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tv   Constitutional War Powers  CSPAN  June 6, 2018 8:01pm-9:42pm EDT

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you go to our website you can find a video of this event within a few hours of now. thank you. he testifies on capital year about the fiscal solvency of social security. you can watch the hearing live beginning at 11 am eastern time. tonight on tremont 3, a senate hearing on-- tonight on c-span 3, the decision to withdraw from the iran nuclear deal and the effects of deregulation by the trump administration. legal scholars us-- discussed authority for war.
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it included andrew napolitano and we share this hearing. i want to thank everyone for attending. my father used to say there were two things you rarely heard in washington and that was either a moral argument or a constitutional argument. today we are going to discuss the constitution and how we go to war and what is the approach to war in the constitution? critics have complained that
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the global war on terror has never really been authorized by congress. after the attacks on 9/11 president bush did his constitutional duty and asked congress to authorize war against people who had attacked us and anyone who aided or abetted that. if you read the authorization it's very specific. we asked for more expensive language but can't-- congress assisted using those who attacked us our plan to the attackers. forces authorized against unnamed entities but they are narrowly defined by the relationships to the attacks of 9/11. authorization was not given for a global war on terror or against radical islamists or separatists or insurgents in various civil wars. authorization was not given for associated forces. it was only to be directed against the people who attacked us and anyone who helped or harbored them. it is safe to say that no one
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in congress believed that they were voting for a worldwide war on terrorism and twentysomething countries that would go on for decades. intellectually honest observers have complained that the 9/11 authorization of war does not cover the wars being fought through dozens of countries in africa, the middle east, and the south pacific. basically the expansion has occurred without the required constitutional authorization. senators corker kane and others wish to pass a new authorization for force. i don't despair to their office. the motives are genuine but there are 2 big issues that need to be fully debated. number one, does it matter who wields the power to initiate war? our founding fathers believed strongly that it did. they squarely delegated the power to declare war to congress.
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the executive is the branch most prone to war and therefore the constitution with studied care vested the power to declare war with a legislature. so yes, it is the job of congress to declare or initiate war and congress has been negligent for over a decade. congress has not done its job. they have let president after president concentrate that power in the executive. the second and inseparable issue is when and where should we be at war? it is not enough to say congress should authorize war. the bigger question is where and when should we fight? our job is to-- the vast and important job of congress is to decide when and where we go to war. are we to authorize the status quo, are we to authorize war and all of the theaters that various presidents have taken
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us, or should congress limit that scope of what we find ourselves involved with? this is where the authorization fails us. it does not limit the scope of war. it merely codifies the status quo. i would argue it actually expands the current theaters of war. they authorize-- it authorizes war against groups known to ought-- to operate together. it sounds like-- hardly sounds like we will have less war. equally concerning is that it unconstitutionally delegates or transfers and enumerated power from congress to the president. article 1 section 8 gives congress the power to declare war. corker kane initially authorizes war but says to the president you get back to us. give us an initial list in case we missed anyone we are currently at war with, and if you want to add any associated,
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this transfers the power to name the enemy and its location from congress to the president. worse yet this changes the nature from a simple majority affirmative vote to require a super majority vetoproof vote to disapprove of set-- presidential wars. if there is a new force the military will attack, the only way that congress can stop the president is now a two thirds vote to overcome the toe. the constitution is flipped on its head. this fundamentally transfers the power of war to congress from the president. the hearing is convened to explore precisely that question. can congress transfer the power to declare war to the president? in that context we will discuss the constitutionality of the authorization and i hope you will have a spirited discussion. i would like to recognize senator.
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peters. >> i continue to be impressed with your willingness to have this subcommittee tackled the big issues and none are certainly bigger than war powers. voting to send our sons and daughters to war is the most important and the heaviest responsibility that a member of congress bears. we must never forget that while the sacrifice is borne by servicemembers and their families, under article 1 section 8, the responsibility of asking for that sacrifice is ours. today, our war fighters are serving in harm's way in places that have never been named in any declaration of war and facing adversaries that cannot be found in any authorization of military force. the framers in their wisdom separated the power to declare war from the power to wage it.
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as you have reserved the reality is that we are at war anywhere and anytime the president says so. in failing to assert our powers we have effectively seeded them to the president. this is a way for us to play it safe. awarding a declaration of war and keeping for soccer-- authorizations vague, we can blame the president when things go wrong. we must not shirk our constitutional responsibility in favor of political expediency. we owe it to servicemembers and families to roll up our sleeves and have this debate. this is not a partisan issue nor should it be. congress has not declared war since world war ii. president. obama did not seek authorization for the use of military force, nor president trump seek congressional authorization for military action in syria. the 2001 authorization has now
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been used by three presidents to support combat in countries with known access to 9/11 and against organizations that didn't even exist. it offends common sense and that's why i supported the efforts to repeal the 2001 and 2002 authorizations. the world has changed since we last declared war. adversaries often wear no uniform and swear allegiance to know nation. the technology has evolved in ways that would be unrecognizable. our military can impact world affairs with the drone strike from inside the united states. how we authorize war must adapt to the changing threats and technologies but the principles of separation of powers is as sound today as it was then.
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the power to authorize military force is the most sacred responsibility. we must reclaim it. witnesses have spent a lot of time reclaiming these and i'm eager to hear your views. i'm eager to hear about the ideas of addressing our constitutional authorities and i am hopeful that we can find solutions together. >> let me begin by noting several senators not on the subcommittee have requested to attend due to their interest. i would like to ask consent to allow senators to fully participate in the hearing if they would like to, senators sanders and udall. judge napolitano is a senior analyst and the longest-- youngest superior court judge in the
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history-- state of new jersey. he began teaching constitutional law at delaware law school and another 11 years were he was chosen as the most outstanding professor. he has authored seven books, lectures nationally, and human freedom. you are recognized for your opening statement. >> when i asked my bosses if i could participate in this proceeding, they asked if senator. sanders was going to be here and i said yes he is and they said well we are dying to see bernie sanders cross-examine you. i said it won't be a cross examination, we agree on everything. well, we will let you go anyway. i have also been a professor of delaware law school and
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brooklyn law school for a total of 16 years. i have published nine macbooks on the constitution and much of my work has concentrated on separation of powers. we often begin the first day of constitutional law by asking students what is the most distinguishing feature? the first day of law school and most will say freedom of speech, protection of privacy, some of them may even say due process but i impose upon them the observation that even the constitutions of totalitarian countries guarantee freedom of speech and privacy, but only hours has the strict separation of powers. the structure of the constitution with the primacy of congress is a profound demonstration of the commitment
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of the founders to the sacred ideal. though senator. peters has argued eloquently, the separation of powers is the value and the ideal. unfortunately it is not always the practice because presidents have assumed that they can utilize military force if they think it is popular because congress will sit back and do nothing. all that is necessary for the triumph of evil is for the good men and women to do nothing. when congress looks the other way as it did when president. obama bombed libya and when president. trump bombed syria, this is effectively an amendment of the constitution by consent. we consent by our silence to the president of the united states usurping the authority that the constitution gives to us. that authority is unmistakable.
