tv Constitutional War Powers CSPAN July 8, 2018 1:59am-3:38am EDT
to show you it is real. if you are unwilling to take a step, once i have sold you on vr is sothat a are -- can't even step on the plank, you have to experience it to understand it. announcer: watch monday night at 8:00 p.m. eastern on c-span2. >> next, the subcommittee hearing on war powers defined by the constitution. included a representative from the american civil liberties union and live news channel analysts and federal judge andrew napolitano. this is just over 90 minutes.
senator paul: for years, critics have complained that the global war on terror has never really been authorized like congress. after the attacks on 9/11, president bush asked congress to authorize war on anyone who aided and abetted those who attacked us. if you read the authorization it is very specific. congress insisted on narrowing the mandate to use force against
only those who attacked us, planned the attack, or harbored the attackers. forces authorized against unnamed entities but they are nearly defined. the authorization was not given for global war on terror or radical islamist or separatist or insurgents and various civil wars. authorization was not given for associated forces. againstation was solely the people who attacked us on 9/11 and anyone who helped or harbored them. it is safe to say no when in congress believed they were voting for a worldwide war on terrorism and 20-odd countries that would go on for decades. intellectually honest observers have complained that the 9/11 authorization of war does not authorize the wars being fought throughout dozens of countries throughout africa, the middle east, and the south pacific.
basically, the expansionism has occurred without required constitutional authorization. wish toators which rectify this is bypassing a new authorization. i don't disparage their efforts, the motives are genuine. or are two issues to be debated. doesn't matter who wields the power to initiate war? our founding fathers believed strongly it did. they squarely delegated the power to declare war to congress. medicine put it this way, -- james madison put it this way, the executive is the branch most room to worth therefore the constitution would study care with legislation. so yes, it is the job of congress to declare a mission and congress has been negligent for over a decade. done its job.ot
congress has led president after president strip the war power from congress and concentrated in the executive. issue isd inseparable when and where should we be at war? it is not enough to say congress should operate lies war. war.thorize our job is not just to put a congressional in pretoria on more. it is to decide where and when for war. the debate must ask, are we to authorize the status quo? are we to offer a size war in all of the various theaters the presidents have taken associate congress limit the scope of worldwide wars we find ourselves involved in. here is where the authorization else's. it does not limit the scope of war. it merely codifies the status quo. i would argue it expands the current leaders of war. at least a groups are known to 20rate all together and over
countries. but hardly sounds like will have any less war. it unconstitutionally delegates or transfers power from congress to the president. article one, section eight, gives congress the power to declare war. corker kaine initially authorizes war but says, can you get back to us. give us an initial list in case if you wantyone and to read any associated forces, send us a report. this authorization transfers the power from congress to the president. it changes the nature of declaring war from a simple majority affirmative vote to require a super majority veto vote. if the president defines a new
associated force, our military can only stop that president with a two thirds vote to overcome his veto. the constitution has flipped on its head. i transfers the delegated power of four from congress to the president. toay's hearing is convened ask that question, can congress transfer the power to declare war to the president. we will discuss the constitutionality of the corker kaine. i would like to recognize the ranking member. >> voting to send our sons and and daughters to war is the
heaviest we bear. while the sacrifice of war is borne by service members and their families, under the constitution the responsibility of asking for that sacrifice is ours. our war fighters are serving in harm's way and places that have never been named. any declaration of war and facing adversaries and 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. it is you have observed, mr. chairman, the reality is that we are at war anywhere, anytime the president says so. in failure to keep our war powers, we have effectively ceded them. to avoid a declaration of war in keeping force operations vague,
we can blame the president when things go wrong but we must not shark our constitutional favorability for expediency. we must roll up our sleeves and have this debate. this is not a partisan issue, nor should it be. congress has not declared war since 2002. president obama did not seek authorization for libya, nor did president trump seek congressional authorization for military action in syria. the 2001 authorization of use for military force against al qaeda has now been used by three president to support war and countries against organizations that did not exist then. that is why i support senator paul's efforts to repeal the 2001 and 2002 authorization of military force. the world has changed since we
1942.eclared war in our adversaries often wear their own uniform and swear allegiance to know nation. our military can impact military affairs in an instant with the drone strike from inside the united states. how we authorize war must adapt to the changing threats and technologies. the principle of separation of power that animated the drafters of this constitution is as sound today as it was in 1789. the power to declare war and authorized military forces congress is most sacred responsibility. we must reclaim it. our witnesses have spent a lot of time considering issues. i'm eager to here your views. it want to know more about the cost of congressional and action . i'm heartened by the bipartisan
engagement today and hopeful we can find solutions together. i yield back. >> thank you. several senators not on the subcommittee have requested to attend. i would like to ask unanimous consent to allow the senators, should they come, to fully participate in the hearing. first witness will be judged napolitano, the senior judicial analyst. he is the youngest tenured superior court judge in the state of new jersey. following his service, he began teaching constitutional law. he was chosen by the student body is the most outstanding professor. judge napolitano has authored seven books, lectures nationally on civil liberties in wartime
and he is recognized for his opening statement. >> when i asked my bosses at fox if i could participate, he asked if senator sanders would be here and i said yes he is. they said, we are dying to see bernie sanders cross examine you. we agree on if everything? they said, will let you go anyway. you know me from television, i've also been a professor at seton law school and elsewhere. i've published nine books on the constitution. much of my work is concentrated on the separation of powers. we often begin the first day of constitutional law by asking the what is the most
