think just a requirement to understand what the brain is doing one is injured and how serious that is. >> we did that in our state this year, too. we hope that is happening. >> and it is spreading. i think it will only increase, you know, to gain significance. >> ms. ball? >> i believe that preventive measures need to start. we're doing it in high school, but we need to start young girl with youth sports. soccer is very prevalent among youth. in new mexico, they're taking initiatives to teach the coaches about concussions. i think that is to be spread out to the team sent to the parents as well. once people are aware of what a confession is and how serious it can become a i.t. that is when we finally take the last step forward. >> after you had your confessions and decided not to keep playing, did you feel any pressure to keep playing from your peers are other parents?

>> i personally did not. my doctors, coaches, family, a fellow players were supportive of my decision to stop plating -- playing. >> i think people respect your decision to stop. obviously they want you to keep playing, because they miss you playing with them. but overall, people are very supportive. >> thank you so much for being here. >> thank you, senator klobuchar. senator pryor. >> thank you, chairman. thank you for having this hearing. it is a very important issue, and it touches this country all over the map in many different sports. let me start with you, mr. oliver. i would like context on the legal framework here in terms of -- are there state laws on helmets in sports?

do athletic conferences, like high-school athletic conferences and associations, do they have rules about this and standards? also, the n.c.a.a. and the nfl, when it comes to football, do they have standards? what is the legal framework here? >> the legal framework is actually fairly simple. the standards that we publish, for example, for football helmets, that is the best example, because it probably applies across the board to other stores -- sports. we publish performance standards and indicate what helmets are supposed to do to meet the standard, a multi-factored standard of them organization, for example, like the n.c.a.a., will incorporate into their rules of play a requirement that helmets worn by those athletes meet our standard. in terms of the helmet its cell. you cannot wear a helmet for play in the n.c.a.a. unless it has been certified as meeting their standard. >> and then they also change their rules in terms of, like,

hitting the quarterback and that type of contact. >> absolutely. the rules of play control, if you will, how helmets are used, but things like using your helmet as a weapon and other things are prohibited by the rules of play. this same process applies to high schools to the national high school federation. although, because it is a federation, does not control directly each of the state associations, they participate voluntarily. there are some states. for example, california has a law that requires, at the high school level, that athletic equally, including helmets, be cleaned or sanitized on an annual basis. that has been interpreted to mean that the helmets included in football player must be also reconditioned. and that they are reconditioned, then they're going to get recertified. they are subject to recertification and testing. >> things like new pads and no

>> ? >> exactly. they are subject to a fairly rigorous sample testing program. there tested before and after they are reconditioned. but that is the only state to my knowledge that actually opposes that requirement by law. >> on the high-school level, is it generally voluntary? >> the reconditioning is voluntary. there is no condition that it has to be reconditioned on any frequent basis of the high- school level. >> in your organization's view, staying with the football helmet, how long is a good for before needs to be reconditioned, one season? >> it depends on what kinds of use and abuse it has been subjected to. we strongly recommend -- anytime i am contacted, that helmets be subject to reconditioning and read hirecertification every ye. we know from the reconditioning data, because we get this back from them every year, that about 90% of the helm is that they

were reconditioned and recertified have been in the previous year. so large percentage of them are done on an annual basis. what is not happening, which is something we're trying to address, both through the cpsc, as well as individual work, is those organizations that the youth level that are not subject to state control or n.c.a.a. control, where very little is known about the needs of the population of those elements but if they do not have a recertification program or replace them on their own, there really is no umbrella organization that is in charge of most of those players in those clubs. that is an area that does need to be addressed. >> what is the general life expectancy of a football helmet? >> it depends on the manufacturer. riddell has for years but what is basically a 10-year life for a helmet. no warnings apply. they do not allow helmets that are over 10 years to be reconditioned or recertified.

that has been the policy for a long time. one of the other major manufacturers has said as long as a helmet is properly cared for and has been properly recondition, which means parts replaced, patting replaced, at the end of 10 years, the only part of the helmet that is 10 years old is probably only going to be the shell. and you cannot replace the shell in the reconditioning process. if it is cracked or damaged, the helmet is done. it really depends on the helmet and the company as far as how long it is going to last, and how well it is cared for. >> dr. kutcher, what is the, and he might have covered this earlier -- sorry i was late coming to the hearing. what is the sort of age scale we're looking at for concussions in sports? i mean, i assume you have some at very early ages, but do they get more common and more severe as they get older, as the players get bigger, stronger,

faster? tell me what these statistics say. >> we have gone to the youngest athlete you can imagine, whenever they start playing organized sports. seven, eight years old, i see kids with concussions that young. as they mature and get larger and faster, you'll see more injuries. as they go up to junior high and high school, you'll see greater numbers of concussions. actually, some data shows that basically every level you go up, from organized youth to high school, college, to professional, the incidence will go up. you can imagine why, because the play is a little faster. athletes are a little stronger. the other idea though is that the younger kids may have longer injuries and more complex injuries, and it may be more difficult to get them back as quick. so that has something different to it. >> mr. chairman, if i may ask

one more question to you have covered this earlier, but when i think of concussions in sports, i think of football. i might be totally wrong on that, but is that the most common? what is the list of the, you know, most risky sports for concussion? >> i would say football is at the top of the list. >> is a way that everybody else? >> it is tough to get good data that compares sport-to-sports, because they have to study it in the same population. there are some pretty good studies that have looked at, the high-school population, for example, in fairfax, virginia. football, at about double the incidence of the next highest sport, which i believe was lacrosse, a women's soccer was right there. after that, it was men's soccer, wrestling, basketball, softball -- no, going down the list. hawaii ice hockey was in the study, and that is a little bit lower than football.

>> thank you. >> thank you. we can start another round. every time the bell rings, which you have to understand, that is telling you precisely that there's nothing happening on the floor -- [laughter] it is only when it keeps ringing that we have to go forward. ms. ball, we're talking about soccer. and mr. street, just like tony romo, you were slammed down to the ground. that is the deal. slant to the ground, so the head has to hit the ground, which is often hard. there are so many ways in football to see how their

revenge hit, just a mean player who is famous for that and loves it and its endorsements because of its common commercial endorsements. soccer is extremely brittle, exhausting -- extremely brutal, exhausting, on a huge field. they're usually one, two, three, or four goals scored, and that is it. in thinking about it myself, and i watched a lot of it because of that 1980 trial, it is heading the ball. or, because i think you probably are slammed down to the ground or tripped up deliberately, does that mean the head hits? i do not know. but what are some of the ways, if it was ranked number 3 by dr.

kutcher, what are some of the ways the concussions come about in soccer, other than heading the ball. if it is heading the ball, is it from any part of your head? >> concussions of about in a lot of different ways while playing soccer. heading the ball tends to be relatively safe if you use your forehead. the concussions come from the ball hitting the top of your head, most likely from a punt, because the ball goes said greater speeds. auric and got this side of your head. for me, the most common way of sustaining a concussion was actually my head to the ground. as a tactical player, i would get my head's not out from underneath me. i would hit my head on the ground. when you watch soccer, you're watching for the ball is that. so you might not even see that player hit their head.

