i had intended to and the next two or four years to find a way to wind it all down -- i had intended in the next two or four years to find a way to wind it all down. it is the end of a chapter and not the book. >> chairman oberstar, thank you. >> coming up >> next, former solicitor natural walter diligent talks with constitutional law experts. southern methodist

university law school hosted the panel. kathleen sullivan, and kenneth starr, and john you are the panelists. this is a little less than two hours. >> does the president have to obey and follow the law? my panel members -- i will go from my right and your left, i guess. we have kathleen sullivan, david cole, walter dellinger, prof. drawn -- professor john yoo.

i will tell you a little bit about who we are as a group and what the panel is as a group. of our group, we have five law professors. we have three that have been deans of law schools. we have four that have been appellate clerks, circuit clerks, three that have been supreme court clerks, oral arguments in front of the u.s. supreme court, 70 oral arguments, amazing, and hundreds of argument before the

intermediate courts throughout the country. we have two solicitor general's. we have two members that have been head of the lessee and office of legal counsel for the president. -- head of osc and office of legal counsel for the president. we have members of our panel that have worked with presidents, starting with president reagan through clinton, bush won, bush to -- we do not have anyone on the obama administration. there probably would not able to talk with us if there were currently serving. [laughter] we have several offers. prole two particular relevance, we have john yoo who has recently written on crisis in

command. last but not least, we have an actual president -- president judge kenneth starr. we will get started on the topic. we will let you know that there will be time of the and for questions and answers. in the room to go have a microphone to my right and to my left. when walter dellinger it indicates that it is time for the q&a's, please line up on this side and we will welcome your questions. without further ado, walter, i turn it over to you. [applause]

>> it may seem strange that we're talking about constitutional interpretation, not by judges, but by the president and his executive branch. we have become so familiar in our legal culture the thinking that interpreting the constitution is the province of judges and it often comes as a surprise to confront the degree to which the president is a constitutional interpreter and decision-maker. and it might not have been the case if a constitutional convention have not made a dramatic change in the nature of the presidency in the final 11 days of that remarkable event that took place in philadelphia between may 17 adolescent drug the summer until september 25, 1787.

the constitution is not the final draft. as the current tension took this final recess in the summer, it is the final draft of august the six, providing that the president was supposed to be a manager for congress. the president was to be chosen by congress and was removable by congress for maladministration or neglect of duty. the congress not allay chose the president, but the treasurer. the gunners had the power to make war, not simply declared. -- the congress had the power to make war, not simply declared. there was no participation by the president in the naming of

judges. that was the second to last drafted the constitution. then there was a dramatic change. they knew that electorates' would be popularly chosen in some fashion and that they would reflect the issues of the general public. those who favored direct election of the president by the people thought this was the next best thing. this was the one step removed selection by the people. that gave the president an independent basis. they then talked about the removal phase so that it no longer served by the pleasure of congress. they gave the president a role in negotiating treaties and in nominating judges and nominating ambassadors.

this was all very dramatic. what happened to carve this dramatic change? over the course of the summer, the national government was given extraordinary authority over all of the western land, over what to john marshall was to call all of the external commerce and a not-to considerable portion of the commerce of the nation. it was an awful amount of power, going way beyond anything anyone had imagined, except perhaps madison sitting alone in his study in the winter of 1785. going on beyond anything anyone would have imagined in this convention. the president was created, not beench as a manager as had

perceived in the early days of a convention. there is no even paint -- there's not even need to stress that in the constitution. by the end, they wanted a strong and independent branch of government. and you have a president that is his own constitutional officer, not an employee, not a staffer. that has led the president to make and had the obligation to make their own determination of congress. of this, ever-present has to interpret the -- obviously, every president has to interpret the constitution.

a president, in the absence of a cut military judgment, has to make his own judgments about how discipline in the troops and what the powers would be. one question we will be addressing is one in which congress has said that the limits of the president's authority is gone. -- what the limits of the president's authority is gone. -- with the limits of the president's authority is on. there has been done and remarkable defense in the supreme court that the president ignored an act of congress and discharge the postmaster without the consent of the senate as required by congress. the president declined -- and

the supreme court found it and remarkable that the president had not done so. there has been a debate about the degree to which the president should show deference to congress even though his ultimately has to make his own decision, particularly on fighting a war on terror for the president decides acts of congress that were in fact constitutional while claiming that they were unconstitutional. that is the matrix of issues. there's one more recent one. when is the president authorized to tell his attorney general to tell the supreme court that it ought to strike down an act of congress, for example, don't ask/don't tell, that the present is complying with, but he believes to be unconstitutional. what can you tell your court

about your position? what is the duty to defend? we will finally start with a president, kenneth starr. >> thank you, walter. it is good to see so many friends. let me begin with the text. i will come to the oath of office. article 2, section 3 in numerates the powers of the president. one of those critical powers is "he shall take care that the laws be faithfully executed." the oath of office, set forth in article 2, section 1, and here's the of "i do solidly swear or affirm that i will faithfully execute the office of the president of the united states and will to the best of my ability preserve, protect, and defend the constitution of the united states."

taken those two together as well as the fundamental bedrock concept that ours is a system of laws and not a person's, the will of the people as manifested in law, what was called the offending forms of justice, which expressed themselves in law, not in philosophy, not an ideology, but what is it that the law. woodrow wilson, as an academic at princeton, wrote that the book " the president is accountable to dhahran, not to newton. government is modified -- accountable to darwin, not to newton. the government is modified and shapes the pressures of life. when asked, the president included be law -- into we did

law.aw -- fiftintuited the the lincoln presidents say, to a certain extent, took the president say, called to serve during what turned out to be a time of war raises in my mind the most critically clair dimension, intentional, willful disobedience by the president to a clear norm. i know what the law is and i simply will not obey it. it seems to me that a way of , think of lincoln,

perhaps think of wilson, perhaps others who have taken the law into their own hands. it way of thinking about it is to draw from analogous pollols f law. we know through the case law that there are existence circumstances, getting a warrant, having probable cause, benzidine circumstances -- eggs and circumstances -- exigent circumstances. in corporate law, the idea that management will take action that may in fact be viewed as alter virus, perhaps entered into the directors.ive attaca board of

another value that is a more modern value comes from the bucket of securities law, disclosure, transparency, .liminatioillumination it seems to me that a way of thinking about it in the worst situation, willful disobedience, identifiable norm, is democratic accountability. perhaps negligent seconds -- gent ps exite circumstances. the second point, where there's this undermining or even

intentional undermining of constitutional of constitutional and legal norms, the undisputed cold on the docks violation -- i think historians might will identify president wilson's conduct through world war i, especially with respect to civil liberties, very controversial. especially the internment of japanese-americans during world war ii. other cases held the back of the fact. i third and final point, in the midst of all of this, which should be the role of those of us who have been privileged to serve as their predecessors and successors in the just department?

at its best, the justice department will really be the conscience of the presidency. the justice department will be filled with great lawyers who will be holding up yellow cautionary signs. they will be flashing red lights. we saw the stop sign and we saw that in connection with the internment of the japanese- american community. one of the great heroes of that losing battle was francis biddle, the attorney general. in his memoirs, confirmed by others as well, he fought very valiantly that he did not resign, saying that this cannot be -- this should not be -- in a free society -- the grounds are not there for this.

one arena to serve those rule of law values, the role of the attorney-general and those called upon to serve in the justice department, it is extremely high in terms of the values of the conscience of the presidency and fidelity to the rule of law. when congress, time and again, came forward with a legislative veto, this was a pro-good government reform on the hoover commission for the reorganization of the government and ordained by result. one arena that was suggested was the legislative veto.

then reagan referred to it in a couple of speeches in terms of getting control of bureaucracy. but once he took office and advised by the office of legal counsel, advised by the attorney general of the united states, the president of the united states did a vehicle but and repented his -- did a mia culpa and repented his position. the justice department told him it was unconstitutional. that to me is one of the great roles for the justice department to play in assuring, as best we kind come in a perfect world, president of fidelity to law. >> who have some people on this panel, kathleen, who celebrate the president's

fidelity to his oath to uphold the constitution and his decision to subordinate the obligation of constitutional over statutory law. over time, you have expressed some concern that those in the executive branch have gone too far in asserting the president's authority to do this. how can you defend such a well considered view? [laughter] >> i have not worked in the justice department. to work in the executive branch has no doubt steered the experience of my fellow panel members for seeing the need for presidential action. maybe it is the perspective that one takes when you're in the moment of crisis. i would like to refocus us

perhaps to the theme of this conference, the role of the courts. when u.s. the question, does the president need to take emergency steps, does the president need to act without prior or clear authorization by law or treaty to protect the homeland, does the present have to act with the zeal and dispatch and to invoke predecessors from jefferson to lincoln to roosevelt as the source of authority? or should support step in and prevent the president to do so. i would argue that the courts have played a very important role in restraining excessive actions. i also want to talk about the intentions of the framers for the role of congress to be.

and then there is the importance of the independent judiciary playing a role on the executive branch. we do not have any emergency cars in the constitution. unlike any constitution of all new democracies, there is no exception clause. when the president acts extra- constitutionally because of emergency or national security crisis, he is doing so on his own initiative, without a particular constitutional warrant. the fourth amendment does not have an exigent circumstances be there. but when the prora -- but when the president is doing that, he is doing it in the modern area under state secret privilege. we cannot even find that the reasoning under why you invoked the clause. the president will not be self

restraint. this is not a matter of one party or the other party. presidents of both parties throughout our history, as party definitions have changed, presidents have always wanted to maximize the interests of the country as he sees it. this is what you see the clinton and the obama administration's writing memos supporting powerful executive authority just as much as members of the reagan and bush and w. bush administrations. going back to france's bill, he counseled against the japanese internment. in that same memoir, he said about roosevelt, about fdr, " i do not think the constitutional difficultly really troubled him. i do not think that it has ever troubled wartime president." i think that is exactly right.

