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tv   Debate on War and the Constitution  CSPAN  September 28, 2014 6:00pm-7:38pm EDT

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and house room, wins over millions of fans among american viewers. how fan clubs get started and hair cuts get started and the chief council for the senate is distraught to that members of the capital police force are there having their picture taken with ollie. and the same congressman afterwards turn around and it is like night and day. it is shameful. i don't how they look at themselves in the mirror. so much of this affair is typical of what you see under ordinary circumstances. this isn't an aberration. because of the same institutions being in place all of these
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years and the same principles apply. congress is a political animal and we are always going to act this way. you can watch this and other programs online at ...
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author of point of attack and author of constitutional peril they debate the war, foreign policy, the use committee use of drones and the meaning of the constitution. this is about an hour and a half. >> welcome, everyone. tonight the committee for the republic is hosting a debate on war and the constitution with of our country entering another war
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in the middle east, tonight's debate could not be timelier. the debaters could also be bought better suited to give their points of view. here below we have john yoo. he was deputy assistant attorney general for the office of legal counsel in the bush justice department. john wrote a number of key than those supporting bush's post-9/11 counterterrorism policies. and then bruce was the associate general under presidents ronald reagan and also the chief policy advisor to rand paul during the 2012 presidential campaign. harvey is going to be the moderator and is currently good
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enough for national war college and his job was that the rector of the -- the u.s. government job he worked for the director of national intelligence. [applause] there wasn't a single founder of the delta that the decision that republic could make. the war power is the most important power because the war is the greatest threat to the republic. republic. the war concentrate power in the executive. it has more of an incentive to go to the war than the legislature and the founders placed the power to declare the war in the legislature. the founder who understood the war better than any other founder was george washington, who upon leaving as retiring as the first president of the
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united states he gave a long farewell address in which he spelled out the foreign policy to the founders. washington said we should stay neutral. we should shun the military alliances with all foreign power because they would entangled us in the war. to support neutrality, washington said we should be wary that overgrown military establishments. he said we should not borrow more money in our generation than we can pay off. and of course avoid a political faction. sounds pretty good to me. let's see what our speakers have to say tonight. harvey, why don't you come up. you're the moderator. we are going to do ten minutes each. bruce, you are going to go first and then john and ken harvey is going to ask some questions of
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the panelists and then we are going to open it up to all of you to talk. thanks. [applause] i want to thank the press club for being so generous i wish they could do this with bruce's microphone. >> good evening and thank you for coming out tonight. i want to thank the press club for being so generous. we've done this a number of times, john and bruce myself and first i have to make the caveat i'm with the national war college in the association on the wall and national security. i'm here on my personal capacity not representing the organizations per se.
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but we think it is very important to have events like this and you could not have two more experienced. and what we are going to do is we will have ten minutes on each side and then we will have five minutes of rebuttal and then i will pose a few questions that may have been raised either speakers. does someone have a pen? >> i think what we want to do is -- what i encourage you to do as a law professor asked short and crisp questions. i don't think it is an opportunity to have political speeches and an opportunity to sharpen the debate that will take place on executive power and the more and as it was pointed out it is an extremely timely issue that has great historical legacy and contemporary power. with that, why don't you start
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off the. >> all those that seek to destroy liberty and democratic nations ought to know that war is the shortest and surest means to accomplish it. those were the words written by a lexus de tocqueville in the democracy of america over 150 years ago. and james wilson one of the founding generations spoke about putting clogs in the artery of the war and that is by virtually every member of the constitutional convention and ratification debate understood that only congress, not the executive branch could authorize the initiation of warfare. congress doesn't aggrandize power it diminishes in a time of war. first, the power of the government concentrates the
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customary powers principles. they are readers reduced to the virtual ink blocks in the national security decision of the president and we can see today the president claiming the power during the so-called war against all qaeda, isis, iraq or otherwise, the power unilaterally to kill any american citizen on his say-so alone if he declares entrusted to any individual there is no judicial review or congressional review it is final. that is in the only power the president wields as well in the time of war. think of the power of reruns that were disclosed, but even before then. but the president claimed the pair were under the terrorist
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surveillance program to intercept e-mails for conversations of americans without any statutory authorization whatsoever not even the fisa court ended in the detentions without accusation or trial at guantánamo bay where we don't have customary due process but the chance to confront your accusers if you are not accused of any particular crime or wrongdoing that these are examples i think of how the powers of the president the client during wartime and presidents never surrender the power back. there is a second branch in the system during the war and that is customary transparency, the heart of the idea of government by the consent of the governed yields to secrecy and the government by the consent if the people do not know what their government is doing how can they give consent you find these
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discrepancies in what the government does and what people would want if they knew what was going on and i think that's showing rather dramatically with the disclosures of her since 2006 the american people were ignorant of the metadata program the american people are alarmed by the fact that the nsa was collecting telecine metadata on every single phone call they been involved in domestic or international there were no collections but it was made without the suspicion any of the data indicated involvement in terrorism, crying or otherwise. it was just collection. think of that program where it was revealed to the program that was public pressure that forced
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president obama to curtail the program by executive order and follow by the congressional hearings for the first time that were genuine all provoked by edward snowden and the conversations of her liberty liberty and the right to be left alone and you have the right because of edward snowden not because of congress or the executive. but this kind of secrecy is characteristic during wartime. secrecy also i believe needs to this guide decisions as a type of the bay of pigs. they would rise up against fidel castro and it was a disaster. president kennedy said he wished "the new york times" had leaked the bay of pigs before it happened to save him from that kind of fault. but aside from that it is a basic principle that in the united states believe that people are sovereign and we get to decide our own destiny. how does that occur if we don't even know what the government is