distinguishing feature of the american constitution. that's the first day of law school. most will say, fremont speech, production of privacy. some will say due process. the i impose upon them observation that even totalitarian countries have freedom of speech and due process but only ours has the strict separation of powers. the structure of the constitution with the primacy of the congress in article one is a profound demonstration of the commitment of the founders to the sacred ideal. peters has argued eloquently that the separation of power, the value and the ideal, unfortunately it is not always the practice because presidents utilizeumed they can military force if they think it is popular because the congress
will sit back and do nothing. and, although it is necessary for the triumph of evil is for good men and women to do nothing. when the congress looks the libyaway as it did when and syria were bombed, 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. unmistakable. is if james madison was clear about anything, he was clear that the war power is the most awesome power congress can wage and it can only be imposed in the branch.ive the practical reason is that wars is a failure when it lacks broad public support and only congress has its time on the
pulse of the people to determine public support. the president and the senate have entered into treaties and has a-- and congress little bit of leeway. if attack is imminent, he does not have to wait for the first missile. if we have signed a treaty with an alley and ally needs assistance, we don't have to wait. a treaty is up there on the hierarchy equivalent to the constitution itself. what does the president the united states of america have the power to bomb another country which poses no imminent threat to the united states of america question mark the answer is very clear in and resounding "no." the president does not have that authority. when members of the congress look the other way, it is either
because of a belief that what the president is doing is popular so let him take the heat, i believe that what the president is doing is wise. we don't want to get involved. be may be popular, war may unpopular, whatever is going to the minds of the congress it is not the delegate to the constitution. it is not the delegate to the separation of powers. i was interviewing a member of congress whose name i will not mention. at the very moment we broken to the broadcast to announce the president was bombing libya. at the same party of the president, what you think? welcome the present does not have authority we all know it. what are you going to do about it? probably nothing. we are on spring break. he is in itself. this is when president obama made a announcement. when the congressional break was
overcome the present return from his trip to south america and nothing had happened except the constitution was weaker and could off he was about to be killed. if he was so evil that he should khadafi was so evil -- what bothers me is the presidential value. this is an argument about prince appel. human aboutot principle. he had reason to believe comets would do nothing because congress did nothing and other instances. isould argue that the a umf unconstitutional because they do endpoint.n
it releases the president. i would encourage you to repeal the a umf pause. but not with the corker kaine. they are both friends of mine. it is hardly personal. but as you yourself a pointed out, mr. chairman, at the present time the president, you know, goes around the world -- and i don't mean president trump -- presidents go around the world looking for monsters to slay. when it is popular and in their view it as moral, they slay them and congress does nothing about it. but when this behavior becomes a precedent for future presidents to do it, when a president in this era can rely on a document kes no legal or moral value li aumf's, the congress is
being amended by consent. if the congress decides to withdraw funding for some military excursion, the president will veto the active withdrawal and then it will require a two thirds vote of both houses to overcome that. so president with one third plus one in either house can wage war on any target at any time the so.ident chooses to do that is so contrary to what james madison intended. meaningary to the plane of the constitution. toviolate of of the oath preserve, protect, and defend the constitution. and none of you wants to reject that oath. i look forward to your questions after hearing from my learned colleagues. is ar next witness nationally recognized legal
scholar who has written extensively in the area of constitutional law will stop he has served as a consultant and testify before the house and senate. he has been ranked one of the top 10 lawyers handling military cases. cited law most professor and the united states. turley.professor professor turley: it is great honor to come into this committee to speak about this issue of the constitution. ofthere is a sacred article the constitution, it is article .ne section eight it is not merely a constitutional but a moral responsibility. indeed, the word "congress shall have no power to declare war" fails to capture the imperative.
it is an obligation meant to adhere to each member when you raise your hand, when you take your oath of office. at the earliest stages of the republic, members began to struggle with this responsibility. we find ourselves at this moment not by accident by decades of effort to evade the responsibilities given by the framers of our constitution. the result is that our citizens are taught false assertion that members of this body declare war and have the sole responsibility to do that. after all, the provision speaks
loudly and clearly to that. that this does and what pass reduce ite done it is to what macbeth referred to as voices full of sound and fury signifying nothing. the express intent of the frame or, one aspect i find most telling. we have plenty of quotes from my favored framer james madison. framer. virtually every there are a few points on which there were almost unanimously. i say almost because chris butler proposed to give this entire power to the president of the united states. a second. receive he spoke to a room of framers and give that proposal and not a single one seconded it. that was one of the most important moments of our
republic. wet silence shows where began as man of conscience and principle would 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 of course it is hard to see how that language got us to where we are today. in almost 250 years, we have had five declared wars. poorly. we did not even get out of the 18th century before members of this institution found ways to get around its duties. when john adams wanted to start the quasi-war, to his credit the frenched to vessels that could be boarded. it was not even a declaration. so we were not even out of the 18th century when officials found a way to get around this
duty. in last declaration was 1942. it has made a mockery out of the statement of torch washington when he said, the constitution vest the power of war and congress. no expensive expedition of import, no offensive expedition undertakence can be until they have deliberated upon the subject authorized with such a measure. we're beta mockery at that statement -- we have made a mockery of that statement and article one. i want to know one thing and this reflects on what my friend said. there is an assumption we should only debate the scope and standards by which a president has to satisfy. there is still the original
question. of thehing, the wisdom framers has been made evident. everywhere,r, always. forever. it is not the framers felt. it is in direct violation. chiefs believed the executives were naturally inclined to war. that is why they made this such a clear understanding. is worse than the current aumf. details.t go through all of those are fundamental flaws.