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if medicine was clear about anything it was clear that the war power is the most awesome power that the government can wage and can only be reposed in the legislative branch. the very practical reason is that war is a failure when it lacks broad public support and only congress has its thumb on the pulse of the people to determine whether war enjoys broad public support.>> the president and the senate has entered into treaties and it gives the president some leeway. if an attack is imminent he does not have to wait for the first missile to come. if we signed a treaty with an ally and the ally needs assistance, it is up there on the hierarchy equivalent to the constitution itself. does the president of the united states of america have
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the power to bomb another country that poses no imminent threat to the united states? the answer is a loud and resounding no. the president does not have that authority. when members of congress look the other way, it is either because of a belief in what the- - that the president is doing is popular, a belief that what the president is doing is wise, and we have not been asked to get involved. we don't want to get involved. war may be popular or unpopular, whatever is going through the minds of congress, it is not fidelity to the constitution. it is not fidelity to the separation of powers. i was interviewing a member of congress-- congress whose name i won't mention. at the very moment that we broke into the broadcast to announce that the president was
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bombing libya. you are of the same party of the-- as a president. what do you think? >> the president doesn't have the authority to do this, we all know that. were you going to do about it? probably nothing. that's when president. obama made the announcement and when the congressional break was over and the president returned from his trip, nothing had happened except that the constitution was weaker. he was about-- moammar gadhafi was about to be killed in an evil way. only congress can unleash those forces. madison could not have been clearer. what troubles me the most is the presidential value that comes about when congress looks the other way. i'm not here to present-- criticize president. trump and it's not an argument
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about politics. it's and argue about principle. he had reason to believe that congress would do nothing because congress did nothing in these other instances in which presidents went to war. i would argue that they don't have an endpoint because they unleash the president to do what he wants as long as he wants to do so. i encourage you not to replace those-- to repeal them but not replace them with corker-kaine. this is hardly personal. but as you yourself have pointed out, at the present time the president goes around the world and i don't mean president trump, they go around looking for monsters to slay and when it's popular or moral, they slay them in congress does nothing about it.
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when this behavior becomes a precedent for future presidents to do it and when a president in this area can rely on a document of no moral and legal value and congress does nothing about it, the constitution is being amended by consent. if congress decides to withdraw funds for some military excursion, the president will veto that act and it will require a vote of both houses to overcome that. a president with one 3rd+1 can wage war on any target at any time. that is so contrary to what madison intended and so contrary to the plain meaning of the constitution as to be a
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rejection of the oath to preserve, protect, and defend the constitution. i look forward to your questions after hearing from my colleagues. >> our next witness is professor. jonathan turley who is a legal scholar who has written extensively in the area of constitutional law. he has served on a consultant of homeland security and testified before the house and senate on constitutional and statutory issues. he has been ranked one of the top 10 lawyers handling those cases, and the second most cited law professor in the united states. welcome professor. turley. >> thank you, senator. peters and menard-- members of the committee. it is a great honor to come to this committee to speak about this issue of the constitution. if there is a sacred article of
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the constitution it is article 1 section 8 mac. -- article 1 section 8. it is not only constitutional but moral responsibility. the words congress shall have no power failed to capture the moral imperative. it is rather an obligation meant to adhere to each member when you raise your hand and take your oath. at the earliest stages, members begin to struggle with this responsibility. regrettably, this is the ultimate and perhaps inevitable and to that process. this amounts to a statutory revision of one of the most defining elements of the constitution. we find ourselves not by accident but by decades of concerted effort to evade the
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responsibilities given to them by the framers of our constitution. the result is that citizens and children are taught a false assertion that members of this body will declare war and have the sole responsibility to do that. after all the provision speaks loudly and clearly to that. what this does and what past ones have done is to revert-- reduce that declaration to what was referred to as voices of sound and fury but referring to nothing. this expresses the intent of the framers. one aspect that i find most telling is that we have plenty of quotes from my favorite framer james madison, but this is one of the few points on
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which there was almost unanimously. it appears that butler proposed to give this entire power to the president of the united states. he did not receive a second. he spoke to a room of framers and made the proposal and not a single one second that motion. that was one of the most important moments of our republic. that silence, the absence of a second, show-- shows where we began of men of principle who knew they had to strike this compromise to restrict the powers of the presidency and give this sacred duty to this institution. it was a compromise but it's hard to see how that language got us to where we are today. in 250 years we have 5 declared wars, only 11 declarations. it actually began poorly. we did not get out of the 18th
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century before members of the institution found ways to get around this duty. when john adams wanted to start the quasi-war, to his credit they did put forward legislation that referred to the french vessels but it was not a declaration. we weren't even out of the 18th century before politicians found a way to get around this duty. now the last declaration was in 1942 and has made a mockery out of the statement of george washington. in 1793 when he said the constitution vests the power of declaring war in congress, he added this. therefore no offensive expedition of importance, no offensive expedition of importance can be undertaken until they have deliberated upon the subject authorized such a measure. we have made a mockery of that statement. before i mention some of the flaws, i want to
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know one thing. this reflects my friend in terms of what he had said. this assumption that we should only be debating the scope and standards by which a president has to satisfy, there is still the original question. many of us have constitutional reservations about the aums. in-- if anything this has been made prevalent. we are at war always. we are forever war. it is not the fault of the framers. it is in direct violation of what they thought would prevent it. they hated war. the framers despised it and believe that the presidents and chief executives were naturally inclined towards war which is why they made this a clear standard. i talk about the problems that i see in this proposal and why
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i think it's worse than the current one which takes quite an effort. i will not go through all of the details with how new nations or countries are added, the shift, all of those are fundamental flaws that go even further from where we were. the ex post problem is really i think, the signature moment of this law. this body has failed historically to require a declaration so they got rid of it. and then they failed and got rid of the need to specify if the nations were going to go to war against. now they are about to get rid of the requirement to get any type of prior authorization. it will make this body a pedestrian to war and put warmaking on autopilot.