you remember that the court struck down the seizure of the steel mills to avert a stoppage during the war in korea, then declared war in korea, the production of steel necessary to munitions and armaments going to the troops in battle. the supreme court struck down that at, saying it exceeded executive authority, lacking legislative authority. they did that at a time when his approval ratings were hovering around 22%. it may -- when the court finally smacked lincoln for unilaterally spreading here is corpus, i did not do so until after the war had ended. the court may only stand up to the present when the president appears week, but extended to the president when he appears weak. the story is told that you went to a dinner party soon after

black had written one of the decisions. the conversation was a little stiff. but after libations had flowed, apparently, truman said to black, "well, sir, your lawn is no good, but your bourbon is." [laughter] i it brings to bear because, if roosevelt felt unconstrained and trim it was unrepentant, the president thinks that his action in excess of legislative authority, even when struck down by the courts, it was his decision at the time. i would like to suggest that the framers notwithstanding, walters account at the outset of the dramatic shift towards later presidential power at the end -- it is true that they went from a pure agent-manager mitch into a vision of executive leadership.

the single most important principle of the framing with respect to separation of powers was that legislation must constrain discretion. congress must restrain the president. and the present, not withstand, have the power to execute the laws. the powers to execute laws. as to have a prior antecedent -- it has to have a prior antecedent. the concern was maximal with respect to military and foreign affairs. we often think that the president must to have more freedom with military where it must be dispatched. the framers very much believe that congress would play a role in constraining the president.

the declaration of rights by parliament in 1689 wanted to and broil for robert to -- royal -- wanted to end royal prerogative for a standing army. i know it -- i do not know if you read the declaration of independence allowed in your family every fourth of july, but one of the most stirring lines in the litany of grievances against the king is that he has kept among us in times of peace standing armies without consent of our legislature. he has affected to render the military above us. the legislature must constrain the executive even with respect

to military and foreign affairs. the continental congress actively debated washington's articles of war, actively debated the terms of the 1779 peace, actively debated the terms of the treaty. no one thought that the congress was incapacitated just because it was a multi-member body, to be actively engaged in reviewing and ratifying or criticizing the president's decision. you might say, great, that is good, congress will constrain the president. but what the framers did not imagine that had no expectation of was that we would have a party system that we have today. the party system has radically and cut the capacity of congress to constrain the president. the fidelity to one's party will tromp the fidelity to one's branch. congress will enact for as two fighting coalitions of partisan blocks whose loyalty will run to the president or electoral

concerns in relation to an opposing present will constrain their actions. congress, because of the anticipated power parties, we were supposed to have suppressed of powers, not parties, has undercut the ability of congress to constrain the president. congress has not stood up to the president meaningfully in any respect with respect to exercising the discretion in the war on terror. if you can call it that, the initial u.s. a patriot act in a number of days, making substantial changes to powers of surveillance and other powers of domestic conduct on the war on terror. it eventually ratified come after the supreme court struck down, president george bush tribunal. congress had violated the writ of habeas corpus by in effect

suspending it where it was applicable and not providing a substitute for it. with respect to tribunals and the u.s. patriot act and its renovation, it has not done anything to embody the framers decision that the executive should be supported to legislation. that texas to the courts. one of the most remarkable stories -- that takes us to the courts. one of the most remarkable stories has been the systematic way in which the courts, and in particular republican appointees on courts as the deciding vote -- this is not just a matter of a partisan thing. the court as an institution has constrained the president in a remarkable series of decisions. the decision that the improvisations in the descent -- in the detention system at guantanamo either exceeded due process, as the court said, or

the military tribunals that were not authorized by the geneva conventions or any other law. there were a number of justices in these cases who saw the authorization of military force that authorized war in afghanistan did not extend beyond that. just because the president is the commander-in-chief of the military does not make and the commander in chief of the economy. similarly, because the president is the commander-in-chief of the military, he is not the commander-in-chief of all domestic law enforcement systems. with respect to all of these issues and attention and tribunal, the supreme court has systematically, in a series of narrowly-decided cases, said no.

that is a remarkable story. there are many countries in which the court would not ever be able to stand up to the executive at all because the courts are thought of as a thinly-veiled rubber-stamp for the executive power. it is a remarkable story of judicial independence and in that there is obedience to these decrees. the great justice stevens once said at a conference, "it is the ability to have our decrees yed" when someone asked what people admired from other countries about our judicial system. [laughter] congress will always, especially with their frequent elections, defer to the president. it is never good politics to

endanger national security. i do not need to overstate the case. there have been limits to the ability of the courts to constrain when i think has been in excess of executives deal. in particular, the courts have been powerless to stop expansions of in visible domestic surveillance practices , in large part because of an assertion of the kind of executive decision called state defense secret. you might

business judgment and do lots of things that should not be called altered years. but publicly traded corporations are forced to put a lot of the information out into the public for the way that executive decisions have been made. if we do think the executive should have all of his managerial freedom, it is that kind of disclosure and transparency. that is where they have not gone far enough. in a nutshell, i am eager to hear later from my fellow panelists -- >> as a segue, kathleen takes the decision, which i think, to some extent, is compatible with the johns position. presidents have always made these claims. i would like to point to john and then to david executive power and then about george w. bush that was not consistent with what had come before and

represented a more radical shift. i think everyone agrees that the president has the authority to disobey some laws passed by congress. with respect to some kinds of laws, they would be unconstitutional laws forever. if congress said the president may not fire cabinet officers or the postmaster without the consent of the senate and the president complies with that, it would never be tested. no case would ever get to court. i think any subsequent presidents should consider that unconstitutional. only by disobey can the president get a judicial tests.

the suspension of habeas corpus is provided for by the constitution and shall not be suspended unless the cases of rebellion or invasion that the public will require it. >> in article 1. >> it is still silent on the question. what is clear about clinton's assertion of power is that he did it publicly. there was no secret violation of federal law. and he was ready and willing for congress to revise it and acknowledge the power of congress. india, congress cut back on the procedures for suspending habeas corpus -- indeed, congress cut back on the procedures for suspending habeas corpus. i think it is important to distinguish between acting when

the only claim against the act would be alter various. presidents can engage in lots of things. the authority to resist an act of congress, once congress has decided that it places the limitations, by some accounts, including mine, the refusal to comply with the foreign intelligence surveillance act and acts of congress restricting torture were a violation done in secret without any justification. we can be fully able to debate that. >> thank you very much, walter. i would like to thank judge callahan for inviting me to appear. she did not tell you, but the last time she asked me to appear on a panel, could not make it

because i was detained at the airport. this was even before the tsa have all of the machines. [laughter] so i am glad to be able to make it. if you'll bear with me, i have a little trepidation speaking before an audience full of appellate judges and lawyers. i like my colleagues, i do not actually appear in court. i hope never to appear in court. [laughter] when i told my wife would be speaking before 300 some judges and appellate lawyers, i said, you'd have to pay me to step before judges. then i realize that that is what all of these people have to do, too. i appreciate the invitation to speak. but i just want to make the point that i'm not a pellet argue or -- not an appellate arguer. the first point i would like to make is that, i have learned in

my life not to disagree with kathleen sullivan. kathleen is bright. i am happy to testify that if she comes up for confirmation. i am the admirer of the living constitution. in that respect, what i think that this happened with the presidency is that the framers established the principles of the sick of power -- of executive power. the constitution created what looked like on paper as a weaker presidency. as america gets involved in the world and participates and wars and the powers would grow, too. the one thing is that, if kathleen were right, then why should we have a presidency? why not just let congress create the agency that carries out its

functions. the reason why we have an executive branch, a creative innovation at the time, was of the there would be always a branch of the government in existence that could react swiftly and quickly to unforeseen circumstances. congress and legislatures cannot anticipate the future. so you need to have some branch of the government that can respond to immediate circumstance. the example they give is war. alexander hamilton said in federalist no. 70 that the one best example of where you need one person in office at the time that something happens to act immediately is what he called the management of war. that was an example that they gave. you needed a president who could act independently of congress. this is supposed to be the way things were all the time. the feminist thought that

congress would be the dominant branch. most of it -- the framers thought that congress would be the dominant branch and the president would be for emergencies and cases of war. to this point, the presidency is also an independent and accorded branch. because of that, the course and -- the courts and congress cannot have the right to tell the president how to interpret the constitution any more than the president has the right to tell any of the other branches how to interpret the constitution. walter and can are flipping through their constitutions as the others are speaking. people think i have a secret code? attached to mine -- a secret codex attached to mine.

