whether this is elective authorized if congress just voted and said. >> has to take out the word relevant. >> i could say we think this program is okay. keep doing this, or alternatively don't do this anymore, and then there would be nothing if they did the latter, we wouldn't have a constitutional issue either. if they did the former, then the constitutional issue i suppose, would still be around. >> and the section 215 authority will sunset in june of next year. so some action has to be taken one way or the other. either to extend it or to change it in light of the current ongoing debates.

what the president has said is that he supports achieving the goals, national security goals reflected in the section 215 authority without the government actually ingesting the bulk metadata. allowing querying at the providers. although, in the same statement in march, he also noted that in order for that approach to be workable with the speed and in the manner necessary to accomplish the goals, legislation would be required. and so he directed that in the meantime because he thought it was important in his judgment it was important to continue this capability that the government go to the fisk and seek continued reauthorization of the program. >> 90 days there now. and it's now been reauthorized a second time with the two restrict -- two changes that your honor spoke about earlier. >> september 10th is the next re-up day. >> i believe september 12th is the expiration of the current order as reflected in the

briefs. but so -- i just think that clarifies some of the discussion earlier about where things currently stand. and if i might turn to the no more questions about the statutory reauthorization, i think the -- i'll turn to the fourth amendment if that makes sense. our position is that the fisk and the district court in this case did correctly conclude under smith versus maryland, the acquisition of business records reflecting the data was not -- >> let me tell you what problem i have with that. it's not just, you know, those were the old days. but does the question is -- and i don't think i'm using the mosaic approach. but doesn't there come a time. and isn't this what the plaintiffs are contending. doesn't there come a time when the old-fashioned, simple pen register that was used in smith versus maryland or -- and that

we are recognized it for a long time where the amount of data that you have of that sort is so detailed and so extensive that, in fact, it is a content divulging action rather than not. the whole point of the direction -- the whole point would suggest i write it again this morning. but the point was, you're just -- it's something that you already give out. anyhow, it's given to a third party. so it's -- it's not a big. and it's not as though you are listening in, which would be different. and the question is, i think, or a question is whether the methods have become so sophisticated of analyzing this

kind of data that this, unlike with a pen register in this case, you are finding out content. is there any oomph to that idea? >> okay. so certainly, this is the one of the issues, i think, that's been a factor in the public debate over the last year since the disclosures. i'd make a couple of points. first, here, again, we are, in fact, talking about the same type of information that -- >> to that point, to the point, judge pauley didn't go each piece of metadata by metadata and do the analysis that was

done in smith. right? he did so -- it was sort of a -- he said that it's third party and it's like similar type information. but wouldn't -- doesn't the, doesn't it require that actually he -- well, should it require that determination is made based upon if you're talking about a right to privacy. you look at each part of the metadata and make a determination at that point. why shouldn't the court have to go through that exercise? >> i think that the record in this case reflects that if you're talking about the type of information that's at issue that we are talking about the same type of call data record -- call detail records at issue. so the number call, number received. the routing information, time and duration of the calls. we're not talking about name or address or financial information or cell site location. >> the question is whether the technology hasn't changed so much that the analysis that it's

just a pen register doesn't work anymore. >> the next two points i would make on that are, one, the ability of metadata to reveal useful information to investigators and particularly connections was known at the time of smith and was actually, you know, in effect the power of the metadata was a point pointed out, obviously did not carry the day with the court, which concluded that even though the expectation is that phone companies are assembling the metadata if only because you know you get a list of your calls at the end of the month, that did not give rise to a protected fourth amendment interest. so, you know -- >> even that very simple stuff that comes from the pen register is used in courtrooms in the united states every day in the week when assistant u.s. attorneys get up and say here's a chart of the -- all the times that conspirator "a" talked to

conspirator "b" on his cell phone in the days leading up to the drug transaction. you, the jury, should infer from that what they're talking about. they're talking about the drug transaction, or alternatively. here's a record, we don't have the content of the phone call, but we have a record of the insider at goldman sachs talking to the traitor right before here's the record of the traitor's purchase of the stock in question right before the announcement of some new public information. what, ladies and gentlemen of the jury, do you think they were talking about? that's proof this was a leak from the insider. so there's no secret about the fact that metadata never was, never was in smith any secret about the fact that metadata can reveal content. >> the point about the power, the technology now that allows

analysis leads me back to the point i want to make in response to judge lynch. which is, it's important not to lose sight of all of the other protections that are built around the acquisition and retention and use of the data under this program given its bulk, you know, the bulk nature of the production to the government and in light of the technology. and i think that's critical to understand. that, you know, in addition to being only noncontent information about the telephone calls, the data can only be queried for counterterrorism purposes. and then only if there's a reasonable articulatable suspicion, is connected, associated with a specified foreign terrorist organization. >> none of the safeguards are built into the legislation. >> the legislation -- >> totally silent as to any of that. >> i don't think that's right, your honor.

so in -- 1861, subsection g, i believe it is, requires mine minimization procedures. this could be used to gather data that would relate to a number of u.s. persons. so the statute requires that the government propose and that an element of the program be robust minimization procedures. they've been spelled out in orders of the fisc, but there would be protections around the use and dissemination of the data. >> now that you've got some experience with the procedures, it presumably would be possible to spell out something in legislation if this program were going to be authorized by congress explicitly that said what made sense and didn't make

sense. after all, this just says the attorney general has to specify. so far the record is that fisc signed off. and when it was made more restrictive, that was because the attorney general asked for it to be more restrictive. nobody's there saying here's what would be better minimization procedures or we think this is what the constitution requires. the government goes in and says here's a list of things we think you should tell us to do. and the court says, okay, that's what -- those restrictions are approved. right? i mean, that -- my concern about all of this is that if, you know, it's fine to say we've got this program and this is the -- we never misuse this data. we only use it for these purposes and we have rules to have that happen. that's not the same thing as the government not having that

information sitting there where, you know, i don't know what mr. snowden could've done. maybe instead of leaking the order, he could've leaked the database to somebody. we don't know what happens when some inhabitant of the white house, this one or another one, has a plumber's unit and decides to let them have access to the data base. these are realistic concerns. about letting the government have this massive body of data without anything, but even the, of course, look, anyone i'm sure part of your answer has to be and it makes sense. whoever makes the rules, they could be abused. if we told the government it can't do this, it has a technological capacity. and imagining a government that breaks all the rules, they could

get it anyway somehow. they could tap all our phones and we'd never know it. and if they're bad guys, these are all paper restrictions. but there are levels of restriction and, you know, it's one thing to have congress adopt a program and say this is what it is and we've considered what needs to be done to give protections, and one that says, well, they can get what's relevant, but they should be careful how they use it. and then we infer from that this massive, this massive program. >> so i think, your honor, i think the record on the enactment of section 215 and its extensions respectfully goes beyond the last version that you just articulated. but i do think that the point about in the national security area, the political branches being charged with, within a range drawing the lines about what steps are appropriate to accomplish national security needs, something that the supreme court has articulated in the fourth amendment context, for example, in the keith decision urged the -- that congress draw some of these lines.

almost, i'm not sure this was the phrase that was used but because some of these questions are susceptible in effect to legislative fact finding about what is appropriate, what tradeoffs are appropriate in the -- to meet the needs of national security. similarly, in the mcwade and cassidy cases, this court in evaluating types of antiterrorism or counterterrorism activities, in connection with the subways and ferries noted that there, again, that the court should be reluctant to rest away from the political branches, the choices about how these judgments should be made and -- >> we should be be very cautious about making a constitutional determination. >> which is why, i think, your honor, should evaluate the program that we have. there's obviously a desire to ask questions about, you know, what might arise in other context.

but given that the supreme court has made clear that the examination, a tally of the circumstances type question and you do have smith and you do have the same type of information that was at smith. if you're reaching the constitutional issues, we urge a focus on the program. >> you have to reach the constitutional -- >> yes. i was referring to your point. which, respectfully is a function of the regime that congress established. and the supreme court has also recognized that where that is the case, where congress has not provided an apa cause of action, the consequence may be the examination of a constitutional and not a statutory claim. that was the issue in webster versus doe and that was the result. the constitutional claim could be reached, not the statutory claim. there was not an apa cause of action available.

