tv Key Capitol Hill Hearings CSPAN June 15, 2016 4:00am-6:01am EDT
hour and 20 minutes. [applause] >> thank you very much. can you times you guys hear me? it is on. good morning and thank you for joining us inside this airless windowless room on this beautiful saturday morning. we are here to talk about the presidency, scope and limits of executive power a hallmark recurring defining issue of the 21st century for two presidency so far. we are going to move along because we have an excellent panel and i'm sure all of you are deeply familiar with this topic already. the 10,000-foot reminder is that president bush came into office with a very powerful vice president whose experience as chief of times of staff in the four demonstrations after watergate and vietnam and during the church committee had marked him as a strong opponent of executive power and critic of congressional regulation and he
used that position of influence in the crisis of the september 11 era to advance, establish precedence as commander-in-chief in wartime cannot be bound by the international law traders and other constraints leading to controversy in areas like torture and surveillance represenative obama the constitutional lawyer came in promising hope and change and it seemed like a corner was being turned but soon found himself also being criticized from both his left and is right for his own strong assertion in various ways of power. he is largely shied away from the commander-in-chief override series that was the hallmark of the bush administration but in both accepting the war on terror was a real war and dancing use of targeting authorities that was thereby authorized which not
everyone agrees with and international affairs and based after the 2010 tea party movement election that was not a helper of his agenda but rather obstructionist to that agenda and in some cases incapable of acting. he began becoming more and more assertive about executive action in domestic affairs ranging from refusing to defend the constitutionality of america to aggressively interpreting what he could do on obamacare to fix provisions and glitches and typos that congress was refusing to fix for him and was famously asserting that he could shield from times from deportation an entire category of millions of undocumented immigrants leading times living to dispute and criticisms from the right. as his presidency starts to wind down we look forward to the
third, 21st century post-9/11 presidency. an appropriate time to pause and reflect on experiences over the last 15 years and see where we might be going in terms of the future of american-style democracy. we have an excellent panel here, a diverse panel to help us think through these questions. i'm going to introduce each of them before their first question rather than presenting you a bio , to suggest owens. we'll go through a couple of rounds here and then we will go to questions from the audience. i'm supposed to. a couple of things. turn off your cell phones. if you want to write, if you want to ask questions raising your hand are going to your microphone the staff, raise your hand and times of a will given an index card and in some point the cards will be brought to me so i can filter out your speeches. if you want to twitter cover this the hashtag is aps 15 and
the handle is at aps law. remember you can get dealy credit for this. right after this is probably the highlight of the morning the current white house counsel will speak so we will get out of your promptly at 6:45 so you can see the main event. okay so let's get going. we are going to start today with tina chomsky the director of the national security project of the aclu which tries to ensure national security practices and policies are consistent with the times the constitution civil liberties and human rights. she frequently mitigates cases regarding freedom of speech and association challenging targeted killing and torture and post-9/11 discrimination against religious and racial minorities. she's a graduate of northwestern university school of law. >> she teaches at columbia law school. tina why do you kick us off. we have seen through the obama
air at arise of the anti-obama last that critiques him for continuing and entrenching the war on terrorist bases it. what do you see as the power that the obama administration has claimed regarding armed conflict zones and with the policy consequences of his decision to do those things. c thank you charlie and good morning everyone. i want to begin by analogy in the last couple of days has sometimes been depressing in terms of conversations about a progressive vision of the constitution but more often really inspiring. i was thinking about that this morning when i was thinking about talking to you and the fact that not only is there not really a progressive vision with respect to a critically important area of four powers but i think the position the founders had with respect to
structure in the constitution with respect to war powers times powers was on the verge of being roe can. war powers are critically important because once they are given the executive branch they leave unchecked authority for the present to president to wield the coercive power of the state to use lethal force and detained without traditional procedural protection. to ensure that those awesome powers are exercised with wisdom and restraint of course the constitution gives to congress perhaps the most fundamental and important obligation it has which is the responsibility to declare war by specifying enemies, by defining clear objectives and setting limits that keep these war powers within balance. i don't think it's any secret to any of us that congress has failed to do that and it continues to fail to do that.
in the absence of responsible congressional absence -- action we are fighting multiple wars in multiple countries on the basis of a 2001 aumf authorization for use of military force that was specific with respect to authority given 9/11 those responsible for it taliban and core al qaeda, wars in which we are engaged are against groups that have the most tenuous of any connection to core al-qaeda and in some cases are to it. that is in the context of traditional armed conflict recognized armed conflict. charlie your question and an important backdrop to that question but i think another significant concern is the claims of work-based authority to use lethal force to obtain outside armed conflict in
countries with which and in which we are not at war. that theory continues to underlie targeting authority in the continues to underlie the claims of authority to keep people detained at one time the mouth without charge or trial. when thinking about how that authority has been yielded by the obama administration it's important to think about some of the ways in which there's a difference in approach between the obama administration and the bush administration. one line of argument about the difference in approach that unlike the bush administration which claimed article ii commander-in-chief authority to override obligations under international treaties and domestic laws, the ban on torture and wireless surveillance the obama administration doesn't do that. it instead has recognized an
internal process, careful consideration within the executive branch and presidential authorities through interpretations of international and domestic law as opposed to series that would flout it. there is a substantive problem with that. the process problem is that claims of work-based authority outside of areas in which we are not in armed conflict is recognized by most of the rest of the world and interpretations of international law on the basis of that authority the executive branch claims and in the face of congressional inaction the executive branch claims that it can take action that has critical impact on civil liberties, the right to life, the right to liberty, without review by the judicial branch or with deference from the judicial branch.
