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tv   Brennan Center Symposium on Presidential Emergency Powers - Former...  CSPAN  January 18, 2019 2:38am-3:44am EST

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war. that is so amorphous, it can be done at any point. even though i think it's unlikely thaty this president would try to shut down the whole internet, you can with muchf damage more tailored interventions with the internet, including ones like prioritizing communications that wouldn't necessarily even have to be public. so that's mine. but i think we have to stop there. thank you so much. we will have a -- i don't know -- like a four-minute break. [laughter] >> i'm sorry it's so short, but a lotise there will be more time around lunch to get your lunch and later in the day, longer breaks. thanks for bearing with us. [applause] [captions copyright national cable satellite corp. 2019] announcer: next, former administration officials discuss specific examples of when
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presidents george w. bush and barack obama used emergency powers during their presidential terms. this portion is just over an hour. [applause] >> thank you. >> thank you. as we're passing out timephones, i'll take the to introduce my distinguished panelists. it's an honor to be here with them, many of whom i've worked with in the past. is troy, the me vice president of public policy at jewell lance. that -- jewell labs. he's literally written the book about the process to be used emergencies. his boot is "shall we wake the ofsident, two centuries disaster management in the oval office." next, currently deputy director
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projectslumbia hill program. prior to that, deputy national security advisory, deputy director to the c.i.a., most importantly to me, my client. and before that, my boss. then next is carl, formerly theciate deputy counsel at department of defense, a colleague of mine when i was at the pentagon. guy for all questions. we have a distinguished panel experience in dealing with national emergencies. we're not going to have opening remarks. we're going to get right into having a discussion. our hope is we're a little bit short on time, but we're going to keep time at the end to have comments. we have a very hard stop at 12. someone could flag so we can wrap up the discussion and would beuestions, that great. we thought we'd start -- we've heard a lot about what can be declared. this panelryone on
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has experience on invoking those authorities. situationsk about they encountered in government when they considered the use of emergency authorities, what were considerations, how did it play out. i'll start with carl to talk experiencesf these in that regard. >> thanks, chris. importantthe most situation involving emergency response towas the the terrorist attacks of september 11, 2001. the president obviously invoked emergencies act there. defense department as well ofcoast guard, department homeland security, had to make the decisions of what was authorities were needed to fight the fight that was going to happen. and the initial declaration of
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national emergencies contained personnel emergency authorities the force andape stop laws to keep people from leave at the end of their enlistment or that sort invoked.were later, an executive order was promulgated that added 10 usc 2808, the construction authority, which was very important, because the forces into anloying undeveloped theater. so i would say, in that case, it way it wastly the intended. theed authorities for department of defense were granted by the president to the of defense, who then used them to fight the fight. >> thanks, carl. i don't know if you have any examples of emergencies or invocations of emergency authorities that you want to mention.
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>> sure. i mean, i think one of the things i was thinking about, as earlierstening to the panel and the discussion of these authorities, i think we differentind of a rubric in our head, depending on what we're focusing on for the different categories of emergencies. there are sort of typical emergency declarations that i we would see, stafford act, things like that, where they strike me as very easy for the public to understand, sort of the intuitively here's a here's aisaster, public health crisis, here's certain things that one can enacte that you would emergency authorities or there would be emergency assistance. there might be additional help variety of things that go on. then there were sort of other kinds that --e like sanctions that's been talked about under ieepa where have these national declarations of emergencies that anentially are done on annual basis.