>> it seems to me quite simple that the only way we can achieve constitutional avoidance in this case is by ruling against you on something statutory. otherwise we're forced to get there anyhow, right? >> again, and our position is. >> would you prefer we not rule against you? >> i prefer you not rule against us, that's certainly true, but here, congress has not provided jurisdiction for the court to reach the statutory claims. there's not an apa waiver of sovereign immunity. we are left with the constitutional argument, there, we think, that whether you do it at the level of smith versus maryland, which we think remains binding precedent and answers the question about the -- whether it's a fourth amendment search to get the records from the telephone companies in this context. or if you go to the special needs inquiry and the reasonableness approach. if you look at the program as a whole, not just the initial collection, but the fact that the fisc has authorized that collection only upon the imposition of robust controls of when the data may be queried, ha may be done with the results of the query, set out in the

primary orders and reporting back to the fisc. this is not, respectfully, and this is reflected in the court's opinions, which have been declassified. not just the court accepting whatever the government offered, but making determinations according to its own statements that with these procedures, it's -- the program strikes an appropriate balance with providing the capability that is -- that is -- >> fisc order that imposes more restrictions than the government sought at the time? >> i don't -- i don't know the answer to that question. my point was that if you look at several of the recent opinions, which i had occasion to -- >> i never suggested there being

some kind of rubber stamp. i'm saying the procedures there are a little different than the procedures that would be in place in a district court or for that matter in congress in terms of having a robust consideration, not just from what the government says is a good idea to minimize and whatever the judge can bring to bear in his or her own experience. but to a real debate. >> right. >> so what i think i -- what i can say is that although these particular orders are not in the joint appendix here, among the declassified materials from the fisc are opinions reflecting reactions to compliance issues that were identified. and steps that the fisc took in response. which as i recall included orders not only things proposed

by the government, but that is a general recollection on that front. >> you seem to rely in part, improperly so on material that has in the last year and a half or so been declassified and should serve to assure us that there is not a special needs problem or fourth amendment problem. it's odd. what else, that's what you've let us know. what else haven't you let us know? you were pushed to that -- i say this with all -- more than all due respect. with all respect. i'm not saying that's a bad thing. but all of this stuff that we now know, and we don't know, we don't know. all of this stuff we now know is as part of a political reaction to the understanding that this program was in effect. isn't that so? aren't you arguing a good deal

from a material that was made that was classified until a june ago and was made public as a reaction to that? >> i mean, certainly that is true that there's now information public in the public realm that had not been public before. but this program, and i think this is the critical aspect of the congressional design was subject to article 3 review from the beginning by operation of the fisc which was a body that congress set up specifically to accomplish that. just as the intelligence committees act as the channel for oversight of the executive branch on -- from the congressional side where you're by necessity dealing with classified information. >> but it would certainly -- this is entirely useless. i can't say this, but the whole

system surely would be -- give a much warmer feeling inside if it was not all ex parte but some representative of the other side even if that some representative of the other side was a -- a pro bono or not pro bono. pay them. get fitzgerald out from chicago and have him argue the other side of these. and i for one would find what you say, i'm not talking law now, that's why it's out of school. i find this a lot more reassuring if it were subject to an adversary process. and it's not. >> and as your honor may be aware. among the proposals that are currently pending for change to the program. would it include provisions that allow for -- and there are more than one option on the table, the kind of approach you're

talking about. >> in that case, i vote for it. >> in fact, if you look at -- if you look at the reasonable inquiry, for example. i think, you know, and balance the factors that the supreme court and this court have said should be balanced. on the one hand, there certainly is an overriding importance in preventing future terrorist attacks. here, the intrusion, if any, you know, subject to the smith argument on the privacy of individuals is carefully cabined to allow the examination of the data. to allow the identification of connections only on finding of reasonable, articulatable suspicion and the other procedures in place. the statutory and fisc-imposed safeguards limit the use retention and dissemination of the records collected. there's also an oversight system by the fisc and by congress as well as other entities and the

executive branch. all of this, i submit, we submit should lead the court, if evaluating the fourth amendment question to conclude that the program as it currently stands is reasonable because the fourth amendment. >> something can be constitutionally reasonable whether or not it gives us a warm feeling. >> that is certainly true, and because, the test is whether it's a reasonably effective means of accomplishing the interest, there's no restrictive means. >> i think we all understand that. looks like you're folding up. i was about to say -- unless my colleagues have more questions, we've given you about as much time as we've given -- unless there's something you think you haven't gotten to that's critical. >> anything about the first amendment. >> didn't mention it either. we'll consider that based on the brief because he's not going to be able to pick it up in

rebuttal since he hasn't talked about it and didn't talk about it in his initial arctic any more than spoke about the standing argument, which doesn't mean he's waived it. it means he's relying on his brief. i don't know we need to hear more about any of those things. unless you -- i don't want to cut you off if there's something critical that we should know that you haven't gotten to. but we've given it probably more time than you'll get in the supreme court let alone in the usual arguments here. >> i can also assure you, if and when you get to the supreme court, you won't see two of these. >> thank you, your honor. >> thank you very much. >> i will hear you. we will hear you on rebuttal. limited to two minutes in light of all that's been said. at the same time, we have had a very thorough discussion of the issues, i believe. so i hope that you will be able to be relatively brief and respond only to points that you

haven't had an opportunity to address so far that he has spoken of on his side of the argument. with that, go ahead. >> of course. and just a few points, your honor. the first is to respond to the discussion of ratification. that doctrine is not a game of got ya with congressional intent. the question is whether there's an interpretation of statute that congress was aware of. and that's simply not the case here. many members of congress were not aware of the program. those who were, were not provided any legal analysis of the program. and even then, they weren't allowed to discuss it with their colleagues and constituents in a way that the supreme court has pointed to in past cases of ratification. the second point is to go back to an exchange that you had, judge lynch, with the government relating to the efficiency, question of efficiency. professor has explained quite

clearly that the government could use targeted demands in a nearly instantaneous way if it's structured arrangement with a telecommunications company in a certain way and congress certainly could provide for that mechanism. even -- and the fact that congress has not yet provided for that mechanism is no bar to this court ruling it must. that was precisely the case when the supreme court ruled the government could not wiretap individuals without a warrant and led to the enactment of title three. and that was the case in keith when the supreme court ruled that for an intelligence surveillance even though justified by the need to gather intelligence had to be individualized. third quick point is that smith is very different from this case for a lot of reasons. it's not just that the government is acquiring different types of information under this program that it was acquiring under smith. it's not just that the government is acquiring the information about millions of individuals and not just one. but it's also that the government is acquiring that information even with respect to a single person indefinitely.

for an indefinite duration. and not made clear, just a few years after smith, that when the government scales up a surveillance operation from targeted to dragnet, to constitutional balance is different and needs to be addressed differently. and i think, judge, you're exactly right. now requires this court to assess the expectations of privacy of this program and not just of what the supreme court decided. a quick related point is that the minimization procedures would be superfluous. they could collect the records without any of those protections in place. they could store all of them indefinitely, they could query them for any reason or no reason at all. and they could build the dossiers they disclaim building in this case. a final point is that the government tries to explain why it's only asking for a narrow ruling from this court. but the legal theorys that it advances are a road map to a world in which the government routinely collects vast quantities of information about americans who have done

absolutely nothing wrong. i don't think that's the world that congress envisioned when it enacted section 215 and certainly not the world that the framers envisioned when they crafted the fourth amendment. if there are no questions. >> thank you very much. we very much appreciate the arguments of both sides which were extremely careful, thorough and learned. and we will take them under advisement and eventually render a decision. thank you all very much. that's the last case on the calendar, the clerk will adjourn the court. >> court stands adjourned. the senate is back today. after general speeches they'll vote on a resolution stating the government's policy on u.s.