they have to interpret the constitution in a course of deciding cases between parties. under that same logic, the other two branches have to interpret the constitution when there do their jobs. when congress passes a law, hopefully, they think about the constitutionality of the law first and do not enact and caution to national laws. when the president enforces the law, he had she has to figure out what that law means and he or she should not enforce unconstitutional laws either. the president is charged with faithfully executing the law, just like in marbury. what if the constitution and a statue tell you to do two different things? what does the president do? the president has to follow the

constitution first and not follow the unconstitutional. -- and constitutional law -- the unconstitutional law. presidents, from the very beginning, have follow this logic. thomas jefferson, when he came into office, it was a crime to criticize the government. john adams loved this law, obviously. when he came to all this, the release from jail everyone prosecuted under that law. the courts has upheld the law and they think it is constitutional. he said, i think the law is unconstitutional and i am

allowed to pursue that view when i perform my constitutional functions. i think the president has every right to refuse to carry out unconstitutional criminal legislation when he decides or she decides who to prosecute or not. >> that we just interject what is the fundamental difference between the president declining to enforce the law, which places constraints on others, and violating a federal criminal statute that makes with the president will do a crime? they are quite different situations. >> i think it is a great question. a second example is lincoln. he actually -- unlike jefferson who was passive and refuse to enforce unconstitutional laws, lincoln took actions where he actively did things which did

not just maile congressional statues, but did things that argued with supreme court issues of the day. he also refused to release a confederate spy in direct contradiction by order of the chief justice of the united states at the beginning of the war. think about the emancipation proclamation. the president of united states freed all the slaves in the south as part of his commander- in-chief power. we are all lawyers. does anybody remember what the governing supreme court ruling was on slavery? dread scott is still along of the land in 1863. he is still the chief justice of the united states in 1863. in 1863, lincoln? inconsistently with supreme

court precedent when he -- lincoln acted inconsistently with supreme court precedent when he did that. he was only acting in his powers as commander-in-chief during the war. fdr, in the years leading up to world war ii, congress passed a series of neutrality acts. i am only picking presidents that most people think our great presidents. . am not trend to convince you [laughter] the neutrality acts before world war ii made it legal for the u.s. to assist any of the parties in the fighting. these are famous cases to justice department people that president roosevelt started sending airplanes, destroyers to britain. he was asked are you not directly violating the neutrality act? he would say, those destroyers

are so old, we just do not need them anymore. they are obsolete. he called them over-aged. and then he ordered the military, the navy to start deploying on boys to attack german submarines. those were in violation of neutrality acts. and all of these cases, i am glad that result, lincoln, jefferson, did what they did -- i think they did it in the best interest of the country. they did not good to grasp power. it was better for the country that they did what they did. and i wish they had done it earlier in all the circumstances. the last point, the bush to administration and the policies of the last 10 years and kathleen raised issues of the responsibility of the court -- again, i never disagree with kathleen sullivan. i think i am the only person has worked for congress. i worked as an aide to senator

hatch 15 years ago now. i think congress has ample constitutional authority to stop the president from doing anything he really wants to because it has the power of the purse. and i agree with her that you have seen that congress does not want to do it. if we wanted to change in administration policy, it was not that hard to do it when i was in congress. it is an issue of political will, not constitutional power. all of these policies that the bush administration pursued, surveillance, interrogation, military commissions, habeas corpus detention -- to me, this is exactly why the presidency was created. we had an attack on 9/11 that was unforeseen and unlike any war we have been in before. the president immediately reacts and response. he is trying to figure out how to adapt our system to this new kind of war where we are not fighting a nation state, but a state list terrorist organization.

-- a stateless terrorist organization. congress can address any of those things and they do not. the courts stepped in and struck a policy down. the last thing i would say is that i do not think what we have seen is out of line with historical example when compared to other presidents during wartime. i think the bush said administration, bush tried to work with congress, but they gave him the authority to act first and with initiatives. that does give congress and the courts there shot with issues immediately after the fact. if you see a situation where people think the bush administration went too far or now the obama administration is going too far in unilateral authority, they are, but the congress and the courts have ample authority to stop them if they want. i think the consequences for the country has been better when

those bridges have worked with the president to make sure we have the most aggressive policies we can within the constitution to fight the kind of threats we have before us now thank you very much. >> david cole has challenged executive power in cases that he has argued before the courts. he is likely to have a less sanguine view of the extreme indifference to the law that congress exhibited in recent administration. >> i can tell you that i have learned not to disagree with john yoo. [laughter] i am sure it was not lost on you that 90% of those accomplishments in that collective introduction word judge, general, dean, president

star. 10% or the other members of the panel. i don't know why i am here. [laughter] that was just brilliant. i think everybody on this panel agrees that the president, particularly in moments of crisis, often have overreached, taken matters into their own hands, have exercised authorities that might well have been questionable. the difference is and how they do it. walter raised that point. there is a difference between doing something publicly and

doing something secretly and the difference between declining to enforce a law and acting in direct violation of that law. what you see when we look at the last 10 years there is a tie between success in office in broad visions of executive power and have counterexamples. one of them is president bush. the other is his immediate predecessor, president nixon. many people will remember his interview with david frost where he asked him, why do you think you have the power to engage in

-- and the president said, in my view, if the president says it, it is not illegal. president bush and with the assistance of john resurrected that principle with one caveat. it is not that if the president does it is not illegal. if the vice president doesn't, then -- [laughter] but if the president does it and he is doing it in his commander- in-chief authority, it is not illegal. in that respect, i think the bush administration's assertions of executive power to disregard a law is unprecedented.

they asserted not just an inherent power to take initiative in an emergency situation, as president lincoln did, and then go to congress and say, look, here's what i am doing and i am doing it because you're not in session and the troops were coming up from baltimore. i had to take action so i descent -- so i suspended habeas corpus. but if you think it was the wrong thing to do, tell me it was wrong. but that is not what happens. he said that, in secret, they wrote opinions that said that the president can blatantly violate laws that are directly restrictive of infractions. they did in two concepts, both on torture -- they concluded that torture is something that i do not think anyone else ever

thought torture was limited to. but then they said, even if what is being done is clearly falls within the terms of the torture statute, that statute cannot be applied to the president. why? because the president of commander-in-chief cannot be checked by either branch of government when it comes to engaging the enemy. he decides to engage and we need to torture the enemy that is his prerogative. the president decided to crush the testicles of a child, that would be within his constitutional authority. >> that is not true. >> he told the office of professional responsibility. if the president ordered the extermination of a village, that would be his executive authority. that is the kind of assertion of

power that we saw. a real failure to live up to what judge dean, a general, president start suggested is the failure of lawyers in the justice department to say no. as far as wiretapping, we have the statutes and the books that make it a crime to engage in wiretapping without a warrant. it expressly contemplates a limited exception for wartime of 15 days. then you have to come to congress and get further authority. the president took the position that i can engage in this wiretapping. some argument was made to the supreme court when it came to review of the detention of enemy combatants. the government argued in the

first case that it would raise serious constitutional questions if the court were to interpret the habeas statute to extend to guantanamo because then you'd have congress and the courts checking the president with respect to engaging the enemy in wartime. they cannot check the president when it comes to engagement of the enemy in wartime. all nine justices of the supreme court suggested that position. in the second case, they took the position that the court could not assess the factual validity of the -- justice o'connor said that we certainly can and we must durinunder the constitution. under the prior administration, there was an assertion of executive authority that goes far beyond the kinds of examples

that we have seen from history. i think the lesson of history, unlike the lesson of history with respect to lincoln nor fdr, the lesson of history will be that these were grave mistakes, that these were failures of vision, and that this is precisely why it is critical to have a system of separation of powers with checks and balances that does not permit one man to engage in uncheckable executive power. >> john, i will let you respond. >> thank you. i have three quick points. first, i actually do not think that the president has the power to act outside the constitution. i think that the commander-in- chief authority is a broad power, but only triggered during

wartime. the problem nixon had is that he tried to claim very broad authority to combat an internal security threat that was nonexistent. that is the big difference between nixon and other presidents. and with president bush, it is undeniable that we were attacked on 9/11 by a foreign enemy. i think president bush, like president nixon, made of some kind of crycrisis to expand his prerogative. we were fighting wars in two places and the war on terrorism and he used his constitutional authorities to do things more so than the bush and administration, like using predator drones to assassinate members of the enemy. secondly, it cannot be the case that congress has the full authority to tell the president to do whatever it wants.

.

i don't think that the constitution will give you that answer.

if that is worth it, we will have to wait and see. my view is that it was. obama administration has continued with this success this is perfectly fine if you want to judge it on those grounds. >> in your opening remarks, you said congress has the authority to control the president. if you have situation like this, the president has gone back to the 1950's and assume that they have the authority to have the ability to use the intelligence like this when more and force that was not the object.

the u.s. supreme court rejected that proposition and said that you are not exempted from the fourth amendment because you are labeling this foreign intelligence surveillance. congress passed the foreign intelligence surveillance law and the purpose was to authorize foreign intelligence surveillance. when you put the machinery in the hands of the executive branch, congress thought, it is important to make sure that this is not misused. a special court of judges will meet in a secure place and and they will be asked to authorize and memorialize the basis on which this is conducted. that is why you don't end up

tapping al gore or john kerry. it might be that they approved 100% of the applications. this was a great restraint. you had to go before three judges and make this submission. congress said that if this does not work, you can have 72 hours. they needed two weeks instead of 72 hours and he did not have to comply with this. ultimately, you have to comply when it is not impractical to do so. what happened is that the president did not comply and did not tell anybody. he secretly engaged in wiretapping and it does this violate the procedures set up byess? it is only because of a leak any

of us know this. how is this supposed to work when a president declines to act with the law? >> the president has constitutional authority over battlefield intelligence. how far does that power go? when does it become law enforcement? on the other hand, the 9/11 attacks caused a huge problem for that system. walter describe how the system works. you need to have a target in line. this is written very much in the law enforcement mauled, you have to have reasonable reasons to think that someone is a terrorist or enemy before you can get a secret wiretap. that is not the problem.