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andthey are for places issues that you don't -- i think the natural instinct of somebody on the street is they wouldn't unrust in burr -- be at in burundi to national emergency and yet they've become part of the norm. they are sort of the -- you know, we send up the memos. you sort of get the president to yes, sameou know, language, right language. others look at it, et cetera. it goes through a process. and yet we've gotten comfortable with that in many respects for do things.hat we then you have a whole series of basically authorities and issues. sometimes you're not as -- as well articulated in the earlier panel. you don't always call them national emergencies but nevertheless what you're doing is setting aside the sort of normal process. providing additional authority to an act to take they ordinarily wouldn't have authority to do. that's the space that i think
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of most challenging in my respects. i think we'll obviously get into, what are some of the within that that make it so challenging? >> yeah. she says we need to look at this in terms of different categories. declarations happen all the time. the president has to sign dozens of them a year. found in my research on my book is that the number of declarations has been steadily increasing since we started doing them in the 1950's. i also found there's kind of an devisible byyears four. it seemed that there tended to inmore disaster declarations presidential election years. one of the things we talked other political -- are there political considerations. there very well might be. we call these emergency powers but they are relatively routine. wasnd thing that i thought very interesting, sometimes there are powers or declarations
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are just continually called and as long as we continue to them, then they remain in place, except, of course, when we don't. example, the u.s. had a policy to move the embassy of u.s. in israel to jerusalem and for years, they didn't because state department would this memo saying, for exigent reasons, we should embassy.the finally, in this administration, they said, ok, we're not gonna go by that and they did move the embassy. so these things are always the same until they change. when it comesg is to the stafford act declaration, frequent, ithe most would say. you'd be surprised how kind of the weeds government officials who don't really know much about the stafford act suddenly get when these disasters come up. i remember there was a guy during katrina who was the act.t on stafford we were constantly calling on this one guy and asking about
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stafford. fundingford is mostly a mechanism. it says we can use emergency you're nothanisms so going through the normal appropriations process. and on that point, on these appropriations or on these specific declarations, it's to do table top exercises so that you do know is the guy to call on when these things happen and you do know what everybody's roles and responsibilities are. i always like to say, if a disaster happens and the federal officials show up and they start handing their cards to each other, you've already failed. you need to prepare in advance what youru know capabilities are and who does what. and the last thing i would like this question for anyway, is about the issue of how to think about disasters in i think is really extremely important. so, for example, when i was in the bush administration, we talked about flu preparedness and what happens if there's a pandemic flu. one of the things we talked about are, what are the public health emergency authorizations
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has that hesident can use? what if we need, for example, to workutical companies together in order to come up with a vaccine more likely or to the vaccine? and there are very strict rules companiesarmaceutical colluding, for example, but in cases of emergency, the havedent can say they these authorities. these are the kinds of things that sometimes government officials have to think about in so they're ready when something bad does happen. teddy.ks, so i think that certainly is consistent with my experience, stafford act declarations, ieepa declarations. they're basically part of normal making. then there's these emergencies like the internet kill switch, it, that aren't part of normal policy making. ofthere -- obviously part that is that some of the statutes that are part of the normal policy making occur more frequently. but what do you think of the other constraints, on the use of
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usedrities that are not frequently? is it an issue of people aren't thinking about them normally? they're not aware of the authorities? is it an issue that there actually is bite to the findingsnts of -- and a president has to make? i don't know, you know, maybe carl we'll start with you, if have thoughts on what leads to the authorities not being invoked. at all, again, looking specific example and i was grat to hear bill's presentation because it involves the non-invocation of the insurrection act during hurricane katrina's response. at is the time, it was clear that there were significant problems that were going on. kathleen blanco requested federal assistance in the form of give us everything you've got. clearly they didn't need everything that the department had.fense bored downgs were
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into, to identify what specific needs were, reports began to in about lawlessness and violence that were going on. there's a new york times article 9 of 2005 that details -- purports to detail some of the discussions that went on of the factors that were involved in deciding whether or not to invoke the insurrection act. things that were listed were the fact that of anor blanco was a woman party different from that of the president. unclear that she had maintain order. certainly there was violence. but how extensive was the violence? additionally, there was the specter of if the president were to send in active duty forces forces took over the
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law enforcement piece of the response, there was havesibility that we'd military personnel shooting u.s. citizens in the united states. and as has been discussed earlier by both liza and bill, long tradition of not using u.s. military force for within thement united states. long before alexander hamilton a hit the subject of musical, he wrote in federalist eight, cautions against overreliance on the military, standing military to begin with. but should one exist, not because on it, there was a possibility that the but,ary would take over rather, the people would
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in ordertheir liberty to achieve security by having do everything. eisenhower, in his farewell address, addressed the caution of the military industrial complex. he specifically indicated that take a thoughtful and thelant citizenry to ensure proper balance between peaceful things and useg of the military industrial order to ensure both security and liberty. about've already talked the act being a specific statutory prohibition that, of course, the insurrection act would have overborne or waived effect of. i was looking for a different
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word. [laughter] another factor that was available, again as bill mentioned, was the fact that each state has a national guard and that national guard is under the command of the governor, under normal circumstances, although the president has the to call it into federal service. an intermediate status under article or title 32 of the u.s. code in which the ofted states pays the cost the national guard but it it remains under the governor's command. the national guard bureau was very actively observing what was going on and coordinating among the states to determine what capabilities the national guard to bear.d to bring so in the end, the decision was not only title 10
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heavy but also a very contingent of national guard police lots of military personnel who knew how to deal with law enforcement as opposed to merely the 82nd airborne or marine combat forces. and the arrangement that was out was, at least to my recollection and knowledge, patrols injoint which national guard forces performed the director law , thatement functions there were federal forces there, also present, and frankly if with gunsing people and they're all wearing green think thei don't folks who were engaged in unlawful conduct drew distinctions.