citizens in iran. on tuesday at 2:30 eastern they take a vote on whether to advance trade promotion legislation. our live coverage of the senate on c-span 2. the house returns tuesday with a full agenda work on a measure to ban most abortions beyond 20 weeks. then they start debate on 2016 defense programs by wednesday and reauthorizing provisions in the patriot act dealing with the nsa's bulk collection of americans' phone records. live house coverage on c-span. here are a few book festival festivals we'll be covering this spring. on tuesday we'll visit maryland with congressman tom davis and mark frost, as well as david axelrod, and then we'll close out may at book expo america in new york city. then on the first week in june we're live for the chicago

tribune. including lawrence wright and your phone calls. that's this spring on c-span 2's book tv. next, military lawyer, law professors and authors talk about president obama's request to use military forces in isis and look at actions dating back to vietnam and korea. host bid the new york city bar association, this is an hour and 20 minutes. good evening, everyone. my name is jonathan affits and i'm the chair of the task force on national security and the rule of law. and we're delighted to be here tonight for this panel

discussion, a president at war. an examination of the war powers and the congress in authorizing military operations. tonight we'll discuss an issue that is both timeless and timely. the president's war powers and and congress' role in authorizing military operations. these issues date to the first days of the republic and have remained central to our understanding of the constitutional structure since. through lincoln's use of the force on the confederacy. and post war interventions in korea, vietnam, and conflicts that followed. questions of the war powers is central to the current fight on al qaeda and other terrorist groups since 9/11. and today to the response of emerging threats, such as thes

islams islamic state. in the days since 9/11, congress allowed authorization ff the military force to respond to the attacks of 9/11. zins 2001 the authorization has provided a statutory basis not only for the conflict against al qaeda and the taliban in afghanistan, but for a global conflict against al qaeda as well as associated groups including offchutes in yemen somalia and most recent isil. this has provided basis for a wide range of counter terrorism, military operationses including detention, interrogation and targeting. in the so-called war on terror. a war that president obama himself has said like all wars must end. recent developments have prompted renewed attention on

the scope of the president's war powers and the role of congress in authorizing the use of military force. those events include the drawdown of u.s. forces in afghanistan, which provided the indisputable arms on the ground and the rise of new groups like isil that threaten regional stability. this past february president obama submitted his administration's proposal for a new force authorization, targeted at isil. as we'll discuss more tonight, he proposed it was notable both for what it includes, limited ground operations and a three-year provision as for what it does not include, no corresponding of the land standing 2001. in many ways the united states is at a cross roads on congressional war powers and congressional authorization and actions in the coming months will shape the course of future

sbons response to these issues for many years to come. tonight we'll explore many of the questions including the authority of the pot po respond to the use of force as demander in chief. whether the nature of new threats, like isil, require us to rethink traditional conceptions of the war powers and the optimal ways that the powers of the two branches should be exercised in this context. we're fortunate tonight to be joined by distinguished panel of experts. i'll go ahead and convert the panelists to you and they will speak in order, and after that, we will have time for questions and answers. i would ask in advance when you have a question to please come up to the microphones to ask your question.

first we'll here from lieutenant colonel marimore. he's a u.s. army judge advocate who was deployed to iraq as the chief -- in the the 101st airborne division. before being designed to west point, lieutenant colonel served as deputy chief of the international law division at u.s. army europe. so a distinguished career both in academia as well as on the ground lieutenant colonel will be followed by ryan goodman a professor at nyu law school here in the city and a coed tor of the widely red and influential justice security blog, which focuses on civil liberties and national security. ryan formally taught at harvard law school where he was a professor of human rights and humanitarian law and he's a

member of many distinguished boards, and journals including the american journal of international law. he's also a member of the united states department of states advisory committee on international law, and a member of the counsel on foreign relations. he's published widely in economic journals and elsewhere, and his book "socializing states: promoting human rights through international law" was awarded the american society of international laws 2014 certificate of merit for preeminent contribution to creative scholarship. and then we will hear from julian cou. he's the professor at law school. he focuses primarily on the relationship of international law to constitutional law. he's also conducted a academic research on a wide range of topics including china's

relationship with international law. he's received many honors including membership in the american law institute. international law, the constitution in the new world order, and has written numerous academic articles, book chapters, as well as writing in numerous popular journals, from the wall street journal to the los angeles and "new york times." finally, he is a -- cofounder of the leading international law, which like the security blog is read daily by thousands worldwide. so we are fortunate tonight to have such a distinguished group of experts. i will turn it over to them. in the order they with introduced and then turn it over to the question and answer portion of the segment.

>> all right, i get to go first. so jonathan thank you for the introduction and thank you for having me. i start with a housekeeping business. i'm here on personal capacity. any remarks are not official position of the department of defense. so that's out of the way. so i think the way we discussed is i'm going to give the lay of the land, the general frame work on the the law, as it exists and turn it over to professor goodman and they can clean up any left. so our topic is presidential war powers. any time you talk about presidential war powers, you have to start with the basic concept that the president, any time he uses force has to have two justifications. international justification and domestic justification. now internationally we're talking about primarily the un charter. the un charter article 2-4 sets a standard that states do not use force against political independence. and that's the baseline.

and it gives us certain perceptions. primarily is authorizing the use of force or acting in sell fs defense. and then you have several types of self defense. so that's one justification that the president has to have. we can certainly get into that tonight. and the conversation leads in that direction. my sense is in at least in regard to isis, that one is not as controversial as domestic legal justification, which is the second justification the president has to have. he has to have domestic justification for his use of lethal force. so that's probably going to be our primary area of emphasis tonight. so i'm going to just talk a little bit about what are the potential legal justifications and then get into what are the the specific ones he's relying on in the case of isis. so any time we talk about the justifications, legal justifications for use of force, you have to start with the constitution. so the congress the way the

constitution divides the war powers between two primary branches of government who operate in this area is the congress has the greater number of listed powers. so they have one, the power to declare war. the power to grant letters of marquee. to power to punish offenses against the laws of nation. to punish piracies. so they have a much greater list of actual powers that relate to the national security area as compared to the president's. so his primary power is the commander in chief clause. is so very straight guard. the president is the commander in chief but doesn't give us any additional detail of what specifically that includes. so most people are relatively confident that it certainly includes some power to defend the nation. we get that from the prize cases, and the way the president has acted over the years since the founding of our government. so that's his primary power. he also relies on a general foreign affairs power.

now there's no clause in the constitution that says spechkly the president will exercise foreign affairs but we know he has the power to make treaties. we know he has the power to receive ambassadors appoint ambassadors and from that we derive a general idea that the president has the power to execute foreign affairs. so that in it of itself includes some ability to use the military. and then on top of that you have the the chief executive clause. soft the president is the chief executive. many argue that alone in it of itself, is a grant of power to the president that he can use in this area. so those are the way the powers are laid out generally in the constitution. most people are relatively comfortable saying the founders probably intended congress to be much more involved in this area particularly in war powers than they are today. but overtime we've seen a revolution.

why that has occurred? primarily the president is a unitary actor. he has the ability to act independently. congress that has to muster the the will of 535 people. that's often a problem. they often can't do that. so through history the president has acted, and congress even where many of them may disagree with his use of power have been unable to check him. so a good recent example of that is libya. so in libya we were involved in 2011 in a bombing. many congressmen spoke out against that. the president was in violation of his war powers. yet, no action occurred to curve his activity in that case. so what we have seen over time is this power evolving towards the president. right now this doesn't mean that the congress is no longer important at all in this area. right? they still have a significant role to play. primarily flowing from the idea

that they are originally the branch of our government that is supposed to declare war. we don't declare war anymore. that's become obsolete, basically since the 1940s. but we have modern day e kwif equivalent of that. so there's definitely still a role for congress. and the president is always on stronger ground if he can act consistent with congress, right. so the president will often look to his commander in chief power, and say look i have the power to do this whether the congress is with me or not. but the president always looks to have the support of congress when he can, to act. so in the particular instances, specifically with isis, but in a lot of our conflicts today, what is the statutory authority that the president is relying on? it's primarily -- there's a couple of different ones. the primary one is the aumf. so this is the authorization that was passed right after 9/11. it gives pretty broad power, but it's in specific regards to