i'm going to cut you off there so we can move along but we will come back. now i want to move to marty lederman a professor at georgetown law school are in the bush years. he became famous as a blogging critic of the bush theory expansive theories of times of the commander-in-chief over its power with his colleague david barrett co-authored the seminole book study of that published in the harvard law review and when harvard law review and wen the obama administration came and he in he served as the number two official for the first two years word was his turn to grapple with an extremely difficult question raised by the rule of law in the threat posed by terrorism. as everyone knows most famously the wartime issue regarding whether he was it was lawful to target american citizens deemed to be a terrorist operation abroad for his capture was infeasible. he also was involved in
reviewing all of the bush or a classified legal counsel opinions on issues like torture and pushing to make them public in 2009. he is a graduate of you law school and a former clerk judge of judge of the first circuit. marty and was wondering if you could pick up on the scene that tina was starting to elucidate and help us think about what do we mean when we say imperial presidency? what are the different categories of things that might lead to a more vigorous framework of law? >> thank you charlie and thanks to acs. good morning it's wonderful to be here with this wonderful paddle -- panel and i hope our discussion will tease out some of these questions and what do we mean and the rhetoric of imperial presidencies. i do want to take issue with the precipice of the panel. i don't think there's any thing resembling an imperial presidency and i don't think it
was during the bush and certainly during the obama administration so for starters i would like to sort of frame how i'm thinking about these things in three ways. the first is the point that they truly imperial president would feel very much unbound to do whatever he or she feels is in the best interest of the nation and i think the book power constrained ackerley describes how even in the bush that's not remotely true. no president can an actor put into place 5% or 10% of what he or she would ideally do if there were no congress and there were no press and particularly if there was no oversight process between the executive branch and congress which does impose a much more powerful picture than the public understands. but also i think there's a big difference between the sense of authority that the bush administration exercised and
what the obama administration is unwilling to do. that's point number one in point number two that matters for purposes of what goes on in the executive branch. whether you feel constrained by treaty or international law and statute in constitutional constraints really plays it different -- the mattock role in how decisions are made. your book charlie demonstrates that in better than any single source i can think of in the third on to make his these issues for the future depend somewhat not only in times in what these menstruations executive branches have done but perhaps more partly how they are perceived and described in the press. if everyone goes around claiming there's an imperial presidency and the bush and obama administration are set to the same and the president ultimately can do whatever he or she wants without constraint i think that is corrosive. i think it leads to executive branch thinking where many officials within the executive branch is thinking there is this
kind of liberty and expansive authority where there truly is in. >> give me three examples where obama would do something he would want to do by the law. >> no to times was a tiny one. the most -- there was a table in the front. ask with how his life would have been different if there were no statutory constraints in place. in terms of negotiating detainees it would have been radically different if there were no congressional oversight in congressional strains and the like times like. everyday executive branch officials. >> the guantánamo transfers. >> no goint, transferred you mention the prosecution. serious and 2013 is among the most important examples i think. there was a lot of pressure on the president inside and outside the to use force unilaterally.
without statutory authority and in violation of u.n. charter against assad for very good reasons. he was slaughtering civilians with chemical weapons so a sympathetic case and ultimately according to his interview with jeff goldberg he found himself, he surprised many in the executive branch by deciding not to do so. he found in separate cooling from the idea of an attack by international law and congress. that's a pretty big decision but let me. >> times. >> last. >> are my five up? just for framing purposes and we get to that things later if you think about this in terms of our well-known youngstown framework whether the controversial things the obama administration is done either without congressional authority or in violation of statute in category 3 in the first category i would say the first few days in attacks in
iraq and the initiation of the liberal -- libya operation. those are search and the executive authority without authorizations that are more modest than the bush that last modest than what tina might propose. in terms of disregarding statutes to two big examples are the passport case where the court affirmed the presence powers to not put israel on the the -- in the bergdahl case which is a hard and difficult case. >> the statute required there be a 30-day notification to congress before making the trade of the taliban to remove the taliban prisoners in exchange for bergdahl and they didn't abide by that. but with those exceptions the vast majority of the cases of claims of imperial presidency are statutory interpretation.