so i think oftentimes those thoughts are bypassed because you're not aware, because you're following the ball. another risky area is when you are going up against the goalie's. i have seen goal is get their heads kicks, and i have seen players going up against the goalie getting it needs in the head. so there are a lot of different circumstances in which you can get a concussion. >> lack in hockey? >> right. >> there's so much work to be done by so many. as a sports fan, you know, you watch college and professional football, and there is almost an instinct to look for the player who plays dirty, and then if he does, you turn your wrath on roger goodell in the nfl for not

having him ejected from the game. referees have that responsibility. they. fine them far pushed them back 15 yards. they should be ejected from the game. how do you influence -- i mean, young men who play football are in it to win. they do not have long careers. if you are a running back or quarterback, what is your career? >> running back has the shortest. >> it yet. so that adds the desperation to succeed. somebody comes in and gives you a lecture on it concussions, i will that have the people are not listening, because they have not had them. >> yes, and i think it is very difficult, especially in football, from the defensive side of the game. violence is probably the biggest characteristic you need to be successful on defense.

you need to be able to be violent. >> and willing to be violent and show your violence come to prove it. >> right, and that is part of the football game. as far as this board is considered, i feel like it is more of the understanding about the brain injury and understanding of the recovery process as opposed to, yeah, they're changing the game, getting rid of head-to-head contact in that aspect of the nothing more is the recovery when it happens, because there will always be big hits in football. and a lot of them are illegal, too. -- and a lot of them are legal, too. it is blows to the body, just as well as it is close to the head, as dr. kutcher noted also. >> if you get clobbered in the chest or something, that can concus you?

>> yes, sir. >> i missed that. >> anytime you're moving fast enough in your brain inside is moving fast enough. >> what kind of hit will do that? >> hidta the body, hit to the side. anything that transmits enough force to stop your movement. >> your hands should be very, very large. >> the chest in the body gets hit hard enough, that could do it. >> a perfect example of that, last year we heard about deshawn in an nflconfession game. i do not know there is a penalty for that hit, but if you watch that in slow motion, you'll see that there was no head-to-head contact between the tackling player in jackson. he was hit in the shoulder, but it snapped his head while lilly forward and then violently backward as he was going down. that is exactly the kind of

mechanics they're talking about. yet these concussions were you do not have a blow to the head, but there is motion that is so rapid that the brain did not have time to catch up with its self and sort of gets compressed. >> i am over my time once again. i think everyone. i believe i have to go to a cybersecurity hearing. that is a different kind of threat. and senator udall is going to take over the hearing. but the ranking member -- oh, senator -- he could have been a tight end. [laughter] >> wide receiver. >> there you go. >> you are up. >> thank you. i appreciate that very much. thank you for holding a hearing. i thank the panels for sharing your thoughts with us. i kind of want to follow up on some of the line of questioning

that was started earlier. you are seeing participation at an all-time high in terms of kids and young people across the country participating in sports and an incredible number of sports-related injuries among youth. sometimes there are a lot of other injuries. most people think of concussions, and they think about football. i think there are a lot of other sports or we are seeing that could i am interesting in knowing -- no, we have got a lot of younger people participating in football, for example, and i know i have an 11-year-old nephew who got a concussion and is out for a month. he hit his head on the ground after a hit. it just seems like with young people out there, we have got more and more injuries occurring at an earlier, earlier age. is that something that we should be concerned about? i mean, are we starting kids too

early in sports like football where they are experiencing concussions at higher rates than they have in the past? and what is your perspective on the rise in the number of concussions? and i guess, maybe your thoughts, as well, about some of these kids and whether there developed enough to take the kind of hits they are taking at that age and the types of injuries their sustaining at an earlier age? >> i will start. i think the issues with concussions of being up, we're seeing more of them, the numbers are way up, that has three main causes. the biggest one is awareness. i think that would explain the vast majority of the increased numbers that we see over the past 56 years. the second one would be kids being faster and stronger at an earlier age been playing perhaps more violently, but also sort of

that our games of change, too. you can look at how football has evolved, for example. i had one of our ex coaches, an old-time coach, lecture me on how people have been blocking and tackling over the years, and now you see a lot more hitting, a lot less tackling. on the defensive side of football, the point is to stop the ball did you do a much better job if you have somebody on the ground, rather than try to launchers often cause a big violence hit. for those three reasons, i think the numbers are up. as far as concussions in the younger ages and i think there's always a sense for me that we have to keep track of the dose of hits the kids are taking. i think the younger ages, yeah, you want to be more careful. do we want to postpone when you can hit in hockey or when people can start wearing pads and playing football? i think it is a very, very good idea, but it is more complicated

than that. because as some point, kids have to learn how to hit and how to hit and how to avoid big forces, and that can only come with practice. it is a pretty complicated question. >> i look at the advances in the equipment. my father played football in the late 1930's. he was a senior in art neville- 1937. at that point, they had helmets. he was hitting a lot of guys coming across the i know you got knocked out in one game. at that point, they treated everything went -- with whiskey. when i played in the 1970's, the helmets have gone a lot better. look at the athletes today. the climate has improved a lot. the amount of padding and protective gear that athletes are able to wear. we have made great advancements. as you have said, these athletes are bigger, stronger, faster, and the contact, the hits that i watch every sunday watching the

nfl, you know, there are some real contact being made there. so you wonder if the type of equipment that we have is adequate to that. that specifically might be more to football. but i am interested in knowing in some of these other sports like soccer, rugby, and water polo, who do not have a great deal of safety gear, is there additional income available that could lessen injuries and concussions in those types of sports? any be on the panel that would care to answer that. >> i can address that in general. whenever you can do to reduce the severity of confessions or the frequency or perhaps even eliminate some concussions, in one sport would be the same as in another. you're talking about the same brain responses, the same input forces, the same accelerations. if you can determine how that would be done from a

biomechanical standpoint, by a physical standpoint in football, you can probably figure out how to do that in other sports. the key is first finding the answers that would lead you address it in a project dollars or, and you would extend those by reference to other sports, if you can get to that point. >> is there anything anybody else wants to add to that? ok, i see my time has expired, mr. chairman, so thank you. >> thank you, senator. >> very quickly, and i guess that it seems like that probably, you know, 99.9% of the injuries that are suffered are not due to current equal men fell year -- failure. when you were hurt, something

did not break. again, i do not know about little league, but there is death being tested and this and that, and i think most of that is working very well. it is such a difficult problem. i do not worry so much about the big hits that we see, you know, where somebody is actually having to be held off the field, because we all know something is wrong. i worry about the injury were you tackle somebody, and as you tackle him, you know, he needs you in the face and smacks you pretty good and you're able to get up. again, we air-conditioned, are you guys were condition, we were all conditioned to play through injury and you stay out there. i guess the way i would like to close is just very briefly, you know, we have got a lot of moms, dads, coaches, and players that are, you know, watching this. very quickly, is there any message that you can send out to