9/11. it says the president is authorizeded to use all necessary and appropriate force against the nations organizations or persons he determines planned, authorized, committed or aided the twaings that occurred in 2001. you can see the intent of congress in that language was focused clearly on the terror attacks of 2001. the president has relied on that for many of the uses of force that we have seen over the last decade to 15 years, including places like yemen and somalia and specifically, he's currently relying on that for use of force in iraq against isis. so that's the basis he's currently relying on. now there's other authorizations out there. that was specifically passed in preparation for our invasion of iraq in 2003. right? and now the problem with that one, however, is it was specifically directed at the threat created by saddam hussein. so there's been talk of -- it

says that the president can use force to end threats coming from iraq is the basic language of that. the problem is that it was clearly directed at saddam hussein. the threat here isn't directly come from iraq. you can make the argument that it does apply. the other political implication is, and maybe more important in this particular case is that would link president obama with president bush's policies and the invasion of iraq, which he has certainly separated himself from over the course of his political career. so although that one has been thrown around, it's not really the one that the president seems to be primarily relying on for his current use of force. and then of course the problem with the 2001 is it was directed at those forces associated with 9/11. so is isis associated with 9/11? that's somewhat problematic given we know isis is in conflict with al qaeda, which is the force we link with 9/11 primarily. but the administration would

argue that well isis directly flows from al qaeda in iraq that we were fighting there from 2003 until we left iraq, and so therefore it is an associated force. but you can see just from the the language that it's kind of problematic. and now 15 years later and the president is still relying on this as his domestic use of authorization for force. so that's what has led the president to ask for a new aumf. an updated aumf. and oh by the way, the president made a speech a year ago or so at the national defense university before this you know, the conflict with isis arose, in which he said i the president and future presidents need to stop relying on aumf. it can't last from 2001. it can't last forever. right. sho he makes this speech and is using that very same aumf to support our armed conflict with isis. so you can see the problems that arise from that.

that's pushed or encouraged the president to ask for a new aumf the one he's now proposed. and it has specific language in it but language that gives him interesting lee way that i interesting leave way that the professor will talk about. i want to orient you to what we're asking for said as the president is authorized subject to limitations to use armed forces of the united states as the president determines to be necessary or appropriate against persons or forces and go down further he has restrictions. the authority granted in subsection a does not authorize the united states armed force and during ground combat operations -- that's an interesting term one not previously used in any legal document enduring offensive ground operation and he also puts limitations authorization for use of military force shall terminate three days after the

date of the enactment. >> unlike the one that does have a specific termination date, the president is proposing this includes a built-in termination date. that leads me to the final thing i want to talk about, the military operations perspective. what is the military likely to think or what would be their role in the discussions of this aumf? i don't speak personally from the official position of the department of defense, but i can tell you generally what the military wants in any military operation, they want one clear objective of what they have -- what they are expected to accomplish and two they want operational flexibility. so looking at this proposed aumf, i can imagine the department of defense thinks three years is problematic because it's arbitrary. how do we know if they are going to be accomplished in three years and what if they are not?

i can imagine that -- i can say it's likely the leadership in the department of defense will not participate in the pub ricklic debate of whether this should be should or should not be passed because that would tend to go against the idea of civil military relationship. the idea that civil government is in charge of the military. as a cultural matter, generally the military leadership doesn't participate in this open debate in the public as to whether he should accept the aumf or not. what they are doing behind the scenes both with the president and with members of congress is talking about operational flexibility. and the concerns that this idea of a no enduring ground offensive operations is a potential limitation on the military and more specifically probably concerned about this idea of a three-year limitation. so my sense is that the impact that will have is it will make this harder for this to go forward. because if the military leadership is both telling the president they are concerned

about this and maybe the president says i got it this is still important for various reasons but also talking to members of congress and saying this is the problem or concerns we might have. that's going to influence some members of congress and may influence as to whether this goes forward or not. so those are the operations there is and that's the general layout. i think we'll talk more specific about the aumf and specific problems. >> there's a terrific what i did think i would do is drill down deeper on the aumf and concerns about how it's structured and designed. just to kind of give a sense of where we're at currently in terms of what's happening on the hill and why we're at this point, two things to think about, one is drilling down on concerns that the 2001 aumf don't really authorize current operations that are ongoing in iraq and syria. that's the deep problem that

there's been actually quite a lot of bipartisan statements in the hill especially when representatives from the administration come before congress saying we really aren't buying this theory that isis is somehow underneath the 2001 aumf, in part because the aumf was about the attacks on 9/11. the government's argument is not what some think, that the notion that isil is an associated force of al qaeda central. but rather that isil is a successor of al qaeda. so that helps in some respects because the administration says even if there's fighting between the two groups, it doesn't matter because we're not saying they are in association with each other in a battle against the united states, rather isil was disaffected from al qaeda central and broke apart and now is an independent group that they kind of have taken the mantle of al qaeda central and think and say they are the true

inheritors of bin laden's campaign. that's the argument but it lacks support. i think it's incredibly weak because one presumption is there they were ever truly unified. the intelligence community was unclear even in the first years what the relationship exactly was because al qaeda in iraq was not following the command and control of al qaeda central from afghanistan and pakistan. there was a lot infighting until they broke apart. some people say what about the name? it was called al qaeda in iraq. that was a name that the coalition forces ascribe to them. some say they ascribe to them in some sense to try to tell the public that these groups were related and saddam hussein and position in iraq was related to 9/11 and pakistan but that was our u.s. multinational forces application of the name to the organization.

there's open question were they ever truly unified before they broke apart. the second question is not just the structural relationship but organizational goals does isil, did it have the same goals as al qaeda. one of the reasons they split apart, isil had local and regional ambitions and didn't pose a threat to the homeland. the president has said there's been no evidence of an imminent or likely threat against the u.s. homeland from isil. al qaeda of iraq when the group formerly known as al qaeda of iraq when the u.s. withdrew from iraq then they stopped attacks against u.s. forces and the like. so there's been a long period of time in which there was no real threat, even to the point that in summer of last year the white house had sent a letter to speaker boehner saying we no longer need because there's not a threat to the united states coming out of iraq. another indication that they didn't actually pose a direct threat to the u.s.

some people cite to the beheadings of american journalists. they started happening after the u.s. its air campaign, can't be a justification for the air campaign. it was a response. there is inher ent weakness to a successor model and concerns about the relationship organizationally between isil and al qaeda central as to whether or not they really have split apart and still fighting a fight against the united states. with that the concern is that the president is not acting under an existing statutory authority that he's not acting with congressional support. everything the colonel said i would agree with with respect to the president is stronger when he has congressional backing. both as a constitutional legal matter but also a political matter so that i would imagine troops on the ground don't just want operational plexibility but want to know the american public and congress is behind them.

some statements now being made by members of congress senator cane made this week, how can we have people sacrificing their lives in iraq and syria in the u.s. armed forces and congress isn't doing its job to vote and design how they see fit and give that kind of support and approval to the president's operations. recently on the hill, in the last 24 hourds aparent tli there's a letter circulating on behalf of the democrat and republican ranking democrat on the house intelligence committee, adam schiff and representative asking boehner to please put this to a pesk congress so congress can step up. that kind of goes to the question that we have for us tonight in this panel, there's kind of an important quote that i'd like to take out of that letter where they say each additional data passes without

congress taking up operations against isil undermines our authority and role in matters of war and peace. if we refuse to debate on the way the nation faces whether to take military action we see to the framework intentionally delegated to congress. that's the chief concern that operates hipd the scenes, whether or not we're going to see congressional action on the white house proposal. >> i do have deep concerns about some aspects and the first to highlight is the association of forces. for first time what the white house wants is for congress to codify the notion that we aren't going to war with one entity isil but whatever the associated forces are. currently the united states operates under the framework that under the 2001 aumf, we're in an armed conflict with al qaeda and its associated forces

which might be al qaeda in the arabian peninsula in yemen. but that's an interpretation that the administration has given to the 2001 aufmf. it would codify was been in existing practice by the administration, one thing that is remarkable, a con speck uous owe mission, the united states has been operating for several years and what jeh johnson said is the definition of associated forces which says other organizations that join the fight alongside the principle group, similar to the way that co-blijer rens did in world war ii. in japan strikes in world war ii and allies with italy italy is part of the battle. there's a lot of justification