>> name e. ray is a professor of george -- the incidence galea law school not the antonin scalia antonin scalia school of law. >> she teaches constitutional law legislation. she proves he served as an associate white house counsel during the second term of the bush administration and she has written about the nature of a pity in constitutional law push testified as republican witness in the supreme court confirmation hearing for justice sotomayor. choose a graduate of the university of chicago law school and a clerk for justice thomas. we have been talking about foreign policy, national security abroad and we have been talking about commander-in-chief override very but a lot of the controversies have been about domestic law and whether president obama is being too aggressive in interpreting the scope of power delegated to him by statute. can you talk a little bit about
immigration fights and the obamacare interpretation five and so forth, how legitimate are the interpretations put forward by the obama administration and have they gone too far in your view? >> i think following up on what marty said a lot of this is viewed in this administration turned on statutory questions especially in domestic context and i think there's an interesting aspect to this. instead of taking broad claims of constitutional power things have been pushed into the realm of statutory interpretation. once you are talking about interpreting statute, it's much less interesting to the public. there's a lot less public interest in statutory interpretation. talk about getting to the nitty-gritty of a particular law and it seems like something for lawyers and not something for the public. the american public i think still has strong views about what the constitution means and they believe once we talk about
the statutes people lose interest. president obama's at has been smart in making the shift because to the extent that in some context they would like to ask with far-reaching executive power in the domestic context much better to phrase it in statutory interpretation as opposed to constitutional interpretation because you simply get a lot more notice for those issues. one prominent example is the immigration context where the executive has a tremendous mass of delegated authority to act on matters of immigration and i'm not suggesting the president has necessarily exceeded his power but when you see what is so troubling so troubling in the way that so much authority has been delegated to the executive is hard to figure out what authority he might have under
the statute pdf to go back and look at the very statutes relating to immigration to know whether he exceeded his authority. that is perhaps very troubling for individual liberty and when someone who is a lawyer or law professor would take a lot of time to figure out what the president has succeeded in his authority. it's also a problem with congress. congress has given up this authority and perhaps it's not surprising that the president has made such far-reaching claims about the authority. that feeds into the fact that executive discretion is quite substantial. a president can have a lot of discretion to implement the law and so want to have a broad delegation from congress can bind with executive discretion is a round in times in which there is not a lot of flaws to hang onto. that can be very troubling for the expansion of government
power i think as a whole. >> even if you yourself are sympathetic to this white house and not stating which team you are on that can you help people articulate reflate what is the case if you personally are not sure that is the correct way. >> in the immigration context? the times effects of this are very well-known that he has their number of serious supporters said that millions of people need not be deported and they are not subject to immigration laws. so there is really a fence that this is an overreach and i'm sympathetic to that view. >> it's not faithfully executing the law. >> it's hard win down what it is when you have such a large mass
of statute of conferring authority. maybe well that he is exceeded a lot but perhaps not. you have to look at the statutes and i think it's interesting the supreme court has added a question to the case about the care cause, shifting it from the statutory question to a constitutional one which may well be -- it's interesting because there are no cases where the supreme court has analyzed what the president rule is under the k. claussen indicated they might be about to do so. >> let me jump in here to keep things moving along. the four times fourth speaker is walter dillinger. he's a partner to -- best known as a former acting solicitor general during the clinton administration. i was always much more excited about the fact that he was the head of legal counsel where he wrestled in particular with more power issues that arose in the 1990s. he wrote some seminole opinions
about the bosnian interventions and that belief among other things he was the most important voice in articulating the notion that there are interventions the all short of war in a custom channel since in terms of the nation duration of scope and some wars do not need prior national. vultures are graduates and former clerk to justice black and has talked -- taught at duke law school. walter what do you think a president, i'm sorry what should the congress do when confronted, let's stipulate that the present is gone too far. we have seen increasing trend of that one chamber congress filing lawsuits against this president. we have seen states recently jump into the courts.
what do you make of this and where are we going? >> first of all i think what congress and the state should not do is run to the federal district court when they have a disagreement. this is particularly true congress. i think when you talk about statutory interpretation it's important to realize that i think the reason for moving to the statutory claim is not because he gets less noticed but it's a far less aggressive assertion of authority. the constitutional claim cannot he trump if the president had claimed a take care of authority to violate statute you would have to take care issue. the action and immigration for example rests upon 2002 subsection 5 which says that the
secretary of homeland security shall establish national immigration enforcement policies and priorities. that's important because congress has a remedy which is to say can revise the statute. i remember the hearings. i was not able to testify one of the hearings but i would have held up a copy of chapter 6 of the united states code instead everybody on the committee you are party to the secretary of common security the authority to determine national immigration priorities. you provided resources to deport half a million people a year out of 11.5 million people. the president set those priorities and what you could do and what not a single member of the committee criticizing the president for being wallace has done is reducing legislation saying no here are the priorities.