the parents and things, how you can be better prepared to deal with this, you know, if it does come up? >> i mean, i think from the athlete standpoint, just increasing their ability to be honest with coaches and parents and athletic trainers and understanding for themselves when something does not feel right, lightheadedness, dizziness, and the of the symptoms. if the symptoms are known and they start feeling those, it needs to be required that they make that known. because it can happen on any hit. i have had once that happened on, you know, not severe his. >> i think it is important not only to address your symptoms when you have them, but even once you finish having the symptoms, give yourself a little bit of extra time, because that can prevent you from maybe not having to end your career is if you give yourself those few

extra days of leeway. then you can prevent the long- term injury. >> i will add to that. the recognition of the injury issue is huge. an athlete's high their injuries -- i know that. i see that every day. but people also do not know that they are concussed often. they're just not aware of it. so the responsibility falls on everybody else around, teenagers -- teammates, coaches, parents, whatever. so recognizing an injury but i am actually starting to see teammates coming to me and saying, hey, i think he is not right, so go check him out. once it has been recognized, you have to report that to the medical staff, to whoever, and have that athlete moved -- removed from participation and allow them to recover fully bbefore they go back to play. recognition, reporting,

removing, recovery. >> no, i would say that i do not see this problem going away with the equipment. i think the equipment is going to improve this issue, but it is not going to solve this issue. we really have to address the way sports are played. the nature, the style of play, the amount of hitting will allow, the amount of contact that we allow, and that is what is going to make a tremendous difference down the road. but i do not see the -- even a perfect helmand, there will always be the acceleration/deceleration sort of whiplashed force that we cannot control. >> i would simply echoed the panel's commons. there are a number of interventions that need to be enforced and encouraged. depending on the circumstances, one may be more important than another. overall, you cannot avoid any of them. to the extent that you should not just rely on better

diagnosis and return to play criteria, you also cannot rely on just having the equipment. you have to do all of those things that you have to change the attitudes of the players and the parents about reporting those symptoms. take that stigma away from this needs to be a module or strong or in vincible. one of the things that i have seen, and it has been effected, is changing behavior based upon some of the data that has been collected on the collegiate level with helmets. the notice the identity -- ability to identify players by looking at the crown of the helmand. there is increased likelihood of concussion there. i know the university of north carolina is identifying those players and engaging in behavioral modification, so that they're taking that act out of the game. if you start that at the beginning with youth players engage those coaches and players

that you do not hit with the top of your head, you do not hit with your head at all. the helmet is there to protect you in case you get hit and you cannot avoid it. you change those things, and i think you make significant reductions in the number of concussions and severity. you certainly reduce the chance of these catastrophic consequences in coming back to play too soon or having multiple concussions that are not properly treated. all of those are important. i do not think you can treat one as more important as the other. >> thank you. i wanted to return just a little bit to some of the misleading claims on equipment. i know it has been a lot of discussion about the equipment. and dr. mckee talked a little bit about anti-concussion mouth guards. have you seen ads such as this one for a mouth guard that is sold for use by kids 11 years and under?

and you can see the poster here in the background. this one was purchased last month. the product packaging states this mouth guard reduces the risk of concussions, and it creates brain safety space. given your firsthand knowledge of the dangers of repetitive brain trauma, are you troubled by this type of marketing for youth sports equipment? do you think young athletes who have already had a concussion might be particularly susceptible to advertising claims for so-called anti- concussion devices? >> well, there is no clear evidence that any mouth guard or a chain guard reduces the the the rage or severity of concussion. so i would have a great objection to this claim. the only thing that i am aware of that mouth guards and chin

guard stood there reduce oral, official, and dental injuries. but the nature of concussions would not be improved with the use of mouth guards. >> i know you were not able to see what i was holding up. i think it has been produced down there in case you see anything else on it you want to comment on. >> i agree on that. i do not know what brain safety space really means. that term -- that is a little alarming. >> well, there's a diagram on it. >> i see it. >> it shows a space, and it says create brain -- to believe specifically it says create -- what is the term it uses? create brain safety space. >> from some of the work that has been done with helmets of the ballplayers and sing at what forces the end up having clinically diagnosed concussions, those are occurring

over a wide range of forces. their 15g hits the do it. there are 115g hits that cannot. if you reduce it because of a mouth guard, you might be reducing the force a little bit of the hit is coming from this way, but concussions are occurring on a spectrum of forces that that will not address. >> i know ms. ball mentioned head pains in soccer. dr. kutcher, you discussed the potential harm of creating a false sense of security when companies falsely claim that products prevent concussions. this is not just about helmets and not just about football. here is another example. this is a protective head bent sold to soccer players and other athletes. here is an image from this company's website that says --

this can come between you and a head injury. does this talk of advertising for a protective had banned it trouble you? is there a danger that a young athlete might put himself or herself at risk of greater injury they believe it is headband will come between them and an injury? >> i do believe there is a problem there. the type of advertising is a little more vague because it mentions head injury and not concussion. so you can make an argument that perhaps there is a mechanism there to prevent some superficial lacerations and bruising in that kind of thing. but for confession, there's no data that supports that they decrease the risk of a concussion. i have seen them in my own practice, as i have testified, athletes to become more aggressive, and they go up with the head and on and they head the ball more. they get involved in head-to- head hits more. they would not have done that before.

>> there is another risk here. we have seen it is both with helmets as well as devices like headbands, but a player who has sustained a concussion now sees this or the parent sees this as the answer. my kid has a concussion and is not getting over it, but if i took this on, everything is fine. so it is a false sense of security after the first concussion because this is an extra layer of protection, and it is incredibly dangerous. >> did either of you as athletes experience any of this in terms of the headband being protective? >> i wore headgear, not this one, but something similar after i got my second concussion as a preventative measure. and i will say that i did that just might play whether i had my head gear on or off. i really did not think about it critically, when there would actually be doing something for me, but if i had it on, i would

head the ball more aggressively. i played differently, because for some reason i felt i would be secure from getting another concussion. and if i did not have my head gear on, i would play much differently. >> for me, i used a variety of different football helmets. i would always get a new one after a concussion. i would alternate styles. i would try different things, but i guess the risk is still there. >> and it is really common. in college football, in general, you get a concussion and go on to the next brand, because obviously that brand is not the right one for you. >> i mean, and the equipment managers would say, maybe just try a different style and it will be better next time. >> let me return to the riddell helmet testimonial claim, the one on no repeated and commissions. in a july 23, 2010 memorandum, the head athletic trainers and

club equipment managers, nfl commissioner roger goodell wrote, and this is a quote --it is important to remember that no helmet can prevent concussions are reduce the risk of confession to any specified degree. yeah, one nfl head athletic trainer has made several product endorsements for the riddell revolution football helmet. in a riddell video news release, tim bream of the chicago bears states that "we have had some players who have had ongoing problems with head injury, and we made the switch to the new protective head gear when it came out at its inception, and these players have had no problems since then or no repeated concussions." dr. kutcher, do you expect the youth or high school football team to have no repeated

concussions after switching from traditional helmet designs to riddell revolution helmets? >> no, i do not. >> pretty straightforward in your opinion. dr. mckee? >> i think this is beyond my level of expertise. it is not my area. >> and, mr. oliver, i want to ask about the maximum life span of the football helmets. i think you talked about that a little bit in relation to senator pryor questioning you. the national athletic equipment reconditioning association announced that starting next year, it will no longer recondition helmets that are 10 years or older. the executive director stated that he would not want his son wearing a helmet that old. the technical director told the "new york times, " he would never let his kid wearing a

helmet that was more than 10 years old. a 7-year-old was unknowingly wearing a 20-year-old football helmet when he suffered a brain injury. ralph, the father, wrote to me, how is it possible that our son was issued a helmet three years older than he was? why does the standard not set a maximum life span or number of years before a helmet should no longer be used? >> there are a number of reasons why we do not. the first reason is you have to tell me what the helmet is you are looking at. it is 10 years old and has never been used or has been used two seasons, should that be replaced simply because it has reached a birthday to obtain years? there is no data that suggests that that helmet is more or less protective than the other elements of a similar age. the other thing has to do with whether or not you're using the