problem i think is a symptom of this law. this body has failed historically to require a declaration, so they got rid of the declaration. now they are about to get rid of the requirement to get authorization. it will make this body a pedestrian to war. have aw does not even goest revision, it just on. i can see why that is so tempting to have. it relieves members of this body of the rather uncomfortable questions that come up. this, under the past circumvention of article one
section eight, we have gone through 17 years of war. if you adopt this proposal we will have 170 more because this is virtually no standards. it will effectively revise the constitution of the united states without an amendment. of testifyingr before this body many times before but today i took a step i've not done before, i asked two of my sons to come with me. they are behind me. they are about that draft age or about to be. i thought they should be here to processrt of this because they may be asked to pay the ultimate price for the authority congress may soon be still upon the president. dutyw they will do their
as others have done in previous wars. i do not have any question about that. i hope they will stand with the express language of the constitution. this end show the framers the respect they put into the body was well-placed. answer anyappy to questions. next guest is the ofector of the civil office the aclu. he leads topics. onhas written extensively the topic of authorization for the use of military force, declaration of war, and separation of power. >> thank you.
the american civil liberties union would like to express our appreciation for you holding this hearing today. no decision is more gray for consequential than the decision to go to war. or 2001, the acu dac lu -- the aclu by presidential claims of article two authority in the complete absence of any advanced congressional authorization. these harms have included drone an american citizen, broad surveillance of american torture, kidnapping and of suspects, and while it would be impossible for one congress
to undo the damage of nearly 17 years of presidential overreach and congressional negligence, we propose a three-step passes for congress to reclaim its exclusive authority to decide whether the united states should be at war. i will focus on the most pressing. the firsto congress install of medical care, first do no harm. the corker kaine must not become law. it would be hard to overstate the depth and breadth that would be called by the corker kaine aumf. the damage would be colossal. it would cede the power to
declare war and give the current president and all future presidents the authority to engage in worldwide war, sending american troops to countries where we are not at war and against groups the president alone decides randomly against groups that don't even exist today. aumf wouldkaine authorize against groups in a countries. the government could then add to the list as long as the government reports into comments. to be clear, the president would have unilateral authority to act countries including the united states itself to the list of countries congress is authorized at war. the president would have unilateral authority to add additional enemies including people in the united states itself or individual americans under the new authorities the president could designate persons as enemies. barough congress could
expansion to additional countries or groups, such action twod effectively require thirds of both houses, given the president would presumably veto curtailing and expansion. every president in the coming decades would effectively be able to claim for the executive branch much of the power of the constitution exclusively. before they were wanting to point out a sleeper provision with an innocuous title. this provision greatly expands the scope. sentence, it would expand the authority by adding this new amf as a basis for the military to capture and detained without charge or trial.
the corker it has no statutory exemption against blocking of american citizens. while we continue to believe it try antill be illegal to american citizen in the united states again, there is no reason for congress to rest. when congress considers the indefinite detention provision in 2012, the uproar from across the political and ideological spectrum was definite, but it narrowly passed, and president obama signed it, and when the president signed it, he made a promise as part of his signing statement that he would not use it against american citizens, but that's it. it was a promise. he never said, and nowhere did either president obama or denied thatump
either they or future presidents would have the power to order military detention. the loaded gun was left on the shelf. while we share the frustration of many senators with expensive presidential claims of war authority, including senators corker and kane who have over and over again expressed their frustration, the proposed corker aumf would propose more problems than it solves. thank you again, mr. chairman, for holding this hearing and considering these views. >> thank you. we are going to let our guests go first today and start with senator sanders. senator sanders: thank you for holding this hearing, and let me thank the panelists for without exception there cogent
testimony. the constitution states very clearly congress shall have the power to declare war. founding fathers give the power to authorize military conflicts to congress for one very simple reason -- congress is the branch of the government that is most accountable to the people. there is no question but that over the years congress has allowed its authority over this very important issue of -- toing to add -- two ebb. to reassertirst that authority and start asking a very tough questions about the s -- and i use the word "wars r-s -- that we're in. let me assure every person here
that the abdication of congress to its responsibilities over war have had incredibly 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 an abstract although enormously important constitutional discussion. i want to give you three in recent american history where congress did not ask the right questions, abdicated its responsibility, and the consequences were enormous. very few americans know that when we deal with iran, very much in the news right now -- how many people know that in 1953, the united states along with the british overthrew the democratically elected government, reinstalling authoritarian rule under the shah?
in 1979, the shop was overthrown, and the iranian avolution bringing to power new government. the united states government without congressional approval thought that it could simply remove the government of iran in order to protect wealthy oil interests. and what has been the consequences of that over the years? congress abdicated its responsibility. the second one more relevant to the war inon was vietnam. place4, -- event took under eisenhower, republican. in 1964, lyndon johnson, democrat, otherwise in my view a very great president, but in ass instance cited an attack a pretext for escalating the u.s. intervention in vietnam. from recordings
is that johnson himself doubted the validity of that attack. johnson misled the american people into a war that resulted in a loss of over 50,000 american soldiers and over one million vietnamese. congress was lied to. there was no serious debate inut american intervention that war. 30 sample, more recently, that we all remember was a iraq -- third example. today it is widely knowledge to that iraq was a foreign policy blunder on enormous magnitude. the bush administration lied to the american people claiming that saddam hussein had weapons of mass destruction. the result of that war -- loss of thousands of brave american soldiers, the displacement of millions of people in the middle
east, and bringing us to where we are right now. in other words, what we have seen is time and time again, disasters occur when administrations -- democrat and republican -- mislead congress , andhe american people when congress fails to do its constitutional job in terms of asking the hard questions of if we should be in a war, and i think we need to ask that very hard question today. here's the point that i hope the american people are asking themselves -- is the war on terror a perpetual never-ending necessary to keep us safe? i personally believe we have become far too comfortable with the united states engaging in military interventions all over the world.
after 9/11, congress passed an ofhorization for the use military force "against those responsible for the recent attacks launched against the united states." the following year, the congress againsthe 2002 aumf iraq. we have now been in afghanistan for 17 years. for 15 been in iraq years. we are occupying a portion of syria, and this administration has indicated that it may broaden that mission even more. we are waging a secretive drone war in at least five countries. our forces right now as we speak are supporting a saudi land war in yemen, which has killed thousands of civilians and has created the worst humanitarian crisis on the planet today -- a saudi-led war in yemen.