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and eventually order was response and the continued as appropriate. over, moreit was than 50,000 national guard 20,000and more than active duty personnel were involved in the response. >> thanks, carl. think teddy had a comment -- wanted to comment he make. >> first of all, as carl notes, the use of the national guard is time-honored tradition when there is a case of some kind of law enforcement emergency that is not something that is completely unusual. fortunately today, it is wasn'tely unusual but it always thus. in the 19630's, as many of you we had urbans, riots. and every summer of lyndon presidency, multiple summers, especially in 1968, after the assassination of dr. king. but when pat moynihan, a democrat pat moynihan, who was a
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democrat who served in the johnson administration joined the nick and administration as a key advisor comes into the white house, he was given by his predecessors from the johnson administration a pad for calling out the national guard. all he had to do was add the name of the city and the date, the president's signature, and that is how they would send the natural -- the national guard. that is how frequently it was happening. but in terms of posse comitatus and katrina, it really was a front decision -- a fraught decision that the president thought about a great deal. i was in the white house, and just hearing about it in the article is giving me ptsd, i must confess. but it is true that the governor was from a different party. gender was not really relevant, but the fact that she was from a different party, and president bush was a republican,
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that is something we will talk later about, when party a tells the state that leans toward party b about an emergency, what does that mean? but posse comitatus goes back to 1878, referred -- rutherford b. hayes. a lot of sensitivities in the south regarding troops in their states. louisiana is a southern state. that was part of the consideration as well. i think it was mentioned in the new york times article. decision is that the to bring in federal troops is and i highly political, don't mean in a partisan sense, but something it conveys and it says to people of a nation, across different parties. it is a very politically complex decision that has to be made. i think president bush handled that the right way. you will see in my book, even though i did work in the white house at the time, i don't say
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we handle everything with katrina correctly, because we didn't. i think that was one sensitive decision that was handled appropriately. avril: just to figure out where to add something useful, in thinking about why is it that the charge, so many of the authorities that are available are not used. i had a series of things that were constraints i saw variations of while in government. i think one of them, we have talked about a little bit and others will have had experiences as well. when you declare there is a national emergency, for example in the context of a public health racist, that can create another dynamic that you think is negative for actually solving it. do you create panic i declared something a national emergency -- do you create panic by declaring something a national emergency? sometimes it goes in the other direction, which is people want to galvanize action, or they believe that is something that activity,te further
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essentially, in a direction they are interested in. another thing is this pragmatic piece, which is well covered in the context of, if you are declaring a national emergency and providing assistance to a state, if the state does not want it, it will be a lot less effective, and there will be a lot of pragmatic challenges in the context of actually doing the work in that way. saw that in all places, in the context of russian interference in the election, where the question of declaring something critical infrastructure was intended to help the states be better at defending their election infrastructure, and it was pushed back on, as you will have heard from jay johnson. pieceis a relationship that you have to work through if you are trying to be effective in addressing whatever the crisis you perceive. something i would see, it was
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rare, in the context of foreign affairs. in the context of the national emergency is in venezuela. the fact that we have declared a national emergency as a basis for the sanctions was something that was used by the venezuelan government to say, this is ridiculous, this is america overreacting, overreaching. it is interesting how you characterize it in so many different ways. but i think there is a question of legitimacy as well, and i think that is one of the reasons why i categorized the way i did, to say that sometimes things you don't think of as national emergencies are characterized -- categorized as national emergencies, and some things you do think of as national emergencies are not. in our system, we have already distorted this a bit in ways that make it complicated to untangle when trying to deal with a national emergency you do not think is appropriate. christopher: this question may be best for you, avril. i feel obligated to ask because jim baker said we have to talk
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about youngstown. i was always struck by the fact that president truman sent hundreds of thousands of u.s. troops to korea without congressional authorization, and later in youngstown they say, you cannot take over the steel mills. int raises the question of, considering whether to invoke emergency powers, what is the aspect of judicial review? how does that affect the calculus upfront? tevi: -- avril: certainly from the lawyer's perspective, this is something we think about and try to understand. you do that in a lot of contexts, and this is yet another piece. to think through what are the implications in the long run is a big piece of thinking through emergency powers from a government perspective, because you are dealing with the immediate crisis, and you have a client that wants to deal with whatever the emergence -- the immediate crisis is.
