Debating Presidential Military Authorization | Kurt Couchman, Defense Priorities | Public Forum

0:09 all right hello everyone let me know if you can’t hear me clearly or if you need the sound to go up and down but I just wanted to say hello to everyone and kind of orient you guys to the platform and also introduce our wonderful speaker for tonight all right so first of all on the top box the top chat box you can use that for questions please be sure to

0:31 reserve that only for questions for our speaker and use the bottom chat box if you need to communicate with me or with your fellow debaters we also have links in between those two chat boxes those are provided by our speaker for your benefit so that’s basically how the platform is going to work now I would to

0:52 introduce our speaker we’ve got current Couchman he is the vice president of public policy and defense priorities but most recently before defense priorities he was a legislative director for a Republican member of the House of Representatives he’s the boss initiatives and built coalition’s and diverse fields such as

1:13 Foreign Affairs defense trade health care trip parent see house financing housing finance banking and the budgeting process including tool bipartisan balanced budget amendments with more than 60 co-sponsors each she is the real deal guys he previously conducted legislative affairs for the Cato Institute including expanding the

1:36 influence of its foreign and defence policy scholars on Capitol Hill he’s advocated for private industry and the energy and the chemical fields and he holds a bachelor’s degree in political science from Indiana University of Pennsylvania and the Robert E cook Honors College as well as a master’s degree in economics from George Mason

1:56 University which is right down the road from the Bill of Rights Institute headquarters so I’m gonna let current take it away and it’s once again if you’ve got any questions please use that top box and we’ll go ahead and answer those throughout the webinar all right guys take it away for it

4:35 oh okay can you hear me now

5:35 oh okay now I mute my speakers all set now I’m still hearing the

5:57 echoing there we are wait let me try this

6:18 okay okay can you hear me through the computer now okay okay sorry about that first I’m using this platform so I’m getting up to speed let me start again thank you to Maddie and the Bill of Rights Institute for hosting this event thank you to all the participants for being on the line

6:39 this is an important topic I’ve been involved with the policy process for a while and I hope I can provide something to you now when we’re thinking about the separation of powers between Congress and the president the place to start is the Constitution this is my Kato copy of the Declaration of Independence and

7:00 Constitution when you look through it article 1 section a it provides that Congress has the power to declare war when you get to article 2 where the President’s powers are listed it gives the power the commander-in-chief role so his job is to command the Armed Forces once Congress has called them up for war

7:23 and also to repeal sudden attacks on the states which at that time of course included not only foreign powers but also Indian tribes and some others now the United States hasn’t declared war Congress hasn’t declared war I should say since world war ii Imperial Japan bombed Pearl Harbor we declared war on them they declare war on us Germany the

7:44 u.s. on and on and so that’s the last time we declared war there is no declaration of war or even authorization for use of military force with respect to the Korean conflict President Truman deemed that a police action and so you know there’s an armistice but there is never a declared war in the first place so some legal scholars claim that that

8:07 was an illegal war and there’s some ground for that then Vietnam happened there was an authorization for use of military force there was called the Gulf of Aqaba and there’s a little bit of cloudiness about exactly what happened there but the important point is that Congress did authorize that operation same with Desert Storm the first Gulf

8:28 War President Bush sought and received approval from Congress to drive Saddam Hussein’s Iraqi forces out of Kuwait granted that the US military went in and pushed it on back and then the soldiers came home we had a military parade which leads us eventually to the 2001 September 2001

8:49 attacks on the United States I was in college at the time I had I was just coming out of the bathroom you know the communal bathroom in college getting ready for my classes and I saw the some of my friends that their doors open and I looked in the screen because they all looked kind of shell-shocked and a plane had collided

9:10 with the North Tower of or I’m sorry one of the towers of the of the Twin Towers in New York City and we were all shocked and horrified thinking it was some sort of a tragic accident was a beautiful beautiful Tuesday day September you know not a cloud in the sky practically and

9:30 so I finished getting ready I headed over the dining hall and right about when I got there a second plane crashed into the other Tower and that’s when we knew I mean there was no question what was going on at that point and then subsequently we had a third plane hit the Pentagon not too long after that and then the fourth plane went down in the

9:51 field in Pennsylvania only about an hour from where I was going to school after passengers realized what was going on and tried to take control of the airplane back from I we didn’t know what was going on it was the fog of war was a fog of uncertainty no one had any idea where this was coming from at least in the circles I ran and then but Congress

10:12 didn’t really seem to know either three days after the attacked joint resolutions were introduced in both the House and the Senate authorizing the use of military force they were both introduced on September 14th it was an identical version in the house identical version in the Senate