clearly, these outdated and byensive aumf have been used three different administrations, republican and democrat, as a blank check for the president to wage war without congressional consent or oversight. meanwhile, we are currently "fighting terrorism" and some 76 estimated costan of $5.6 trillion and untold lives lost since 2001. i think it is very clear, and our panelists made the point i think extraordinarily well, without exception, that the time is long overdue for the united eight congress to respect the constitution of this country and to stand up for that thatitution and to demand it is the congress of the united states, not a president, who determines if our young women
and men are put in harms way. thank you, mr. chairman. >> thank you. will next turn to senator .erkley >> i thank you very much chairman, for setting up this hearing, and under what authority do each of you feel that we are currently in syria taking on isis? udge napolitano? judge napolitano: i don't think we are in there by any constitutional authority because, like your colleague senator sanders, i don't believe aumf's wereof the constitutional because they did not articulate a target or an end date, but presidents of both parties are using them to justify the type of incursion you talk about.
>> i see no authority, either -- certainly the aumf, not under the constitution, what is unfortunately a less than noble lie has been the specificity of the target, which was there really for public consumption. this proposed legislation is that same technique. it gives some specific references while having provisions that that list can be expanded almost at will by the president subject to a retroactive action or some post hoc action by congress. >> to you see any current constitutional authority? >> know, and at the time the government made the decision -- the obama administration made the decision to claim the 2001 aumf was authority to go after isis fighters, chairman paul had legislation in that was a declaration of war focused for one year on isis, and that was a
constitutional way to take on that fight. what they did instead was they had this very tortured interpretation of the 2001 aumf and applied it to a group that was actually at war with core al qaeda. >> thank you. the reason i ask the question is three esteemed as per its have just clarified that we don't have a constitutional authority, and the armed forces are in this battle in syria, and i want to use that as a way to dramatize int has happened since 2001, aumf, a very precise very constricted to those who attacked us on 9/11 and those who harbor those who attacked us on 9/11, and since then, it has been expanded to country after country, organization after organization. i think you all agree with the characterization of 2001 being stretched beyond recognition
because it has not provided a constitutional foundation for our current conduct in these countries. now we are at this point at which people are saying 2001 should not allow -- be allowed to continue. it has been abused so much, and we have the quarter-proposed aumf. i have an impression that when you analyze the details of it and what it authorizes in multiple organizations in multiple countries with the president allowed to add an additional list and that that additional list can be added without pre-authorization by congress, that it essentially , theies the expansion stretching of the 2001 aumf. it is that a fair way to describe it? >> yes, it's a loaded gun. >> senator corker, who i deeply
respect for having wrestled with the 2001, and senator kaine have tried to figure out how to replace 2001. they have come up with this proposal which disturbs me for the reasons that you all have been sharing. senator corker fairley said, if you all don't like this, what would you do? mr. anders, i think your closing comment was you encourage members to consider presenting what could all be done as an alternative, so i have presented such an alternative. i don't know if each of you is familiar with it, but one of the things is it has a sunset in it, so it periodically would require us as the senate and house to re-examine the foundation and considerations. do each of you think a sunset is -- inortant provision and
? mf's >> a sunset is certainly helpful because it compels the congress, representatives of the people, periodically to review what the president is doing in their name. my own view would be legislation which simply says the president shall not use military force, military or civilian, because president's intelligence forces and thereby bypass the war powers resolution. >> my time is going to run out. >> sorry, i did not meet to take -- except in accordance with the constitution. >> mr. anders, i know you have seen what i put together to try to very tightly constrained just and requireuntries any expansion of that by the president, including expansion of ground forces to require preauthorization so we have the constitutional vision .epresented at aumf
any consensus if that puts us more clearly on the track in the constitution? position on if the united states should be at war against a particular country or particular group, but in terms of how it fits with the constitution's separation of powers, the aumf you put together fits very well. it is up to congress to make the decision if we want to as a country be at war with these particular groups and particular countries, but in terms of kind of sitting into a constitutional framework, yes, it does. >> i just want to note that many of you pointed out that members of congress are uneasy with making these types of decisions. simply deliver it to the executive and let them
take the heat. i find that unacceptable. where the president can go into new countries, new nations, deciding on his or her own if it ands the test in the aumf congress would have to come around and get a super majority of both chambers to close the door after forces are deployed. something that nobody thinks congress would ever do. in sum, we end up with a wholesale transfer of our responsibilities carefully crafted. it is tough for us to make these decisions, but it is our responsibility, and it is why we need to craft a replacement aumf that honors that vision of the constitution and makes us have the tough debates and tough votes. thank you. >> senator udall. >> thank you, mr. chairman, and
really appreciate your calling this hearing and having these three experts before us here. theanders, i asked following question to secretary pompeo over at the formulations committee -- the foreign relations committee. the chief of staff of the army reminded us recently in an appropriations hearing of the nature and character of war. the traditional idea is that war at its base is an extension of politics. war forces our will on the opponent through military means to reach a political objective. taking an expensive view of what congress approved on 9/11, the political objective is to stop terrorism at a broad level. however, a more restrictive view and the view that was sold to congress when i voted in favor was that we aumf aim to punish and deter the
perpetrators of the 9/11 attacks, specifically al qaeda and the taliban. which view do you believe is the correct one? mr. anders: that's easy. i think it is the never work view, and i think congress at that time worked hard to come up with specific language, and there was a back and forth that has been reported on quite a bit. the part that is frustrating, i think to all of us now is when we talk about new aumf, which up about the need for specificity, naming the objectives and naming your enemy, it's hard to see how could not have been more specific in terms of naming the objective and who it goinge united states was to war against. the only shortcoming in it was