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doing and that is a key attendance of all of the wars and then a third major detriment of the war is that invariably it cripples the civil liberties, invariably cripples the civil parties. safety is always viewed as supreme so the right to be let alone crumbles, due process. we have military commissions that combine the prosecution and educate the function with the founding fathers style as the very definition of tyranny, superseding civilian courts. we had surveillance not just in the surveillance not just in the nsa but increasingly use the surveillance drones to watch where we are going when we walk outside. we have a sense of government programs that are initiated by the president through his claimed executive authority that were still clueless and yet he didn't have access to all this the government was undertaking and it is probably true that there are additional intrusions
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on the privacy that we still don't know about because of the secrecy. that is not what the founding fathers believed. the fourth amendment was based upon the idea that we take risks that other people don't take in order to be free. it was captured in the address. it shows you i think how this didn't we have been from our roots when we think and listen to these ringing words. the poorest man on the cottage, he said, made a defiance to all the forces of the crown. the roof may shake, the wind may enter, storms may enter, the rain may enter but the king of england cannot enter. all his forces may not cross the threshold of the ruined tenement. think of how our lives are today
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compared with that understanding of the right to be left alone. then there's a fourth principle i will address quickly and it is the heart of who we are as a people. that we believe that it is more acceptable for us to take the risk of the injustice than to be complicit. we don't want to take stupid risks but let me just explain one situation where the point is made rather graphically. about a year ago there was a hearing held by the congressman allen grayson of florida that featured a 9-year-old grandfather from pakistan. and she related that one day they are out picking vegetables and the 9-year-old said ben once there was darkness in the sky and then she thought she heard screams. she looked at her bleeding
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hands. she remained with her hands again trying to get the blood to stop but it couldn't and she looked at her grandmother was exterminated by a predator drone. that is complicity complicity in the injustice and sometimes it is impossible and inescapable but that's another reason why we try to resist going to the war accepting the self-defense authorized by congress. >> bruce has painted a rather bleak sure. [applause] of executive excess and john, what is your response to this argument? >> greetings everyone from the people's republic of berkeley i enjoyed the chance to come to the more conservative cities like washington, d.c.. [laughter] i also want to thank the committee on the republic and bruce and harvey for putting
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this together and having me come along. i have to confess i've never actually debated in a setting like this where we look at presidential candidates. i'm very excited but i have every expectation of losing this election. >> i wish more candidates would say that during the debate. >> i would start by saying i think that groups has won this debate. he wanted in 2008 because at that time we elected a president that agrees with much of what bruce stands for. we elected a president who during the campaign told the "boston globe" that he did not believe a president has the constitutional authority to use armed forces without the permission of congress or self-defense. and what did he do when he was president? he withdrew from iraq and
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afghanistan. we didn't intervene in c-reactive congress did not give us permission. on drones and surveillance which bruce is unhappy about and chris criticized quite sharply it should be noted those are policies that met with congressional support and approval. the complaint is that the executive can't president has gone on these adventures alone. i don't think that characterizes the administration that we have had. these are policies that when the congress votes they voted to support them. i don't think this has resulted in a good policy. if you look at the results of the kind that we have now are the policies bruce has defended, we are right now confronting a terrible to this thread i think it is now worse than it was 60 years ago when we should ask ourselves whether we are more secure now than we were six years ago. i think the threat of isis in iraq is much worse than the way
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that iraq was left at the time of the change in the administration. the reason why i disagree is i think it is a mistaken view of presidential power. i think in brief my view is that the constitution gives the president the power to respond quickly and energetically in the face of the crisis and war, emergencies and unforeseen circumstances and in fact this has characterized the most successful presidents. george washington at the very beginning mentioned george washington at the beginning of the proceedings. george washington issued the neutrality proclamation and he said it was his authority as the chief executive in the united states to be able to define the foreign policy of the country, to keep the united states out of or between britain and france. this was seen by his critics as
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a terrible aggrandize the presidential power. take lincoln and the civil war. he responds not like his predecessor. same as the worst president in history and buchanan what bruce would recommend he said i should ask congress what to do about this secession crisis in congress, for those of you that have worked there as i have come into king predicts what congress did. they set up a special committee to study the problem. i think they are still meeting in the basement of the capitol right now. president lincoln comes into office and what did he do? he read his presidential powers broadly. he put up a blockade of the south and i think most notably he issued the emancipation
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proclamation two years later freeing up all the slaves under his commander-in-chief authority not with the support or permission of congress. congress actually never authorized or approved of the emancipation proclamation. it took for those of you to get history through the movies as you saw in the movie it required the 13th amendment actually validate and he did it under his commander-in-chief power executive during the war. the last example i will give you as franklin roosevelt in the years before world war ii. congress had passed a series of neutrality acts to prevent us from getting into the conflict of europe. president roosevelt did president roosevelt did everything he could to aid the allies and prepare the country for more even in direct conflict with those statutes and i would say roosevelt was right and it would have been better for the country into the world of the united states entered world war ii earlier than in pearl harbor. the presidents like buchanan who had responded to the crises by i
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think following the argument that bruce has laid out and let the congress decided. congress should have the initiative they are there to execute the policies. i think that has led to actually some of the worst problems we have had in the country's foreign policy and national security. that is not to say i'm not arguing the president's power has to be great and large and energetic all times it depends on the circumstances and so presidents nixon is a good example and someone who tried to exercise the excess of presidential power at times didn't call for it. let me look back at the history and the constitution itself. bruce didn't talk about the traditional tech stuff i assume his argument is based on the declared war clause and the congress has a power to declare the war. they should read that to mean only one of on the ones that congress has decided to can the country go into war and can the
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president than use his power as commander-in-chief to use the armed forces. i think that is a mistaken view. and i think that it reads too much into that anti-executive atmosphere. the people that wrote the constitution actually thought that the revolution had gone too far in reducing executive power and sought to restore some kind of balance. and when they sit in the constitution that the executive power of the united states was tested in the president, that would have drawn on the discussions discussions of what was the executive power under the theory of john locke and the thinkers that influence them. one thing they made clear the reason there's there is even a president is because some part of the government has to be able to respond quickly and swiftly and decisively to the events that the legislature could not foresee that the legislature