10:33 they both passed earlier in the day the Senate one came over to the house House then passed the Senate one on September 14th three days after and that it was presented to the President of the United States the next day September 5th he didn’t sign it into law until September a week after the attacks but the public

10:55 law it’s public law 107 40 and I provided a link to that it’s SJ res 23 that the whereas clauses in that describe in very general terms what had happened whereas on September 11th 2001 acts of treacherous violence were committed against the United States and its citizens and whereas such acts rendered

11:17 both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad and whereas in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence and whereas such acts continue to pose an unusual and extraordinary threat to the national

11:38 security and foreign policy of the United States and whereas the president has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States now therefore be it resolved and then there’s the actual binding meet of the resolution so my

11:59 reason for bringing that up is to point out that we didn’t know Congress didn’t really know exactly who was to blame and what needed to be done and how to tailor this day and so they passed something that was pretty general it’s a short paragraph so I’ll read it to you this is the result clause in general that the

12:20 president is authorized to use all necessary and appropriate force against those nations organizations or persons he determines planned authorized committed or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States for by such

12:41 nations organizations or persons now that’s pretty broad language I mean what specifics do we have in there um very little all we know all we knew at the time or all that Congress was willing to say publicly at that time is that there been a horrible attack the United States needed to defend itself and that Congress authorized the president to go

13:02 do that at least against the terrorists who are responsible for 9/11 so were there any limits on the activities that the president could pursue in achieving that well what does all necessary and appropriate force mean there are some elements of that the Geneva Conventions and other international agreements that

13:26 govern the laws of war but in terms of domestic policy it’s a pretty broad statement now how about the adversaries well those nations organizations or persons that he determines planned authorized committed or aided the terrorist attacks so what is the

13:46 definition of aided it’s not there what’s the definition of organizations how broad is an organization’s reach how does he determine those things now it’s true that there have to be some delegation of powers to the president so that he can go ahead and implement and execute the laws that Congress provides

14:07 but there should always be an intelligible principle some sort of a limiting principle that clearly instructs the executive on the objectives to be achieved okay was there any limitation with respect to geography no and at that time there really couldn’t have been we didn’t find out publicly until September 20th which

14:29 was six days after Congress had passed this and two days after the President signed it into law that in fact it was al Qaeda which was in Afghanistan and somewhat in Pakistan and it was being we believed harbored by the Taliban so there’s no definition of who the adversaries or in this authorization for

14:53 the use of military force now how would a sunset provision I didn’t read a sunset provision there’s no sunset provision in there it’s and the way a law works if a law is passed and a law is not repealed then it continues on indefinitely until Congress modifies it

15:14 or repeals it there are some laws that are time limited authorizing appropriations for two years five years whatever the case may be but this has no sunset balls and there’s no statutory mechanism to create a sunset clause for authorizations for use of military force now how about reporting is there even

15:36 any kind of reporting that the president is required to do and this no there is not but it does state right after that part that I read that this is to be considered a specific story authorization under the War Powers Resolution of 1973 now the War Powers Resolution of 1973

15:57 was passed by Congress over President Nixon’s veto because Congress was unhappy with the way things have been going in Vietnam so there are some reporting requirements that are in there there’s a lot of misunderstanding about what the War Powers Resolution does some people think that it’s unconstitutional because it constrains the president’s

16:19 so-called inherent authorities under article 2 of the Constitution I’m skeptical of that as we’ll come back to later some believe that the process for disapproving a military action that a president has embarked upon without congressional authorization or at least without clear congressional

16:39 authorization is unconstitutional because it doesn’t meet the presentment test and article 1 section 7 I believe but there’s people who dispute that as well in any case there is some report in there as you can see the authorization for the use of military force that was passed in 2001 is quite broad it’s very

17:00 general language we didn’t know we did it where they were what needed to be done in principle President Bush could have dropped nuclear weapons on you know terrorists and caves in Afghanistan to deal with that although that would have been for many reasons an improper thing to do just from a policy perspective and from an international obligation

17:21 perspective so it’s pretty clear that Congress gave this authority to the president it gives too much power to the president doesn’t it I mean it doesn’t meaningfully constrain it in any way the press the Congress could have come back subsequently and they could have amended this once we knew that it was the

17:42 Taliban who harbored al-qaeda and it was Al Qaeda that was the organizers planners and attackers on 9/11 that didn’t happen they could have also forced the issue by putting a sunset clause so you know we’ll provide this blanket authorization for right now and again remember that this there is a little bit of a restriction that is to

18:02 prevent any future acts of international terrorism against the United States by those people who are as one but they didn’t do that there was no sunset clause and they didn’t come back and repeal it or amend