we did not have an list of the suspected members of al qaeda but we have a list of the people who work in the soviet embassy. if he wanted to look at all of the e-mail that went from the u.s. to afghanistan, and you cannot do it under the authority. the president had to make a choice. he said we will stick with the system and our ability to get intelligence will be limited or we will try to intercept all of the milk coming from afghanistan to the u.s. without a specific target. the administration has to do that in secret. if you announce to the world that you need a new law that we need a new law to be able to intercept e-mail from pakistan, that would have stopped using the mouse system within 24

hours. what they did was to try to have oversight and corp. but in secret. the administration did brief the members of congress about this program and asked if there was an objection. if any of those leaders said that you're not going to do this, they would have stopped. last thing they wanted was to have a conflict between the president and congress right after we had been attacked. there is no obvious way to conduct oversight and public when you're conducting a war were a lot of the actions are covert but that does not mean that they cannot do it and informal ways. they could have cut off funding for this program and the nsa would have stopped the next day. as far as i can tell, congress

essentially it authorized the program and continue to to find it in the same robust nature that it had been going on under bush. >> there is the endless war, the indeterminacy of the war into a time where we are really grappling for a legal and constitutional scaffolding. what you have sent suggests that there is a wide sense of agreement that there needs to be some form of consultation with the article one branch. their knees to be some kind of engagement. we don't want an imbalanced government. madison warned about the dangers of the article one branch or the legislative branch and we need to build the instructors and

protecting the presidency through the veto power and so forth. the problem may have been over these past 10 years one of a perception that endures the those of us who are not privy to all that john and those involved in the litigation are the appearance of the executive unilateralism. that has been the principal complaint laid at the feet of the administration and one might say where was congress? there simply might be institutional limitations by virtue of the partisan nature in the emergence of political parties and so forth. working on capitol hill during the days of vietnam, i heard j. william fulbright. i heard the president's own

party stand against vietnam and i saw eugene mccarthy make the decision to challenge the president. this is really all about the war. obviously, this will come down to a position and a situation of leadership and this sense of how important is this issue and how do we disagree? one of the top 10 stories is that the congress did not disagree openly, overtly enough to prevent what is now seen in retrospect as executive unilateralism. >> i agree completely with ken stark and john's earlier comments that it is a matter of political will and not constitutional to trade on what

-- i would like to go back to the commander in chief for a moment and disagree a bit with my friend john on the scope of that clause. in trying to root the argument in the original constitution rather than the living constitution, you don't want to over read this clause. this is often overstated as the simplification of the power. he is an agent of the congress. the original framers concern was harmony and making sure that they did not run roughshod over the civilian populace and constrain the army. we should not look at this as the broader source of these claims and the conception of the

battlefield that encompasses not just time and an indefinite war into the future but also the indeterminate space. if you want to have a lifting constitutional conception of the constitutional commander in chief, if they are entities that are governed by the laws of war, that is one thing. if you use this to justify surveillance and homeland because you say that that is in affect the battlefield, then we lose all distinction between the realm of war on one hand and the rommel law-enforcement on the other. the court was able to stand up to the claims of executive power in a series of cases was the claims of the need for urgency seem overstated.

there was a decision that said that it was not permissible to have a military tribunal for a man from ohio who was suspected of access criminality during the civil war. the civilian courts were open and there was no need for martial law in ohio and therefore you could have allowed the law-enforcement system to proceed. there is a bit of that assumption that the court may have had here. you can't tell us that you needed to improvise modes of detention and military commissions that are not authorized by law when it has been for years, five years, seven years. you can no longer say that these red and necessary response to an emergency. the civilian courts were (a dumb -- the civilian courts were

open. the civilian courts can't take care of a lot of problems such as we have seen in the recent episodes of suspected terrorist activities and have been tried in civilian courts. the most articulate spokespeople in question in the military tribunal system or not civil libertarian lawyers, it was the men and women of the jag corp. of the military brass whose fidelity to the geneva system -- with the sense that they have to follow procedures and military system. it is no accident that justin's seasons justice stevens was the only living member of the court who have served and served with great distinction and the navy in world war ii.

i don't think that the commander in chief klaus can do all the work that john attributed to it. >> there is a tremendous article by david baron and -- who were both with and the office of legal counsel for the bush administration and they were looking at the history of the commander in chief cause and concluding that the history quite contrary to what john has suggested has shown that congress has in very great detail regulated and restricted to the way in which the president conduct wars. they say where you can fight, where you cannot bomb, what tactics you can use, what tactics you can use. the cannot torture, for example.

they have been saying things along those lines for our entire history. i wanted to talk about just how one story of the problems with secrecy and this kind of checking function, whether this comes from the courts or congress or from the public'. that can be undermined. this pose states john leaving the office. the office of legal counsel should be held responsible when the memo that john wrote authorizing water boarding and the like became public, as soon as it became public, it was unacceptable and it was rescinded immediately and they started working on something else. they substituted something for

it in 2004, and public memo. at the same time, they wrote a secret memo that said that you can continue to do all of the things that we told you could do in their rescinded memo that john wrote. then it came out that they had interpreted the prohibition on cruel treatment not to apply at all when you interrogate foreign suspects abroad. maybe you can argue whether this is torture or not but you cannot argue that it is not cruel, but slapping people in the face, keeping them awake for days on end. you cannot argue that that is not cruel. what did they say in secret? they said it does not apply to foreigners. there is a human rights portion

and a treaty that we helped to sign and now it is not what we follow. john mccain led the charge and almost unanimously congress said, that prohibition applies to every human being wherever they are held, this is a human rights treaty, not a citizens protection act. so, what does the office of legal counsel do? they wrote another memo, now have to apply this cruel and unusual treatment provision, but none of these are cruel and inhumane and not even combination. if you keep someone up for 11 hours, slammed them against the wall, that is not cruel or inhumane.

we cannot guarantee that a court would agree with us on us but don't worry, it won't go to court. then, a year later, the supreme court said that the geneva conventions apply to how we treat al qaeda detainees. there is an even lower standard or a higher standard depending on how you look at it, on how you treat detainees in wartime. they wrote another memo in 2007, again, and sacred, and now none of these tactics are even in human or any man or a violation of the way in which our country is obligated to treat our own people. they were saying in secret that it would be perfectly legal for another country to engage in a war with us and to take our servicemen and subject them to all of those tactics, perfectly

legal. when president bush was asked that question, president bush would not answer that question because he knew he could not answer that question. of course, it would be unacceptable if it was done to our people. this should be unacceptable as it is done to any human being. we were making it more clear that human beings cannot treat humans -- cannot be treated this way. the office of legal counsel continued to say that they could continue to do what you're doing. >> i don't see a failure and the checks and balances in the president and congress. congress was fully aware of the interrogation methods that were used. they might not be aware of the legal justification is that the executive branch might have but

congress has their own ability to make their own judgments and they can enforce this through the decisions on funding at the creating of military intelligence agencies. they have to be fully briefed before this ca can do any kind of covert action. congress did restrict the military's ability to conduct interrogations'. they did not pass a law applying the same provisions to the cia. congress is playing an interesting game where they want to take some responsibility for some areas but they want to leave the intelligence agencies a free hand. if you look at the opinion polls, 65% approval for aggressive interrogation methods of al qaeda leaders. that is why congress is doing what they're doing and it does not get into the nitty gritty

grade. they can pass a code but they have not been dow. >> what troubles me about those directives is that were fully briefed and those 8 members of the congress say, we were not told, yes, you were. whatever the truth of that, it shows a failure when you have a public long we have taken a position on something like that in a democracy in where it is supposed to be based upon the consent of the government, not on 8 members of congress. this seems to fundamentally

undercut. i am not as sanguine as others about the fact that congress was told or 8 members were told. if we cannot be specific, we are authorizing the president to engage in unspecified methods of data retrieval for the duration of whatever. we have been talking about how we stay out of court by saying we will not comply with a lot. what you don't know, what are you. we will let you know when we need you. the president is a constitutional actor before the courts.

how does the president's role and those of his officers differed from private counsel or others? that may put a particular example of a lock on the fire, one which never came to fruition but which i think was the single hardest question at the office of legal counsel in 1995 when congress passed sometime after midnight a floor amendment to the emergency authorization act that provided that every member of the military who was hiv- positive would have to be discharged within 60 days of military service. the bill passed and congress adjourned. the president was going to sign

an emergency defense appropriation act that was given as far as all lawyers were concerned. this act was a problem? --. not only did hiv support groups oppose this, it was all so harmful to the military. the white house wanted the justice department and it is unconstitutional. you don't have to apply -- comply. the president can sign this knowing it would not be a problem. i had to go to the white house and we cannot say it was unconstitutional and in the sense that the court would agree

with this. the question was whether the president could ignore the law if he believed that this was part of the constitution and he would not comply. this would lead to a judicial review of the matter as it did in u.s. vs. myers by his refusing to comply and firing the postmaster. he got a judicial test. given the deference that the supreme court had given to the political branches to axe of congress and the military, we thought that the court would very likely uphold this. uphold mail on the selective

service, for example, in deference to the military. we cannot say that the court was likely to strike it down and the president had to comply. the question became what we do win and lost a suit that was brought by a member that was discharge, how could we argue that this was constitutional given the fact that the president and his senior officers said it was harmful. on the government might not make an imposition on your liberty unless it advances some governmental purpose it cannot impose needless constraints on your liberty and the purpose being advanced here was a more efficient military. the military disagreed with that. that is what congress thought. the chairman of the joint chiefs believed that we are

going to lose critical people who are a symptomatic. also the critical skills of the leading cartographer would be lost. it also felt that there was systems in place for people that have all kinds of symptoms for illnesses and a regular protocol but he said that we have sent these kids all over the world and have been taken from their farms and cities and this is leaving your wounded behind. we do not leave our wounded behind. a war that the president knows actually harms military preparedness can hardly be defended as unnecessary imposition on liberty. but when announced was that the president would comply with this and i'm not sure that was the right decision.