given that the united states at that time did not know the exact names of who it was we were at war with, it did not include the exact names, but other than that, i think it is pretty clear that it was for core al qaeda because of their roles in the 9/11 attacks and to taliban for harboring them. warne of the restraints on was recently put in a commentary by a doctor at cornell, the author of a new book called "taxing wars: the american way of war finance and the decline of democracy." she makes the point that when you are a tax on war, involving everyone. everyone understands that the society as a whole is backing the distant in past, we paid for wars with war
taxes. more recently, members of congress have proposed these taxes to raise public awareness about the cost of war and the -- to share the sacrifice beyond a small percentage of americans who fight in these wars. what do you think of a proposal for a war tax? i know digging us deeper into debt. >> i do think the bigger point of having the country have a greater investment and greater knowledge of what the costs of war are -- one of the problems with the lowerd cost of war in terms of american lives in american treasure with use of drones and new technology that a lot of the more asious costs of war are not apparent. focusing in on what the financial costs are would probably be a very helpful way for people to have a better
understanding of the full extent of what this actually means. >> i think you would end up having a debate about committing ourselves to many of these very s.ngerous situation when i go home and her town hall meetings and hear from my constituents, some are asking why do we not see people in the antiwarlike vietnam or activity on our campus, and the answer i always get is there is no draft. should we be look at this? should we consider a draft? >> i have been at the aclu 20 years, and it predates my time there, but i know we have had a lot of concerns historically about a draft in terms of its impact on civil liberties and equality and of who is subject to it, so that's
not a proposal that we are supporting. the office of legal counsel recently released its justification for the strikes in syria. the memo states that the president identified three interests in support of the april 2018 syria strikes. one was the promotional regional stability, to the prevention of a worsening of the region's humanitarian catastrophe, and three, the proliferation and use of chemical weapons. professor, jack goldsmith, says, the justice department now officially and publicly believes the president can use significant air power without congressional authorization on the grounds of humanitarian intervention and deterrence of the use of chemical weapons. i find that opinion extremely alarming. do you agree with the justice department that these strikes can be justified via article to ? thority alone
>> as disturbing as some of the claims made based on the 2001 aumf opinion have been, that and the april 1, 2011, opinion during the obama administration from legal counsel on the air campaign chilling.bya are they both are essentially the president claiming for himself the war authority that the constitution gave to congress alone, and they are very expensive claims, and i think a lot of us thought the libya opinion was about as aggressive and is expensive as one could be, and that was only topped last week with the one on syria. i do think the challenge for the senate is to figure out how to use the legislative ss to pair that back, to invalidate those opinions, and those relying on
them, but ultimately, that is probably going to require also using the power of the purse and cutting off funds for unauthorized military campaigns. >> chairman paul, thank you so much for this hearing. senator lee. >> i want to thank senator paul for organizing this hearing and the three of you for your willingness to come and offer your expertise and the insights you offer today which are really helpful. we are in our 17th year of deployment under the two dozen when authorization for the use of military force. it is not yet the case that our most junior personnel deployed were not born as of the moment aumf was issued, but as soon will be the case. long before it is even fathomable that we will have retreated, it will be the case. but this was issued before they were born. in the meantime, we've got some
issues to deal with. inhave spent $2.8 trillion these efforts under the 2001 and aumf's. there's not a lot of accountability when congress continues to look the other way and tolerate ongoing efforts, ongoing deployments consistent mf's those 2001 or 2002 au without having discussions on what exactly we are doing, on why u.s. blood and treasure should continue to be put on the line. instead of debating a discussing these things in real time, these issues have been left to the will and the wind -- and the ofm of a small handful political elites. this is scary and contrary to the text and 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.
so i've got a few question. we will start with you, mr. anders. earlier this year, as you are probably aware, members of congress received a letter from the department, relying on a 1975 argument suggesting that the only time congress has an indispensable role and authorizing u.s. forces to be deployed is when deployed units of u.s. forces are on the ground engaged in a connecticut exchange. do you agree with that? if not, why? >> no, we don't agree with that. first of all, it is the role of congress to provide -- it is their exclusive authority to advanceauthorization in before a military engagement in the absence of a need to repel a sudden attack, and that's the constitutional standard. >> it's often not how we fight wars today anyway. there's lots of kind of warfare that we engage in today that doesn't necessarily involve a
connecticut exchange between people on the ground. >> that's right. i think that, you know, this again is something that began during the obama administration, whatdefinition of hostility's mean under the war and with the position that president obama eventually took was that hostilities did not include airpower in the absence of ground troops, and that, of course, you know, means that lots of places, as you just referenced, where the united states is at war are not considered hostilities, and therefore, the war powers resolution, which does include deadlines for withdrawing in the absence of congressional authorization, do not apply, so with that opinion from herald co., the legal advisor at the
state department to president obama, the executive branch pretty much wrote out of existence a good part of the war powers resolution. >> which is of concern to many of us here and ought to be more so than it is within congress. turley, as was well understood at the time of the founding and was understood based on how the constitution was written, that the president, unlike the king, would not have unilateral power to go to war. in fact, hamilton makes this point in federalist number 69. when people talk about the immense power of the executive to deploy military personnel, from what source are they laiming that authority exists? >> there is no source. the interesting thing about this particular provision is it was viewed at the time as the defining work of the convention. you have framers who joined