and conferring upon the secretary the responsibility and a duty of establishing immigration priorities we are going to set the priorities. everything this administration suggests repeatedly that they would absolutely comply with the congressional -- congressional determination but the powers are. deport family members and let the fellas day the president is going to do but this must be conferred upon by the administration. can i jump in? is there a limit to that? laissez president of says my epa and the justice department need to set priorities and we have a priorities zero on air pollution. >> i think if you read the olc opinion of justifying the president's immigration order it asked whether the president is carrying out this broad delegation in a manner that is constant with the policies that
congress has sought to advance. the one part of a pin in pending a question that is where it limited the authority of the president to grant deferred action with respect to parents of dreamers on the grounds that it could not see the same rationale and other things congress had done so it's actually a quite limited, a quite limiting opinion. it's limiting the scope of the sweep of the authority the president has given. >> we have one minute left. what's the problem with going to the court? >> the problem is in the technical sense there is no injury. congress's job is done when it passes the statue. winehouse has no more just in the statute than any other sitting in this room does and that's important. let me give you the two sentence version if i can.
why in a country of 320 million people do five men get to decide an issue like this involving 11.5 million people times people? the reason five people would get to decide this issue is that they have a job to do and that job is to provide redress to injured victims. that's the only justification. because we have a job to do of resolving disputes between berlin times berlin against and addressing injuries that and only that gives us authority times the authority to proclaim the meaning of the constitution. so absent injury, absent any justification other notification of what elected representatives for three and 20 million people want to do that's why think this case where the state of texas is claiming injury. how the president is interpreting the financing of certain provisions of the
affordable care act on a very radical, very radical step in the way of expanding judicial authority. we are going to wrap up round one with a professor of virginia law school. he teaches constitutional law musical power to say other of among other things the new book imperial from the beginning the constitution and the original executive which argues the office of the presidency was deemed as monarchical. he is a graduate of lakefield law times law school and another former clerk to justice thomas. you sort of draw together the two strands we have been hearing so far this morning about the bush years and the obama years in foreign policy and look forward to the next president. what we learned so far in the 21st century and where might we be going? >> thank you so much and i thank
all of you for having me. this panel times panels incredible and i've learned a lot. i think the first lesson is go back and read the interview that charlie did with candidates in 2007. think it's available its available on the web site. it's incredible. charlie send out queries to candidates in baxley responded about real important issues in presidential power and constitutional law including president obama. i don't think you have met with as much success because they realize they don't want to answer these questions. they want to say things will come back to hunt them. my first is don't get -- about what they say about presidential power. they don't really believe them or they don't believe them sufficiently to hold to it in the long run. lincoln was awake who invaded
against presidential power. expand funds and expand the army. president carter ran on a platform of making department of justice independent. he went into office and his lawyers told him he couldn't do so being consistent with the constitution. he didn't do so. president bush talked about no more nation-building and of course we are still trying to do that in various parts of the world. in part because of the wars that he launched with congressional approval and i think the same is true for president obama. he had perhaps executive power but when the rubber hit the road when he became president he realized there were things he wanted to do and sometimes prior theories of law and the
constitution died away. libya is the most conspicuous example. there was no authority for congress to attack libya and there was no claim that the 2001 or 2002 authorized it. he did anyway times it anyway. marty talks about syria but syria he didn't want to go into syria so he blamed congress for not giving them the authority. had nothing to do with any constitutional claim. i was just a fig leaf and that relates to my second . presence go to congress for war authority only when it doesn't matter. they go to congress if they think they are going to get authority but they don't go to congress if they won't. bush goes to congress because he's but this is going to get authority. president obama did not go to congress for libyan authority. he went to congress in syria because he knew he wasn't going to get it. he expected them to say no.