to why the united states would be in conflict with al qaeda and then with another operation out of yemen that joins the fight. but what's conspicuously absent is the term co-belligerency. the concern is wait a minute, that's the limit we've been operating under. how can you take that out? what's the idea behind it? congress hasn't asked the executive that question. there would be multiple hearings but never heard that question come from a member of the house or senate. in fact, what the administration has said suggests that without the co-belligerency test i think there's a concern for slippery slope. secretary of defense ashton carter said earlier last month that it might apply to isil want to bes. organizations that stand up and the idea of flying the isil flag that maybe aren't connected in a

co-belligerency operating with isil but they might pop up in other countries, libya, lebanon nigeria and they are operating under the brand of isil that's a concern. it doesn't fit the standard but the administration is already invoking those types groups. even if you concern the same test you applied to al qaeda, isil is not like al qaeda. i'm in some sense at peace with the ways in which the administration has used the associated forces test over the past 14 years. it's fairly narrow. the general counsel of dod at the american study of international law annual meeting for the first time really listed an exhaustive list of all organizations that the united states considers to be an associated force. i'd say it's fairly narrow. but that's because al qaeda had a very high standard for anybody in associated force. they were kind of a van guard

movement. isil is considered to be more of a populist movement they say lone wolves that call themselves isil can. they are open tune is tick and working with the former bathists. it's a much more open-ended and does mean there are a bunch of other forces and individuals that might associate with them. the last point to just put under the category of associated forces is the following kind of thought. i think it's very likely that congress isn't going to enact an authorization for isil, in that scenario they will act under the current interpretation of the 2001 aumf applying. and the administration has said it doesn't need the authorization and almost redundant and would like congress's -- if congress doesn't do that, they already have the authority under the 2001 aumf. i would assume that means operating without the

co-belligerency test to isil and status quo, not something we need to worry about for the draft language but in the status quo, want to know the answer to the question do they think they can apply force to one of the organizations and the like? do they in fact use the jeh johnson standard? the second point i wanted to highlight, also something the colonel touched upon, the sunset clause. just a couple of thoughts about that. one, i wouldn't call it a termination date because the idea is not that authorities will necessarily terminate the ideas that congress will get a second vote. the thought is that there's a three-year time frame three years from now congress should be back at the table reauthorizing and tailering the authorities according to the standard -- what the situation is at the time. some say congress shouldn't be involved because isil morphs.

but i think the fact that the organization morphs and the conflict is almost unpredictable is an added reason why we want congress back from the table. not to terminate authorities but re-up authorities. if anything, that's another indication of how to get congress and american public behind the operations if they are just.ified. one argument against having a sunset clause, it sends a signal of weakness to our enemies. they think we're only in it for three years. my thought is if we say we're afraid to have a re-up in three years' time that sends a signal of weakness and in fact just to wear another hat the one jonathan mentioned in my social science work this great political science scholarship studies that argue, have a finding that democracy wage and

win war more effectively. when you have democratic checks and the ininclusion of legislatures in the war fighting, that actually sends a stronger signal to the enemies because you have to justify your actions to your public and build support. there's good political science evidence that says the more democratic in a certain serns are, sends a stronger signal. we also think it is important because it actually requires members of congress to justify to themselves to inform themselves and then inform the public about why the war is justified. the last -- just to put on to that one, there's a curiosity. for operations against isil three years from now it says nothing as the colonel said about the 2001 aumf.

that's ill logical. if the united states administration says it's operating under the 2001 aumf and didn't need authorities then we put on top of it an isi , au aumf, it defyies logic. what's the purpose of a sunset if after three years you can revert back to the 2001 aumf and continue along? they need a sunset in some respects or sunset for neither. the last thought is whether or not it's appropriate to have some kinds of sunset on authorization for force or authorization for war. the last departing thought i want to give to that, to suggest it's part of the dna of our constitution. the thought here is that we some ways already have sunsets on all

authorizations to use forces in the appropriations clause in the u.s. constitution, article one of the u.s. constitution has a requirement in it that congress cannot appropriate funds for longer than two years and hamilton actually writes in federalist paper 26 that the purpose behind that was to have buy-in from the congress. at least every two years. part of a structure that we work with understanding that we want congress at the table, we kind of lost that sensibility and it's time to reingauge with it. >> thank you for inviting me to join this interesting and important topic. and joins the panel on this interesting topic and all of you for trekking out here in such great weather. i want to take a step back and

look at the same issues that were discussed between sort of a broader perspective from the constitutional perspective to try to locate where we are sort of from broad constitutional discussions and perspectives and then come back to some of the more technical detail issues that professor goodman just addressed. it's also, believe it or not, it's campaign season for the 2016 presidency already. so it's also worth thinking about what will the perspectives be and more powers in the various scenarios. i want to open with a quotation both a teacher and practitioner in constitutional law. his name is barack obama he says the president does not have the

power to unilaterally authorize a military tact in a situation that does not involve stopping an actual or imminent threat to the nation. as many might have guessed, that statement is from the 2008 version of president obama not the 2015 version. i'll argue that candidate obama's view of the war powers expressed in the statement in 2008 which i call the congressionalist view is incorrect the strongest evidence that is very strict is incorrect that president obama himself aband anned this view in his actions as president. this is important for setting the precedents both for debate currently over the isis and the 2001 aumf but trying to understand the allocation of war

powers in the constitution. let me begin by outlining what building on what the colonel explains, what i call the two views on how war powers are allocated under the u.s. constitution, which i think the colonel outlined want to give a little more detail to it. i'm going to call the two views congressionalist view and presidentialist view. the congressionalist view reads the constitution as allocating the primary decision on the use of any military force to congress. the constitution text does allocate many more powers over military foreign affairs of congress than the president and so the main basis for this congressionalist view is in fact the text of the constitution. congress to declare war and make rules governing those forces. in a congressionalist view, they have the primary responsibility to manage all aspects of the arm forces of the united states,

including the ultimate decision whether to use the armed forces of the united states in some sort of military action or armed conflict. many appearance, not just 2008 president obama -- 2008 candidate obama but many legal scholars such as john hart -- to classes with -- at yale. now, the opposition of the presidentialist view which holds that the president has an independent and inherent power to deploy american armed forces in a war conflict even without a specific congressional authorization and offers a different reading of the constitution which the colonel alluded to and emphasizes the as the holder of the executive power and as the commander in chief of the u.s. armed forces. now, holds the power to initiate

armed conflict and exclusive power to fund the u.s. military. but it holds the commander in chief power and gives the president the decision when and how to use the armed forces including in an armed conflict. a declaration of war, primarily serves to give formal notice and as an enemy under international law such as seizing of property and such. that is not about controlling whether or not military force was used by the united states. now, the presidential view also enjoys support of this legal scholars -- perhaps not as many as the first view but will argue a lot of support in the practice of presidential administrations throughout u.s. history. as a tactical matter, the view is not as large as it seems, even the most extreme congress has exclusive power to fund or not fund the military actions

and even the most extreme congressionalist can see the constitution should be read although it doesn't say specifically, should be read to allow the president to respond to an actual or imminent attack without going to congress. but the difference between the two views boils down to this, according to congressionalists, the president may not use force without a specific authorization from congress unless the u.s. is under imminent attack. presidentialists argue that the president can choose to use armed force in a wide range of circumstances if necessary to further the national security interest of the united states even in the absence of an item or imminent attack. so this leads me to my second point. while president obama campaigned fairly described as a congressionalist he is pretty plainly embraced the presidentialist view in his administration's defense of military actions especially in libya in 2011.