10-year life for a 12-year life or eight-year life because there has been a change in technology. if, 10 years ago or nine years ago there was a radical change in the technology of helmets such that older helmets do not provide the same measurable level of protection, then it would make sense to have that lives been cut off. we have always relied on the manufacturers to specify the safe life on their helmets. one of the reasons we do that is because we, by intent, maintain our standards as a design neutral. part of that process is to not impose upon and manufacture an obligation to use a particular kind of material or a particular shape of the shell or a design to allow innovation and progress in those areas. if the helmet company makes the helmet and they say, this helmet is good for 15 years as long as it is regularly reconditioned and recertified, they must have data to support that. it is their helmets, their

design. what we know from reconditioning testing data is that helmets that are properly cared for, reconditioned, replacing the pads, and it inspected for >> , -- cracks, properly tested, those test numbers look very much like they did when that helmet was very new. no way for us as an association or as an organization that sets the standards to say from our test, the helmet that is now eight years older 10 years old that scores essentially the same that it did when it was new should be replaced. for schools, for example, to replace may be a third or half of their helmets when maybe they do not need to be replaced. the other question had to ask yourself is -- right now, there are revolution helmets on the market that are approaching eight years old peter i am not endorsing any particular helmet, but there has been a great cry

to move from older style helmets to newer styles. if there is a helmet on the market today that is eight years old and it is a new technology helmet that has been properly cared for and retested on an annual basis, what is it that happens at 10 years that makes that helmet suddenly need to be thrown away if it was safe at eight or nine years? we do not have the data to suggest that. i think the position was a policy decision that was made that they were not going to do that for helmets over 10 years. we see some that are 15 or 20 years old. that helmetsequire have a clearly visible date of manufacture and date of last reconditioning label? >> we require both of those things. >> do you know how many high school or younger football players are wearing helmets that are 10 years or more in age? >> we do not know specifically.

what we know it is from the data for hellman's a comeback in front reconditioning, because we get that test data back at the end of the season. this is a ballpark figure -- picture, but approximately 92% of those are less than 10 years of age. it will vary year-to-year. >> and do those helmets and years or older still meet proxy current helmet standards? >> of the have been through the proper program and have been properly reconditioned, they will. >> i am shifting the issue a little bit here to supplements. i think both of our positions realize there has been a lot of evidence recently on supplements. this has kind of surprised me. there is a company selling supplements which claims that

they "protect against concussions." it is called sport brain guard. water your thoughts on these things about supplements and concussions -- what are your thoughts? there is a dietary supplement that is called brain guard. do you have any thoughts on that? >> i do. what are the components? is that one of the dha products? i would imagine. much like other discussions we have had, there is no data that this type of thing will help prevent concussion at all, really. i kind of go back to the conversation we had earlier in the hearing about the amount of time and money that has gone into neuro protective agent for things like strokes, millions of dollars, and we have not found anything for mechanisms that we

know much more about. we know how it works at the molecular level. yeah, we do not have any answer there. i do not see any data that would support the use of this. no one expected that we would be able to find it. say,et me briefly just first of all, thank you to the entire panel. i think your testimony has been a very, very helpful. i think parents and families out there are increasingly wanting to hear more about this, and i think the way you have engaged us today helps them a lot. i think this issue of the awareness, i think all of you have talked about raising the awareness level, and we need more education, and we need to start yonder. those are very, very important points. the second, which you can see that i am passionate about, is this whole idea about misleading claims when it comes to a clinic.

it seems to me that there is so much work that we need to do their to educate people. and people need to realize the old statement that is always used, buyer beware -- i mean, you need to check out these products, whether it is supplements or a mouth guard or a headband, you really need to look a little deeper than the advertising that is there. let me thank you again, and the hearing is adjourned. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]

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montgomery, alabama. >> the new designed c-span.org has 11 video traces making it easier for you to watch the day's events. easier for you to get a free network layouts and you can quickly scroll through all of the programs and even receiving e-mail alert when your program is scheduled to air. you can access our most popular programs like "washington journal," "book tv," and "the contenders." find out where to watch c-span in the all new c-span.org. >> the center for the study of responsive law recently held a debate on the legality of the iraq and afghanistan wars.

bruce fien and u.s. army intelligence officer tony shaffer. and david rivkin and lee casey both from baker and hostetler. this is 90 minutes. >> good day. today, we are sponsoring and, through the study of responsive law, the third on a study on a

tableau. these are significant subjects that are not often discussed in political, a lot toro, or mass media circles. the subject today is presidents bush and obama, war crimes or lawful wars? there are systemic forms of censorship. they often serve as powerbrokers. in our country, they are into the cold to the first expression of the first amendment. if the taboos are broken, we can then discuss them. then we can address them straight forward. fair labor standards, the rights of commerce, and many others throughout history. then we are able to discuss and

debate. today, we have many taboos in our country. the legal profession itself. it has turned its back, in my judgment, on a lot of taboos about the rule of law. in our debate, we have some of the most of knowledge in this field, which i will introduce. the function of law is to discipline power. it is to make sure that power is fair and accountable. when the use of force and power goes beyond the reach of the law, the system of the rule of law begins to break down.

it begins to shatter. it is interesting, however, that want to route lonaw their legitimacy in the law and they are always trying to argue that in our society that their actions are constitutional, statutory lay supported, or they are observing international treaties. this, in a way, is a recognition of how important legal legitimacy is, even by those who some feel are beyond the reach of the law. hear, we have a focus today on presidential power. it affects the separation of powers and, of course, the execution of the use of military force abroad. our debaters today debating this very central question that is

very rarely publicly debated have backgrounds of such detailed experience that i cannot do justice to their biographies. there fuller by as will be on our website, debating -- their fuller bios will be on our website, debatingtaboos.com. -- debatingtaboos.org. as a fieein -- fein scholar and an author. he served as an associate deputy attorney general. following this, he was appointed general counsel of the fcc. in 2005-2006, he served on the american bar association celebrated task force on presidential signing statements.