i have a friend at northwestern he says basically president says a matter of practice go to congress as a matter of insurance. they can spread the blame to others if the war doesn't go well and we have seen the blowback that candidate clinton has gone through for voting for the iraq war in 2002. that's a successful strategy for president bush where he basically shared some of the blame of congress. when we hear president clinton candidate clinton talk about things especially candidates -- [applause] especially candidates choose what they say about residential power. they have been given deep thought about it and they will be told otherwise by their lawyers once they get to office and they will follow with their lawyers say. i say this first respect to canada clinton who she's a lawyer of great repute. she is smart but that didn't
stop a former constitutional law professor from changing his mind about the scope of presidential power. >> do you think president trumbull follow what his lawyers say? >> if he likes what they say he will follow it and if he doesn't he won't. >> lets to round two. this is a good transition so you are starting to talk about congressional abdication might guess of their constitutional role in deciding whether the country's times is going to go to war or not. talking about when presence go to congress and they don't. notably president obama has not gone to congress for explicit authorization to fight isis. can you talk a little bit about congress's abdication of its war power and maybe tie it with how courts have dealt with war power issues when they come before the court? >> i started addressing earlier
on a bit of congress is abdication. i think there are few outsiders in government who don't think it is a real issue that we are continuing to fight wars in 2001 amuf and who are concerned about how much authority congress might give the executive branch. there some instances in which president obama hasn't wanted as much authority as congress would want to potentially give. there's a level of irresponsibility there but what i find a little bit more interesting or perhaps challenging to talk about is what are the consequences of the judiciary. the substandard point is that there have been internal executive branch interpretations of different legal frameworks, the laws of war, the loss of sovereignty and self-defense in
terms of sovereignty complex, constitution and if you go through the memos and they are better argued what comes through is cherry-picking from some of the most parts -- permissive aspects of each of those frameworks with arguments against the most restrictive aspects don't apply or may not be invoked in court. that is a matter of international law times law interns of the system that we helped set up. also matters because there is no review, judicial review of us far despite the fact that in the four instances in which the supreme court stepped in and i'm talking about executive power in the and the authority to detain and prosecute it ruled against the bush of administration. the courts have not engaged in and have deferred to questions of interpretation of legal
authority to use lethal force including against u.s. citizens including outside areas of recognized armed conflict and that's a real problem because there has been without congress and without judiciary he continues to be in times a lateral executive branch interpretation that the executive branch claims and internal branch processes to satisfy due process. i think when we think about what matters with respect to the next administration that should give us pause. i'm reminded back in 2012 when the prospect was on a president who is a republican there were concerns within the executive branch about what powers would be handed over times over so there were discussions about policy constraints that might be recognized even though the legal framework claims were so broad in that led to the perspective
targeting which what we have been waiting for in terms of its release. but it matters that we have legal constraints as well as policy constraints and it matters not just because we might have a president trump and that might give us cause, what legal limits would be recognized even if it isn't president trump and it's president clinton what other legal limits recognize geographically temperilli with respect to use of lethal force and an area i'm going to talk about it in guantánamo is the ways in which claims up or a desire for maximum flexibility in the part of the executive branch. it usually goes one way. it can actually serve to constrain policy outcome so with
respect to guantánamo i think potentially because of litigation decisions that were made early on in the bush of administration potentially as a result of policy times policy situations both of which you talk about in your book charlie the obama administration continues to claim the authority to hold people without charge or trial and the potential to close clarkona mouth by bringing people to the united states. and i don't think anyone should make any mistake here. there would be significant separation of powers concerns that the executive branch sought to override congressional restrictions on bringing people to the united states for closing guantánamo even if we closed the physical place dozens and one of the original sins which is claims of four based authority to hold people who were not captured within or even in the context of armed conflict
continued to detain them indefinitely without charge or trial regardless of where that happens in nassau including guantánamo. >> i want to praise you in the panel for her. plug to my book. i think that's a positive trend and let me say if it wasn't for geeks like you -- get on your smartphone right now. marty we will turn back to you. i want to ask you two questions. one is squeezing into your five minutes if you want to respond regarding her concerns about targeting and the approach to targeting law, please do and if he times you could segue to something that pushes into the other currents we have been hurting about congressional paralysis and dysfunction. to what extent is it legitimate or more legitimate for a president to push the boundaries of his or her authority in a situation which congress is not
living up to its constitutional role to pass legislation and confirm people? >> on the last question i will try to get that but if i don't everything i know about it i learn from walter so i'm sure he will be able to address it which is when is it appropriate to take aggressive interpretations were to exercise broad delegations that congress has given the president rather than trying to work out new legislation with the congress. it's a very important question. let me use tina's example among others. by and i agree on a lot of the substance of war powers and the like. suppose the message i'm trying to convey to convey is i want to push back against what i will call the cynicism or i might just call it realism that he is described. of course it's a case that every
presidential candidate when in office will do things that might be inconsistent with here she said during the campaign and for that reason candidates are very reluctant to make full claims. i don't think it was a mistake for president obama and i don't think he thinks it was a mistake if i might to make the sorts of claims about the law and the statutory treaty based in international law that he campaign. that was a big part of his campaign. i think he believes it and i think it imposes dramatic constraints on the way that he acted or any other president would act in terms of what options are on the table. syria is a good example. i think, i don't think at all the president didn't want to take action. think he wanted to persuade congress and its allies in europe and elsewhere that assad needed to be stopped times stopped. there was intense pressure within the administration for most of the advisers to do so