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couldn't handle because it was many members and hard to get the consensus and when the framers then went to the american people to seek ratification of the constitution, that's how they explained the presidency. it is a controversial topic in innovative first of its kind institution. most countries today don't have presidencies they still have a parliamentary system. and what they said alexander hamilton in particular said the executive power is there because they can be swift, decisive, secret when the times call for it. he then said what are the powers listed and one of the ones he gave he said the administration of the more. again i'm not arguing that our constitution creates an unchecked executive. he can do whatever he wants but i think that has to come from the political process when congress uses its powers and the
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courts use their powers to struggle with the president for the control over policy. this was again the idea that the framers in the federalist papers talked about ambition must be made to counteract the ambition that each branch would be given the tools and the constitutional weapons to fight each other. if congress doesn't want to use those powers that isn't a constitutional fault. if congress doesn't want to stop president obama from bombing isis, that isn't a constitutional defect that is because congress chooses not to use the ample power that it has at its disposal and i would say the primary one is the power of the purse bid if the congress doesn't want the war to occur they just need not fund it and this was a perfect check in the 1780s and 90s of course because we didn't have a standing army and so when the president wanted to fight a war he would have to go to congress and say please build me a military. today we have a military designed to conduct war in other
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peoples countries that is people's countries that is an expeditionary military at the design of congress congress created a military designed to prevent the war from ever getting here and fighting in other people's countries i would say we have had many decades of agreement between the president and congress. times up situate law professor that means i have ten more minutes. [laughter] we should all have concerns about executive power that i don't think it's from foreign affairs many of us are concerned about president obama's use of power and to enforce the law and the selective use of the irs. he is in violation because i think the domestic affairs of the presidency was not defined but to play this leading role of the initiative there on the domestic affairs president is supposed to enforce the law congress passed that congress passed but i think it's a mistake to assume that a narrow
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presidency must be a narrow presidency of abroad. >> what we have now is keys invoked the federalist 74 and usually madison and the papers 50 and 51. and where do you stand now? >> hamilton and madison -- >> it's fair to say that of those that ratified the constitution were uniform in the leaving number one that the executive power a broad was the most dangerous because it is the most threatening delivery as tocqueville explained. second, that is why the congress was interested in that decision. george washington aside from making the neutrality proclamation he also made the proclamation only congress can authorize the offense of use of
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the war and thomas jefferson went to congress on repeated occasions to get authorization to fight the barbary pirates. james madison made it very clear in all of his writings but as a member in the house of representatives and communicating with thomas jefferson when he went to congress to fight the war of 1812 that the reason why congress was interested in the power is because the executive has an incentive to conduct its uses for the war because they get the power. not only was that true in 1787 but all of history shows that the war typically begins with executive officials john jay and federalist for points out that they have these all to rear motives and the branch to go to war and we didn't want to be that country. so i think it's fair to say that those who are primary interacting the constitution all agree only congress could authorize the initiation of the war. exalting the form of receptors
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if you receptive if you want to say it is something else because of factors when they think of the power unilaterally, they said that the president needs to respond to repel sudden invasions, so there's obviously something that can be done. whether pearl harbor or otherwise. they are made in regards with mr. you and the confederates bombed and shelled fort sumter. it was the equivalent of the attack on pearl harbor. it was against the union forces. she recognized that there is an illegitimacy tainted with unilateral executive action.
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and i also would dispute the idea that where we had all of these great things that have happened by giving the president president this unilateral authority to take for example the non- the gulf of taunton resolution that said that he can go to war whether he wants to go to war. now we have a via non- war memorial with 58,000 names and people wonder why did they die. and the south china sea where did they die for as john kerry said before they became secretary of state. he said he's going to tell the last center to die in afghanistan what he died for. by the way he didn't remove the troops from afghanistan and initially it increased the troops in afghanistan. they are still there today. what happened in 2015, nobody knows but that is a big decision that the congress makes. lastly, i don't think that simply because the congress is
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derelict in exercising its responsibilities and that exonerates the presidential lawlessness as well. after all, we do have a third branch of government which should step in and inappropriate occasions find the two branches and take the responsibilities the court can hold things unconstitutional. president roosevelt created concentration camps for 120,000 japanese-american citizens and resident aliens. even though he couldn't find evidence of sabotage or espionage it was a confirming indication that treason was afoot because they are so clever to hide what they were doing.
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and here's an example here is an example where the supreme court of the cases unfolded. they made a great statement at the outset. racial distinctions are odious to the free people but not in times of war. in any event, i don't think that we can just wash our hands just because congress and the president don't understand the constitutional responsibility. >> so, john bruce made a strong argument about the congress and a judiciary that somehow loses its way in the context of the war. >> what is your reaction >> first, i think that it might be an artifact of the modern time to always assume is the president who is the most warlike that they are pacifist and therefore we should give them a check on the presidency.
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obviously we have lived in times where the congress has been the more warlike and we've had five declared wars and i would point them out to the war of 1812 and 1898. to say that we have to design this entire system or the framers designed his entire system because they were worried about the executive alone being interested in military adventures the congress always being passive pacifist is a mistake. there's always going to be mistakes in the government decisions and they will always be mistakes in the war. so what bruce is focusing on is one kind of error with social scientists now they call it type one error is. they would say iraq or vietnam
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but he seems to think afghanistan also fits into this category now. those are the wars that we shouldn't have gone to war. they could be equally worried about what we call the type two errors of omission when we should have gone to war and we didn't and what i worry about is world war ii was a good example where we did delay going into the war that was just and that we should have gone into earlier the framers didn't want to have a paralyzed government either and i worry that creating a system like the kind that bruce is in favor and i might add is not on the congress and presidents have followed that the constitution into practice that this would lead to a kind of paralysis of the ability to defend ourselves. and the last thing that i would point out and bruce made reference to all the framers of creed about this and i don't think that is true either.