there were three white paper sent to the president of the largest bar association in the world on what they thought wrong constitutional positions. he has been associated with the american enterprise institute, the heritage foundation, and the brookings institute. a regular contributor to the mass media, he has testified over 200 times before congressional committees. and lieutenant colonel tony shaffer is a highly experienced intelligence officer and a recipient of the bronze star with 25 years of field experience including undercover combat tours in afghanistan. he is well known as a subject matter expert in intelligence collection and policy on matters such as terrorism, data mining,

situational awareness, and adaptive disrupted technologies. this is a new dictionary that can be built around these activities. his book, "operation dark art" was very controversial and heavily redacted. his very well-known in intelligence operating circles. he is an eyewitness observer of what was going on in afghanistan where he served two tours. lee casey as an attorney with baker hostetler. his serve that the department of energy and justice. as legal counsel, he advised the attorney general and the white house on issues of a constitutional law and statutory interpretation.

he is an expert on the foreign powers act. from 2004-2007, he served on the u.s. and some commission on the promotion of protection of human rights. he has called for many articles with his colleague, david rifkin -- he has co-authored with is colleage, david rivkin. david has extensive experience in international law litigation. he has also worked in the justice department. he has a dealt with several leading post-9/11 cases and is a frequent guest on national television networks. our moderators' are both steeped in the subject today.

a lawyer, reporter, author, and prolific writer for national publications. and he covers the supreme court from "the new york times" in the 1980's. it covers everything from civil liberties to affirmative-action. jonathan turley is a professor of law at george washington university law school and is a prolific author and litigates on those that challenge official power. a frequent witness before congressional committees, he has worked as a legal analyst fran b.c. during highly controversial events. their fuller bios are on debatingtaboos.org.

professor turley will open the floor. [applause] >> thank you very much. it is an honor to appear with ralph nader and this distinguished panel. we will be starting the debate with opening statements. each individual will get five minutes. i have been giving that task to bring everyone honest. i brought a stopwatch so i will not be tempted to favor one side over the other. we will start with mr. bruce fein. [applause] >> thank you, jonathan. let me begin by paying tribute to ralph nader. i can guarantee you he was around -- if he was around several centuries ago, he would have offered at the podium to ptolemy and copernicus.

i want to begin with two ideas. one is the most important any country makes because what sister rose said then is true now, in times of war, the truth is silent. the second is the most important idea in the history of civilization is due process, the prospect that you could get it wrong. to make sure they you do not harm civilians or innocent people. it started over eight centuries ago in the minor part of. it is so important we maintain this discussion with some bright because it determines the fate of the united states as a nation. i would submit that the united states has engaged in violent more sense of 9/11. although it may sound jarring, i

would submit that 9/11 was not "war" in the international sense and there was not the same amount of danger to unleash the fury of on armed violence against the population, civilian or otherwise. i submit, at least by inference, a conclusion in that regard by suggesting that 9/11 was unique in two major respects. because the alleged offender was not a nation, there was no and point that could be conceived to this so-called war. we have, by definition, a perpetual war. there has been no benchmark. this may not really rise to the level because they are now

uneven. the battlefield and becomes everywhere on the planet because what you are fighting is a tactic, not a prescribed geographical territory. military law and military role can be imposed anywhere on the planet including the united states. it is just a matter of discretion. under the brim work of 9/11 is war in the international sense, they can do that today, tomorrow, or otherwise. in my judgment, 9/11 was a horrible criminal operation. there have been those tried and have been sentenced to life imprisonment. it seems to me a crime of regression. if we can go with the issue of invading a rocket in 2003--

invading iraq in 2003. when one country invades another, that is not threatening it. that is customarily is viewed as a crime of aggression just like hitler's attack on poland and otherwise. i submit what was happening when we invaded by iraq in march 2003 was dangerous to the united states and created an actual threat to our sovereignty. i do not believe it comes close to justifying an imminent danger. weapon of mass destruction was so remote that it would not be imminent. in addition, it was a crime against the constitution. the congress of the united states did not authorize the commencement of hostilities. it delegated, in my judgment, on

constitutionally -- unconstit utionally. they did not want to cross that rubicon between a state of peace and a state of war. this was based on the congress of the u.s. and the supreme court said a treaty could not override the obligation so whenever the u.n. said, they could not exclude congress from decision making. nevertheless, we invaded. the libyan war, equally, if not more so, unconstitutional, a crime of aggression, no threat by libya to the united states of america and, no authorization, no money appropriated. flouting both international as well as constitutional obligations. it is time for the people to stand up and say you need to

stop that are we will impeach you for high crimes and misdemeanors. thank you. [applause] >> thank you, bruce. i wish galileo could come here with ralph cents with a picture of the moon going around the sun on the ceiling, so we could do that debate. our next speaker is mr. david rivkin. >> also a pleasure to have been here and my appreciation to ralph nader. let me begin by pointing out that lot is not silence in time of war. it is the most world driven activity. -- law is not silent in a time of war. nor is it bereft of rules. traditionally, it is divided into two parts. prescribing and proscribing the

war, and as well as governing how the war is actually prosecuted and how the conflict as thought. i will briefly address the first part. there's no doubt that under the first world, the u.s. engaged in a lawful conflict against al qaeda. to begin with, it was a defensive war waged in response to 9/11 and was fully in compliance with international law as well as relevant sections of the u.n. charter, article 51, and which recognizes the right to self-defense. with respect to my colleague, the fact that it is against a non-state actor is irrelevant. such actions have happened all drug history. the intensity and duration are more than sufficient to meet the customary terms of an armed conflict. i submit to you that it is from a dangerous perspective.

that is not a factor in international law, how dangerous the attack will be, but i submit the level here is quite high and may be much higher than in many traditional mores against sovereign actors. the fact that this is an armed conflict has been recognized by nato, which for the first time recognized attacks as an aggression invoking article 5 of the north atlantic treaty. from a domestic law perspective, the use of armed forces have been authorized in a case against the war against al qaeda and taliban. a separate authorization for iraq, which i'm sure we will talk about later, but the fact that there has been no declaration of war is not constitutionally significant. given this authorization, the president is acting at the very height of his constitutional

powers. a couple of points to dramatize for you why this is an armed conflict and not a terrorist attack. the attacks came from abroad. it was not a homegrown attack and it is legally significant. it was carried out by hijacked aircraft dramatizing define this is an offense of this size of significance. you're to think about the physical loss of lives, more americans except for pearl harbor. the purpose was political, just like the attack on pearl harbor. al qaeda is acting politically driven by their desire to wage jihad and fundamentally ship the power. the fact that it is a fundamental war is not unique. they have recovered what was then known as the civilized world for history. the fact that their actions are criminal in nature because they are not a sovereignty, it is

not legally significant, but all it does is provide us with an opportunity to use criminal justice paradigm and in other circumstances, it is not the same. the fact it has been war has been recognized in every case since 9/11 including the case against bush where a plurality opinion was specifically of knowledge. the thing about the iraq, we can innovative. they violated repeatedly cease- fire obligations against kuwait. they were firing in flying in a no-fly zone. we have no deficiency as far as the basic use of principal's concern for any of the wars that have been discussed. thank you. >> thank you very much. david gets to the record of

getting -- giving up 30 seconds. now we turn to col. shaffer who has 5 minutes. >> thank you all for having me. thank you for sponsoring us, mr. nader. let me hit a few points and we will talk about specifics in a second. what is it a tribal war lord having to do with the 9/11? let's keep in mind that some of these guys live and die within five minutes of their village. the legality of the action is completely unfounded, unconnected to the realities on the ground. how many number two's does taliban or al qaeda have? it seems like we are killing one every month. how is the application of the

law helping us win back some of the have probably heard me talk about this. i am not anti-war. i am anti-stupidity. we have an unwavering not push against those that do not like us. does not liking us justify a defensive war against them? think about that for a second. also, when we start to back the idea of defense. what does it really do? i hope we will talk about all lockheed -- al-alqawui. how far does it extend and under what authority? he was assassinated as an enemy of the state. as an operator, my contacts tell maybe could have arrested him.