and his failure to get international and congressional sense he was unable to persuade them and it would be wrong for him to act unilaterally. so i think that's a very important example. even where the president asserts authority of think this president was thinking in the campaign of 2008 and also has president about the legacy and the president and the example he was set for his successors many years and the future. not just a possible donald trump at any successors. both in terms of what assertions of authority are made it's important that the congress gets the last word in it's important or not be too many assertions of you lateral authority to disregard statutes and international law but even where he does, gets a times the ticket in the first two months of the administration that the president has the authority to
detain an armed conflict members of al-qaeda who were captured. there's a very valid substantive question in that regard times regard but yes he thinks he has the authority as a matter of domestic and international law. but look at what he has done. he hasn't exercised it at all during this administration apart from guantánamo. he is virtually cut back on the practice of long-term wartime protection instead moved in virtually every instance reflected in charlie's wonderful book for another plug. you really ought to all read it if you haven't already, to use the ordinary forms of law enforcement to deal with captives in this armed conflict. he believes that is the right policy. similarly the policy guidance on targeting is intended at least
internally and i hope externally as well by the end of the administration to impose constraints be on what international law require at least in the view of the united states in part because allies are uneasy about some of those international law claims. because he doesn't want to be pushing the legal envelope to broadly where it's unnecessary to do so. the exact opposite of the bush of administration. they didn't need to make broad claims of authority because congress had given them this with respect to the war against al-qaeda and the war in iraq and they wrote 30 page memos. the first footnote of which is congress gave us this authority but ignore that, we will explain to you why we did need congress's authority. we don't need to do that. that's because they too won to set a precedent for future presidents and administrations to have the idea and to act with a feeling of not being
constrained by law. i think that makes each difference in the way the government works but i can't prove that. i can tell you from experience. >> i'm going to flip the order because it seems like a good -- can you respond to him and talk about in particular your thoughts about libya in 2011 both going in the first instance without congressional authorization and staying in without congressional authorization passed the war powers resolution. >> this panel is so interesting and provocative. these people are so great in charlie's look is awesome. it really is a great look. >> why do we debate about that. >> i think we would all agree. one of my favorite pieces of fiction as times as georgia wrote animal farm. i want to spoil it for you but i'm going to.
the animals have a revolution and they cast out the humans but at the end of the times the book for start walking on two legs and start having dinner with the humans while the other animals are outside. i think that's basically the obama administration microcosm with respect to presidential power. i'm not going to get into the policy but on the question of presidential power i don't think there really has been much of a difference between he obama administration and the bush of administration. in terms of the outcomes there has been a lot of discussion about the statutes and not constitutional authority. i don't necessarily mean that as times as an across-the-board criticism. when i hear tina talk about that talk about the amf the 2001 aumf is not the obama administration. it is a blanket delegation of authority to go after persons organizations person's organizations and nations who conducted 9/11. asked my foreign relations class
could be obama's administration attack people in saudi arabia under the 2000 amf on the fact that they'd help the hijackers may think the answer is yes. the 2001 aumf is incredibly broad. and when i look at the proposed aumf administration this is a deeply cynical document because it doesn't repeal the 2001 aumf and it has all these constraints. no one during offensive military operation under this new aumf but when this expires the 2001 aumf is still operative. there's a three-year limit to this proposed aumf of the obama destination which is relevant because the 2001 aumf is a backdrop. i don't see a major difference in outcomes. i thought we were still taking prisoners.
one reason we are not taking prisoners is because the present is biting this war with drones and there are prisoners to take. this is not meant to be criticism. i disagree with tina about the attack on isis. i think it is covered by the 2001 aumf even if al-qaeda and isis had -- if hitler is gearing and hitler had a dispute and they both fight against united states during world war ii i think we were attacked with them. gearing doesn't get a pass because he called his country firm in the end we are only going to attack hitler's germany. i'll think that matters. i'm not trying to be critical. i may sound that way times way of the obama administration produce marty woods and trying to be realistic. >> let me switch to walter who seems to be itching to respond to. first you want to respond to him
and is part of that can you incorporate into your answer, it if you do stipulate that a president bush of not obama or trump not obama depending on which team you are on islam was what institutional arrangement can we have that will function to constrain that? >> first evolved to respond to side i think there's a fundamental difference between claims of constitutional authority and claims of statutory authority. even if you might say it gets you to the same place. take for example to me the most dramatic example is electronic surveillance, national security after 9/11. there's a statutory framework that is clearly directed at times that the executive branch. sets up a court that you go to that is never had a leak and you get authorization. it has a provision whereby in
terms -- times of emergency you can go to the special court. i didn't think you could have argued that might be and constitutional if you had to do so many wiretaps in such a short time that you couldn't comply with the timeframe set but you would have to comply as rapidly as possible. they simply said that i have to comply with it. and they didn't tell anybody. nobody knew, nobody knew that they were absolutely violating consciously deliberately and secretly a constraint of the most profound guide and abstracts me as something the likes of we have not seen. we have a law about the use of torture as well. that seems to me to be different than open statement transparently arrived at claiming authority under an act of congress in inviting congress to correct you. that is what lincoln did even