so as they discussed the main military action of the united states is involved in during president obama's administration have been actions in iraq and afghanistan, both of which had specific authorizations by congress. but in 2011 when the united states and allies intervened in the civil war there was no authorization and president obama did not seek an authorization from congress. his department of justice issued a legal opinion which rejected the congressionalist view and defended the libyan action as a constitutional exercise of the president's inherent powers to use military force. it does not -- worth noting this did not claim the libyan civil war in any way constituted an actual or imminent threat to the united states. but in this opinion assistant attorney general argued that the

libya actions were unconstitutional even without congress -- specifically rejects the congressionalist view, arguing defense of the united states to direct a immediate attack is by no means the president can use military force without congressional authorization. accordingly the absence of and self-defense interest does not mean the president lacks authority from military operations in libya. the opinion went on to say to protect u.s. national interests such as preserving regional stability and supporting united nations security council credibility and effectiveness. libya is not the only case departing from the view. in the fall of 2013, president obama announced he would seek support from syria in response to evidence that syria was using chemical weapons in a civil war but making his statement that he was seeking congressional support, president obama careful

to state that he believed he was already possessed of constitutional authority to strike syria for the use of chemical weapons whether or not congress gave him authorization. and a similar posture has been taken in current discussions over the action against islamic state in syria and iraq. in fact, last summer initially the administration suggested it could justify the use of force some of the uses of forces in iraq under the president's inherent powers. one example that stood out, the president's action to protect an ethnic minority trapped on a mountain in northern iraq which was surrounded by isis forces. this again at that time they thought was sort of no arctic lags of a justification of the 2001 aumf but there was humanitarian justification linked to president's inherent power under article 2 of the

constitution. and so, the president has ee involved to the legal condition to embrace the 2001 authorization for the use of military force but as professor goodman both suggested a very difficult legal argument to support. but i do suggest that's one of the reasons why there's argument that has not ruled out it does have authority under the u.s. constitution article 2 separate from the 2001 aumf but clearly sought authorization from congress not ruled out the possibility that article 2 can -- provide legal justification for some of the actions currently taking against isis. i'll argue that the rationale for the 2001 libya intervention is still out there and can support i think given the language of that opinion a constitutional basis absent dongal authorization at all, a

constitutional basis for u.s. actions against isis. >> so let me just conclude by with a third point the defense of president obama's conversion from congressionalists to the presidentialist view even though i think we can see there's a solid strong textural and historical basic for the congressionalist view, i offer three reasons why i think it's not the best reading today of the constitution's allocation of war powers. i don't think that the textural historical case for the congressionalist view is -- well documented, had some doubts about given the power to congress and so that's why the initial drought for the constitution changed from make war to declare war. so the record remains a little bit murky. and second i think historical

since 1989 weighs heavily in favor of a presidentialist view, only used the declare war times five times and specifically authorized use of military force a few more times than that. meanwhile depending on the account, military force abroad without congressional authorizes and submitted 215 times. mostly and usually without congressional authorization and many of these actions range from very small actions such as invasion of panama in the 1980s to large actions such as the korean war or action kosovo in 1989. historical record at least shows that the main actors who interpret and apply u.s. constitution, the congress and president do not necessarily embrace in some cases have rejected the strict congressionalist view that candidate obama expressed in 2008. i think that is a functional as a practical matter complete

adherence seems impractical and unwise given the position of the united states today as the world's largest military power and economic power. the u.s. has national interest in almost every corner of the globe -- and more weapons than any other world power. i sheer variety of possible military conflicts for the u.s. of military force for combatting terrorists and shooting pirates to prevent the could tras toe fees and other powers seems to support the idea that the strict congressionalist view is not practical. >> even with we abandon the view, there's still much room for debate over the exact scope of the president's independent powers. and the obama administration has

given itself a substantive limit by saying although the president can use military force without congress, that force cannot announce what's been war. what a war versus use of military force is a very fuzzy definition. the bombing in libya was determined not to be a military force. not enough to war. without giving the president unchecked power to engage in military force. the president can act independently without congress up until it engages in a war -- there's a variety of other problems in that including the international definition of war means essentially that would be every action almost no declared

wars anymore. that's one way in which the administration has tried to do the power it claimed for itself. i think the disagreements as to what constitutes a war, i think that there has been evolution in the obama administration towards a view of how war powers are allocated in the constitution. even the current debate over isis it sought congressional authorization while expressly pointed out it doesn't need it and adopted a very difficult and difficult to support interpretation of the 2001 authorization for use of military force. even without that, much more -- conception of the president's role in -- independent role in deciding when and how to nish yaf military conflict on behalf of the united states. so i believe that the conversion from barack obama from a strict

congressionalist to presidentialist is a welcome and even understandable development i do hope the candidates recognize this. some statements perhaps may not demonstrate full understanding of the issues we're facing but hope they recognize the weakness of the view before they wholeheartedly embrace it. thanks. >> thank the three of you for those illuminating comments. i'll invoke my moderator prerogative to start the questioning off with the first one and hear from members of the audience. so i think we'll jump off from the professor who's presentation and distinction between

congressional and presidential war powers and both as a legal matter and practical matter is argument that the case for presidential war power. so i want to give both the senator a chance to respond to that and i'll frame the question this way. so professor you talked about clear objectives and flexibility as the key principles operationally which could be although not necessarily would be, might be in conflict with one another, right? i wonder whether for you whether the model presidential war powers over congressional war powers is more amenable or would be easier to carry out though as we're balanced to clear objectives in flexibilities as

opposed to the congressional model. easier to have two things that the military wants if they follow the presidential as opposed to congressional model. and professor goodman, you have an incredibly rich discussion of the current debate around the aumf, the new authorization for isil specific aumf. and i wondered whether -- does this debate support or in your view the professor's version which as i read it, that the congressional approval is perhaps sal you tri and beneficial for various reasons but not required and that being born out by the context of both of the last 14 years and also the current debate. >> so i certainly think that the actions of the military the culture of the military, what the military is seeking probably

enables the evolution of power for the president. so if you only have one boss it's much easier to respond to one boss than two bosses where the second boss is 535 people. certainly over ourypically the military seeks as far as guidance and what it needs to do. i certainly believe it enables or supports the idea of enhanced presidential power. if the president is limited then it limits the military. if the president has more flexibility back on its own than the military by virtue has more power to act on its own. >> so i will dive into that as well and suggest maybe the military might benefit from shared powers in the sense that one of the items that's lacking from the white house draft authorization use of force

against isil is the objective. one of the questions that's been raised and senator corker raised it, what is the objective so we can know and measure whether or not we're succeeding and i think that's something that the congress can force the administration to give to the public in a certain sense of what really is the objective and why do you want authorization to use force against isil, is success pushing isil back over the border so it's con strained inside syria, december mating or defeating it to the point it no longer pose az threat to iraq or any threat to the united states? what's the objective? and currently we don't have that under presidential when congress isn't involved and congress maybe has the appropriations in the background to try to force that. on the second question with respect to does the authorization to use force

suggest something about the notion that the president can actually act without it, i don't think so because i don't think the administration is as julian put it -- julian said they are not uncomfortable with their isil arguments because they've got article two in the background. i think they are uncomfortable and if they aren't they should be. the kinds of questioning that secretary kerry has had to undergo in the senate foreign relations committee makes him uncomfortable, it's not such a great legal argument. i think why they resorted to this kind of statutory authority, not that they say we don't need this from you because of article 2 2, because you had already give it to us in 2001. the president has unapologetically embraced

imperialism, he made bad args. s to force the argument it's operating under congressional authority. so some of the argument with respect to the war powers resolution in libya was because this administration has in fact embraced the war powers resolution more than other administrations and said but we need the war powers resolution because it doesn't rise to the level of hostilities and the like which are stretches of legal arguments but he's not unapoll gettically embracing a presidential model but trying to figure within congressional statute. same thing with the bergdahl exchange. it was almost like a constitutional avoidance question interpreting congress's restrictions on moving people out of guantanamo to be consistent with presidential powers so that more like a statutory interpretation. once again wrapped themselves up in the act they are acting

within congressional authority. last one so we have at least on the table counter evidence i think listed out a lot of points in favor but counter evidence, march 2009 in litigation for habeas claims out of guantanamo the federal judge required the administration to give the legal rationale. i don't think they were comfortable at the time and in a brief march 13th 2009 was an important moment in which the president said i'm not claiming article 2 commander in chief authority. only claiming i'm operating under the 2001 amf which is a remarkable move by a president to not claim more power and claim less. think there's that kind of counter current we have to take into account if we have an interpretation of what the administration has done. it's not been in one direction but more mixed. >> before we turn it over to the audience, give you an opportunity to respond.