the first discharge would be processed. we knew it would be sent. then we announced that the justice department while nominally representing the justice of defense in court, would tell the court that we believe that this is unconstitutional and we would not make a half-hearted defense and we would inform congress that they might wish to secure the representation of congress who would argue that this was constitutional. in his belief, this does not advance a legitimate government goal. what the court would have done would have been fascinating. who did they deferred to when the president dry and upon the advice of military leaders says that he thinks it is harmful, who would to the court before --

prefer to? the coat is not of the deference and an area that is somehow this responsibility. congress repealed the statute rather than retaining counsel to do it. there are other examples. there were instances when the council declined to defend axe of congress. one of them we successfully defended.

this has been vigorously defending. what should the president do now that he has been more forthright about his position. what should they do if the health care litigation comes to the four when they are and the power. in some ways it works better for the system of the president gives his honest belief. why shouldn't the court appoint

-- we can hear the court -- have the court here from someone appointed for ever might want to step forward and argue wholeheartedly. there is a mechanism for someone -- that is the issue. gov. schwarzenegger and attorney general brown did not appeal the decision in california striking down the proposition that once again said that opposite sex marriage only in california.

i think that they were obligated to appeal or they could have told the court that they believe it was to be unconstitutional. if they are so strong that it is unconstitutional, they should have ordered the state authorities not to comply with this and it applies to everyone. if you are going to fan , account in -- if you are going to appeal.

>> there is the principal value and overarching consideration, can we keep the process open for the separation of powers to work? but if you have an peace in place where it is unconstitutional, the president is obligated to notify the senate and house and they have the power to direct their counsel to appeal the case essentially on behalf of congress or to argue the case. sometimes they do, sometimes they don't. as long as you have some process in place that does not give to the president as sort of final say in a way that is it is very

difficult to check. that is what i find disturbing about the kind of secrecy that we are talking about earlier. as long as you make the situation public so the dialogue can continue, i don't see this as problematic for the administration to say we disagree. i was involved in flight braincases where the supreme court struck down the texas flag burning statute and every member of congress stayed in overnight before the fourth of july weekend to say that this is outrageous. that was an interesting case but you defend is this in a very tepid way.

>> i beg your pardon. [laughter] >> during the debates over whether to pass, the president sent in his spokespeople who said that it would be unconstitutional to pass the statute. then they passed the statute that the president would be unconstitutional. it was a very hard case to thi argument. >> that makes the point very neatly. the office of legal counsel testified for both houses of congress that even if congress did all the things that it was being guided to do, the law would still be unconstitutional unless the supreme court changed

its mind. this poses the problem even though this is not go into the private lives of the presidency. it was our opinion that reasonable arguments could be made and i hope and a non tepid way on behalf of the constitutionality of the flight protection act of 1989. -- flag protection act of 1989. it came down that it was unconstitutional and congress did indeed say that into account. we worked very collaborative flee but some who at the time was counsel to the senate. part of the institutional roll -- we also dealt with the institutional role which was

coming more from the senate, for whatever reason. [unintelligible] we worked very cleverly to defend the constitutionality of the law even though it had been ruled unconstitutional. what happens when there is an intrusion by congress or a perceived intrusion into their own prerogatives. your situation raises that very neatly because the president might very well say based upon the advice of military, the chair of the joint chiefs of staff says this is bad for the military, we will not defend this in court. we take this back to the senate, to the house, then they can decide. those are very than tough

judgment calls. this does ton-and the bedrock-- tug at the bedrock. it is the task of the executive branch to defend those laws. the justice white took exception to what i think it's a sacred practice which is to confess to a mistake. we believe in not in fact and and it should not have been brought.

justice white believed that this was a violation of the fundamental duty of the executive to take care that the law be faithfully executed an intrusion into article 3. >> i don't believe that anyone but the u.s. can appeal. house counsel can actually file an appeal for a certain petition. ratification is put forward if you're not going to defend congress. in the case is already there. they can come in there and do council. there is no authority on behalf of counsel.

this is a very good example where and there was a decent version mania of the 50's and the naming of individuals who are suspected of being sympathetic. those individuals brought suit in the court of claims. they were entitled to their government salaries and this was denial of process and a bill of attainder. the attorney general concluded and the solicitor general concluded that it was unconstitutional. they complied with the law. they did not pay the money. they thought it was

unconstitutional and the president said so. the solicitor general filed a petition and said that we actually agree with the decision, we are following a petition and we think that the final answer should come from this court. they should appear and argued and all that happened. the solicitor general argued that it was unconstitutional.

the council argued that it was constitutional. the court upheld the board of claims and this is a very good process. i would like to bring california into the mix. if the governor and attorney general, when a federal district judge and it was struck down proposition 8, what the judge tells us is that there is a right to same sex marriage and it violates the equal protection clause of the federal constitution to deny a marriage license solely on the basis of the same sex of the partners. the government and the attorney

general has appealed the decision. they have attempted to intervene. and judge cooper was counsel for these intervenors who were appealing this . this was purported to be to the ninth circuit. i think that this case is over. if i was applying for a hunting license and the hunting commission and i would sue them

and wind in the trial court and the state decides, never mind, we are not going to appeal, here is your hunting license and. [inaudible] >> you can intervene for purposes of mounting to an appeal. >> you can come in. no one who has a stake in the outcome is going to appeal.

the california supreme court said that there is a right to sense and courage under the constitution and then a referendum was passed to overturn that and restored california law to allow men and women to get married only. that referendum was challenged on the grounds that this is not a ballot referendum. the intervening supporters of the referendum were allowed to intervene and defend the validity of the referendum and onethey won. this is a constitutional challenge. >> i agree with you and i am at odds with president star.

i think that the governor and jerry brown are more entitled under their authority is to not defend the statute if they thought it was a violation of the constitution. the president signed the bill and he said that it is unconstitutional and i will sign it anyway. i don't think that the state constitution requires them to do it. >> questions. the microphones are there.

please step up and ask. >> i hesitate but i have to correct judge starr on his history. i was in the reagan white house. the legislative veto went through the white house counsel's office. the president said, starr is right for once. seriously though, i don't think that the other branches to not have the same level of accountability and responsibility for their actions in terms of something disastrous happens is that they

can preserve and defend the constitution. this is not as controversial as what you have been talking about. there was government shutdowns under the reagan administration and the clinton administration. people got blamed different ways but both presidents and every president in that situation will actively disobey fundamental propositions have to do with congress must appropriate money and they will pay the military and they will keep in place people whose functions they believe are vital to the protection of the country and they will also keep the social security checks are going. i am not aware that anyone has ever complained about that. >> it is true that presidents do

not think that judges will get blamed if they do something that affects the security of the country. it is easy to discuss these things in the abstract and discuss the serious rights that might be involved and how the branch's work together but there is one human being who is responsible for the safety of the country and preserving it and it is the president. i think that we are in the middle of something that is different from anything we've ever dealt with before and is not fit into these talks as but however we deal with it, if there is another 9/11, if those

other kinds of things that happen and maybe we'll learn because of the and thus a good- because of the investigative techniques, no one will blame the supreme court of the u.s. or the congress. >> are there any other questions? we welcome a useful commentary and statements as well. criticisms are out of order. oi went through with a group of

students numerous times and. does anyone here imagine that 150 years from this time this vast continent will still be governed as a single nation? not a single delegate rose to say that they agreed that that would be the case. we have made that and another half century or so beyond and during that time, we settled the continent, we lost hundreds of thousands of martial millions to end slavery and we combated the most serious depression that the world has ever known and have managed to turn back the tide of fascism to end the regime.

we should allow the dialogue to continue. thank you. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> tonight, our interview with john burns. then garrison key lure kids to talk about him and politics. -- then garrison keillor talks about the humor and politics. the republican national committee will have a debate on

the leadership of the rnc. hour documentary has been newly updated. sunday, you will see the grand public places and those places only available to the justices and their staff. also, learn about some of the court's recent developments. the supreme court, home to america's highest court hearing for the first time in high- definition sunday at 6:30 eastern.