when he suspended habeas corpus. they indeed made alterations and cutbacks on what lincoln had done. that's his what i would say that cheney addington doctrine was so profoundly at odds with our constitutional order. i think there are institutional arrangements. think it's better or they present to times to get his liquefies from the department of justice and by friends of the white house counsel know. >> that's what bush said. >> well i think you are correct that is not sufficient particularly if the vice president's legal counsel is driving the actual decision-making process. it's not much of a constraint but i do think there is a real advantage in having legal it buys come from the attorney general. i spent three months in the white house and 93 going to the justice department and i think
it's a very difficult place to make legal judgments. you are surrounded by people that are doing policy in a very intense environment. everyone is looking at the 20 minute newsfeed. some people look ahead to the evening news, that far in advance. these people are called visionaries in the modern white house. but the department of justice has an ongoing institutional responsibility and i think to have, to put the best lawyer i would put neal edelson as head of alosi. no disrespect to the individual but their institutional arrangements that make up way. i had a 1000 paths so i went every other day went to the white house and went from office to office and said what you doing that you are not telling me about? i think that is where you need times need to set up authority
that operating agencies have different dynamics and there is a greater constraint is the only role of the department is not an operational role that is a role to make legal advice and that would be my preference. >> i'm going to turn to miami for the last set of questions. if you have questions you would like me to ask in the final 25 minutes now is the time to make sure. can you provide the grand climax to all of this by tying it back together with the recurring theme of congressional ineffectiveness and maybe add a new dimension which is you know presidential power and in the domestic investigative trust us russ is, vis-à-vis congress. >> i do think following on the
other comments i think that there is one quite significant difference between the claims about executive overreach him between the bush administration times administration and the obama administration and i think during the bush administration most of the discussion was defined to the role of foreign affairs in which questions about executive power are quite different. we can have legitimate debates about what the scope of this power those power should be but i think the executive power most people would recognize as different when it's focused outside of our times our borders and inside of our borders and to me the more inches in question with this administration has times has been the must take overreach particularly in need misread of contacts. ..
. >> n deadline is the consumer protection in financial peril that is an independent industry cannot be fired by the president it is not subject to the appropriations power as they are taking a number of actions that are outside of the public visibility for instance they are gathering financial records or credit-card records of hundreds of millions of americans with no discussion that than i could find and knows scrutiny or accountability for what these agencies are doing
because you can see they are independent they are not part of the administration but on the other side you have the federal communications commission with neutrality it is widely reported in a cave out of the ftc and was directed by the president may be the president should direct the ftc but then there has to be some ownership of that. so there is a lot of examples of domestic overreach and not even owning that bennett hiding behind the various structures of bureaucratic independence which i think is quite troubling. >> i do think the problem is one for congress because that is the only place you could have the truly effective check. >> that is of great transition congress people
have promised they would keep president trumpery team didn't so what realistic can congress do? >> who wants to take that? [laughter] walter. >> i think just on the notion of statutory claims it he says i will not comply with congress directs me to you do then that is at the heart of this. congress can exercise the appropriation is authority if vice and consumer authority fighting whoever is the next president the senate should confirm all executive branch nominees
for whatever party is. because they agree with the president's policies i think congress has ample authority if they choose to exercise it trying to make mileage out of claims that a president when they have undertaken to enact legislation so we're not in disagreement. i think it is under feet when people say don't worry about a candidate from because of the white house counsel. [laughter] and i faked i would be more comfortable if i knew who the attorney general would be in making judgments. >> it is very hard for congress to have these significant power they have all the big powers but if
the congress wants to say something about immigration they cannot place constraints or both houses of congress overruling the department of labour relationship and that is the prerogative but it is very hard to congress -- for congress to take back so the solution should not be running to court it has weakened the institution when they seek legal redress >> getting back to the question that we didn't have enough time to insert but yes, yes they might be able to do so but congress through the confirmation it
has to wills said its to spousal they are soft waves of insolence better quite profound. which is unjust the critics of the obama administration to do whatever they want it encourages bad to say that is right. so this idea that congress is dysfunctional and there is rhetoric from the things they're actually doing the president do it didn't do anything for immigration they issued a directive because copper -- congress apprised him to do so not the president. >> of course, he did it with the president's approval.
>> there is nothing illegitimate about that but the rhetoric at the time is congress is an acting i have to take the law into my own hands and i understand why there is political pressure to do that but to take a paragraph out of the legal brief since congress will not legislate to exercise discretion discretion blob blob lot to provide or congress conferred upon and 86 to delay immigration. that is not what they do. the public discourse is not in terms of the boring statutory authority is. and i went cautioned the democratic administration to be a little more modest in the way they sell things and
to explain they are not acting as the autocratic president. >> i will stay with you for the next question how do we think about the legal and moral defense ability of drone were fair with the enhanced interrogation techniques of president bush? >> we have an entire panel here devoted to that question and i think it is probably of mine. -- on-line. >> this is live journalism. >> i don't have anything to add everyone in this audience is just as entitled as i am if they take it is immoral or not. so there are many legal questions a whole slew and
drones in particular under statutory law isn't executive orders in terms of sovereignty in human rights the legal question does not reduce to a simple question i hope what has come now has been released demonstrate these are hard indelicate legal questions each of which insist upon its own assessment to the people will come to different views so that structural question may not be as important as the moral question but can you violate a statute?