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this does not even have a sunset provision. it just goes on. i can see why that is so tempting to have. it relieves members of this body of an uncomfortable question that do come up. i would simply note this. under the past circumspection, under the former aums, we have gone to 100 years of war. this proposal has basically no standards and will effectively will revise the constitution without an amendment. i had the honor of testifying before this body and your counterparts in the house many times but today i took a step i have not seen and asked my two sons to come with me. my for my children, my sons are behind me. they are both either at draft
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age or are about to be at that age. i felt they should be here to watch part of the process because they may well be asked to pay the ultimate price for the authority that congress may soon bestow on the president. i know they will do their duty as their grandfather and great grand-- grandfather in previous wars. i don't have question about them doing their duty but i have questions if members of this institution will do their duty and stand with the language of the constitution. project the proposed aums and show the framers that the faith that they put into this body was well-placed. thank you again for the honor of appearing before you today and i would be happy to answer any questions that you have.>> the deputy director of the washington legislative office of the american civil liberties
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union. the topics of war authority, detention, torture and has written extensively on the topic of authorizations for use of declarations of war. ranking members of the subcommittee, the american civil liberties union would like to express our appreciation for holding the hearing today. no decision is graver or more consequential than the decision to go to war. over the many years since congress passed this, they have dedicated themselves to defending civil liberties that have been jeopardized by tenuous claims. presidential claims of article 2 and
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advanced authorization. american citizens, but surveillance of american citizens, and kidnapping and torture of suspects even of an american citizen apprehended here in the united states. it would be impossible for one congress to undo the damage of 17 years of presidential overreach. i propose a three- step process for congress to reclaim its constitutional authority at war. focusing on the most pressing first step. first do no harm. the top priority must be to ensure that sj rest 59, the corker-kaine does not become law. it's hard to overstate the depth and breadth of the dangers
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of the civil liberties and human rights that would be caused. the damage would be colossal. not only would it be almost irretrievably see to the executive branch the most fundamental powers that congress has, the power to declare war, but it would also give the current president, future presidents authority from congress to engage in worldwide war sending american troops to countries where we are not at war, and against groups that the president decides our enemies, groups that don't even exist today. it would authorize without operational limitations against 8 groups and 6 countries. the president could add to both lists as long as he reports to congress. the president would have unilateral authority to include
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other countries including the united states to that list and have a 40 and have a 42 add additional enemies including individual americans under its new authority. such would require two thirds majority of both houses even though the president would presumably veto legislation. every president for the coming decades would effectively be able to claim much of the powers of the constitution gives to the congress and gave to congress exclusively. i wanted to point out a provision with the innocuous title section 10 conforming amendment.
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this provision greatly expands the scope of the infamous 2012 detention provision. ' -- section 10 would expand the detention authority by adding this new one as a basis for the military to caption and imprison individuals without charge or trial. the corker-kaine aums like the detention provision has no statutory provision against locking up american citizens or anyone picked up here in the united states. we continue to believe it would still be unlawful for a president to try an american citizen in the united states again. there's no reason for congress to rescue. when congress considered the provision in 2012 the uproar from across the political was deafening. it narrowly passed and president. obama signed it.
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when the president signed it he made a promise as part of the signing statement that he would not use against american citizens but that's it. it was a promise. he never said, and nowhere did either president or trump deny that either they or future presidents would have the power to order detention. it would make the detention provision and even greater threat. while we share the frustration, many senators including senators corker and kaine who have expressed their frustration, would cause far greater problems than it would solve. the aclu strongly urges all senators to oppose legislation. thank you for holding this
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hearing and considering these views. >> because i believe in being kind and welcoming, we're going to let guests go first. >> thank you for holding the hearing and i will think our panelists for their testimony. >> article 1 section 8 states that congress shall have the power to quit-- to declare war". the father's good the power to authorize the power to congress. congress is the branch of the government that is most accountable to the people. there is no question that over the years congress has allowed its authority over this important issue of warmaking to ab-- to ebb.
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it is time to reassert that authority and start asking some tough questions that the word wars-- and i use that word wars that we are currently in. some people may think this is an interesting and abstract discussion and we are brilliant scholars with for a wonderful intellectual debate but let me assure every person here that the application of congress to its responsibilities over war has had dire and horrific consequences for the people of our country and in fact, the world. i want to bring this down to earth and away from the abstract and important discussion and give you three examples in recent history were congress did not ask the right questions, abdicated its responsibility, and the consequences were enormous.
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very few americans know that when we deal with iran, how many people know that in 19 how many people know that in 1903 the united states along with the british overthrew the democratically elected government reinstalling an authoritarian rule? bringing to power an extremist anti- american government. in 1953 the united states government without congressional approval thought that it could simply remove the government of iran-- i run in order to protect wealthy oil interests and what has been the consequences of that over the years? congress abdicated its responsibility. number two is the war in
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vietnam. i run to place under eisenhower, republican. johnson, in my view a very great president, but in this instant cited an attack on a us ship as a pretext for escalating the us intervention in vietnam. what we now know is that johnson himself doubted that story about the attack. his administration misled both congress and the american people into the-- into a war that resulted in the loss of over 50,000 american soldiers and over 1 million vietnamese. congress was lied to. there was no serious debate about american intervention. the third example was iraq. it is probably acknowledge that
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it was a policy blunder of enormous magnitude. in this case the bush administration lied to the american people claiming that saddam hussein had weapons of mass destruction. the results of that war and the loss of thousands of soldiers, the displacement of millions of people and bringing us to where we are right now. what we have seen is time and time again, disasters occur when democrat and republican administrations mislead congress and when congress fails to do its constitutional job in terms of asking the hard questions of whether or not we should be in a war. i think we need to ask that today.