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so, and i would take a look at the constitutional text and i have a free copy someone just gave me. article one section ten says no state shall without the consent of congress engage in the war. unless actually invaded or in such eminent danger as will not admit of delay. that is exactly the constitutional balance of power that bruce thinks should apply between the president and congress. all you would have had to do is take out the words they had been president and it would would seem the president shall without the consent of congress engage in war. unless we are invaded or there's imminent danger of the attack that can't be late. why couldn't he have written that exact clause if that is what they intended clicks but
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they wrote provisions and gave some power to the president and some to congress and they expected them to fight it out. to bring the argument to the contemporary period i know that you were involved in the authorization for the use of military and the broad power that gave the president, so i think that i will let bruce go first. understanding of the authorization force and the president current request that perhaps he requires another authorization. the authorization to use military force language describes the universe of the targets that the president can set as those who were complicit. it can be persons, organizations, individuals
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complicit and harbored those that work. it's not an authorization to go after every terrorist in the world. it's an authorization to target those who are complicit in the 9/11 abominations. president obama is saying that they authorize him to express today the suggestion by military advisers who will need ground troops and if the campaign doesn't work if we bomb the ho chi minh trail with more bombs than we dropped on germany and japan in world war ii it didn't work and it's not going to work with isis either. but it is a sort of opponent of al qaeda they are rivals and they didn't even exist in 2001. they fall on the attack on the organization that didn't even exist at the time. that is an example of what the
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president utilizes going to war without any congressional authorization and by the way there is a difference between maybe being sympathetic towards the war and voting for it. the president of the united states james madison asked for a declaration of war and the congress didn't spontaneously vote for and at the same happened in the mexican-american war. if the congress is more aggressive they could have passed a bill and send it to them. >> they were able to invade the united states. >> it is historically unique in that they are authorizing the use of the military as a bruce pointed out not only for states but for organizations and persons into that i think was unprecedented in the
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congressional executive relation to power. could you address that? some of the examples that we are giving with the surveillance, yes they are terrible things. they are the use of force or intelligence and wartime where the congress was authorizing the presidential action where those decisions would come up to the support so sometimes i think we are arguing just against the idea of the war and i would agree with you don't see what we are debating about the president and congress have to agree that is something entirely different. so that is the question. is it from 2001, and i confess i participated in the drafting so i have some bias doesn't authorize the use of the force because he's actually this is a factual question that depends on how connected at one point it
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was part of al qaeda and now there are reports that they are fighting each other. if isis isn't part of al qaeda i don't think it falls within. i think that it should focus on the 2002 au and ask -- to use iraq and if we look at the way the law is written it doesn't talk about the force against saddam hussein or about the regime. it talks about threats to national security from iraq. if they have modern weaponry that has large reputation and character in its control and resources, financial and they intend to as they appear to and they say so in public then i think they may fall under the 20:02 a.m. after that it's up to the congress to explain why he thinks the facts are such that
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they fit under the statute. i don't think that they are blank checks. they are broader than any authorizations in the past because they are not limited by time by the geography certainly but that is what we placed back into what it was like in september 18th, 2001 when it was written and passed. we were not sure exactly who had attacked us yet and we wanted to make sure that showed al qaeda evolved or metamorphosis, i'm not sure if it is that is the word, transform itself into different groups and rename itself but that is authorization still able to follow them and the people who are helping them no matter what they might call their organizational chart or what they might say are the changing goals. >> i promised i would save time for the audience and i usually try to keep my promises.
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so, why don't you stand up and maybe say see your name in who you are in the affiliation. so you have a sense of where the question is coming from. >> the question i have, my understanding of the constitution was there was a financial part to this. they sold out the kings in europe or getting their country into the war and bankrupting them and they felt they wanted to restrain spending of the people's money bankrupting the country by engaging in all of these foreign wars and therefore they put the authority of the congress because they did feel
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that the kings and the executive had have a tendency to get involved in more work. does anybody want to talk about the financial part of this? i mean i know how much the war in iraq for example is costing the country. >> i agree with you that is why the power of the purse is in the hands of congress. congress has given the authority to fund the military for the two-year period and i think that is the check on any kind of executive warmaking at brandeis and i will give you one example which i think supports this and that is that it is a constitutional the constitutional mechanism at work it's not that the clear war clause or a balance between the president and congress. it's a specific spending power. when the constitution came up for the ratification in virginia, which was the most important ratification state
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virginia i hadn't joined the union and would have no presents for the first 20 something years patrick henry, mr. give me liberty or give me death. in the ratification they made many of the same arguments. he said you have created a potential monarch to use the the commander-in-chief power of the military and the opportunity for the war to take up the civil liberties and impose the tyranny. james madison who was the first draft of the constitution he was the leader of the fight and the constitution of virginia. it wasn't a don't worry congress has to give prescient in his answer was under our constitution as it is in england the sword and the purse are separated for the parliament can always cut off funds if the king
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chooses to fight a war and so will be the united states the congress can have control over and the president cannot wage the war so i believe it is that check however the check however today the congress does choose to fund the war it isn't a failure of the constitution or the genetic system it is just the congress and the president are in agreement. >> what is your reaction to this? >> [inaudible] there's more than one way. madison did state that the power of the press enabled congress to address all of its grievances and in fact it did so on one occasion when they were brought to the close when the congress simply said there is no more money to fight the war in indochina and president nixon okayed that come in off many others that he did okay that one. there is a problem with that
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approach however relying exclusively on the power of the purse and that is we know what happens when the president sends troops into the war and they are in some kind of danger and then if you go to to cut off the funds you are creating danger for our troops, that has played out repeatedly in the contemporary politics. and i don't see why that there's anything wrong with understanding that there's more than one check on the presidential eagerness to go to war and i don't think also with regards to what you said, john, that the congress does not has not authorized the president to use predator drones to kill american citizens on his say-so alone. indeed when that issue arose in conjunction with the nomination with the director of the cia it proved a very controversial and we got a wobbly answer from eric holder with the president could