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let's just say it is in a good faith straight up perspective. you are trying to manage whatever the crisis is. sometimes, you are doing it because you want to address a particular issue and you need to get things out the door were quickly, and the process you would need to go through is going to slow things down sufficiently that it will actually hurt your ability to deal with the crisis. so you think through what are your different available waste to do this that make sense and -- the different available ways to do this that make sense and are available to you. you invoke new authorities that have never been invoked, or you interpret existing authorities in ways that are unusual. you think about the judicial response, and the precedents you are creating, and you should think about this, and think about whether or not,, as others have noted, you are going to create an exception that becomes the rule. it makes it much easier for
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people to do this over the long run. that obviously has to be an issue you are thinking about, they are supposed to be in this discrete, narrow exception because they are putting aside the democratic process frequently. christopher: thanks, everyone. i think you brought up a good point, where there is judicial review and outside of that world there is discussion about how internal executive branch delivers a -- the liberation of exit -. i know you have given a lot of theght to the role of executive branch undertakes, particularly what the role of the president would be. i turn it over to you for some thoughts on that type of process, when the president should and should not be involved, etc. tevi: i want to make two quick points. number one is on the issue of president. president is -- of precedent.
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precedent is important. other presidents have thought about that moving forward. on the judicial review question as a nonlawyer, the way we looked at it was always nobody likes to lose. if you have a president who declares certain of authorities or an agency that declares certain authorities and they are brought to court and they lose and that agency does not have that authority. having the threat or the potential of the authority is better than having it tested and losing. i brought my book with me is not just the shameless c-span plug, but because i have an appendix where i talk about this issue, when a president should get involved, and a checklist. my hope is that presidents going forward will look at this checklist to determine whether this is something that requires presidents to be involved in. it is an important question,
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because not every disaster requires presidential attention. even though the book focuses on disasters, they be the point is presidents should not be involved on every -- in every disaster. i go back to the 1880's, when flood took johnstown place, and president harrison was in office and was contacted by the good people of johnstown, who talked about this terrible disaster and the largest loss of life on american soil up until that point in the disaster. they telegraphed him and asked for help, and he wrote back and basically said it was up to the governor to provide that assistance, not the president. and the people of johnstown telegraphed back the words thank you. we thank you for your response. can you imagine today if a president said it is not my job to deal with a disaster? they were the lawsuits and all caps of insanity -- there would be lawsuits and all kinds of insanity. i want to defend the president
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recently, because -- i want to defend president harrison briefly. it is not because he was callous. he personally donated $300, which is like $7,000 today, to the victims of johnstown. so he was personally compassionate. also, he was part of a bipartisan consensus at the time that presidents do not get involved in every disaster, because grover cleveland, his democratic red assessor and successor -- democratic predecessor and successor, he was in charge of a drought in texas, and congress appropriated sayingand he vetoed it it is not the job of the federal government to get involved in local disasters. it is important to recognize that presidents don't always need to get involved. but the checklist i created talks about whether this is something where we know it is going to happen, we know it has serious loss of life, we know it has consequences and ripple effects beyond a local area, and
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we also know that the president has the authority to deal with it, and also presidential attention can be helpful and beneficial to the process if the president gets involved. those are some of the items i have in the checklist in the book. christopher: thanks, tevi. a lot of the discussion to this point today has been on the specter of, there are loaded guns sitting out there we can use in ways that we might find problematic. it is not my entire experience in government. often times, i feel these powers are invoked to do things that are very effective. sanctions are important foreign-policy tools. what starting with carl, is your thought in terms of situations -- you have given examples, but what are characteristics of disasters? why are emergency powers so useful at certain times?