when you think it is in the best interest of the united states to do so? i think the answer really does matter is it the be all and end all just a question for the constitutional lawyers. >> i bet you're ghana say torture is still legal the matter what. >> and those who think that killing is the worst day and torture admits that. >> but one significant difference it is no exception whatsoever now there is more arguments under which some people force can be used and the forces the obama administration for starting in 2009 with the drone
campaign, was contested to say it does matter if this is day then ship the part of what is remarkable is the rules have been contested but it is the conversation about the most elemental rules taking place among the elites with the places that our rich in the administrations were not claiming a basic authority. and the threat of a new normal to be put to an end there has been deep
disappointment with respect to global wars but if you go to the legal arguments and even as the citizens are subjected to this claim to power the outcome is very much the same mib are left with this day democratic administration it is something quite extraordinary that is a bureaucratic infrastructure that has become entrenched that permits the use of lethal force based on internal interpretations of for based authority that could be cast aside with no review whatsoever.
>> jefferson powerball once you finish reading all of his books there is a new book out called targeting americans very subtle a nuanced thoughtful but the opening sentences on september 30th 2011 the executive period judge denies states government deliberately killed citizens of the united states that sets it starkly but he is the first to say how difficult these questions are. >> one striking thing that i take issue with he is right to if we were to have a more robust public debate for the use of force the result may
be more broad and aggressive and not only on the right to to say we're wrong that the due process clause applies with the constitutional bill of rights does not apply a lot of people on the left-hand the right have said that i don't think it is right but similarly i feed it is a mistake to think the end of the obama administration is the same place at the end of the bush administration just like this strategy the he released as today or the day before it is back to the global war on terror and insist it is not only against al qaeda but all islamic terrorist of any kind but basically that we
should use force the world over from developing the capabilities and there is a broad theory to keep them from the capabilities before a they struck there is a huge difference s.a. a practical matter from what the war powers thought to be in the authority said this may be the best you'll ever get. >> but i am not saying that's paul reilly insisted is the same as the use of
lethal force intervention but the legal interpretation and restrictions recognize there is so much that you could get to the same point when you think about transportation for those forces and i do think there is the real difference from what is authorized but in the terms of the policy debate to itt would have a more robust debate if there wasn't as much continue being secrecy. i think there is too much with those policy issues that may be helped by the release of the playbook i am somewhat skeptical but in
our name under this policy people are killed and numbers rigidities have not been disclosed in domestically talking internationally, we don't have the results of investigations with respect to credible allegations the president had recognized and named the killing of a u.s. citizens that they would receive the results of the investigation but have not done the same with the vast majority of people who were killed in these kinds of strikes and there is a real danger the public debate is not just skewed by i entirely inaccurate and that
we as a public are deeply distanced from the realities on the ground from those are suggested to use policies. >> next question. near and dear to my heart, please comment on the increased use of presidential signing statements. [laughter] this goes to walter because he was head of the administration and then he approved of their use and of course, statement dash signing statements when he says the sections of this to statute the big
controversy, the bush years until the second term rather reagan administration but it has picked up for those ideas they that they were not crazy. [laughter] >> all the a savage could take something as technical as a signing statement and turning into a journalistic issue. [laughter] first of all, the issue is it cannot be signing statements with the issue has to re-read can the president declined to enforce an act of congress to be unconstitutional that he is signing into law. i understand that and i will come to that the when a
president does that then he ought to tell people he is doing it and as soon as he signs the al lot. and now all i don't believe in the modern era that it is feasible to say the president's authority to apply with a constitution but his only choice was to veto the omnibus act with the kind of military pay because it and tell me he doesn't know or hast appointed special people larger small the president can say the supervision of this bill which could be construed common a few harvard directing the
appropriations act you need to put the jerusalem a and israel on the passport. >> i have no trouble with that but i think this administration and any administration there is never one ever has or ever will step aside propositions with the authority to enforce laws and the supreme court has repeatedly authorize the presidency there for when he does it, the congress is acting whether they're right to or wrong. >> but this. >> respectful of your but
>> couple but to have a single piece to say it is unconstitutional. there is always the provision with the omnibus bills would assure response? >> i think the modern practice where the president has a signing ceremony were people clapping he sues a statement to say by the way six of these is unconstitutional. leased to veto the bill that they had no choice i understand their dilemma with the entire budget and on either hand if you are in congress there is very little downside weekend as you know, they will sign it
anyway. with the dubious proposition -- proposition and from that static perspective to say if he doesn't sign the bill washington will come to its knees. but from a dynamic perspective there will be fewer bills of constitutional problems i will veto every bill. >> you do that once and then they get the message. or he could call them into session. >> i agree. i don't believe he has to