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do or could not do the congress hasn't authorized the statute says we are hereby in covering the president to kill american citizens just because he thinks they are a danger and there is no judicial review. >> i am a retired u.s. army colonel and a former diplomats that helped reopen the u.s. embassy in afghanistan in december of 2001 and a benign and nine reside in 2003 in opposition to the war in iraq. all of this is a personal toomey as many of you all. they either intended or unintended consequences of giving legal opinions to allow a president to do a centrally what he wants has been very dangerous for our country and the rest of the world. how can we control these type of
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presidential decisions backed up by john yoo and a host of lawyers who in my opinion didn't serve the government well and the people well by allowing this type of overreach by the president. [applause] >> we already know because that was conveyed about one year ago when president obama was poised to launch about 200 cruise missiles into serious and the american people got a weekend from their unfortunate slumber and wrote in with campaign members of congress and said we do not want another war. the president then retreated into the congress didn't do anything and then we ultimately ended up with this rather immature belief that if we destroyed the chemical weapons it was all right to kill them by other means and we think think we've become such great things but that skill i think the security and example shows that
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the congress and the president still are responsive to what the american people believe are the requirements of danger that justify going to war. speak to >> [inaudible] i'm sorry the the kernel didn't think of much of my much of my service. i however still think that i respect your service no matter your point of view. [inaudible] >> that's not what was said in the question that however let me just answer the question. >> my belief is that each branch of government is responsible for advancing its own policies and its own constitutional powers
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and i think that there are lawyers in the executive branch who have maintained this position that goes back many decades thinking that the president can use force even without any congressional vote in the declaration of the war and i would expect congress to have its own for years and institutions that are supposed to fight back and that's what the framers intended upgrades if so if you go back to 2001 this is in the case the president would say i'm going to war, damn the congress and it is into this and where they are saying please don't go to war. this is a case where the congress is attacking the executive if you remember those days for being too passive and allowing the 9/11 attacks to happen. my memory is that there was a fair amount of agreement in 2001 to be very aggressive in taking the fight to afghanistan and taking the fight against the
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terrorist. i terrorists. i don't see this division of authority to the president and congress. we obviously have one now and we have had one at least since 2004-2005 that shouldn't detract from the constitutional system that broke down in 2001. i don't think they were in disagreement and i don't see signs from the first two years of the congress trying to stop the president in any way from conducting the war. they had ample powers at their disposal and they chose not to exercise instead they passed the unprecedentedly broad authorization to use the force. >> i need to get a counter example of the model for the government service. this is my involvement in watergate and there came a time when the --
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>> i was in the justice department at the time and the attorney general was elliot richardson and the president of the united gates believed he had the authority to fire unilaterally the special prosecutor was getting dangerously close to uncovering the criminal evidence against the president. and mr. richardson said no, i'm including. the deputies that i'm quitting, too. i'm not firing archibald cox even though you were directing me to do that and the entire person of justice in the aftermath gave standing ovations bigger than at the olympics but that is an alternate way. what had happened as the department would have been without a solicitor general acting and the judge was approached by mr. richardson and asked him to stay on so the special prosecutor's office
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would dissolve. i can't let that example go. >> first i think it was actually constitutionally incorrect for the attorney general to say the president cannot fire the prosecutor so i think they were in the wrong end of the judge did the right thing. he carried out the president's order and the power to respond was to impeach the president which they ultimately did. >> but you missed the point they went to the litigation. they ruled that it was illegal and wrong .-full-stop this charge mr. richardson despite the view of the constitution. >> i'm with the institute for justice and speaking of the
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justice, keeping the executive in check they were mentioned earlier and one of the things that is remarkable is that they witnessed the final reports that used to support separate the curfews and then the relocation orders was later revealed to be based on deeply flawed information at the justice department's new was deeply small but when it argued the case before the supreme court. he was pardoned of decades after being sent to a concentration camp because of it. what i'm interested in is what the courts can do to ensure that the executives insofar as making the factual assertions is doing so in the facts and evidence. it is in the public life and
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because of national security allegedly we can't even know about them. >> i think the courts should renounce what the foolish doctrine of ultimate difference to the executive branch and foreign affairs because they are on mission and they have all of the sources of information. it may be true that they have more information in the congress and in the judiciary but they also have huge old. her motives repeatedly done to lie. at the the famous case was reynolds versus the united states the first modern-day claim of state secrets in which years later the secret report that wasn't viewed by the justices showed that the secretary of airports by suggesting that if you asked to examine the after accident report that causes the death of an engineer would disclose state secrets and there was nothing of the kind you disclose the negligence of the government of the united states but that is
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the judges need to seek the blind deference to the executive branch and be cognizant of how many notes. motives are at work and likely have them tell the tales. >> [inaudible] >> i think that is a question that is hostile to my side and friendly to bruce the courts have never decided such a question. they have consistently stayed out of the speech of the president and congress because i think they realize, number one, they don't want to -- this is a sloppy slope argument. what questions are they not going to address where they don't want to get pulled down and they are refusing all kind of operational decisions and number two, because i think they realize the president and congress can fend for themselves. if you have a limited amount of
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political capital and that they would devote the individual liberty cases and not necessarily necessarily adjudicated cases to the two great branches of government will i'm not a big fan of judges and therefore i disagree with many things they have done but number one, what -- the intimacy breeds contempt i suppose. i've clerked for the supreme court and i admire individual judges but i think the judiciary has done wrong things got too but i don't think that the answer to the issue is to call for more judicial intervention into the system. >> i thought that bruce made a good point about transparency and the lack of it and be exercised of the executive power how would you prescribe to the president and whatever judicial
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procedures were involved in the exercise of the war powers transparency that would satisfy the american voter? >> i think that the countervailing concern is that you don't want to have the premature release of information in public to harm the operational security with over the armed forces are being asked to carry out and so obviously want to have as much of a public debate as possible when to use the force. we are having one right now in this room, but you don't want to have excessive details put out it's actually be self-defeating. it would actually be self-defeating. i think that has been a particular problem fighting al qaeda and other terrorist groups which rely on the secrecy and rely on the surprise attacks on civilians by disguising themselves for their success.