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is it because there is truly not enough time to go back to congress? is it because it removes politics from the equation? maybe some examples of when these have worked well and why that is the case. again,again -- carl: based on my background at the department of defense, the emergencies the department gets involved in, either directly because it is a national livesty issue, people's tend to be at stake, and taking time, for example, in a stafford act situation to commit requested military forces with helicopters to pluck people off rooftops when the water happens to be rising due to katrina or to bring in medical supplies if someone needs them in the event of an epidemic, or to medi-vac
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people, would end up costing lives. it is important to have those authorities available so that the capabilities, the tremendous capabilities that are also available, can be used to provide the support to the american people that they deserve. avril, what role do you think congress -- the ability of congress to legislate the emergencies -- the example i have in mind is president obama's request for isis- specific amf, and congress' response to that request. do you think the difficulty of legislation, particularly in a time of a divided government, makes the use of emergency authority something that both is more frequent and more justifiable by the executive branch? avril: it is a really good
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question. i think it would be good to share your perspective on this, too. know if this will make sense, but from my perspective, bases foroncerning exercising emergency authorities, but also frequently the real challenges and concerns that people see with exercising emergency authorities, are largely dictated by broader systemic issues that we have. and here is what i mean by this. mentioned, chris, is a key issue from my perspective in the war powers area. i think overall as a general trend, i would say certainly that over the history of our country, the executive branch has generally accreted more power over time. i think we see that certainly in
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emergency authorities, but also in a lot of other spaces that are not emergency authorities. in many respects, i think that is because, including in the context of emergency has become, congress less functional, less capable of acting quickly, less capable of bringing to a vote issues, a variety of things that create dysfunction and distortion in the system. as a consequence, under certain circumstances, i think there have been places where presidents of both parties have effectively moved into the breach, in a sense. and one of the areas you see it in the war powers over a very long time, certainly doing authorization to use military force, president obama was not the first one to have those. the reality is you see a situation in which it used to be in this context of an imminent threat, defending the country,
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in the breach the president would be able to activate the armed forces, move out, and congress would be right behind them, essentially, dealing with the declaration of war or something to that effect. over time, that has not actually borne out. as we saw in the context of the acts, in the war powers resolution, you have a piece of legislation that was intended to pull more power back to congress, but actually ends up providing more authority to the executive to take action. this is something that i think is a constant issue. i see this as a broader systemic point, but certainly something that aggravates the issue in the context of emergency powers. and the example you mentioned is a very good one just because you -- justtuation in which thinking about it from a political perspective as a member of congress, if you -- it is hard to find a member of
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congress at a time the president was asking to have an authorization of military force against isis who disagreed with having the authority to take action against isis. and yet, we still could not get an authorization to use military force against isis brought to a vote before this congress. that gives you a sense of the dysfunction into which you are moving.from the executive arech perspective, if you concerned about whether or not you will in fact have the authority to take action to protect the united states, you make sure you try to do everything you can to preserve that authority. that creates distortions. if you're somebody using it -- if somebody is using it in a way you don't agree with, you understand how you created a situation that gives them more authority. christopher: it is interesting to take modern-day privileged to make a small point. it is an interesting space the -- the need emergencies.
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congress can ask when there is a true emergency. amf afterd the 2001 9/11. the discussion of the emergency passed.the act was congress acted there to give a huge sum of money to the executive branch. capitalre is actual emergencies, cap chris -- congress does act. the back and forth under interpreting the amf, you are in a space where people think the united states government should be acting, or there is a fair amount of the populace who thinks the government should be acting. it is not business as usual. are talking about, what is the framework for the relationship between congress' authorization and the executive's action, and it is a difficult problem to solve.
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there are other frameworks in other areas. that is what i think this discussion really is about, that gray space between true emergencies and business as usual. tevi, do you have any thoughts on this? tevi: i just want to say this one point about the capital e emergencies versus the small e emergencies. the challenge there is if you make some emergencies capital e emergencies and other small e's, the small e's are not emergencies. and what do you do with certain powers? one of the things i argue is that maybe there should be fewer things that are classified as emergencies. we have to recognize if we are going to make this hard line between the two of them, the small e emergencies will not be considered emergencies. christopher: in some way it is a definitional issue. before we open up for questions,
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i think a lot of what we have talked about here is that context matters. specific authorities and specific facts that are brought to bear, given we have had panels that have been in the trenches while these authorities are there anyed, lessons learned, advice you would give the current policymakers or lawyers who might be faced with the prospect of declaring an emergency? carl: as a practitioner for the executive branch during the time i did that, my goal was to -- ore a legal basis for a legal justification for the action that my clients were interested in taking. if there was one. if there wasn't one, my obligation was to tell them that. so, i think it really depends on
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where you are practicing. my practice consisted of trying to read these things fairly broadly, and i am sure there are those who believe they should be read in a very restrictive manner. sure.-- avril: in terms of advice for thinking about using emergency authorities, maybe the pieces i would add would be, i think the places where you should have the greatest concern are where there really is robust controversy about the facts of whether or not there is an emergency. i think that is a place where you have a concern, about the legitimacy of the use of these authorities. also similarly in certain over,stances, a dispute
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and a lot of controversy associated with the actions to be taken under the emergency. the way to think about that is if it is a genuine emergency that you are dealing with, you are going to have people come together in the country to deal with it, and you are taking a pragmatic step that helps you solve the problem in that scenario that really should be for a temporary period. it is about thinking through the long-term ramifications of what you are setting up, that structure. is it narrowly tailored to the discrete issue you are dealing with? how can it be misused? are there incentives in the system that will help to pull it back when necessary, to sunset it? i think this was highlighted well by others in the prior panel, a key area where you need to think through those institutional incentives and the processes that will surround it where inward is areas the emergency, you are pulling
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back on the rights of individuals and others who do not have as much voice in the political system. and you really have to think that peace through if you are in government. -- you have to think that piece through if you are in government. tevi: i think of the best of times and the worst of times. how these things work well and how they work poorly. scenario, icase think about the example of the bush administration and the influenza preparations in the mid-2000. president bush read a book called "the great influenza," and he wanted to know what the federal government was doing to prepare if there was a large influenza outbreak. he tasked the homeland security council to work to come up with a plan. and thoughtful plan. they worked with congress to talk about the plan. it was not like they were trying to surprise congress or only work with one side of the aisle.