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here is a point that i hope the american people are asking themselves. is the war on terror a perpetual, never-ending war necessary to keep us safe? i personally believe that we have become far too comfortable with the united states engaging in military interventions all over the world. after 9/11 congress passed authorization for the use of military force quote against those responsible for the recent attacks launched against the united states. the following year they passed the 2002 aums against iraq. we have now been in afghanistan for 17 years. we have been in iraq for 15 years. we are occupying a portion of syria in this administration has indicated it may broaden that mission.
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we are waging drone war in five countries. our forces right now are supporting a war in yemen which has killed thousands of civilians and created the worst humanitarian crisis on the planet to date. clearly these outdated and expensive aums 's have been used by republicans and democrats as a blank check for the president to wage war without congressional consent or oversight. meanwhile we are currently quote unquote fighting terrorism in some 76 countries with an estimated cost of $5.6 trillion and untold lives lost since 2001. i think it's very clear and the panelists made the point extraordinarily well, that the
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time is long overdue for the united states congress to respect the constitution of this country and stand up for that constitution, and to demand that it is the congress of the united states, not a president, who determines whether young men and women are put into harms way. thank you again. >> we will next turn to senator. merkley. >> thank you very much mr. chairman for setting up this hearing. under what authority do each of you feel that we are currently in syria taking on isis? judge napolitano ? >> i don't think we are in there by any constitutional authority because like your
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colleague, i don't believe that any of the aums were constitutional because they did not adequately articulated target and did not put an end point. presidents of both parties have used the vague principles that they believe are emanating from the aums to justify the type of incursion that you're asking about.>> mr. turley? >> i see no authority under the aums or constitution what unfortunately is a less than noble lie that we have seen come out of the aums , there has been the specificity of the targets. the proposed legislation is the same technique and gives specific references while adding provisions that can be expanded almost at will by the president subject to some post hoc action by congress. >> do you see this?>> at the time that the government made
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the decision they made the decision to claim that this authority to go after isis fighters, senator. paul had legislation was a declaration of war focus for one year on isis and that was a constitutional way to take on that fight. >> they have had a very tortured interpretation of the 2001 aums -- a tortured one and applied it to a group that was at war with al qaeda. the reason i ask is because three experts have clarified that we do not have constitutional authority and yet forces are in this battle in syria. i wanted to use this as a way to dramatize what has happened in which it was a very precise
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aumf very carefully constructed to those who attacked us, and those who harbored those . since then it has been stretched and expanded to country after country an organization after organization . i think you agree with the characterization the 2001 being stretched beyond recognition since it does not provide a foundation for military conduct in these countries. >> this point at which it was 2001 should not be allowed to continue and we have the corker proposed aumf. i have an impression that when you analyze the details and what it authorizes with the president allowed to add an additional list and the list can be added without
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preauthorization that essentially codifies the expansion, the stretching of the 2001 aumf, is that a fair way to describe that? >> yes. it's a loaded gun. >> at minimum yes. >> senator. corker who i respect for wrestling with the 2001 and senator. kaine trying to figure out how to explain, coming up with this proposal which deserves me for the reasons you have been sharing. senator. corker said if you don't like this, what would you do? and you mentioned, i think your closing comment was that you encourage members to consider presenting what could be done as an alternative. i have presented such an alternative. i don't know if each of you is
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familiar with it, but one of the things it does is have a sunset so it would require us as senate and house to re- examine the foundation and considerations. do each of you think a sunset is an important provision? we do not have unending war without reconsideration by congress? >> a sunset is certainly helpful because it compels congress that representatives of the people to periodically review what the president is doing in their name. my own view would be legislation which says the president shall not use military force, military or civilian, because presidents use intelligence forces and bypass the war powers resolution. >> my time is going to run out so-->> okay, i didn't mean to take-- except in accordance with the constitution.
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>> i know you've seen what i put together to tightly constrain what two countries and a 2 year sunset to require any expansion by the president including expansion to ground forces to require preauthorization. we have the constitutional vision represented. any insight on the track envisioned in the constitution. >> weather us should be at war against a particular country or group, whether or not it separates your powered, if it's up to congress if it's up to make that decision on do we want to be at war with these particular groups and particular countries, but in
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terms of fitting into a constitutional framework, yes it does.>> i want to note that several of you pointed out that members of congress are uncomfortable with having to make these tough decisions. it's easy to take what was invested in deliver it to the executive and let them take the heat. i find that unacceptable and this version-- inversion in which the president can go to forces in new countries and organizations, deciding on his or her own whether or not it meets the test in the aumf, and then congress would have to come around and get a super majority of both chambers to close the door-something that nobody thinks congress whatever do. in sum, we end up with a whole scale transfer of our responsibilities carefully crafted.