the matter if you like them or not, all citizens are do some level of their day in court. why are we applying rigorously the very law that will allow that? i cannot talk to dead people, so there is also a real loss of capability to the right thing for the community. these are things we need to think about. i have been living at the pointy end of a spear for 30 years. title 50, title 10 are two bodies of law which i have lived within. they are derivative of larger constitutional issues. i like to believe i have been taught to live within them. i had to avoid to -- i had to avoid these laws to live. is it in your best interest to

do so? this is one intelligence collection needs to be pure. the idea of setting up laws, covert action laws, on the traditional military actions, they need to be rigorously put down in process. those who practice this understand the good and bad points. i have seen over my time in service what i would consider war crimes were women and children were not considered a stay away target. drug talk about mexican wars on the southwest border. mexico is a foreign country. what if we decided that the mexicans are now due predator drones. we see something going on in mexico from our airspace.

we see a really bad guy who has beheaded people. we decide to take amount. we shoot him, he is gone. when it happens, we taken something from north dakota. five citizens had to be in the wrong place at the wrong time, too bad. how long do we accept that? probably about 10 minutes. why is life in pakistan are afghanistan less relevant? this is when we look at the legality of the issues. >> thank you, colonel. he give up 40 seconds of his time, so we will see if mr. lee casey can do better. >> does this mean i have an extra 70 seconds? >> afraid not. >> thank you for having me. the u.s. has prosecuted this war

lawfully, particularly with respect to al qaeda, the taliban, their associates, and allies. this establishes basic rules about how war may be prosecuted and about how enemies must be treated. and the great dividing line is between combatants who are legitimate targets and non- combatants. a the most basic level, an enemy combatant is someone on the other side. that is a very well established category and was not and dented by the bush should ministration. region was not invented by the bush administration. this classification is not limited to service members bouillon rolled in the armed forces of a state that includes a regular forces operating like calcutta and independently of states accord. --operating, like al qaeda,

outside of state's accord. they are known as a waffle or privileged combatants and they are entitled to a number of important rights and privileges , and in particular the right to be treated as prisoners of war upon capture. those, like the taliban and al qaeda, who do not meet these requirements, are considered as on privileged combatants and they have far fewer rights upon the speaker capture. in addition -- upon it defeat or capture. the definition is broader than our children and nine fighters and it includes both regular and irregular forces, those engaged in activities that support military operations in a tangible or material way as those in command and control.

where to draw these lines in any particular conflict can sometimes be difficult, especially in this conflict, where the opposition deliberately adopted it a secret and non-transparent method of organization and command. there is lobbying built up on this issue. since the supreme court case said that individuals held at guantanamo bay were entitled to habeas corpus proceedings and the d.c. circuit and federal courts have been building up a body of long on who actually bonds properly within these categories. we can talk about that if anyone has questions. i would like to emphasize, because already mr. al-awlaki has been raised, but if you are

a combatant, you are a military target. anywhere in the world coming you may be found. it is not limited to the battlefield, the trenches, the front line, however you want to define it now, to carry out such an attack, there are certain rules. you have to follow the rules of discrimination. you cannot deliberately targeted civilians and must follow the rules of proportionality. the military rules were trying to achieve have to be relevant or way properly against the damage against civilians and civilian objects, often called collateral damage, perhaps to benign a term. nonetheless, when carrying out an armed conflict come you're not guilty of a warm climate you kill is a billion. you are on the guilty to do it deliberately or in a way that does not follow the rules with

respect to proportionality. mr. al-awlaki was an operative and appears to have been in a commanding role. that being said, he was a combatant and a legitimate target. the fact that he is an american citizen does not change that. the supreme court made it very clear that your citizenship is not the determining factor, but rather your status as a combatant or non-combatant. i will stop there so we can get to questions. maybe i saved it are 20 seconds? >> 9 seconds, but who's counting? thank you, everyone, for those opening statements. before i start the rebuttal, everyone is entitled to two minutes to rebut what never has been said. there are cards where you can write down a question.

my colleague, mr. taylor, will be selecting some of the questions and will ask them of participants. if you would just pass them up to the front, they will be collected for that section which will come later. now we will turn to bruce for any rebuttal that he might like to make. >> stating that in our post-9/11 conflicts that the wars have been highly regulated by law is like crazing communist china for adopting the international covenant on civil and political rights. there may be provisioned out there, but they are honored in the breach rather than the observance. when there have been laws that have brought challenging things against the administration, constitutional violations, the state secrecy rule says you can even file a case because it would be a state secret and it

these cases become dismissed. with regards to the mention of mr. al-awlaki he says he was definitely engaged in atrocities against the u.s. what is that based upon? there has not been a single released fact to the public, congress, or others that demonstrates the truthfulness of that. that is why we have a trial. when he describes as the queen of hearts in "alice of wonderland." sentence first, ask after. then we have the massive violations of the foreign intelligence act, the surveillance program come a respective of the provision for how to operate in times of war. tens of thousands of calls coming interceptions of emails, a telephone conversations, no warrants whatsoever. ultimately, they altered it and it became at least regulated by

law. that is a huge number of of invasions of privacy. what about the extraordinary renditions? we some-contract out interrogations' to countries like egypt or syria to undertake torture so that we are not complacent in the violations. the last one is torture itself, more --waterboarding. it is illegal, it has not been prosecuted. that is a sampling of the honoring of the rule of law in the breach. >> and now we will turn to david rivkin for his rebuttal. >> the duration of conflict, if we look at history, long wars are not an exception. in the 17th century, we had a war that occupied a big chunk of the 14th and 15th century. how would we know at this war would end? certainly not surrender on a

battlefield or in a shift. the definition that would have to be met is the ability to offer effective resistance and project power which would cease. that does not mean you kill every single one, but i am hopeful that it would undoubtedly take a long time. it is indicative of the level of threat we are facing. no one has ever said that because the war is long. the geographical scope, you are a legitimate target anywhere in the world 24/7. who determines a combat? with all due respect to my friend bruce, this is an issue that is in the promise of military commanders and the president as the commander in chief. out sowed -- outside habeas corpus, there has never been judicial engagement in that determination, in large part because the judiciary is not equipped to do that