-- >> the last time we talked, i was asking about whether or not you would publish a book of your memoirs. have you thought about it? >> i did not really relish the idea of the solitude of writing a book. a lot of told you when i was in iraq and afghanistan and that i was relishing the assignment i was. i hated leaving. what i had not anticipated was

the difficulty of readjustment. we were coming off with a very big story. partly it is the loss of the camaraderie. partly it is that you have been in a place which is beyond the consciousness or imagining says people notwithstanding television and everything else. i'm talking about a feeling that has receded and the assignment which i have here. we generate an enormous amount of news from london. i think that it is probably normal when you come back from an experience like that to have a time of reflection. that is what i had when i came back hardly a day goes by

without a publisher coming at the same to write a book and i will have to do it. our editors said to me once, you'll never really be taken seriously as a writer and less to do a book. a book about your experiences. i think that i have a story to tell and i think that i have to tell it. if i want to be able to belong to a good golf club, i will have to give. >> where would you start? >> well, i think i aretino the subtitle, which would be something that the iraqi information minister under saddam hussein, he was a rather

comical fellow. he said something to me, when the troops arrived, and we saw baghdad bob at a news conference on the palestine hotel. he is standing with his back to the palace which was a hundred or 1,000 yards behind him and he told us that the american army had been defeated at the gates

of baghdad and was in retreat and at this tournament, over his shoulder, there was troops of the third infantry division who were bootless and dangling their feet off the pier. i said, if you look over your shoulder, you would see that the u.s. army is far from being defeated at the gates of baghdad and they have actually capture the heart of saddam hussein's power. . .

theme for me. i'm not particularly religious. i hope i'm not particularly self-righteous. but that would be a very major theme for me that now the midst of darkness there's always light. >> just for those who have never heard us talk before p what year is it in china? >> first year i was working for a canadian newspaper from 1971 to 1975, which was the last

year of his life. and then it was part of the great chaos, trying to turn chinese society up side down. i went back to china when they began to open to the world in the 1980's, an assignment that ended with my imprisonment for my spying, which i was not guilty. it was the chinese acknowledged it two or three years later. and the soviet union. i felt they had season tickets to funerals in those days. we had three soviet leaders in my time there. apar thide, south africa, also in the depths of pay par thide.

i was extraordinary lucky in my assignments. i didn't sign up for a foreign correspondent. i just felt that i had a kind of angel on my shoulder that carried me to these places at times of particular interest and there was somebody prepared to pay me for it. if i were a wealthy man, which i'm not, i would have done with my professional life exactly what i have done. >> when we were talking in 2007, you were between iraq -- actually you were going back a few days but then you were going to london to be the bureau chief. two years have passed, how does iraq look from here? >> i have to say, i'm aprehencive. i have a particular personal reason for apprehension which is that my wife continues to

work in baghdad and kabul. i have a wider personal interest of what becomes of iraq. but i've always felt, and i i think the recent indications strongly support this that as the united states military diminishes and it's below 50,000 and it's set to go to zero or some negotiated number, much lower than 50,000, within the next 137 months that we would see a resurgence of violence and possibly even a civil war there because none of the fundamental problems have been solved. the problems that occasioned all the troubles that have enveloped the united states and its allies and iraq and the iraqi people since 2003, all those problems remain.

there's been no fundamental political reconciliation in iraq. and i felt for a very long time from the time when i was there and since that the keeper of the peace to the extent that there has been peace and there's certainly been a lot for quiescent has been the united states is coming home. i think that's irreversible. but i don't think that what the united states will leave behind in iraq is likely to prove stable. and i think we have to open our minds to the possibly that much of it will be washed away, that there could be an onset of something like a civil war, perhaps not immediately, might take a year or two or three. and that the -- if i had to put my money on a likely outcome,

it would be that peace in iraq and it might be a very harsh peace is likely ultimately to be imposed once again by awe tockcrassy. we have to hope that if that does happen, the new ruler, the new dictator will be a lot more benign than was saddam hussein. >> by the time this airs, it won't be quite the same number. but in 2000, in iraq, americans lost 961 to death. in 2008 322. in 2009 150. and 57 in 2010 killed one way or the other either in action or -- in afghanistan in 2007 we lost 232. in 2008, 295. in 2009, 521 and in 2010, 649.

it has been a reversal. but the united kingdom, we've lost 179 in iraq for the whole time we've been there has lost 1300 -- no, i'm sorry 344. and we've lost 1,393. so there the british -- it's disproportional to what it was in iraq and afghanistan. >> it's not much noted that outside these precincts, especially the house of commons down the street here, is a noticed fact that the portion nally, pors portion nal to population, to the armed forces po, proportional to the size of deployment 10,000 troops to iraq some over 700,000 americans, britain has taken heavier casualties than has the united states. this is not diminish. you just gave a figure that i

find surprising. 649 americans have been killed. >> 649 have been killed in to 10. well, we think about it. that's getting close to the number of americans who died in iraq in the first year in iraq. i mean, this is a pretty discouraging trajectory, i need to say because my -- much of my family lives in canada. and i did start my journalistic career in canada. every time i speak about or write about the high incidence of british casualties proportionally in afghanistan i get quite a few e-mails from canada from people saying, why do you never mention canada in this. canada has lost -- you will forgive me it's between 150 and 200 which proportional to their deployments have never exceeded 3,000 troops over the last

several years make them, i think by quite a distance proportionally the nation that has paid the highest price. and they have said that coming out. their troops will ends their combat mission at that particular time end of 2011. i think canada deserves recognition for this because canada had developed a reputation for certainly being a major contributor of the united nation's peace-keeping efforts. i think i'm right in sing, in any serious conflict since korea. >> speaking offer the military, you once referenced or i thought referenced it when your father tpwhuzz the -- >> royal air force. >> royal air force. he was born in south africa. >> he was. >> did he once command 60,000? >> he used to say when he retired, he was refering to the time in the royal air no, sir

germany. he said, i went from running an air force of 6,000 men to running alone. and he of course retired as military people do in his mid 50's. i better understand now that i am well past that age. what a tremendous difficult transition it bhust for people to make. i'm very fortunate in being able to carry on. i past my 50th birthday when -- 10 years before i was assigned to the war in iraq. and i felt tremendously, i must say lucky to have been able to carry on a career until our business well past the point at which many people in public service certainly retire. i know that with some satisfaction when i was in iraq that the united states congress increased the retirement age

for american generals. i forgotten what it is but senior generals four star, something in the nature of 64. but it was a little bit of a jarring thing for me to realize from my time in iraq that i was older than all of the successful american commanders there. i think the eldest of them in my time there was general casey who would have been the end of his assignment -- forgive me general casey is 58. he's knew chief staff in the army. general petraeus who is 58 or 587. but it seems to me -- 57 or 58. . but it seems to me that the thing that we here in the tabloid press, the 1980's or --

1950's or 1960's, but it seems to nea many people of my age would say, you you see if i can perform as you want. and i think that we see lots of evidence that people in their late 50's and 60's are perfectly capable of for foremanning in in a higher level. you would like to think that you make up for that with a little bit of what -- >> the reason i mention your father, i wanted to know how much years did he spend in the service? >> 40. what are kind of impact did that have on your being in a military family as you began to be a reporter? >> well, i'm sure my harshest critics would say that of my -- as i see it attempt to see both

the best and the worst of the western, particularly military performance in these wars, that he would say that wouldn't he because his father was awe senior officer in the british armed forces. >> how high was he ranked? >> well, he became a five star general. it was that that gave me my first encounter with americans as it happens. thank god for them. one year, i remember the 14th fairway. and we past this dome , grassy dome surrounded by concentric rings of razor wire and

defended -- attended by these to me curious-looking characters in army camouflage. and he said, do you know who they are? i don't know who they are. he said, those are americans. something for which he probably could have been court marshalls. that's where we keep the nuclear weapons if there was a war with the soviet union. at that time -- i don't know if it still exists, but they had submarine welcome american missiles. they were a shared key operation where the weapons were american weapons released to britain by the united states appointed the eminence of war and the british prime minister then had his decision to make as well as deployment. so that was my first sighting

of americans. i was 14 years old. an for reasons i pondered ever since because my father has been gone now for 20 years. he said to me, those are the people in keep the neas the world. i'm thinking now from what i've learned about some of the conflicts in which he was engaged, internal conflicts that what he was -- the reason he said that was that in the aftermath of the second world war and still vestigually there was a certain amount of unease about what some people regard as the use of power by the united states. britain went from being the imperial power of the early 20th century witnessing the grand building that we see around here to being the power.

david cameron said to me we have a special relationship between the united states. i think the 18950's were a period of unease. britain had partners australia and canada and new zealand, landed as much i think i'm right on saying on the reaches of normandie as did the united states. that was probably the last moment at which -- and the last noment the second world war at which there was that kind of equivalence, once george patton and the third army got going, we very quickly became a much smaller component of it. so i'm thinking my father was referencing as an south african talking to native-bornl brits, senior levels of the armed forces recognize he felt the slight els comfort with the unease that some british

officers had with the american power. and till his dying day he was terribly proud of an encount thear he had in germany during military maneuvers with american forces. it was apparently a bitter winter day on the plane. it was in east germany where many american forces were concentrated. they lost their way. he was in a jeep an american driver. they came across some tanks out somewhere in this vals open plain. the driver said, i'll see if i can transfer the field headquarters. he came running back to vehicle. general, somebody would like to meet you. so he got out of the jeep and walked around. and this g.i. saluted him and said.