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it is tough to make these decisions but it's our responsibility. we need to craft a replacement aumf that honors that vision of the constitution and makes us have the tough debates and the tough votes. >> senator. udall? >> thank you mr. chairman. i really appreciate you calling this hearing and having these experts before us. i asked the following question to secretary. pompeo and wanted to get your perspective. the chief of staff of the army reminded us recently in an appropriations hearing of the nature and character of war, the traditional ideas that war at is based-- at its base is an extension of politics, military means to reach a political
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objective. taking an expansive view of what congress approved, the political objective is to stop terrorism at a broad level. a more restrictive view that was sold to congress when i voted in favor of that was that we aim to punish and deter the perpetrators of the us specifically al qaeda and the taliban, which view do you believe is the correct one? >> i think it's the narrower view and i think congress at that time worked hard to come up with specific language. there was a back-and-forth that has been reported on quite a bit between the white house and drafters in congress coming up with that language. the part that is frustrating is that we are talking about the need for specificity of naming
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the object to send enemy. it could have been made more specific than it was and who it was who they were going to war against than what it was. the only shortcoming is that the united states at that time did not know the names of who it was that we were at war with. it did not include exact names but it's pretty clear that it's for al qaeda because of the war of the 9/11 attacks. >> one of the restraints was recently put in a commentary at cornell and she is the author
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of the american way of war finance and the decline of democracy. she makes the point that when you have a tax on war, everyone understands that society as a whole is backing this war. in the distant past we please with- - we paid with war-- paid for with war taxes. they have proposed it to raise public awareness about the cost of war and to share the sacrifice beyond a small percentage of americans who fight in these wars. what do you think of a proposal for a tax rather than-- and i know digging us deeper into debt?>> having a greater investment and knowledge of what the cost of war are,, one of the problems is with the lower cost of war
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in terms of american lives with the used of-- use of drones and new technology is that it allows the more obvious cost of war, focusing on what the financial costs are would be a helpful way to get a better understanding of the full extent of what this actually means. >> i think you would end up having a debate of whether or not to commit ourselves to many of these dangerous situations. along the same line, why are we not seeing people in the streets like in vietnam or antiwar activity, then the answer i always get is that there's no draft. should we relook at this? do you consider a draft a check on foreign wars?>> we've had a
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lot of concerns historically about a draft in terms of its impact on civil liberties and in terms of quality and who is subject to it, so that's not a proposal that we are proposing. >> the office of legal counsel recently released-- released a justification for the strikes in syria. . the president identified three interests in support of the 2018 strikes, one was regional stability and worsening of humanitarian catastrophe and the deterrence of the use of chemical weapons. it relies on article to authority and as a harvard professor says,, it publicly
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believes the president can use significant airpower without congressional authorization on the grounds of humanitarian intervention of the use of chemical weapons. i find that opinion to be extremely alarming. do you agree that these strikes can be justified via this articles authority alone? >> the claims made based on 2001 aumf, that opinion on syria strikes and strikes on syrian targets and the april one 2011 opinion during the obama administration from the legal counsel on the air campaign against libya are chilling. they are essentially the president claiming for himself the war authority that the constitution gave to congress alone. they are very expensive claims
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and i think a lot of us thought that the libya was-- opinion was about as aggressive and expensive as one could be. that was only topped last week with the war in syria. i think the challenge for the senate to figure out how to use the legislative process to pair that back and validate those opinions and those relying on them, ultimately that's going to require used-- cutting off funding for unauthorized military campaigns.>> chairman paul, thank you for this hearing. >> i want to thank senator. paul for organizing this and the three of you for your willingness to come and offer expertise and the insight that you have offered today. we are in our 17th year of deployment under the 2001 authorization. it is not yet the case that the most junior personnel were not
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born as of the moment that the aumf was issued by congress and will soon be the case. it will be the case that this was issued before they were born. we have some issues to deal with and has spent 2.8 and has spent $2.8 trillion. there's a lot of accountability that comes with congress continues to look the other way or tolerate ongoing efforts and deployments consistent with those 01 those 01402 aumf 's without having additional discussions on what exactly we are doing and why us blood and treasure should be put on the line. instead of the people's elected representatives discussing
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these in real time, they have been left to the will and the whim of a small handful of political elites. this is scary and contrary to the text in the structure history and tradition underlying our constitution. it's one of the reasons why i welcome this hearing and why i think we need to have this discussion. i've gotten a few questions. earlier this year as you are probably aware, members of congress received a letter from the department of defense relying on a 1975 argument suggesting that the only time congress has an indispensable role in authorizing us forces to be deployed is when deployed units of us forces are on the ground engaged in a connecticut exchange, do you agree with that and why? >> we don't agree with that. first of all it's the role of
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congress to provide exclusive authority authorization in advance before military engagement in the absence of an attack and that's the constitutional standard. there's lots of warfare that we engage in today the doesn't necessarily involve an exchange between people on the ground. >> i think this again is something that began during the obama administration, this definition of what hostilities mean under the war powers resolution and what the position of president obama eventually took was that hostilities did not include airpower in the absence of ground troops. that of course means that lots of places as you've just referenced, where the united states is at war, are not
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considered hostilities. therefore the war powers resolution which includes deadlines with trying in the absence of congressional authorizations don't apply. the legal advisor at the state department, the executive branch pretty much wrote out of existence a good part of the war powers resolution. so within congress,-- >> you made an understanding that the president unlike the king would not have unilateral power to go to war. hamilton makes this point. when people talk about the immense power to deploy military personnel, from what source are
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they claiming that authority exists? >> there is no source. the interesting thing about this particular provision in article 1 section 8 is that it was viewed at the time as the defining work of the convention. the framers who joined together who are normally not in agreement and said this is how we can address this, they all agreed that they didn't want a situation like the one that we have today where a president has unilateral authority, and they believe they had fixed the problem because article 1 section 8 could not be more clear. to hold us back to the question, this kinetic conflict was used in litigation on behalf of democratic republican members. the obama administration came forward when we were
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challenging libyan wars and came in and said it's not war by hour definition. when we had that argument they went further and said the president alone defines what war is. we presented that to the court. do you honestly think that the framers put this specific of an obligation, spent this amount of time, and it all comes down to a now and that the president is simply allowed to define? by the end of litigation i had no better idea of what connecticut means in wartime than i did before, but what i did-- >> it means you are hitting stuff, i think.>> i guess so. it got to the point of absurdity -and this is all an effort to avoid clarity. to change the noun if you cannot deal with the obligation. >> to avoid clarity. that's a good description. to avoid clarity in a place of morality decency and justice
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would seem to demand clarity. i wanted to talk to you about the associated forces doctrine. executives from both political parties for decades have used this as a number of military operations. when i read the text for the use of military force it seems somewhat clear to me that it covers a fairly narrow scope of targets to include court those organizations or persons that he being the president decides aided those attacks or harbored such organizations. can you explain the limits of this aumf meaning what groups or geographic regions the us could legitimately go into under this authority? >> i have argued that both are
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unconstitutional because they failed to include an endpoint. that's the reason we are having this hearing today because presidents have used these to go wherever they wanted to go. george orwell predicted all of this when he said words would determine liberty. if the president can define war rather than cat-- rather than congress, he or she will define it in a way to facilitate his or her use of it. at one point the obama administration argued that the use of intelligence forces on the ground who were not wearing uniforms with insignias on them is not the same as military forces. they looked a little different because they didn't shave every day but were carrying the same type of offensive reference-- weaponry that had not been authorized by congress. the use of the phrase and permitting the commander-in- chief to define what that means,
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a loaded gun and-- in a desk drawer of the president, take it out and shoot it. >> i see my time has expired, thank you. >> thank you for your testimony here today and an interesting discussion. i want to discuss something happening today and get your sons of what you are seeing. starting debate on the national defense authorization act, the bill that is before us includes a provision that will allow the secretary of energy to pursue development of a low yield nuclear weapon without receiving specific authorization from congress.