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this plan was put on the shelf, and it included how to accelerate the use of back scenes -- of vaccines. it talks about how the strategic national stockpile should be used and what kind of countermeasures we should use, that the federal government and the states would have responsibilities. it was an exercise in good policymaking. fortunately, there were no major during the bush administration, but in the obama administration, there was the swine flu of 2009. this two--- this took place in march of 2009. this was before an official had been confirmed at hhs. senator daschle was supposed to be the secretary. it did not work out. we were starting from scratch. the obama administration was starting from scratch to department.
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there is not a single political official in place, which is a nerve-racking thing. i was outside of government at the time, but i was writing about it. what they did is they took the bush administration plan, they said, here is a thoughtful plan that the government works on, and they used that plan and employed the countermeasures. what happened in that year was, even though there was a problematic strain of flu, there were fewer flu deaths in that year of 2009 that there are in the average flu year. i can't know what would have happened if it had not been deployed. maybe there would have been fewer deaths either way. but the obama administration took the plan, they were reassuring to the country about the use of the plan. they used career officials, including a medical correspondent with abc. he went out there and try to reassure the nation in the absence of a secretary, and i
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thought that works really well, across party lines. one party developed it, the other party deployed it. the worst of all worlds is when you lose faith in the political officials we have aced on their partisan affiliation. we have seen this multiple times. i think some of the criticism during president bush katrina was warranted. but some of the criticism was excessively partisan. even in this flu situation, there were republicans who were critical of homeland security, saying i will not do anything because obama is in charge. that makes no sense to me. if you have a situation where the people do not trust the political leaders, then you have a problem where if a political leader gets up there and starts to say, you guys need to take a vaccine, you need to shelter in place, you need to evacuate, people say because that person has a r or d after their name, i am not going to do it, then we have a real problem.
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if we are going to be successful in dealing with disasters, and there will be more disasters in the future, we need to come together and recognize it is not a partisan thing how we deal with disasters, it is a national thing. and it is something we need to work on together. christopher: very well said. i don't have much to add to their words of wisdom. thishing i would say is, hits the question of what worries you most about these emergency authorities and what advice would you give to people in government? the importance of being as upfront as you can with the american people. some of these emergency authorities, by definition, you cannot be completely up front by using these. but i think over time, the prospect of the government getting too far away from what why itlic would want is is secret. upfront, you're better off in the long run.
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you can still do things transparency and are problematic, but i think that is one of the best tools we have to map what we are doing to what we should be doing at the time it is occurring. i think we have about 15 minutes left, which is the time we wanted to say for questions.i think we will open up for questions. >> hi. the -- for the sake of transparency, i was wondering, one of the things that liza said that made me worried which is about the president emergency action document, the three executive orders that the aids carry around with the president -- that the aides carry around with the president. my question is, is the declaration of martial law still among those? any that youu pull thought were not appropriate? avril, were there any you a grant that exist now that -- any that you regret now that trump's
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president? will leave the hard ones to the panelist. they are piads. that is the pronunciation. [laughter] will not bepeople able to speak to that specific piads that are available because they are highly classified. [laughter] >> [indiscernible] christopher: i encourage you to say as much as you possibly can about it. but they also are subject to intense legal review by many people. but maybe avril, since you were called out by name? [laughter] one thing i can say is recurrently there are documents on that arend so drafted within an agency or
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department as a break glass scenario, but they do not get a lot of review through the process among the people that would ultimately have to review them before anything could go into effect. thing to consider is there may be a lot of stuff on dusty shelves for what might happen in the breach that would never pass muster once you put it through a process. that does not help you very much. do i have regrets? i have a lot of regrets in my life. i probably could not go into them all here. at some level, planning is a good thing. if something comes up where you have to break glass and pull out authorities, having a starting point that will be subject to further review is probably not a bad thing, if you are in a space where -- >> [indiscernible] there is a difference
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between plans sitting on a dusty shelf that have not been reviewed and plans sitting in a with a signature all that is needed to put them into action. that is obviously the case. could you talk a little bit about those. the ones that the president has to do with his signature, and whether you think there are any that should be there? to talkt is impossible about what would be in a briefcase of a military aide that would be fully classified. an enormousrd about number from the earlier panel of the emergency authorities that are available in effect to the president under the right circumstances. and i think the challenge is just that if you have an emergency, you have to figure out which ones are the appropriate ones.