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so, our ability to defeat defeat them is really based on our own intelligence and ability to act secretly. so i think that's what the president and congress have tried to work out over the last decades is better than what we can hope forges the president and congress often lead together and leave together and classified settings or representatives of the two branches into president can disclose that information to congress if the congress disagrees and does not approve or doesn't support them, they can choose not to fund it. this is how the system for the covert action works. the executive branch comes to the senate and a brief him on the covert actions in congress has an implicit check on every single one if they choose not to find them at the same time coming you have democratic accountability between the two branches collected differently at different times but you also maintain the ability to act secretly. you could take the perspective
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that when he became secretary of war he found out that united states had an extensive electronic surveillance program against germany and other countries. this wasn't just last year it was also 100 years ago and he said of gentlemen don't read each other's mail and he shut the program down in the imperial japan and the arbor. that's a mistake. we shouldn't have a cia or nsa. we should have no secret parts of government fighting these kinds of enemies. i think however that would lead to a decrease in the national security and would not convince our rivals and opponents and enemies in the world to take it easy on us. >> i think the transparency issue is out of whack and john is suggesting that it is unacceptable. president bush ran the terrorist
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surveillance program for years until "the new york times" sat on it for a year and then published it in december of 2005. this is a program that is antecedent to what the nsa is doing now. .. >> the members learned more from
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wikileaks than over single oversight that the nsa was coming up. john conmers refused to attend the hearing saying he could read more in the us times. that is adequate oversight? it is a joke. >> the point is that the first amindment and there is also an article one second five that says each shall keep a journal of the proceedings. we point out that even george washington and the founding fathers realized the importance of the first amendment and that is part of the tension in the
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debate. did the whole office come? >> the powers that are limited in this and earlier you mentioned the courts shouldn't really waste their political capital on engaging in the exercise of power and focus more on individual liberty but the exercise of power does indicate individual liberty so focusing on the operation post-911, how did the implications on individual liberty make their way into analysis? how does the executive branch do that?
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it seems like from what we see in the aftermath things probably didn't go as planned. >> so i think the president obviously take an oath to execute the law and take care that the laws are faithfully executed and the supreme law is the constitution. so the president has an obligation -- oh, i thought he was giving me signals. >> he wants the mike. >> i think the president has to ca carry out to the constitution. and so the executive branch has to follow the bill of rights as well. so the primary issue that bruce has mentioned is the surveillance program which has obviously strong tensions with the 4th amendment and the right
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to privacy and warrantless searches and seizures. if you thought the executive branch was paying attention to the 4th amendment they should have listened in on everybody's phone calls and read everybody's e-mails. there are different accounts of what happened. the nsa looked at the phone numbers, right? not the actual calls. they looked at the headers of e-mails. they didn't look at the content of e-mails for americans. for people outside the country they listened in and did everything they could and that is consistent with the constitution's 4th amendment. we may not like. we should have congress pass
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such a law for stricter laws. congress is outrageous people are saying and they are so weak. but when this came up with the rise of electronic surveillance congress passed the crime control act that setup a system to regulate the electronic devices. the executive branch in this case tried to exercise survilance powers as broad as it could but consistent with the amendment. if you want to have a broader scope of individual scope that is the job of congress. congress can pass law and require the laws to be broader than they have n past. >> michael hayden said any
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powers you want tell them and we will give them to you. and i have reason to know that the nsa's resources went from 80% focused on surveillance for terrorist purposes, not crime purposes like the crime control act. lawyers were assigned to task to see if the 4th amendment was violated. with when the president got around to look at the program you know what they said? it isn't authorized by statue, it doesn't work and it is not constitutional. we had one district court say it was unconstitutional and another one went the other way. but we should not rely on what the courts to say what the last word was. the president himself as wellies congress should be alert to their obligation to understand liberty is the center of the
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constitutional universe. not empire. when there is ambiguity we those empire. >> just so we will know we will go to this gentlemen, then the gentlemen in the glasses and then the gentlemen over here, and the gentlemen over there. so everyone note. and then the gentlemen there. that will be the order. and then we will end up with george. okay. sir? >> my name is thomas drake. i am a whistle blower and indicted by the obama administration. my question is is there anywhere in the article 2 of the constitution that you can site that trumps national security? >> anywhere where article 2 is more important than national security? i apologize i don't quite understand the question.
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article 2 describes executive power. i think unlike john, i don't believe the use of the word executive power the president can go to war. if it goes down to the right to recognize ambassadors why would it omit something as important as saying the president can go to war unilaterally. that is hiding an elephant in a mouse hole. that is all my response is. i am not sure i understand national security in article two. >> john, you know a great deal about article 2. what is your stance? >> i don't want to misunderstand your question but i think what you are asking more is where does it stay in the constitution that national security trumps article 2 or the constitution.
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that is how i will take the question. because i think that is a valuable question. i don't think that just a claim of national security needs itself trumps the constitution or article two. however, i also don't thing the framers created a constitution that would be defective and couldn't handle the challenges and threats placed on our government today by the thread of terrorism or war. i don't know the particulars of your case. i am sorry the obama administration prosecuted you if it was unjust. i just don't know. i don't think that the constitution -- that the framers would have written the constitution that would paralyze the government.