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i voted against this as a member of the armed services committee and a low yield nuclear weapon, quote specifically authorized congress replaces it with a provision that will allow the secretary of energy to decide on his own. the provision was a limitation that congress put in place to ensure that the legislature and not the legislative branch would make such a highly consequential decision. a nuclear weapon that we should debated, we should authorize it and do it in full view of the american people as existing law requires. instead, some are trying to change the rules to allow the executive branch to make the decision without congressional approval. for the panel, is this an appropriate delegation of responsibility?
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>> in my view i do commend you for your vote and understanding. the point that i tried to make was that it is often a subtle and unseen passage of power from congress to the president that comes back to wreak havoc the most. as a person who monitors this, i was unaware until you discussed this two minutes ago that this was being debated by the senate today. this is profoundly hideous and utterly unconstitutional that bureaucrats in the executive branch with power that madison and company gave expressly to congress. >> any others? >> i would simply add that i find it very problematic in terms of using the appropriations process as a substitute for an authorization and a full debate, you have 2 former house pages here. we
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will not tell you the years that we served but you can look it up because as mentioned, we had the debate over the neutron bomb of whether to allow the neutron bomb to be developed or whether it was a new type of weapon that would make nuclear war more feasible and therefore more likely. i stood there listening to that debate that went into the earliest hours. it was one of the most profound experiences of my life and i came away with a deep respect for members on both sides that spoke honestly and directly about the consequences and the issues behind that type of weapon. i remember thinking that this is a pretty great place when we debate whether we should do something, not whether we could do something. and what implications does it have not just for us but for the world? that is a debate that i think you should always wanted.
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the other point i was going to mention, in my testimony i talk about problems that we are having not just for the failure of congress to carry out its duties but it's collateral failure to deal with the obligations of the appropriation powers. when we litigated against libyan war, one thing people did not realize is that war was completely paid out of loose change. congress never appropriated money for the libyan war. we did an entire war paid for because congress gives so much money to the defense department they can actually have a war based on the money you give them and don't commit to. the failure is on both sides of this issue.>> i appreciate that. i'm going to ask you answer a little different question but this debate on nuclear weapons and the consequential nature-- nature and why congressional input is essential in my mind.
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it seems as both previous witnesses would agree with that. i spent a great deal of time speaking about the future of warfare which was going to change in absolutely dramatic ways. i'm intimately involved in self driving cars and autonomy and things happening in that scope. we are going to have the face of warfare which will be radically changed and i think it raises some issues of what we are dealing with but also significant policy issues and perhaps a view of what the involvement of congress should be given the fact that this is changing rapidly and may not be bound by the same types of strengths that we have here. what should we be thinking about in terms of war powers given the fact that technology will be changing dramatically and in profound ways? i know you mentioned more about that earlier.
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>> i think this is one place where the need for specificity, control, and limitations are put in at the get go is important. i think there are places or instances where members of the relations committee have come up with various amendments limiting some of the-- operationally what could be done but i think even more fundamentally limiting the geography and who the enemy is are particularly important. i think going a little bit back to the question about the provision today, if congress
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has not learned anything over the past couple of decades other than it is a one-way ratchet wrench with turning any type of authority over to the executive branch, if you provide discretion you are not getting it back. the starting point for use of military force or declaration of war or any new weaponry ought to be controls imposed by congress and if later on those need to be loosened, loosen them. but the tighter control that you put on, the more likely it is that congress will retain that authority.>> if anyone has a quick thought i would entertain that.>> fully agreed.
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>> it was mentioned earlier that our soldiers within the next year will have been born after 9/11 and have no memory of it. we have been at war that long. even many of the audience is young enough that they may not remember 9/11. it's not to say it was not something profound and that we needed to respond, but we are still at war and i think we've lost our mission. i asked secretary. pompeo is there a military solution to afghanistan? he frankly said no and he is one that wants to stay. my question is if there's no military solution why are we still sending troops? the director asked about afghanistan and pakistan and in 2010 the obama administration admitted there was no military solution. in the book there is a discussion and it says unanimously, everyone agreed there was no military solution in 2010. we have to wake up and do something and that's part of what this hearing is about but it's also about the
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constitutionality of authorization to use force, a declaration of war. i think it's important that we review these. i think there are one or two possible reasons why this is unconstitutional and we will start there. congressional authority given by the constitution to congress to the president. why don't we start with judge napolitano and professor. turley and say how is that unconstitutional? is there a possibility that we can go to court or evidence that we have ever had a delegation doctrine overturned were congress delegated some of the authority they were not allowed to do? judge napolitano first. >> as the country's expert on getting into court, it looks like there's no standing but he manages to find it. i will let him address that. the supreme court has held countless times that just because the branch of government that is losing the power consents to that loss does not make it constitutional
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because the separation of powers doctrine was not written to preserve the prerogatives of the three branches but rather to preserve human liberty by keeping the branches-- keeping the attached-- of the attention or keeping them jealous of each other. the problem is getting courts to examine this. there have been some examinations few and far between. professor. turley is an expert because most of the times the courts will say particularly with respect to war, i'm talking about congress saying to the fda that you can make all of the regulations that you want about toothpaste. we are talking about with respect to war they are more likely to say that is a political question. if you don't like the war, elect a new president or elect congress that is more faithful to its oath to uphold the constitution. just because that power passes from legislative to executive with the consent of both does not make it constitutional.