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i don't think it is any different than what we have been saying throughout this entire panel. we have identified some of the constraints we see are reasons why it is, even when the president has an authority available to him maybe not to take action. he may not decide to exercise it. all of those things would come into a particular moment. but the list you heard from the earlier panel are all the ones that are available to the president. >> but these exist and we are not allowed to know what they are? avril: i don't know of one that is unclassified. what you are thinking about our draft documents. -- what you are thinking about are draft documents. it is a process either for you have to put it in the federal register, there is a consultation peace, it is not very wrote -- there is a consultation piece, it is not
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very robust. i'm sorry, i can't help much more than that. christopher: maybe if we have follow-up questions, we can discuss them off-line after the panel. >> hi. i'm over here. [laughter] hello. an unquestioned emergency triggered the uprooting and long-term detention of 120,000 about 80,000 of whom were u.s. citizens. that program was designed by lawyers, defended by lawyers, and was actually run largely by lawyers. each of the 10 concentration camps, this is a little known fact, had a law office in it staffed by government lawyers. government lawyers who doubted the constitutionality of the program they were helping to run. the was wondering whether panel could speak a little bit to the professionalism question here, the question about how
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lawyers in government think about questions of conscie nce. christopher: carl, do you want to? avril: certainly -- carl: certainly, all governors -- all lawyers are members of the bar and have to comply with the ethical requirements of their state bar, as well as whatever overwriting ethical requirements the department or agency may impose upon them. think times change and .eople's perceptions change if you recall, the supreme court determined that detention was acceptable. --i don't know that i
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see it so much as an ethical question. i assume the lawyers who felt ethically constrained to support that position acted in an appropriate manner. but certainly, that was an issue upon which reasonable minds differed at the time. i don't mean to attempt to defend it at all, but just simply to say that in the pastxt, it certainly judicial review. and there are other decisions that in hindsight, the supreme court may not have acted as wisely as that court would act today. i realize that is kind of nonresponsive, but that is my thoughts. thel: from my perspective, internment of japanese people
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was absolutely a stain on this country's history. and i think, egregious. what i would frequently comment on in the context of government is that just because something is legal does not make it moral, smart, or right, or any of those other things. i think as a lawyer, you have to go through, as a government lawyer, your own process for determining how to approach issues. from my perspective, i would provide the legal analysis. if i felt as if something were immoral or i unethical, i would voice my opinion in that context. point at which you may decide you cannot continue to work for a government that you feel is doing things that is inconsistent with your values and how you think things should be conducted. but that is something you have to go through on your own. but that would be mine.
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>> hi. this is in response to the ethical issues of lawyers, because i have been challenging this for 10 years. the unethical and illegal activity of lawyers. in to put some statistics, 1970, the american bar association published a report called the clark report. it showed a 70% negligence rate amongst lawyers. nothing has been done since then. bar associations, we have about a 3% sanction rate of the complaints filed, which is very small. basically, lawyers have been given a free pass for decades and decades to do whatever they want. and this is not being addressed by anyone.
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i am going to the international courts and finding a human rights lawyer to take it on this specific age -- specific issue. >> i am curious, because we heard in the earlier panel about the lack of congressional oversight and the failure to review these emergency declarations, i am curious from your perspective, what would be an effective way to put controls on the potential abuses of this power in any of the particular circumstances we have looked at? i think there is congressional oversight. we had a lot of hearings after katrina. that is what happens. congress does have the authority to oversee these things.