>> i don't want to say i don't disagree exactly with the professor but i guess what i'm suggesting, there's different levels of degrees of congressionalism. and so this is more -- i'm more interested to see what folks like senator paul and senator cruz and some candidates interested in the issue will talk about in future. in 2008 it was president obama saying i'm a new guy, here's the view, very simple. the president cannot use military force unless unilateral unilaterally without any imminent threat to the united states. what i consider the extreme position that president obama took in 2008. that position is gonge in the sense that that extreme position, he can't act and use military force without congress unless there's an actual or imminent threat to the united states, that is off the table.

and i think put that off the table is libya 2011 where he explicitly claimed that what i consider extreme congressional iflt position. i don't intend to argue that president obama is in any way an extreme presidentialist. my point was he's moved off from what i consider to be the extreme congressionalist view and that extreme congressionalist view, which is actually the view shared by a lot of leading scholars and many politicians, that extreme congressionalist view is not supportive, not practical. no modern president and i predict any president who enters the office will not actually follow that extreme statement he made back in 2008 that the president cannot use military force without congress unless there's an actual imminent attack. now, i don't mean to suggest that he argues that for instance if congress comes later and tries to restrict the president they can't restrict them.

i don't take myself believe that's a very good view. the point is that congress can -- when congress doesn't act, i think the view that article 2 authorizes and i think president obama now recognizes authorizes the use of military force abroad, even without a specific congressional authorization and without an actual or imminent threat to the united states. that's the narrow argument. but i think it's take fair one given not so much the practical issues that the administration has been wrestling with over the past seven years, but the broad rush claims that we are -- we love congress and support congress, not all about a different power. it's a more complicated view. that's the point i'm trying to make here. and i don't disagree that with really in some ways like all administration,s it's not consistent. i think i would agree with the president's characterization of the administration has often made very difficult maybe even

wrong or knowingly wrong legal arguments under statutes because they don't want to make the obvious article two argument in other context outside the one i was discussing such as the bergdahl issue or the other context we mentioned. i wouldn't suggest a full presidentialist but moved off what i consider the extreme congressionalist view. >> thank you. >> so now i'd like to open it up to questions from the floor. if you would please komg up to the microphone if you have any questions. to your right. i understand.

>> if you don't mind, please. >> i didn't think of it before i came here, the colonel has talked about enduring -- enduring -- what did you say -- we've been in germany japan, korea for 70 years or so, are those in the category of enduring operations? >> not in the way that the president is using in the aproposed aumf, we're there based on treaty korea based on treaty and agreements with germany and nato treaty. >> now you haven't spoken of any specific war powers authorizations during korea and

vietnam era. i don't know if there were any. if someone wanted to put an end to the vietnam war, mechanic of congress introduced legislation and congress declined to declare war on north vietnam while in full military operations, what would happen? >> i think this is a good question that goes to the professor's discussion about the presidential view. if that were to happen, it's not unreasonable or not unreasonable interpretation for the president to declare that congress is infringing on his independent executive authority. you could get to a broader discussion of the idea of presidential power specifically in a situation where congress is going directly contrary to some military operation the president is trying to participate in. >> i'm done. >> i don't think the view that congress cannot restrict at all against military action. i think what i'm suggesting is congress does not always have to

initiate it which people try to talk about a lot, unless it's after the fact notion that a president -- >> i'm not sure you understood the question properly. it would have delivered to the nation and the world and enemy a -- is this coming through working? that the congress distant want it even though the president was, whether or not the president has the authority. thank you. >> come on up. >> my name is david freeman. before i have my question, congress did do what the previous questioner asked, repealed the resolution and next claimed under article 2 that he had the right to continue the war. i have a question for the

professor. in 1991 and 2002 both president bushes sought congressional authorization and received assuming they did not under your view of the presidential war power, if it committed u.s. forces to those operations would that have been unconstitutional or constitutional? >> i think that as long as congress doesn't spechkally abandon it, i think it won constitutional to execute military action in both cases just as it was constitutional for president -- even though congress did not authorize, i was thinking about it, there was a declaration of war introduced which was not supported and voted down by the republican house. i think that's why -- i think congress come in and say you have to get out like they did in vietnam but i'm not sure -- watching military action i

think they can do so. >> there are virtually no limits. >> the limit is congress can stop them or congress -- people noted every two years congress has a funding bill and they can and has voted the bill be defunded. it can restrict war powers if it chooses to certainly under the funding clause or other statutes after the fact to limit the operations. my point is that initiation of the military force. i think the precedence suggests that the president has broad use of military force, absent congressional ban or prohibition on it. >> does professor goodman agree with that? >> no i think there has to be some limit. i think if we're saying that taking the nation to war i

think having congress the power to declare war is part of the idea even if we don't have declarations of war we have authorizations to use force kind of a requirement. the president certainly has a residual authority to act but that's in defense of nation. against something like an imminent attack in which there's actually no time really to go to congress. even in that situation, one would think after a certain period of time when it's no longer imminent and if it's going to be a long-term commitment by the nation that's -- >> so -- inaudible ]. >> kosovo might be, the only question is dan, one other element -- i should also say caveat, i'm not a constitutional law scholar. >> i'm just curious. >> just i should register the

caveat. there's the other question which the clinton administration tried to justify which is that congress then appropriated funds and did the appropriation of funds count as authorization? i also think it might be some of the background game that the administration is playing now with respect to isil, which is even if congress doesn't get its act together to approve an authorization at a certain point, the administration is going to be asking but they already asked for large amounts of funds. if they ask to carry out operations, congress funds that, there we go. congress has implicitly given some form of authority. i think it's troubling deeply troubling and in some sense we're taking the most extreme kinds of conflicts or cases but i wouldn't have a problem re reretrospectively thinking did clinton act without authority but maybe so -- >> it's a fair question, and one of the interesting thoughts, why

would president bush famed unilateral -- why did he go to congress? it's unclear what he thought he had the authority. fair suggestion he thought he did have authority. the reason why presidents go to congress is not for legal but for practical and political. i totally agree that it would be better in every way for congress to authorize -- especially substantial and before it actually happens and any presidents do so -- there's literature, when they think they'll be engaged for a long time, they are more likely to seek authorization ahead of time to get political -- my point is simply that as a practical matter and legal matter. the president has and president obama's administration argue they have the power to initiate military force even if it's not in response to actual or attack without congress. >> if i might just with a follow-up question.

in the context of a, for example, invasion of iraq, how will you regard whether president bush needed congress's approval beforehand presumably the war powers resolution would have kicked in and acted as a limit on a a kind of traditional conventional use of force there where u.s. ground troops were introduced into hostilities. and i guess the question is if we're looking at the war powers through the conflicts of the 21st century and whether it's legal or practical, a president is going to want to see congress buy-in before committing american troops to a long-term conflict overseas but those conflicts seem to be increasingly the exception and the new conflicts raised with limited use of troops and special forces and more with the use of drone strikes.

and other methods of conducting armed conflicts in the norm. the question is is it a sense this congressional buy-in, whether legal or practical fading as a result of the realities of armed conflict today. >> i actually don't -- to some agree with respect to the initial use of force i think congress will always be deeply involved through the funding and by the way as a footnote i think one of the reasons the obama administration became embedded with the 2001 aumf for the isil action is because they were worried about the war crimes resolution and couldn't get around the war crimes resolution just on an article 2 argument because -- even if they believed they have the inher ent authority to go into iraq and syria to go after isil that goes out after 60 or 90 days.