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the real question is should they interact so we maintain a balance between national security and liberty. i don't want liberty getting 0 and national getting it all. the founders were balanced. i don't know the facts of your case. >> comparatively the french constitution has a phrase that says for reason of state which then allows the state to act and washover civil liberties. the british have peace, order and good government and that gives the crown power. but there is nothing like this. that is what you are in quiquir. it is an omission in the constitution. >> i don't mean to be associated
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with anyone who quotes french during a public debate. >> you have the gentlemen in the tan suit and glasses right here. >> i am with the freedom rider institute. my question is to ask you to elaborate on the point you made that the articulation in section 10 has the implication there is no such limits on section 8. mr. yoo i would like to ask you since you seem to think the president restricted when he goes so far how with the secrets of war is one to know with they go too far? >> being the power of the person and the power to declare war.
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but john marshal explained you don't read the constitution of the united states text like the internal revenue code. you need to read it with an understanding of what its broad purposes were because they understood technology was going to change and the world wasn't going to be petrified. it is a mistake for anyone grounded in the constitution or the radification process and all of the worries about too many wars clogged intimate arteries of war that all of those who voted to radify believe that congress alone had the authority to initiate war. i don't think we should quibble about this and get refined references but just go to the major point and the reason they
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wanted congress to be entrusted with that and that is because they don't have the conflict of interest. you don't find them being labelled great war here es. the presidentsia find them everywhere and that is why the clauses mean what they say. >> i understand why bruce doesn't like robert boehnering because he said we should allow the spirit of the constitution to override the text. the text of the constitution as article one, section 10 and i think i read it out. bruce's response is i can tell you the spirit of the constitution is that no one would have thought that the president could wage war and it should be difficult to go to war using quotations that are not from the radification period of the constitution but after. so you could get people from the revolutionary people who were against thex cutesive.
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you can get people from the radification period like hamalton who is more executive. but that dozen come into play unt untilia read the constitutional text. it says what it says. i think what is strange is you have this precise clause about starting war in one part of the constitution. and when it comes to restricting the president, who you would think is a bigger threat in war time, why don't they repeat the clause again. why not? these are not -- most of those people are lawyers who are participating and drafting the constitution. why the president's commander and chief and power of the purse and to declare war. >> let me reveal this wooden reading. the first amendment says congress, not the president, or state, but congress shall make no law abridging freedom of
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speech. under john's wording the court can issue prior restraints because you read the word congress not the word spirit like you want the people to center the government. in fact, john's approach took root also in 1928 when the supreme court said to intercept conversations wasn't a violation of the 4th amendment because it protects people's houses and affects so you can wire tap the will. read the text john is saying and you prevert the whole of the constitution and turn it into a dictionary. >> i am focused on the constitutional text because i am not confidant i have the thought of what the founders thought. i think bruce's approach requires you to agree with his version of the constitutional history. i think the reason the text is important and the starting point
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is because that is what was paz passed and that is what is in riding. we then resort to broader judgments like what i think the purpose of the constitution is. >> this allows you to all hear the constitutional debate that takes place at the supreme court court every monday, tuesday and wednesday about how you interrupt the document. >> i think everyone watching should get out their constitution and understand article 1 and the notion of the power. >> you are going to be good at driving down the ratings. i think it is importance to have education moreso than rating. >> i want to go back -- i am sorry. i am steven jordan. i run management consulting
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form. >> are you sure it isn't institute for justice? >> no, and i have no affilation. i want to go back to the heart of the debate which isn't just about iraq or isis but it is the power of our executive institutions and legislative branches in terms of what they can and cannot do is decided boo us ultimately. earlier in the conversation you talked about precedent and what was informing the founders and the two major ones were the british civil war and noting the british army against the royal airforce and navy but the whole idea of parliament against
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monarchy on one hand and the other was the slope from the roman to the empire that generated into the print cap interrupting the laws they saw say fit. but we have the warning about the industrial complex and the idea that all 50 stays have a special interest to sway congress. in what way are you concerned about institutionalized corruption affecting these institutions? >> well, i think they are very, very profound and serious. the money and status that goes with being, what do you call a neo con or war hawk, is
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enormious. you know you are going out to criticize the national security state because you will get a $500,000 contract with booze alan or somebody else and people are worried about what their after government career is going to look like. so the security state builds on itself. i think we have a government that exaggerates fear in order to get the money. think, six months ago isis wasn't even a footnote in the middle east. then it went to a regional power. then a global power. interplanetary power. the worst dangers the world has seen. and now the money is appro appropriated there. the greatest danger now is to fight isis.
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but that is an example of where we have an institutionalized bias to multiple the actual danger of foreign forces. and you can see it in china and we will say it is the greatest powers. had the chairman of the defense program said the budget is like a war program and we cannot cut it out. >> i think it is an important question. our debate has been mostly about the president versus congress and my argument has been i thought the president had nor constitutional initiative and flexibility but agreement is going on for most of these
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things. your question goes beyond that saying are there limits that the government can do without agreement? is that a buzzer? i think your concern which is that war is creating something like the roman empire. i like to associate with people who can quote latin unlike the french. i think it is as a valuable skill. i was going to say always underwear. but i want to understand the question. i don't think we are an empire. if we are it is a funny one. we don't have territory abroad, we don't run regimes, we can
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barely get a coalition of people to help us bomb the middle east. the diplomatic historians who study the cold war, i think the classic book is called inviitation to empire and that the united states expansion of the military and stationing troops abroad was at the crying demand of the country's broad. it was just as much a pull as it was a push. we may have troops in germany, japan, south korea but i don't think they are provinces of the united states. i don't think we are like the republicans and have a functioning legislative. i real disagree with bruce's implication that government officials are engaged in fear mongling and trying to provoke war to make themselves personal
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wealthy. i think for the people i worked with in the government and i know only the people i worked with of course, whether i agree with them on the obama or bush administration, i think for the most part they are good hearted public citizens trying to protect the nation's security. they are not looking to say i am going to work for lockede and get rich. i think that is a terrible insult for the men and women in the armed forces and government who are out there protecting the nation's security with what i think are dwindling resources. that is what is hurting the security. the cuts in the defense budget but corruption by people trying to start war and make a fortune. >> this is just like the marxist critique of the vietnam war.