together who were normally not in agreement, and said this is how we can address it. they all agreed that they did not want a situation like the one we have today where a president has this type of unilateral authority, and they believed had asked the problem because article one section eight could not be more clear. to fold this back to the question you asked my colleague, the definition of the president put forward of this kinetic conflict was used in the litigation -- and they said, the president alone defined what war is. we said, does that track with you? do you honestly think the
framers spent this amount of time and it all comes down to now something the president is about to define? now i know better what kinetic means in wartime. are getting stuff, i think. >> i guess so. of it got to that point absurdity that it is all an clarity. obscure >> to avoid clarity, i think that is a good description. in a place where morale and decency and justice would seem to demand clarity. i want to talk to about the associated forces doctrine. executive from both lyrical parties for decades now have used this as justification for a number of military operations. that when i read the text, it it
seems somewhat clear it covers a narrow scope of target to include both nations, organizations, or persons the president determines aided the terrorist attacks of 2001 or harbored such organizations or persons. can you tell me the limits of this aumf meaning which geographic regions the government could legitimately go into under this authority? >> i have argued both aumf's are unconstitutional because they failed to include an endpoint. that is why we're having this hearing. presidents have used these to go wherever they want to go. all oforwell predicted this when he said words would determine liberty. if the president can define war
rather than the congress defining war, here she will define it in a way to facilitate his or her use of it. at one point, the obama administration argued the use of intelligence forces on the ground who were not wearing insignia on their uniforms were not the same. they looked different because they did not shave everyday but they were carrying the same type of authentic weaponry with which to kill people which had not been authorized by congress. so the use of the phrase authorized forces and permitting the commander-in-chief to define like justicean is korematsu, aabout loaded gun in the desk your of the president ready for him to take out and shoot whenever he wants. >> well said. peter.tor
senator peter slen thank you for your testimony today. peters: thank you for your testimony today. i want to get your sense of what you are saying. today the senate is starting debate on the national defense authorization act for 2019. the bill before us includes a theision that will allow secretary of energy to pursue development of a low yield nuclear weapon without first receiving specific authorization from congress. i voted against this as a member of the armed services committee. it strikes from current law that a low yield nuclear weapon be specifically authorized by congress and replaces it with a provision that allows the secretary of energy to decide on his son whether or not to go forward. provision struck was a
limitation congress put in place 15 years ago to ensure the legislature and not the executive branch would make such a highly consequential decision. i would argue if members of congress thinks an arsenal needs yield nuclear weapon, we should authorize it and do it in few -- full view of the american people as existing law requires. some are trying to change the rules to allow this decision to be made without executive approval, that is clear. to the panel, what are your thoughts? is this an appropriate delegation of executive responsibility? >> no. i commend you for your vote and understanding. the point i tried to make in my initial comments was it is often the subtle and unseen passage of power from the congress to the president that comes back to wreak the most havoc.
this, ison who monitors was unaware until you discussed this just two minutes ago, that this is being debated by the senate today. andoundly hideous unconstitutional that bureaucrats in the executive branch would have power that james madison and company gave expressly only to the congress. verywould add i find it problematic. processe appropriations as a substitute for authorization and debate. i will tell you the years i served, but you can look at up. when i was a house leadership page we had a debate over the neutron bomb, whether to allow it to be developed or whether it was a new kind of weapon that would allow nuclear war to be more feasible and therefore more likely. i just stood on house floor
listening to the long debate going into the early hours. it was one of the most profound hours of my life. respect.ay with a deep it spoke honestly about the consequences behind the issues behind that kind of weapon. i remember thinking as a young page, 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. in my testimony, i talk about problems and not just the failure of the congress to carry out its duties but the collateral failure to deal with appropriations power. against thegated libyan war, one thing people did
not realize was the war was completely paid out of loose change. appropriatedr money. war paid forire because congress gives so much money to the defense department they can actually have a war based upon the money you give them and do not commit to. the failure is on both sides of the issue. >> i appreciate that. senator, i'm going to ask you to answer little bit of a different question. looking at the nuclear weapons andwhy congressional input debate is essential and it seems both of our witnesses would agree with that. i spent a great deal of time thinking about the future of war. involved inly self-driving cars and autonomy and things happening and that scope driven by artificial intelligence, machine learning. we're going to have -- the face
of warfare will be radically changed in the next 5-10 years. it raises some profound issues. certainly the morality and ethics of what we are dealing with. also significant policy issues. also what congress and 12 and should be given that technology is evolving rapidly end our adversaries may not be bound by the same kind of restraint as we have here. so i want your thoughts on what we should think about in terms of war powers given the fact that technology will change dramatically and profoundly. >> i think this is one place where the need for specificity and control and limitation is putting that the get-go and is very important. wherek there are places or there are instances where
members of the foreign relations committee have come up with limitingmendment operationally what can be done in different theaters of war but i think fundamentally limiting geography, limiting who the enemy is particularly important and i have gone a little bit back to the question of, you know, the provision today. i think of congress has not learned anything of the past decades other than it is so one-weight ratchet wrench turning any kind of authority over to the executive branch. you provide discretion to the executive branch, you are not getting it back. point for an
authorization for use of military force or declaration of war or any kind of new weaponry ought to be controlled and imposed by congress. this later those controls need to be loosen, then loosen them. at the greater entitled control from the start, the more likely it is that congress will retain that authority. >> if anybody has a quick thought, i would entertain that. >> fully agreed. >> thank you, senator peters. it was mentioned earlier that our soldiers in the next war will have been born after 9/11 and have known memory of it. even some in the audience here asian enough that they may not remember 9/11. lost oure have mission.