he was elvis presley. he signed my father's card. whenever my father had an opportunity to pull this out of his pocket in later years, he would show us as if he was a fighter pie not the second word war he commanded. an air force in germany the height of the cold war. it was fazz that one moment was more magical to him than anything he'd done. i would confess that out of all of this that i came to america and i came to my encounters with the american military with a basically positive disposition. i still do believe that what my father said that day on that golf course in germany is correct that in a turbulent war it is america more than any other power overwhelmingly that keeps the neas the world. >> born here, moved when you were 18 to canada? >> that's correct. >> you mentioned earlier that your wife is still in afghanistan and in iraq. and when we talked in 2007, she

was the manager of the bureau in iraq -- and you were the bureau chief. >> yes. >> how long is she going to be there? >> well, we'll see. i mean, i think she is in a position similar to me. she doesn't go to war. she doesn't embed. but she is living in and working in very dangerous places. and now that i have been back from those places for some time, i understand much better what it is for those hundreds of thousands of families, american families, british family who is have their loved ones at war. and you know, you keep your fingers crossed. i think she'll continue to do it because it's very unusual. she was a -- as my wife accompanied me for 30 years or so to far flung assignments and

she always had a job, not just the racing of our children but helping to run the operations of the "new york times." it wasn't called a job, but it was. that became formalized with these wars. she left for pack stanl later afghanistan within three weeks of 9/11. and she never really come back. she comes back on leave. and she too is now in her 60's. and of course, she's -- to say she loves it -- how can anybody love war? she finds it exhilarating like any woman of her age, she finds it very engaging to be needed to be able to do something useful. we've just had a very jarring experience with the "new york times" that you are maybe awar ofment once we had deployed lots of people to these wars, we had been fortunate in one sense that we haven't lost to this moment any of our ex-patriots, that's to say our

new york based reporters, photographers. we have lost in afghan and we have lost two iraqis. two or three weeks ago them changed for us when one of our photographers as it happens, one of our very best photographer,s, one of the very best photographers of all time and one of the nicest man you'll meet stepped on a taliban mine, e.i.d. on an embed with the united states military outside kandahar. and he was agree vousely wounded. he survived. he's in the walter reed hospital in washington. he has lost both his legs. the first conscious words he spoke, at least our photo editor were, i'm good.

that's him for you. born in portugal. raised in south africa. we in experiencing this, tragedies are very close hand. we've seen it a thousands times occurring to others. now it's happened to us. and it's a very, very edge kay -- educational experience. we're extremely happy that he has the generosity of the united states military been take on the walter reid where he will be amongst many soldiers and other who is have had similar experiences almost without question, i would think the greatest orthopedic center in the world. and he will be comforted with

other who is have been through the same thing and who fight their way as he certainly will back to health. i think we're going to see him. nol braver man, i wrote in the forward in one of his book, no braver man put -- gone into battle. i'll put my money on him going back before anybody can imagine it. >> you were there in 2007. how big is it now? >> we, it hasn't shrunk a great deal. i'm sure to the somewhat dispointment to the people who have to pay the bills because the war obviously for america is tapering down. and i think that our am by shon, our hope would be that we would be able to do the same thing. but there's a kind of critical mass that you need if you're going to operate effectively at

all because you to provide your own security. and that accounts for 50 or 60 of those people. in addition to which, and i think this is another kind of bravery on the part of the "new york times" and the people who make the decisions. as you know, foreign coverage by mernlnupes and american television networks have shrunk considerably. it was already shrunking. it just shrunk further. the "new york times" has had financial battles to fight as have all newspapers in america because of the recession but also because of the rise of the internet. i think that we're going to presflail this. but it would have been understandable if the people who make these decision had decided that we could no longer afford to spend that kind of money. of course, they didn't. they committed themselves to continuing to giving full

spectrum coverage. america's not out of iraq. this war aze mentioned earlier, i think, a long way from over even if american troops are drawing down. there's going be a huge american interest there for some time. our editors have made it plain that we will continue to be there as long as there is an american interest there. >> let's go back to some of the places. did you ever think that when you were in china in the 1970's and 1980's that they would be owed a trillion dollars of american zphet >> i haven't been to china since they put me in a paddy wagon and drove me literally in shackles deporting me for the alleged spying incident. so i have watched with wonderment what has happened in china. they've invited me back many times. it just hasn't worked out. i i'm not avoiding going to china. i have some apprehension.

for the people of china there's no tchute this extraordinary wealth, it has not surprised the chinese people. they have always have had an extraordinary natural capability and resilience. these were people who given their charts were able going to -- always going to rebuild china. when it went into decline in the late 1930, late 18th century. the first china i first saw 40 years ago was a china which communism not with standing a change very, very little in the previous 150 years. i could get on a bicycle and go into traditional china in three minutes. it was an enchanting kingdom. i loved it. i came to think during my

second assignment during the 1980's when they say testimony door was open in foreign investment that a china was a far more agreeable place than the china that worshipped the dalai lama. they're changing the entire configuration of the world we live in. and that's very good for the people of china. it's good for us. in some respects, it's going to present with us all manner of problems, our children's generation, certainly. but i'm speaking only about experience as a visitor. you've probably been to china in those years. i haven't been. but i think i have a strong nostalgia for the cloin of my youth. >> what kind of a great -- what

would you grade would you give him as leader? >> as a gerilla leader? >> why do they adore him if they do? >> masatone wrote his own especial tat. especialy tat. >> -- epithat. he said those words like churchhill spoken in 1940 that resonate in history forever. he said after centuries of oppression and humiliation, i'm paraphrasing this part, the chinese people have stood up. that had an enormously

motivating power for the people of china. and of course until their enthusiasm they in effect endowed or allowed to be invested in his absolute power and as always happens that, power was corrupt and corrupted . 10 million people died. an awful lot of people in china died as a result of the dictatorship imposed by him. it will be history and history has measured i would guess probably along time forward from now before a certain opinion could be reached about him. from what i see and from what i experienced in talking to chinese people. i don't just mean chinese

officials. china is in a very perfect state. they have looked pretty honestly and openly at the disasters that were brought upon the country. but i think they've also recognized the 1949 marked, a historic turning point of enormous -- enormous importance. i find him fascinating enough to figure that that at my opponent to this day in my living room, i have a wonderful porcelain vas of him with the encryption written underneath it. his little red book. millions of chinechie knees walked the streets waving a little red book. it's a valuable document. partly because it's a boiled down synopsized theory through

the ages. some of the teachings in that little red book, i have found very useful. in getting out of or avoiding getting into trouble. one of them is is doctrine on gorilla warfare. i told my children ant this -- about this having to do with disputes at school. doctrine number one, don't engage the enemy unless victory is certain. number two, don't engage the enemy unless victory is essential to your cause. now if you apply those two pro visors to many incidents in live whether there's a

potential for conflict, it turns out that you could avoid 80% of it. in many such conflicts, if you look at them, potential conflicts with the people who employee, potential conflicts for officials in far away countries, it's safe to say assume that you're not going to win. if you're not going to win, don't engage. now, some people would say that this is a formula for ducking problems. i think it's a formula for at least a modest degree of success in life. >> you mentioned your kids. we talked about your son last time. i figure he's about 28 snow >> uh-huh. >> but you mentioned that he was born a pound? >> he was 1.1 pound. yes. there are three of us in or family. he's one, i'm another, and my

wife is the third, who are the beneficiaries of fed cal -- medical transition. >> you mentioned your lymphoma. >> the relevance about that there's any relevance, is that we're talking about is a system of socialized medical care which is extremely expensive. the budget of the united states kingdom is about $700 billion pounds a year which is in the region of a trillion american dollars. of that, something like $105 billion is spent on the national health service. and that figure has more or less tripled in the last 10 or 13 years. it's become a huge financial

burden. mr. cameron is in the process of radically reducing government expenditures. >> what does that mean? >> it means that he's going to cut all other departments by and average of 25%. >> do you call that grandfathering? >> same thing. why did he do that? he did that because in 1947, 1948, a lay -- laboror introduced them. it is now the jewel in the crown of this kingdom. no political party is likely to destroy or under mine the national health service could possibly d survive. that reflects the lived experience of the national health service if you live in the country. there are many things wrong

with it. including long waiting lists, including occasionally denial of life-saving drugs and so forth on the basis of cost. but there are many things right, princeably what they call medical carefree at the point of delivery. when grow to a clinic here, nobody asks about your ability to pay. you make varying levels of treatment, the royal mar ten twouven excellent the world. if you get cancer in this place, your chances of survival are going be proportionally reduced. that's also true under the american system of medicare. so i've ended up, if you will conflicted. on the one hand, i and my son born eight or 10 weeks are mature, 12 weeks premature, my

wife have all been beneficiaries, the fact that we are walking around today we owe to the american technology. i was here. we would have been unlikely to get. i said once to joel lillibell. >> foreign editor -- >> foreign editor of the "new york times" who was helpful to me and my wife, helped us navigate in ways that i am eternally grateful. i've seen a new york city police officers guy as tough as you want weeping at patient meetings over the bills he was getting. he mortgaged his house, borrowed money from his brother-in-law. he thought he was going to die. he did die.

and he was going to ruin his family. i think that's the dramatic version of what can happen. i know now that there are many things in the american medical system and even before president obama's reform that mitigate that. i know that i come to america to high-technology system which has saved my life, and i see a new york city police officer weeping at patients meetings because of the cost. and in my native country which couldn't give me this kind of cancer care, nobody is going to ruin his family as he descends to the end of life through cancer or any other chronic disease. and joe said and i pointed ever since this thought. he said, i don't think you need to puzzle too hard over there. the way i see it is, he said,

the united kingdom has the type of system i want for my country. the united states has the kind offend medical seasonal i want for my family. coming back here 40 years away, i would have to say if i were to list the things about the country that i would find most admiral, it would be that and the b.b.c. would not be too far behind it. >> the united states has 11 active aircraft carrier, soon to have 12. this country has one. >> zero. >> has two -- two supposedly to be built. explain all that because as american looks over here, they see an 8% cut in what four years? >> four years now. >> and that these aircraft carriers are going to go away. >> do you know, it really expresses very sharply the dilemma that the government

faced. they were by some measures the most indebted country in europe. there was a serious debt in this country. they decided that something had to be done radically and fast. and they decided to cut something in the nature of 80 billion pounds over four years from that 700 billion pound a year budget. they really grandfathered the national health service. mr. cameron is a strong supporter of. probably in some ways the most controversial of all the cuts they made. not a 20% cut but an 8% cut. they decided to scrap and scrap immediately, britain's only aircraft carrier capable of carrying fixed wing jets.