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>> michael hayden is at booze alan leaving the government and if you don't understand the revolving door then you don't know what is going on. >> you are saying people, the highest leaders, are provoking war so they can become wealthy after they leave? >> not directly that way. but listen, it isn't necessarily a direct quid pro quo but there are signals and they know what is going to happen afterwards. they understand with the war power they will go back and have the contracts. that is what they do. >> you think the leaders you mentioned and the highest government leaders are just as guilty as governor mcdonald in virginia who was convicted for corruption? >> no, i am saying you can have understandings without direct quid pro quo.
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do you think the people in the government don't know what is outside as far as consulting? >> let's say since we know many of the individuals that rather than add attacks in order to elevate the debate one of the issues that when the military's industrial complex, which was a speech drafted by good pastor, and eisenhower because johnson and two senators were coming in he thought it would be inappropriate to have the senators struck out of the relationship. but the notion of the iron triangle has been deep in the understanding of american politics and policy. >> this gentlemen is very patient. quick question. >> thank you very much. i am martin and a senior veteran
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core correspondent for the washington times for 25 years. me question is for bruce because i believe the history shows madison was wrong. when congress has the power of the purse that is not enough. the problem comes when congress willingly abdicating indicated the power of the purse and asks no questions. they did that in 1950 with the korean question that turned into a full-scale war but is down in history as a police action. that is how we got around the embarrassing need to ask congress to declare the war powers. in 1964 they asked and we know it is based on inaccurate information given to congress and policymakers. and before the 2003 iraq war
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congress asked, no questions again, in passing a resolution. and with john kerry and hilary clinton boat eagerly voted to give the powers that bush needed to go to war in iraq when no one wanted. i think bruce made a key point before which brings up the answer to this: to the weakness of congress and i would like him to expand on it. >> this is a history of -- >> bruce made the vital point that congress can be driven to carry out what the constitution should be by public opinion and thought often lacking. how do we expand hat? >> i don't believe that james madeson conceived that one branch of government would become an inverted branch and
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surrend his powers. one reason is because the party system was entrenched at the time. and now it is more held to the united states in the party. i call this a psychology of empire that has emerged in the united states even if john doesn't believe having 1100 military bases abroad isn't a mark of empire -- i think it is. even after they invite us in and bribe us. putting that aside, i think the whole country, and this blames us, we the people, have accepted too readily the idea we need to go abroad in search of monsters to destroy and we are surrounding our liberty for safety.
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and that is simply something that madison couldn't understand because the whole idea of the revolution was liberty -- individual liberty. ultimately you are right. it is up to the american people to say we are standing up and voting people out of office that take us to the wars too often and that is what happened in regard to syria and needs to happen again. >> i didn't feel like it was a question. it was like i agree with bruce, but here is something else bruce sa should say, could you comment. >> we are coming close to 8:30. this gentlemen is in the queue and i have a person back there who is insistent.
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both of you ask your questions and i will let you both have the last word. sir? >> my name is george jamison. i am a former retired cia lawyer. i am not wealthy. i did not become wealthy during or following by service but maybe it is because i was not in favor of the war in iraq. bruce may have answered part of my question by saying people can vote congress out of office because my question is am i withdrawn in thinking we had two different debates. a legal and policy debate. john is arguing in favor of the constitution and the system has tension built into it and you may not like the answer. bruce clearly doesn't like the
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answer. my question is since he trashed the executive and congress, how do you resolve the policy differences when people have used the system? you can have all of the debate in the world but what do you when you have a system -- are you seeking to change the system is my question? >> the woman in the pink. >> say who you are and your affiliation please. >> i am jeanine with george mason universitiy. my comment is motivated by mr. yoo's comment and the discussion before the last concerning the careers of retired generals. i just want to point out it is a
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matter of fact in public record that 20 years ago or 30 years ago when generals and admirals retired they actually retired and played golf and played with their grandkids and so on. today, according to a database of more than 700 generals and admirals to which my database put together by the boston globe to which my project has contributed more data points. predominantly retired general and admirals no longer retire. they continue working and working in the military industrial media complex. so again, this is a matter of fact, public record, mr. yoo you can have your opinions but this
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is about fact. thank you. >> in my judgment the destiny of the nation war piece rest with we the people. if we don't get it right, if the culture doesn't get it right, the government is not going to be superior. and i recall, listen we had a period of time where there was white supremacy and jim crowe laws, the ruling law was separate but equal. didn't make it right but it was the rule by the united states supreme court court. we need to take it in our hands and not just complain about congress and the executive branch and do something about it. vote them out. say this is wrong. we don't want to do it. we did it a year ago in syria and that has to become the norm
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rather than the exception. if the spirit of liberty doesn't beat in our hearts or minds every day it will die and no court or congress can save it. >> i will answer the questions and then sum up. the first question i don't disagree with you. i think we are getting the policies we voted for as an electorate. i think we had a democratic process and multiple elections since 9/11 and our elected officials are representing what you vote on. we are not an empire with a roman emperor telling us watt to do. we voted for president obama and
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the members of congress. on the advertisement for the database. i don't like numbers. but surely you know the difference between correlation and causation. just because generals and admirals have the correlation of going to work for contractors after they retire doesn't show they are making decisions deliberately while in office to provoke wars or fear monger. so just to sum it up, bruce says, you know we have this constitutional system and our job, if we agree with him is to vote people out even if the different branches have different policies and the constitution is interrupted differently by the branches. that is what happened in 2008 when we elected an anti-war
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president. look at the consequences and what happened to the defense security and i think it a direct result of the policy bruce is promoting. i think we are much less safe today than we were back then because of it. >> both the people on the panel and mentioned i would like to thank you for your public service. one may not agree but there are many patriots and they are serving. i want to thank the committee for the republic and the national press club and i want to say these are the types of events we think we need to put the issues in front and have a true debate. if you are encouraged in more of these debates at the american bar


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