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but i think the larger point we have been making in this panel you haveis a reason presidential emergency declarations, because sometimes you cannot get congress to act quickly enough. and when there is an emergency, sometimes the government has to act more quickly than the standard processes can. i do think the appropriate time for oversight is after-the-fact. i remember one instance where there was some kind of emergency i don't want to get into going on when i was at hhs and congress was demanding oversight. the people would have been dealing with the emergency having to prep the agency for the hearing itself, and they told the congressman/senator in question this will stop or limit our ability to deal with the and the senators/congressman did not care and said, i have to have this hearing. i think congressional oversight, if it is too, much in the short
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term can be shortsighted. i think appropriate oversight should take place. christopher: more questions? >> hi. i got the impression that they are draft executive orders. is that correct? or is there some other mechanism or type of presidential directive used? christopher: i think it is going to be talk -- difficult to talk about the substance. they are classified documents, and i don't want to but the on the line to decide what is not classified. we have said what we can on that, so maybe we should stop there. >> given the brain drain the government is experiencing at
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all, are you concerned about the loss of corporate memory in dealing with the complexities that have been the subject matter of this forum? tevi: i am not, in general. i think for your officials tend to stay for long periods of time so they have that collective memory. there are only some people leaving. there are people behind them to back them up. i think we do have a system that can allow for the collective memory to continue and evolve and inform the political officials as appropriate. >> hi i am on, the panel this afternoon, but i have questions. one is that, the documents are classified.
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[laughter] i know. the question is, whether they are activated, would they be made public? because all of the laws that they seem to be drafts of declarations under were designed to make emergencies no longer secret. that is part one. the two is for all emergencies that have not been undeclared, and i'm thinking of the one after 9/11 that involved changes in staffing in the military, that has been renewed every year since. if the argument is that eventually congress should act, have any of you had the occasion to suggest that perhaps some of the emergencies should be terminated? within the department of defense, every year a decision is made as to whether or not those emergency authorities are documentded, and the
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nsc staff from the through the departments and agencies for review of whether or not they still need it. certainly, it got rigorous review each time it came over, full from the policy and legal people. -- both from the policy people and the legal people. >> [indiscernible] carl: yes, if they are satisfied and the department gets the authorities what it needs, it may not be the best way to do business, but it certainly seems to be a reasonably effective way to do business. avril: and turning it on its head, there are provisions in the law that say basically if congress passes a concurrent resolution, although now it
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would have to be a joint resolution, you can stop a national emergency. it also does not happen. knowis something we would -- there is no effort by congress to than actually repeal an aumf. they would rather leave the ones in place and not vote on a new one to replace it in order to modernize it. there is a broader systemic dysfunction, in my view, that really aggravates all this in a way that is really unhelpful. christopher: to your first question, i think the answer is you would hope that if the authorities were being used in a way that could be made public that it would be made public. but i think it is hard to project the actual circumstance in which they will be used. my assumption is the default would be they ulwill be used or whether they will be grounds to take action. >> [indiscernible]
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christopher: i think we are out of time. thank you, everyone. [applause] c-span's "washington journal" live every day with that impact you cured a discussion of the planned pullout of troops from syria and this week's suicide bombing with sen. jones:. harris talks about the government shutdown and border security. and a review of this week's senate confirmation hearing for william with todd rupert. be sure to watch c-span's "washington journal" live at 7:00 a.m. eastern this morning. join the discussion. >> saturday at 8:00 p.m. eastern on book tv, from the washington, d.c. jail, the free minds book
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club monthly meeting. though the causes were immediate, a moment of carelessness or bad judgment carry consequences that last forever. a lot of times on the streets, we say that we are in the field. , mayonce we get locked up a mistake or any decision that can have great consequences and they last for forever. we sit in the circle with people after words at 9:00 p.m. on sunday, author sebastian gorka on his book "why we fight." >> one day, my father who was an amazing athlete, comes out of the ocean.
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i am eight or nine years old. i see white lines on his wrist. he is far too young to be wrinkled. i asked him what it was. and without blinking and without emotion he said -- that is where the secret police bound my wrists together. that changes your outlook. and as such, from a very early age, i understood that freedom is as fragile as it is precious. and sooner or later, the great ronald reagan was correct when he said -- sooner or later, the loss of liberty is always but one generation away. >> watch book tv this weekend on c-span two. earlier today, the house passed a democratic bill to fund the government through february 28 by voice vote.
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a few minutes later, republican members objected to the voice vote. afterwards, there was a 17 minute debate between steve scalise and majority leader steny hoyer which ended in a recess. when the house returned, the house agreed to vacate the voice a voted agreed to take next week. we start with a 35 minute debate on the measure. r conversations. the gentlelady from new york is recognized. mrs. lowey: mr. speaker, i ask unanimous consent that all members may have five legislative days to revise and and their remarks include extraneous material on the measure under consideration. the speaker pro tempore: without objection. mrs. lowey: mr. speaker, today trump 7th day of the shutdown, the longest government shutdown

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