constitutionally. you're not be able to go in and ask the court for an opinion before you drop a bomb or plunge a bayonet in to someone's body. as far as a lot of techniques that he mentioned, all i can tell you is this. this is the most carefully prosecuted war in human history. the collateral damage is the lowest number of people. there has never been a war in human history that has been waged with a greater attention to the rules. >> thank you very much, david. and now we turn to colonel shaffer. >> i have seen directly that rules have been avoided or they give the green light to an operation that resulted in the death of civilians that could have been avoided. i do not know if that is following the rules and avoiding civilian deaths, which is an

objective. let's go to proportionality. you may remember something called the cold war. i was a counterterrorism guy back in the 1980's. i was up against a group called the raf that killed u.s. soldiers. in proportionality, we were precise in our use of intelligence to figure out who they were, where they work, and in deadly force. we did not kill german civilians because we thought five guys were in the raf down the block. the proportionality was used to prosecute an effort of operations against an adversary who was supported by the russians, by the way. that threat was dealt with precisely within the bounds of the long without collateral damage. now, the argument we have about these individuals who are

combatants is, i find, and supportable within the constitution. no law or rule that i understand and where allows for the government to unilaterally say, "al-awlaki is no longer a citizen and not afforded the respect of the constitution." the current standing order regarding -- as i understand it, and going after these global combatants, it has to do with anyone directly affiliated or involved in the 9/11 attacks. the dia de continues to deny that he had anything to do with the 9/11 attacks. -- the dod continues to deny al- awlaki had anything to do with the 9/11. >> and now lee casey will have his two minutes of a bottle.

>> first, with respect to al- awlaki, his citizenship, as i said, is not relevant. the question of the constitution whenhat processes due engaged in a legally recognized armed conflict. and the government does not have to prove beyond reasonable doubt that the individuals planning on attacking are noncombatants. indymac have a reasonable basis for that belief, but it certainly does not need to go to trial. the fact of the matter is in his regardless of whether it is conventional run conventional. keep in mind, people who wear uniforms and run tanks are human beings, too. if, indeed, the constitution provides due process for those who fight unlawfully and ignore the laws of war, it's certainly provide the same protections for

individuals to fight lawfully. our courts have never suggested that we cannot run a war without first attempting to prove that the individuals involved are all combatants. very briefly, with respect to libya as a war of aggression. not the crime of aggression is very ill-defined. in this instance, the actions taken to redact the population from their own government was taken in connection with the nato allies and did not violate the u.n. charter, hence could not become in my view, considered a war of aggression. >> thank you very much, lee.

>> i have 15 minutes in which to ask questions. i will ask them in the order that have already spoken and their answers are suppressed be less than two minutes. let me ask you first, bruce. you mentioned 9/11 was not a war. congress, as you know, they could authorize warlike measures in response. was inappropriate and constitutional? was that the equivalent of a declaration of war? -- was that appropriate and constitutional? supposing nuclear bomb had gone off killing 50,000 people. would that make it different? >> it seems to me, as a provisional matter, it may have been authorized by the constitution, but remember pursuing those involved in 9/11

or harboring them, they treat this as authorizing in legal force against anyone who is "part of al qaeda." they have never developed a benchmarks for her is or who not. they could recite chapter and verse about how flimsy this is about whether someone is connected with that organization. now, my view is that in the aftermath of 9/11 and after the fog cleared after one month, it was clear that the danger created by this organization, abominable as they are, was not sufficient to justify a war. i do not believe congress could have stood up and said, "we can go and attack burundi because it is a danger to the united states." the time has elapsed since 9/11

that our knowledge of the dimensions of al qaeda and would not entitle the congress to place this in the state of war. if we use the same truth ratio to al qaeda in afghanistan and world war ii. we would have multiplied the entire population by 126 and a conscripted everyone. you cannot manufacture and inflate danger when it does not mean the same threat to sovereignty. >> david, you mentioned the 100- year war. if this turned out to be 100 years, a spending bill in the armed services would not only authorized but would require military detention of accused terrorists captured. should that go on? is that ok? one other, suppose al-awlaki had

been in illegally and they would not arrest or action by him. the italian secret service would be okay -- they would not arrest or extradite him. would that be okay? >> one is whether or not u.s. status as an enemy combatant makes you a legitimate target, and the answer is yes were everywhere. to the extent that we attack al- awlaki in an area of the world with no effective government, like a place in italy, that would be a violation of international law against italy. as far as the legality of attack, you do not lose your status of an enemy combatant if you are found somewhere. if a german officer was in switzerland on vacation, he is still a legitimate target. one thing and want to emphasize, with all due respect to my friend bruce, the notion that this is not a serious threat is absurd. this is a far more serious threat to consider the basic

government of the military establishment is to protect the people, the homeland, from attack. this is the worst attack and we are talking about entities and organizations trying to use very actively. what would it take for us to appreciate the seriousness of that danger? it is not a question of the ratio of troops. just as a matter of a military analysis, thinking, planning. the fact we are waging war against a small but in cities group that is able to penetrate, from time to time, the american homeland and bring death, destruction, and mayhem to thousands of americans and trying to do that at the level of dozens of thousands is horribly dangerous. any one person can see that. it is not a question of how many of them are out there. >> thank you. tony shaffer. what about the killing of osama

bin laden. the question to kill rather than capture. who'd you think made that call? what is the state of the evidence on that? >> a good question. i will answer that in two parts. first, bin laden. who made the decision? i do believe it was made by senior officials. the decision was to kill. i have no hard evidence of that, but the people i have spoke to regarding it said bin laden, unless he walked across the room with his hands held up, he was going to die. i believe in a situation like about, you actually belittle our system. it is not about him. it is about us. our rule of law. we capture people. let's go to man will noriega. -- manuel noriega.

he was hiding out with vatican representation. he was brought to justice and put in jail. this is about us, not them. we look at this as a military issue, we have a lot of experience dealing with capturing people. al-awlaki is an example of that. if he had snuck back into new york, what would have been the correct decision? would we have used a predator drone in times square? we need to bring people to justice. the bottom line is this. you have to bring them back, put them on trial. if the verdict is to kill them, do it legally. the idea of threats against us, there are threats out there. however, we need to do this in

such a way that we only kill bad guys when necessary. otherwise, bring them in and get them justice. >> i have my mind stop on what kind of music we would have used to flush out bin laden. lee, you mentioned unlawful combatants which raises the question that maybe more historical but still of interest, the torture allegations. waterboarding and other bush- approved tactics lawful? in, article 3 of the geneva convention, would apply to the terrorists? >> with respect to waterboarding and the other aggressive interrogation methods that were approved, waterboard income is the most troubling. you are sailing as close to the

wind as you possibly can vis a vis the actual definition of torture. do that. what was done in three cases to three individuals, so we are told. whether in any of this case as they crossed the line, i do not know if you could make the decision without knowing how it was done in each case. i admit that it could have, whether it would result in a war crime or a prosecution is a more complicated story because you have to look at intent, knowledge, lots of issues that are not necessarily clear. with respect to other methods, again, the question is are they severe enough to be tortured? are they severe enough to be cruel, degrading, or such?