i asked secretary pompeo when he was before us, is there a military solution to afghanistan and he frankly said no. he still wants to stay. my question is, if there is no military solution why would we had more troops. i am reading a book about afghanistan and pakistan, in that book in 2010 the obama administration admitted there was no military solution. in the book there is a discussion now that says unanimously everyone agreed there was no military solution in 2010. we have to wake up and do something. that is part of what this is her know about but it is also about the constitutionality of the authorization to use force in a declaration of war. it is important to review these again. there are one or two reasons why this is unconstitutional and we will start there. one is it delegates authority to congress to the president. why don't we start with the judge and professor and say, how
is that unconstitutional? is are a possibility we can go to court? have we ever had a delegation doctrine overturned were congress delegated some authority they were not allowed to do? napolitano: as the country's expert on getting where itt to court looks like there is no standing may 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 the loss does not make it constitutional because the separation of powers doctrine was not written to preserve the prerogatives or hegemony of the three branches but rather to preserve human liberty by keeping the branches at tension. james madison even said jealous of each other. the problem is getting the courts to examine this. there have been some
examinations but they are few and far between. professor turley is an expert on that. congress will say with respect to war. i'm talking about the congress and to the fda you can make all the recommendations you can what against toothpaste. but we're talking about war. a political question. if you don't like the work, elected new president or elected congress more faithful to its oath to uphold the constitution powerst because that passes from legislative to executive with the consent of both. make it constitutional. in fact, the core authorities of each branch may not be exchanged , mixed, or call mingled with either of the other branches. that the court is clear on anything it is clear on that. turley: thank you very much. there is a strange anomaly largely a creation of the judiciary.
they learnedhen civics live as something is unconstitutional than the courts have a chance to review it. so the senses that the checks and balances work in the tripartite system because no one can work alone. unfortunately that is not true because courts have developed narrowing standing doctrines i have long been a critic of. you can of glaring unconstitutional acts were the court will not recognize anyone having a right to raise them. for example, in the libyan war case, i came forward with democratic and republican members who said, look we take an oath to uphold the constitution which includes an obligation. we were denied that right. that standing a problem every level of court? >> it is. on that occasion, the court said no. when i pressed, they said, we have here an immaculate violation of the constitution.
literally, no one can stop an undeclared war. even note the framers considered this one of the great violations they sought to avoid. when i went back, there was a fierce level of litigation but we won that standing battle. the court accepted that as a representative of one of the houses my client would have standing. believe that -- >> did it go beyond the district court? >> it went to the court of appeal and ultimately it was proved moot. a. schu you did not win on standing law? >> we did not. i believe legislative standing this solve a lot of problem of members of congress were recognized as having skin in the game. >> it sounds like it is overwhelming within the federal court structure. unless it sort
of sets a new way on standing. >> this is a creation of the court and can be undone by the court but it is not working. >> in hampton hearses u.s., they that you can do it if it is intelligible, reasonable, we get all of these extra doctrines worked in that dilute what you are not supposed to do once upon a time. they said you cannot delegate warmaking authority but you can give up some if you have an intelligible principle upon which to act. has there been further decision in that vein? is that sort of a last standing precedent as far as war powers go? are there other cases we can look to that are instructive deutsche mark professor turley -- that are instructive? professor turley: i had the honor of testifying at the
gorsuch confirmation hearing. one of the things i said about justice gorsuch as a nominee was he a certain refreshing understanding of the separation of powers. some people view him as a textual list in that. center ofchange the gravity and move it back to the legislative branch. we have a dangerous instability. so far, you'll never hear me say this on a given day, but i will say it here. james madison may have been wrong. he was proven wrong by members of this institution when he said ambition would fight ambition. he believed you would all be jealous over your inherent authority and not let anyone take away but this institution has shattered that assumption. >> certainly there is an ambition but it is misplaced. maybe he meant encourage.
folks here today have courage to say to the executive, you have to stop. ,he most frequently cited benjamin cardozo, once said where there is a wrong there is a remedy except when the president wages war and there's nobody who can get into court to challenge him. professor turley is living proof of that although he has had some unique successes. congress has to write the isislation whether it standing or no presidential engage in any act of violence by people in uniform are not except in accordance with article one. it is easy for us to deflect and -- the court >> it is easy for us to deflect and say the court should do this or that. we are giving up authority constitutionally given to as, think there is a slightly separate issue and that is changing something that can only
happen by a positive, affirmative vote, a majority, to something that can only be stopped by a two thirds vote of disapproval. it is important to look at this on spending bills. the president cannot spend any money unless a majority of us give him money to spend. that's how does. it has to be a majority. it would be like a to the president, you can spend all the money and the only when can stop you from spending the money is by a two thirds vote. who in the world would think that was possibly constitutional? is that separate from the idea of delegation of authority? we are switching something. we're switching the constitution of certain things done by majority vote affirmatively, actually almost every thing is affirmative but some things are super majority. we're not just changing the constitution, not just a
delegation but a change in the mechanism of the way the constitution works. aofessor turley: it is change. you need the authority of congress to go to war. this proposal gives you a postop measure which we understand will never occur. to get ae very hard veto-proof majority to take the name of an accused terrorist group or nation off that list. it will be virtually impossible to do that. it does not even matter how you feel about logistics or likelihood. it is in direct contradiction of the constitution and it is -- look, if my boys came to me and said just give me the credit card and you can stop me when the expenses get too high. >> isn't that what happens? [laughter] >> i think i would say, that would not be a really smart idea. everything we're talking about
right now proves they were right. they were right about war. they were right about appropriations. they really did not about human nature in that sense. >> the implementation of the super majority is profoundly unconstitutional. time andone over wanted to see if sen. peters: anything else. if senator peters had anything else. founded an interesting question you bring up, associated persons are not inclined to be foreign enemies necessarily, it could be a domestic group you do not like you can now be associated forces. you could see how this could be, you know, a variety. you can imagine groups.