they didn't -- i don't even myself believe that the president can override the statute. my point is that once congress doesn't stop or initiate the course. >> it's hard to -- i mean administration argued that libya wasn't a violation of the war crimes. on its face it seems like it was a violation of war powers act. but i certainly -- seems like congressional -- probably more consistent with the founders consistent with realities, particularly today more practical and just more consistent with modern warfare. >> yes, please. >> my name is phil bronener i would like to ask if any member of the committee would support

the proposition that the authorization by the congress of the funding for specific activities proposed by the administration in syria or iraq or otherwise, in concert with the pending war powers proposal, could be read constitutionally as a de facto authorization of force that has been requested. >> other arguments and pretty much every conflict where congress didn't have a specific authorization, it wasvietnam. that is one of its arguments as to why it's use of force is per missible and supported by congress. >> in this case, however

there's a debate in the committees that focuses on the change in the structure of the defense budget pretty much to get past problems of sequestration but the result would be under one proposal, a much more focused allocation of resources. does that make a difference? >> i suppose it could under the theory that the clinton administration promulgated with respect to kosovo. i expect if you have specific appropriations for the ongoing operations, then under that theory, yes. but i'm not sure -- time not supporting the theory. the other concern might be if

you have forces on the ground or in theater maybe congress by appropriating funds rather than taking back funds is just trying to protect the troops, not a signal that they approve of the operations but rather with those kinds of facts on the ground they have no choice but to support the troops financially. but that shouldn't be read to be that they actually support the operations as a political matter that they would authorize them. i think there's -- some of the competing concerns how you would interpret it and war powers resolution itself in terms of as an assertion of congressional authority says appropriations shouldn't count. >> thank you for that answer. one follow-up if i may. >> yes, please. >> it's striking that the administration picked three years as it's sunset date with

length of a congressional appropriation cannot exceed two years as was mentioned by one of the panel earlier. do you have any idea why three years chosen? >> i don't. >> i don't know why three years in particular, but i do think that they wanted it to be a determination that would be made by kind of a future congress and the next president after the next president is in office with enough time that they don't have to race to a decision. why they picked exactly three years, not sure about that. >> you also have to presume there was at least some consul taths consultation with the military. i'm sure the military would have said we don't really want this limitation but if you're going to place it, at least there was probably some consultation as to what the various options were and how they might impact the military and how long the military thought it might need to accomplish the mission or the objectives as they currently are.

>> may i keep going -- >> well i think we'll have one final follow-up question and then we'll wrap up from there. >> i haven't heard anyone describe any coherent argument other than the ones that have been considered deriving from the congress as justification for inactivity. is that just because we were considering other issues or is it because nobody has heard a coherent argument defending inactivity? >> could you clarify -- at least for me -- what you mean by inactivity? could you clarify what you mean by inactivity? >> there's been a proposal for a war powers statute and -- >> why congress won't vote for it? >> the failure to take action on an authorization is that --

>> yes. >> well, there's never going to be complete inactivity because as we talked about, you still have the funding issue so they have to continue to fund the military and fund the operation. so there will never be absolutely no activity. >> i think also, you know, the administration may not be excited if it gets voted down right? so i think there's a political split in the congress like there is in the country i think. some people think they want a tougher -- they're not happy with limitations. some of the critics in congress are not that they don't want to authorize it, they want to vote to authorize it. and there's some folks that don't want to authorize anything. if you can't build a coalition, it's a simple political reason. why does congress not act? it usually is because they're divided and can't agree, frankly, like the country. >> and just to further that same line of thought the chair of the senate foreign relations

committee has said that at this point he doesn't have democratic support for the president's authorization because of the lack of limitations in it and he's unwilling to kind of pass an authorization along party lines because of the signal that that then sends. it's more of a political argument, not a legal or constitutional argument, but the signal it sends to isil and the potential allies iraq, if we in fact, pass an authorization but it's right down party lines. and then you could blame either party. could you say that the democrats aren't accepting it without their limitations and the republicans aren't giving any limitations. so it's two knows where you apportion the blame. and then the second part i think that senator corker is saying in a certain respect is and then why should i pour so much political capital and the rest of it into this when the administration is telling me they don't even need it? if the administration were coming and saying we really need this from you as an additional authority that we otherwise

don't have, maybe so, then they can justify that but if the administration says we just want to hear from you but if you don't do it, we're -- nothing is going to change on the ground, he kind of said i'm a person who wants to do something to make a difference. if it's not going to make a difference on the ground according to the administration, then why? >> it seems that the public pressure that was building or around -- when the issue first came up before the midterms has dissipated somewhat, which relieves i think pressure on the actors particularly in light of what julianne and ryan pointed out. well, i wanted to thank our panelists for an incredibly rich discussion of this important topic that goes to fundamental questions about our constitutional structure and the role of the president and congress andin what are challenging and changing times. if you had join me in a round of applause for our panelists, thank you very much. and thank you all for coming.

join us later this afternoon when the atlantic council will be hosting a discussion of how low oil prices have impacted fracking. we'll examine the shale boom in the united states and the fongs for fracing to spread across the globe. live coverage at 3:00 p.m. eastern on our companion network c-span. a live look at the u.s. capitol here where the u.s. senate will gavel into session today starting at 3:00 p.m. eastern. you can watch that live on c-span2. here is a look at the week ahead in congress. >> start with the senate first mike lillis, what's on tap?

>> a big issue in the senate will be trade. all eyes are on president obama one of his top priorities for his second term is to get some of the huge international trade deals done and the senate is going to take up a bill that was passed earlier in the month out of the senate finance committee had broad bipartisan support and it's going to come up during probably wednesday/thursday. we'll look at that trade vote. very interesting issue because it's got obama on it, of course but -- and it's got senate majority leader mitch mcconnell on it, but it doesn't have harry reid. he's a strong opponent as are a number of liberal democrats. they're lining up against it. so this is very strange bedfellows coalition in congress, not just in the senate, but in the house and it's going to be an enormous lift for obama. it's expected to pass the senate and have a tougher time when it moves over to the house but that

will be the debate this week and then we'll get a sense of where that bill is going to go. >> and it's been more than a week since we've seen the house. they'll come back in. when we last left the house they were debating a couple appropriations bills for 2016. where are they headed this week? >> also a big week in the house. a lot of high-profile issues on tap. they're going to come in on tuesday. they'll do some suspension stuff, some low hanging fruit stuff, and then on wednesday they're going to dive back into the abortion debate. the republicans had tried to bring up a bill in january that bans abortions after 20 weeks of pregnancy. they had to yank it because of concern from female lawmakers in their own party and some centrist republicans that the previous bill, the trent franks bill, republican from arizona, had an exemption for rape victims but only if they reported the rape to police, and there was a lot of concern within the republican party that that was going to send the wrong message to women that it was a

bar too high and so the new version will yank that language just requires a doctor to ensure that the woman has received either medical treatment or licensed counseling at least 48 hours prior to the service. so that vote is expected on wednesday. also on wednesday another huge issue, the patriot act renewal. there are sections of that that there are supposed to expire on june 1st in particular section 215, this is an enormously controversial section just because the thanksnsa uses that provision to justify its bulk collection of phone records and you'll remember just last week a federal court ruled that the nsa's bulk collection without a warrant is illegal. and so there's a lot of big push in congress to eliminate that and the house bill would do it. it would bar the government from collecting phone records in bulk and instead it would require the agency to make specific requests to private companies. and that is also supposed to come up on wednesday. then moving right along on

thursday there's a defense authorization vote expected. house armed services passed this bill last month and also very controversial because there are a couple resolutions in there that the pentagon should move to allow illegal immigrants brought to the country as kids to serve in the military. these are the dreamers. immigration has been such a thorny issue with president obama's executive actions, and this involves all of that. so another very very tough issue for republicans here. just have to move that bill with the immigration language attached. there's a big move to get it out of there, a move to expand it. that fight will also be going on on thursday. >> and the hill is reporting that, i believe, there's some republican support for including allowing those dreamers to have a military service correct? >> sure, yeah. you know, it was a republican amendment in the committee, in the armed services committee, that installed this stuff, and

then jeff denham, a republican from california, heavy latino district, and he's pushing to expand the immigration language to allow illegal immigrants to serve in the military in exchange for legal status. now, he has tried that in the past and gop leaders didn't allow him a vote on that amendment on the floor, and it's not clear if they're going to do the same thing this year. but he's also pushing for that even as more conservative guys want to eliminate the sense of the congress language that's already in there. so you're going to see that republican versus republican battle on the floor on thursday over this defense bill and immigration. >> a full week ahead in both the house and senate. we appreciate mike lilles who covers congress for the hill joining us. thank you very much. >> thank you, bill. appreciate it. the new congressional directory is a handy guide to the 114th congress with color photos of every senator and house member plus bio and contact information and