we now have new definitions of those since the original authorizations were given some years ago. congress has defined better both cruel and degrading treatment as well as torture. again, whether at this point, waterboarding cannot be used because it is not in the military manual, which congress has incorporated. whether it would be a war crime depends whether it is done in such a manner which still involves how severe is the pain, discomfort, whenever you're doing to the individual as opposed to a blanket, inherent prohibition. >> thank you. bruce, same question with a variation. sticking to what we know has

been authorized from the top of the bush and administration by way of interrogation methods without getting into what people may have done, should people have been prosecuted for that? how many? should they include president bush and vice president cheney? >> were they culpable criminally? with the part in the war appropriate given the circumstances at the time than simply forgetting about it and letting the rule of law be tarnished? certainly, they would be held culpable in the violation of law, just like president nixon was guilty of violations of obstructing justice and otherwise. given all the circumstances, it may well have been justified to issue them pardons given the time and uncertainty and the fog around outside. it does not exculpate the crime. the must accept culpability. it cannot be foisted upon them.

that was never considered by president obama. he forgot the situation and said he would only look forward, not backward, which would put an end to the rule of law. it goes into a memory hole, like 9/11 itself. it is an infantile justification to avoid a hard issue. i would need to know more the facts to decide whether or not i would exercise the pardon power. it is worthy of great consideration. that is how i think it should have been handled. >> david, given that in libya, i think, the justice department of the president that he did not have power to do an extended bombing campaign because of the war powers resolution, is there any limit at all on presidential power to make a threat of war? >> there are two parts to the

answer. are there types of uses of force that the president cannot use in his own authority? to that extent, if there are, i would submit to you that congressional involvement in the use of force decisions really does not have to do with operational applications but bringing about those issues and changing the legal rules that govern our society to bring about a perfect war as a matter of domestic or international law. as a practical matter, the president can use force any time subject to due checks. it is a political question beyond the scope of article 3. the president is not a czar. there are two ways to punish,

one would be to cut off the funding, and second of all that is what and teaching is for. if the president is acting in a way that there is sufficient concern in the coequal legislative branch, you go through the process of the house trial and a senate trial. a high-priced to pay, but those things are not meant to be easy. that is how the framers intended us to proceed. >> thank you. tony, the senate armed services committee has approved legislation that not only authorized indefinite detention without trial of suspected terrorists in the united states, which we have been doing already, but it would mandate that it be military detention. the question is what you think of all that? including, do you think we have been violating the law all along? >> there is a habeas corpus issue that needs to be examined in more detail. when you look at it, a look at

it from the practical and traditional perspectives. during world war ii, we had german saboteurs show up, one was a u.s. citizen, and they're all tried in secret. the idea was that they would not be willing during indefinitely as enemy combatant until the war was decided. i, as a practitioner, do not clearly understand what is different between the fact that these guys were captured wearing civilian clothes. at that point in time, they lose all geneva convention protections as a spy. the decision of our judicial system and executive branch was still give them due process. some died, someone to prison, but the bottom line was that there was a resolution. i find it an abomination that we have been in this war for 10 years and there is no clear

resolution to the idea that an individual, no matter who they are, be it an enemy combatant or non-combatant, based on our traditions still has a question on what to do with these detainee's. but the needs to be a resolution and i do not see this as legal or practical. >> my last question will be for lee. the question is has either president bush or president obama than anything that you think is illegal in this area, are particularly troublesome if not illegal? if so, what would it be? >> in terms of the, based on what i know about what but presidents have authorized, i would say no. there have been abuses, obviously, and those abuses have come i believe, been dealt with and are being dealt with, but in

terms of president bush's decision to go to war, in terms of president obama's decision to use force with libya, i think those were well within their presidential powers. one, with respect to president bush, he had authorization from congress which puts him at the very height of his authority. with respect to libya, given the nature of the conflict, i think that also was well within the president's authority to use military force without a specific congressional authorization, at least as far as it went. >> thank you. i yield the floor to jonathan. >> thank you. ok. i would like to start with bruce. we talked about the

international obligations to investigate and prosecute torture in a lot of different treaties and also domestic laws. the you believe that president obama has violated international law when he appeared in front of the cia not long after he took office and assured the employees of the cia that he would not allow them to be investigated prosecuted for these types of abuses? >> yes. that is clearly an abdication of his good faith requirement that he attempts to enforce rather than sabotages the treaty. this comes with the background of him having stated, and echoed by his attorney general, that in his view of waterboarding was torture. well, how do than make consistent draw obligation to investigate what he thinks his torture? his statement that waterboarding was torture, the cia was involved, and unless you have

abandoned civil this respect as far as aristotle, the inconsistency is blatant. it is another tarnishing of the rule of law. i want to repeat that it is stated that the rules of war are regulated by all sorts of highly intricate stipulations and principals. if you write them down and do not enforce them, they are not worth anything. that is what has happened in the post-9/11 united states. >> he can take statements from galileo to wonderland back to aristotle. it is enough to snap your neck. i will now turn to d davidivkin. i want to see if we can get on some terra firma. as to where you are standing. i would like asking a series of question that you can answer yes or no. then i will ask you for a

stronger opinion. in two dozen 8, you told aljazeera that my -- in 2008, he told aljazeera that my view is waterboarding is torture. >> waterboarding in those circumstances it is torture. we have to be precise. the point that i think my colleagues are missing. if you take somebody and shove the person's head under water and hold it there until the person subjugates, it is clearly torture. if you have to were three drops of water trying to induce psychological fear, it is not. we have to be clear about what happened. >> let's get the foundation laid out. do you agree under international treaties torture is a war crime?

>> torture -- i would not be legalistic, yes, torture is a crime, penalized under statutory law. >> there are international treaties that make it a war crime? >> correct. >> in april 18, 1988, reagan signed a convention against torture. he emphasized state party is required to prosecute tortures' found in its territory or to extradite them to other countries for prosecution. as a general proposition, do you agree with president reagan to

prosecute anyone in our territory that has committed torture? >> that is correct. one of the issues is, whether or not given the nation of the statement, whether or not it is complied into the territory of the third parties. second of all, you always construe as language relevant to the context of the overall legal system. if you think, if he felt a torture happened on american soil, but there was no admissible evidence to establish that, you do not engage in prosecutions. that is axiomatic. there are levels about what certainty you have. horrible criminals go free in this country all the time because prosecutors did not feel they can present a sufficient case first to a grand jury and then to the jury.

>> what ronald reagan said is we have to prosecute tortures' who are found in our territory, not for torture on our territory. if in our territory, we have to prosecute them. >> that is not technically correct. there is language in the torture convention where there was a position of the bush administration with the scope -- the first question in any context, the scope of jurisdiction. jurisdiction can be territorial, can be nationality base. the bush position was that applied that it took place in the united states. >> do you agree with that position? >> remember, all the debates about the meaning of the abm treaty and this event of the ratification statements. we believe in the role of a