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the core authorities of each branch may not be exchanged, mixed, or co-mingled with any of the out-- either of the other branches. if the court is clear on anything, it's that. >> professor. turley? >> there's a strange anomaly which is the creation of the judiciary that exists today. most people, when they were in civics, believe that is something is unconstitutional than the courts have a chance to review it. the sense that checks and balances works in the system because no one can act alone, unfortunately is not true. the courts have developed narrowing standing doctrines that i've long been a critic of. you can actually have glaring unconstitutional where the court will not recognize anyone is having a right to raise them. in the libyan war case, i came forward with democratic and republican members who said we take an oath including to
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uphold the constitution which includes an obligation to declare were-- war. we were tonight that right so we have standing. >> is that a problem at every level?>> it is. the court on that occasion said no and when i pressed the question, we have here an immaculate violation of the constitution. literally no one can stop an undeclared war even though the framers considered this a great violation. when i went back to the court, there was a fierce-- a fierce level of litigation but we won that battle and the court accepted that as a representative of one of the houses my clients would have standing, i really believe-- >> to go beyond the district court? >> it was ultimately mood because of the changes-- >> we
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won on standing and thankfully that is still there but i believe legislative standing would solve a lot of this problem. if members of congress would recognize-- were recognized as having skin in the game. >> it sounds like it's overwhelming that both president and opinion is that-- it won't change unless a majority of the supreme court was set a new way. >> this is a creation of the courts and can be undone but it's not working. >> in hampton versus us they set forth, you're not supposed to do something that you can do that if it's reasonable. we get all of these extra doctrines added and which basically dilute what you were not supposed to do once upon a time but according to the constitution but inside of that you say you cannot delegate your warmaking authority but give up some of it if you have an intelligible principle from which to act.
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has there been further decisions and that the same? is that a last standing president or are there other court cases we can look to? >> i think there is some reason to be hopeful particularly in the war powers area but generally. i had the honor of testifying in the justice score such hearing-- in the new understanding, he had a refreshing understanding of separation of powers. we really can change the center of gravity and move it back toward the legislative branch. right now we have a dangerous instability and so far, you will never hear me say this in a given day in the bible say it here. medicine may have been wrong. he was proven wrong when he
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said that ambition would fight ambitions. he believed that you all would get jealous over your authority and not let anyone take it away but this institution has shattered that assumption. >> certainly there's ambition, it is just misplaced. >> maybe medicine met courage because congress has really liked courage. those of you here and say you have to stop. the most frequently cited justice in american history one side where there is a wrong there's a remedy. except when the president wages war and there's nobody who can challenge him. so professor. turley is living proof though he's had some unique successes. congress has two write the legislation whether it is standing or no president shall engage in any act of violence whether by people in uniform or not except in accordance with article 1.
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>> it's easy to deflect and say the court should deflect and fix this but really we should look in them mayor and use ambition to take our power back. we have talked about the delegation and giving up authority that was constitutionally given to us. i think there's a separate issue that goes to constitutionality and that is changing something that can only happen by a positive or affirmative vote to something that can only be stopped by a third-- two thirds vote of disapproval. a good way to look at this is like on spending bills. they cannot spend money unless we give him the authority to spend. it would be like us saying to the president, you can spend all of the money and the only way that we can stop you from spending the money would be by a two thirds vote. my question is this. would that
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be a separate constitutional issue from the idea of delegation of authority? what we are actually doing is switching something and certain things done by a majority vote, actually almost everything is affirmative but some things are super majority. it's not necessarily a delegation but a change in the mechanism and the way that the constitution works. this proposal-- >> this proposal gives you a post hoc measure which we all understand will never occur. it will be very hard to give a vetoproof majority to take the name of an accused terrorist group or nation off of that list. it doesn't even matter how you feel about the logistics or the likelihood. it is in direct contradiction
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of the constitution and the bazaar notion, if my two boys said instead of asking for credit card, just give me your credit card and you can stop me when you see expenses get too high-->> i think we would say that would be a really smart idea. proof that they were right about war, they were right about appropriations, and really did know about human nature. >> the question is getting the court to declare it as such. >> i have gone over time but i wanted to see if senator. peters -- >> the last thing i wanted to bring up mr. anderson brought up and i had not thought of it until i read his statement. when it's a problem that associated forces and the
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president will define what they are in the future and we can only stop them with a two thirds vote, it's an interesting question that associated forces are not defined to be foreign enemies but a domestic group that you do not like that can be associated forces. you can see how this could be a variety. groups that will go into the imaginings of groups, your point is citizens that have been legalized to defense authorizations could be that scripts of american. could you explain exactly what you mean by that? >> there's a problem with the detention provisions and a problem that the senate by vote
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refused to fix despite the votes of people who voted it to protect american citizens there. there is no prohibition from designating an american group, american citizens, and american- - and american individual from being an associated force that the president could decide on his or her own is an enemy of the united states. similarly there is no prohibition in the corker-kaine aumf as a place where military forces can be used. we take it for granted than the legend around it ,
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limiting the army from operating domestically? >> for law enforcement purposes. >> who is the army and intelligence officers or security police? are they limited? >> that's right. in this instance, there's nothing in the corker-kaine aumf that says the united states cannot basically become a battlefield. this is something that came up during the debate around the detention provisions in 2011 with senator. graham going to the senate floor saying that the united states can be a battlefield. this is a real problem and there have been united states citizens that have been drowned accidentally or on purpose. as you know, united states citizens have been put in indefinite military detention.
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this is one aspect of bigger problems with the corker-kaine aumf but this is one that i think especially as we notice was tucked in there with this innocuous name saying that these provisions are getting amended by adding the name of the new aumf , it's a broad new authority handed over to the military. >> if you want to escape, you are allowed to escape but i know that president. sanders had a few more minutes .>> very briefly. i have a prescheduled meeting i have to be at and thank you very much for your excellent testimony.
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when we talk about giving the president virtually complete authority, if we decided that he decided to bomb somebody, allowing presidents to do this, what does this mean above and beyond obligated the constitution of the united states, what is it like in this country? >> the fact that we are having this kind of conversation about whether the president could kill americans in the america but whether the president can engage in perpetual war no matter how noble he believes that cause is, speaks volumes about how low we have sunk with respect to culture, morality, and fidelity to first principles of the constitution senator. sanders.