we will not go into all of the imaginings. it could be domestic groups you say are associated forces. detentione indefinite of citizens, it has been legalized through the previous defense authorizations, could ofn be applied to vast parts america. could you explain what you mean by that? ranks this is a problem with the -- >> this is a problem with the corker-kaine aumf, a problem with the detention provisions. they refused to fix it despite the votes of people sitting on protect who voted to american citizens. there is no prohibition in the corker-kaine aumf from designating an american group, american citizens, 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 and the corker-kaine aumf from designating the united states is a place where military force can be used. we take it for granted because -- >> that limits the army from operating domestically. christ that is right. >> thatenforcement -- is right. limited?ey >> that is right. in this instance, there is nothing in the corker-kaine aumf
that says the united states cannot basically become a battlefield. this is something they 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. there have been united states citizens who have been drowned dronedntally, drowned -- oned ontally and dr purpose. these are not theoretical problems. this is one aspect of far bigger problems with the corker-kaine aumf. especially as we notice was tucked in there with this, you know, and oculus name.
just saying, you know, that these provisions of the nda are getting amended by adding the name of the new aumf into it. it is a broad new authority that would be handed over to the military. crexendo judgment: -- ofwe have a few more minutes questioning. i will leave it up to you if you can stay or go. >> i apologize i have a prescheduled meeting i have to be in. you may have answered this when i was not in the room. when we talk about giving the president today virtually complete authority. if we read in the paper today the president these i did to bomb someplace tomorrow, we would not blink an eye. you talk about the presidential impact the presidential
of allowing that. what does it mean to our quality of life in our country? are havinge fact we this kind of conversation about whether the president could kill americans in america or whether the president can engage in perpetual war, no matter how noble he believes the causes speaks volumes about how low we with respect to culture, morality, and fidelity. the first principles of the constitution, senator sanders. >> i think there is a two-fold problem. benjamin franklin, as i'm sure you recall, at the convention was asked why mrs. powell, what is it that you have wrought?
is that true? >> only jonathan believes that really happened. , it is republican, you can keep it. that is the problem with being at perpetual war. my boys have never lived in a country that was not at war. both of them have literally not spent a day of their lives that we were not at war. chilling things i've seen in my life is one air lawer went to my alma mater school to announce the kill policy of the obama administration. the american government had the right to kill an inrican on the authority article two. instead of having any objections, room full of leading law professors and judges applauded. applauded and attorney general saying the president has the you. to kill any of
the reason this is so dangerous, look at the opinions with looked at recently. the president has unilateral authority to go to war without the authority of congress because of "historical ."ss of past wars that is now being used as an interpretive tool because of acquiescence. >> i was struck by something you said earlier, to talk about what this is like in reality as opposed to theory. the dynamicse of around this discussion about putting together a new way is that it has become kind of a lawyered game about law. it is like one big logic game. it is telling here, although i don't want to be a this panel, three lawyers here on this panel, literally one hearing in
front of the senate foreign relations committee with two lawyers there, the earlier versions of this which kind of came out of some of the blog writers and thinkers, there were panels in the house and senate. there were all lawyers on those, right? around, wetossed have not done this and 17 years so how do we rearrange the words on the page, right? one of the things we've been home and talking about the corker-kaine aumf is without even going to new groups, look we have al-shabab and somalia. i have a 15-year-old, too. 16-year-old going to war against al-shabaab and somalia? my 16-year-old probably cannot
find somalia on a map and very few people know who al-shabab is. saying,l be congress the united states can go to war against al-shabaab and somalia. that does not mean just sending a drone there. that means of the president once to send 200,000 troops there and to house with house fighting as we did in afghanistan and iraq, he can do that. >> thank you very much. what i heard was very important. i want to thank all three of you for your efforts. thank you for being here. thank you. >> to put a human face on this, soldiers families, should i have asked should we have chased that herdsman? what kind of war is going on in
mali? one of those on the house foreign senate committee said, i did not even know we had soldiers there. that people are spies to be informed, debating whether or not her sons and daughters die in foreign wars, rather than debating it all we have completely abdicated. there is a bipartisan group of us who would like to grab that back but we are in the minority. we will finish with this, the majority of the senate and i think senator sanders would agree, believe in a limited article to authority on both sides of the aisle. some do believe there is a limited article to authority. timeseard it said many the only check we have is the power of the pros. i said, will that is one check it we have a check on the initiation of war and then on the continuation through spending but it is virtually
impossible to stop funding because people say, what you are not going to find our younger men and women? how can you do this? even when this was incredibly unpopular, i think there is finally a vote in committee. i think senator leahy was there and he tells a story about being there and voting this was like in 1974 or 19 them to five i think, by the time we had the courage and one committee to stop funding. is,ess my question though is there any historical evidence that our founders believed in unlimited article two authority or west the declaration of war just an anachronism our finding fathers did not find to be important? judge napolitano: there is no evidence the founding fathers believed in a limited article two authority. there is an abundance of , whiche they did not
professor turley stated in his opening statement. professor turley: the framers were quite clear to the contrary. this is one of the few areas where there was not as much of a debate. in one case, a single person was suggesting this view that a single person should have this authority and he did not get a second on his motion, so my preferences if you want to gut article one section eight, do it but do not blame the framers and do not pretend it applies to the constitution. got a lot ofadison attention today. so to put out thomas jefferson and give him air time, he wrote "the allocation of war powers to congress provide an effectual chat to the dog of war by letting him loose from the legislative to the executive body."
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>> the president was awakened with the news this senator robert kennedy, in the midst of victory in the california primary had been shot and critically wounded by an assassin. the day of the senator's death, president johnson sent letters to the president and speaker of the house which originally implored congress to enact a meaningful law. in june, much of the presidential attention was centered on peace talks. cyrus vance returned to washington to report on an apparent impasse. from vietnam, the reports were far from optimistic. instead of a slowdown in hostilities, the communist launched a massive new wave of assaults. at a news conference on june 26, the president announcup