the arkor oil which has a name which goes back to henry the eighth. 35-year-old ship, probably has another 25 years life in it, scrapped. all the aircraft flown from the deck, all jets scrapped immediately. two aircraft carriers are now building in scotland, i believe . it's crossedability something in the -- it's cost something in the nature of $8 billion. they looked at scrapping these all together. society would be more expensive to scrap them than to build them. but then they built a step forward which has people scratching their head. we will build them but one of those two we will put into service for two or three years before they sell it.

they know it will only do a three-year service. the other one will be put into operation. queen elizabeth, it will be called. and it will get a new generation of joint strike -- the joint european u.s. project. the most sensive project they've ever built. but they won't be deployable for another 10 years. the net of it is that britain will be 10 years without an aircraft carrier and without aircraft that can do that. they invaded in 198 the. the government said, we have to make some tough decisions. the ipe land siths our aircraft

carrier. the same circumstances would arise again, the argentines would not brave the fury of the united states nations by inviting the faulkland islands. it's a bit of a risk. >> they would say that this is a gimmick because they're going to build these aircraft carriers that the money lu come back and they'll keep them deployed. well, that is true. obviously it's a decision to build leaves open that possibility. plp cameron is an optimism. he made speesm two night, three nights -- >> foreign policy speech. >> foreign policy speech which they make every year, which is extraordinary optimistic in terms of britain's ability to crime out of this economic mess by means of austerity. britain's inabilities to get back on its feet and toer --

and you can check it around a wood fire. he said, well, yes, we might be able to do that. we might be able to keep tep second carrier. retired mirls wrote to the times of london recently a letter, very a declarative letter in which they said that this was -- i think they said economically and military per fers. this is only one of thousands of really tough decisions that he has made. a huge gamble. it could be, who knows? it could be that the british public won't be able to stomach the kind of medicine. we've just -- within the last week or so had student

demonstrations against rising college piece. americans would not spile at this. british students which is to say 99% of sthrem been paying fees and only recently has it's gone high in the region of $3,300 pounds. there are some low interest rates and deferred repayments and so on and so forth that put into the streets 50,000 student who is marched along the imbankment, the government district over my shoulder here. we can see it cluttering.

we see a group, many of them from cambridge university who ascend -- they smashed the building up. somebody through a fire extinguisher off the roof. many people who are old enough to remember saw what happened in this country when he was in tow pow we are and imposed a much less regime of austerity. and it was serious tesh lens in the streets. we don't know if the cameroon government can avoid it. so far a poll shows 60% of the british public. many voted for his public at the election. about 60% of the british public support him. that's a good sign. it's been announced, but it hasn't been taken yet. so we have to see. the government might fall over this. or, just as likely, it will get through this. people look at what's happening

in island, greece, porch lat and say was it not our good fortune that we got our government just in time to steer us away from a sovereign debt crisis? and they coumentmargee in of 10 or 15 years in power. >> you worked for them. and now you're back here in great britain. about 60 million onpeople. are you living in america? >> i want you to define the difference between a canadian, a brit and an american. >> probably the easiest way to thards is to say that i admire

most about the united states tremendous optimism, tremendous kind of get up and go. something that we ve seen in both of the two wars, fundamental importance. a tremendous ability to learn lessons, to say this isn't working and to go back to prinlspls and start again. david petraeus in his two years down on the plains we were writing the american counter insurgency doctrine and putting that into effect and seeing them now in afghanistan efment open doors, open minds. britain a kind of rugget resill yens -- rugged resilience. it's the 70th anniversary of

the war. and churchhill making his finest hour speech. and later the speech about the battle of britain never ne the field of human country has been been owed so few. there's a tremendous base common sense. and i think a tremendous instinct which i mean say, i find very engaging. canada, a country that has had the uncomfortable business of strog live alongside and kabul. a country fastly more powerful. and they have with remarkable success constructed if you will a kind of alter nat society. it's a society which has in some ways bridged the distance between europe and america. they have for example a season of medical care which is

something of greatness. they fought the first and second world war. canada is an extraordinary pleasant place. i've been lukey. i didn't choose it to be so. that i experienced the best in these countries. >> we have a short time. we're a network of book, so i want to make sure that we have something to talk nant the future. what has to be done in order to get do you remember your life? >> i guess what has to be done is that i have to sit down and seriously consider my -- my financial well being. in the long-term i would like to have a little bit more money saved than i have. like many of my colleagues, i invested in the future of the

tpwhizz america. in my case the new york "new york times." i think we'll get through. i think that will be a summed it up one. i think we have -- will have one of the ploast -- most greatest experience. i need to get used to just doing the work at 6:00. ed rosenthal first editor in the new york. controversial man. i was a correspondent in africa. and he was visiting with a former publisher. he kind of cut me nauf mid sentence. he said, you know, john, what i've discovered in 408, 50 years this business when things

don't get done, they don't get done because they don't get done. in other words, you excuse anything. i can excuse why i have not written a book. the truth of the matter is that writing a book is an act of courage. i have to have the dourge do it. >> last question. of all the assignments you've got what one was the most exhilarating? >> exhilarating? i think the war. i think the wars -- >> these wars right now. >> these wars because they pose the essential questions -- con sexual -- consensual interest because they bore so heavily on the united states and my newspaper and the american newspaper. in terms of sheer fun, exhilaration, i would say china during the cultural revolution.

but you know something, i used to say to colleagues of mine colleagues of mine from the "new york times" and were moving from very desirable assignments to one they would list as horrible and some of those refused them refused those assignments. i know what very flilt the united states -- you could say that in domestic assignments too. people would say that, wouldn't they. but it's actually true, to be a correspondent of the "new york times" is a front row seat. i've had an enormous amount of fun in my life. i've had an ongoing paid education. and had i won the lottery in 1925, i wish to do exactly what i would have done. my father said to me, he pro

sided sueded me not go in the military as pilot. he said on the golf course, when i persuaded you not to do that. i wasn't thinking so much of your. well, what were you thinking of? he said you would have made the worse officer that the air force would have had. i was saving myself from embarrassment. so that was a turn well taken. and i kind of fell backwards in the business. and i wouldn't change any of it. >> john fisher burns, "new york times" here in london. thank you very much. >> thank you very much. it's been a pleasure. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

if >> tonight on c-span, radio host garyson keillor on politics. then a discussion about presidential power. then on q&a, an interview with john burns. >> on tomorrow's washington journal, radio and tv talk show host armstrong williams. also mariko chang discusses her book on the gender takedown. and we'll talk to susan prolman

about the effects of sustainable farming on the environment. "washington journal" begins at 7:00 a.m. live on c-span. >> you're watching c-span. every morning it's "washington journal" connecting you with policy make ir, and journalists. during the week watch the u.s. house an the continuing coverage in the new transition of congress. and every week hear policy forums. on the weekend you can see our signature interview program. on saturday "the communicators" and on sunday, "newsmakers," "q&a" and the prime ministers questions. it's all searchable in our video library. c pan -- c-span, a cable

program. >> good afternoon. i'm tom put numb director of the presidential library and museum on behalf of john mccain and the kennedy foundation and all of my library and foundation colleagues, i thank you for coming and welcome those watching this program on c-span. let me begin by ack knowledging the underwriters of the kennedy library forum including lead sponsor spanl bank of america, boston capital, the boston foundation, our media partners, the "boston globe," wbbr and today's special sponsors powder milk biscuits and rue barb pie.

there at least a reason that the kennedy library would organize a forum in the role of humor. let's take a look. >> big business is using the stock market slump as a means of forcing you to come to terms to business, run representable column after talking to businessmen obviously reported this week, their attitude is now we have you where they want you. >> i'm wrm where big business wants me. -- i'm where big business wants me. >> you have said, and i think more than once that heads of government should not go to the summit to negotiate agreements but only to approve agreements negotiated at a lower level. now it's being said and written that you're going to eat those

words and go to the summit without any agreement at alla lower level. has your portion changed, sir? >> i'm going have a dinner for all the people who've eaten it and we'll see who eats what. >> mr. president, your brother ted recently on television said that after seeing the cares of office on you that he wasn't sure he'd ever been interest on being the president. i wonder if you could tell fuss you had to do it over again, you would work for presidency and so you that you can recommend the task to others. >> the first is yes and the second is no, i don't recommend it to others. at least for a while. rrp 1952 and i was thinking for running for the united states senate. i went to then to the senator. i said what do you think? he said, don't do it. bad year. [laughter]

in 1956, i was at the democratic convention. i didn't know whether i would run for vice president or not. i said, george, what do you think? this is it. they need a young man. so i ran. and lost. and in 1960, i was wondering whether i ought to run in the west virginia primary. don't do it. that's a state you can't possibly car rifment and actually the only time i really got nervous about the whole matter in los angeles was just before the balloting. george came up and said, i think it looks pretty good for you. >> as it was an essential component in the police political career of john f. kennedy, humor is one of the founding pillars of this institution, bridging these two worlds is our cue ray tor