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>> i think there's a twofold problem here. one is that benjamin franklin, as i'm sure you recall as the convention was asked what was it that you have created? >> did he really say that?>> that's a fact. >> only jonathan believes that actually happened. it's a republic if you can keep it. that is the problem with being in perpetual war, my voice-- my boys have never lived in a country that has not been at war. both of them have literally never spent a day of their lives when we have not been at war. it becomes a natural state. the example of that is one of the most chilling things that i saw is when eric holder went to my alma mater to announce the kill policy of the obama administration. said that the administration was now asserting the right to
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kill american citizens on sole authority without charge, conviction, and he believed that it was inherent in article 2. instead of having objections, a room full of leading law professors and-- professors and judges applauded and atty. general. saying the president has the inherent right to kill any of you. the reason this is dangerous is because take a look at the opinions we talked about recently. if he had the approval to go without congress with historical loss of past wars, what has happened is they have acquiesced the. that is now being used as-->>
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game and i don't know but the office time but i have three lawyers on the panel. one hearing in front of the senate foreign relations committee. to lawyers for their. the earlier versions of this came out of the l'affaire blogs and thinkers -- law blogs and thinkers. and a lot of it gets tossed around as -- we have not done this in 17 years so how do we rearrange the words on the page. and one of the things we have in trying to bring home to people and talking about the
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aumf, without going to new groups . we have officer bob and from all your. right? i have a 16-year-old and do i want my 16-year-old going to war against our chabad and somalia? my son probably can find some all you on a map and probably few people in this room know where --'s. this would be congress. that is not what the president comes up with. this is congress saying that the united states can go to war against them. that does not mean sending a drone. that means if we want to send 200,000 troops there and go all out house to house fighting as we did in afghanistan and iraq. we could do that. >> thank you very much for this. what i heard was very important and i want to thank all three of you for your efforts.
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thank you for being here and all you did. >> to put a human face on this you might ask the families of the four soldiers that died and molly chasing a herdsman, should we discuss whether we needed to chase that herdsman and what that threat was to the national security. what kind of war is going on in molly. -- mali. someone said mali, i didn't know we had 1000 soldiers there. the people that are supposed to be informed and debating whether our sons and daughters die in foreign wars are not debating it at all. we have abdicated it. there is a bipartisan group of us that would like to grab that back but i can tell you we are in the minority. and we will finish with the
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last question. the majority of the senate and i think that senator sanders would agree with me do a believe in art -- articles of authority. they do believe that there is unlimited article to authority. in fact they say and i've heard it said many times that the only check we have is the power of the purse. i said, that is one check but not the initiation of war. we have to check the continuation of spending as well. it is virtually impossible to stop funding on a war. people will say you are not funding our men and women to defend themselves. how can you do this? even in vietnam which was unpopular funding -- there was finally a vote in committee and senator leahy tells a story about being there and voting 74 or 75 almost by the time we had the courage of one committee to vote to stop funding. my question is, is there any
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historical evidence that our founders believed in unlimited particles of authority? or that the declaration of war was an anachronism that the founding fathers did not find important. we will start with judge tran nine. >> there is a short answer here. there is no evidence the founding fathers believed in unlimited articles of authority and there is an abundance of evidence with professor charlie characterized that they did not. >> there are plenty of systems that give this type of authority. the framers were quite clear to the contrary. this is one of the few areas where there was not much of a debate. in one case a single person suggested this view that a president should have this authority and he did not get a second on his motion. my preference is that if you want to gut article 1 section 8 then do it. but don't say applies to the constitution. >> madison has gotten a lot of
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attention today. to put out thomas jefferson, and give him some airtime, he wrote without the allocation of war, powers to congress provides an ineffectual check to the war by transferring the power by letting it loose from the executive to the legislative body. i think this has been a great hearing. thank you everyone for hearing. and we are still at war 17 years from now, if corker-kaine aumf passes and there are no limits on war let it be known that some of us were warned. >> thank you senator. >> it is a pleasure johnny, a pleasure.
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>> thursday on the c-span networks the house returns at 10 am for work on a combined spending bill for energy. the legislative branch and military construction as well. this takes up a bill to resend $15 billion in spending from unused funding appropriated in previous years. on c-span number 2 the senate
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debates on judicial nominations and the defense program spell. at 11 am on c-span number 3, the house ways and means subcommittee on social security holds a hearing on recent social security solvency. the chief actuary of the program testifies. later at 2 pm the house foreign affairs committee considers ways to advance u.s. business investments and trade in the americas. the washington journal live every day with news and policy issues that impact you. coming up thursday morning we're live in lansing michigan for the next stop on the c-span bus 50 capitals tour. michigan state senator and president tonya shoemaker discusses top issues facing the state legislator. and new york democratic congresswoman will be on to talk about immigration policy. then george mason university, charles block house and the urban institute robert wright
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on challenges facing medicare funding. be sure to watch the washington journal live at 70 stern thursday morning. join the discussion. -- c-span thursday morning. join the discussion. we'll have live coverage of the -- the -- starting saturday at 11 am eastern. with the national review jonah goldberg and his book, suicide of the west. northwestern university press -- professor with we crossed the bridge and travel. voices from syria. and historian roger biehle author of mayor harold washington champion of race and reform in chicago. on sunday our coverage continues at 11 am eastern with former president of the aclu nadine stross and and her book hate, why we should resist it with re-speech, not censorship.
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a journalist with his book everything you love will burn. inside the rebirth of white nationalism in america. pulitzer prize-winning officer jack davis with his book the gulf, the making of an american city and rocket men the daring odyssey of apollo 8 and the astronauts that make man's first journey to the moon. watch our life weekend coverage of the 34th annual printers- fest in chicago starting saturday at 11 am eastern on c- span number 2 tv. a house hearing looks at the u.s. withdrawal from the iran nuclear agreement and how the ambitions can be restrained in the future. this 90 minute oversight committee is chaired by the congressman from florida. subcommittee on national security will come t

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