18:22 it and so here we are it is February 2018 it’s 17 years later there are men and women serving in the United States Armed Forces in Afghanistan that were literally infants and toddlers at the plan that the 9/11 attacks happened some of you may not have been born at time

18:43 9/11 attacks and so quite clearly unbalanced the current authorization for use of military force gives too much power to the President or does it because remember Congress passed the AUMF Congress had the power to change

19:04 the AUMF Congress retains the power to change the AUMF and there have been attempts there have been a number of amendments offered to the annual National Defense Authorization acts to constrain that to put time limits on it representative barbara Lee of California made news last year by proposing an

19:26 amendment to an appropriations bill appropriations bills spend money that would have prohibited the use of funds under the Act from being used under the September 11th 2001 authorization for the use of military force it actually passed by a voice vote in the House Appropriations Committee but between the

19:47 bill being approved by the Appropriations Committee and be being considered on the floor of the House of Representatives the Rules Committee which is a leadership committee that has a lot of power to change things at were to determine the process by which measures are considered on the floor they pulled that provision out the speaker suggested that the Foreign

20:07 Affairs Committee would take this up expeditiously now they have held a hearing the House Foreign Affairs Committee has a Senate Foreign Relations Committee which has jurisdiction over this has also held hearings but nothing has come of it in terms of repealing replacing and then being repealing that sort of thing so

20:29 one of the things that defense priorities we focus on a lot is that Congress must reclaim the War Powers the 2001 authorization for the use of military force was primarily initially used in Afghanistan against al Qaeda and the Taliban it made sense to go after

20:49 some of those folks as they fled into Pakistan still well within the intention of of Congress from passing that it has subsequently been used in other places I don’t forget there was a 2002 authorization for the use of military force if you go ahead and read that then you’ll see that that was focused on

21:11 Saddam Hussein’s government and so in the actual authorizing language when it talks about the threat posed by the government of Iraq that was Saddam Hussein’s government after Saddam Hussein’s government fell there is no more utility to that authorization for use of military force am I still with you my screen went dark for a second um

21:33 I’ll just have to touch my mouse every now and then so um so there was that other AUMF it went away because the purpose for which it was created was dealt with so if we’re going to have an AUMF it should

21:57 be tailored towards the circumstances we now find ourselves in the Islamic State of Iraq and Syria or the Islamic State of Iraq and the Levant was an outgrowth of a Sunni insurgency equality it grew up after the Saddam Hussein government was brought down it developed some very

22:18 radical approaches to things it was ultimately mostly defeated we’re still working on cleaning up some of it by a pretty broad coalition the Iraqi people themselves bore the brunt of it Iraqi Kurds Syrian Kurds the part of Syria’s Civil War that has allied with

22:39 the government they were very much involved and some of the other countries in the region I think Cameroon was a big one as well the United States certainly was involved with that or casualties that I believe the six Americans were killed fighting Isis and another 16 were wounded so the

23:02 bulk of the you know face-to-face combat was done by other folks well we were certainly involved with training advising assisting providing artillery support providing logistics air cover aerial strikes lots of different things and so partly as a result of that there is a captain in the Army by the name of Nathan Smith he sued President Obama in

23:25 2016 stating that there was no authority to conduct these operations under the 2001 authorization force it’s still working its way through the court since now Nathan Smith versus President Trump since he’s now the commander-in-chief but his point was that Isis was not

23:49 connected to you know the authorization for the use of military force that was often that was passed after 9/11 they were and they anyway substantially supporting the planners the plotters the perpetrators and so it’s time to do a new AUMF if indeed that’s something that should be done now um

24:13 Iraq and Syria aren’t the only places that this AUMF is being invoked it’s also being used in Yemen and also in in Somalia and some other places as well so the the point that I would make on why the 2001 AUMF is not the thing that

24:37 is responsible for giving too much power to the president is that first Congress can change the laws anything they’re always updating things that they’re always amending things but yet this one they haven’t know there have been some efforts Todd young senator from Indiana shortly after being sworn in in the

24:58 Senate talked about how it was cowardice that they haven’t done it and now senator bob Corker who’s the chairman of the Senate Foreign Relations Committee said I wasn’t Carrodus it’s just that we couldn’t get agreement without agreement it wasn’t gonna be possible to move forward on that but you know it’s it’s not just Congress’s fault the presidents

25:21 and we’re now talking about three presidents President Bush President Obama and president Trump have each relied on broad interpretations of executive powers now if you go through and you look at the Constitution Congress has a whole bunch of powers related to the preparation for and the declaration of war the president’s

25:42 primary job is to be commander-in-chief of the Armed Forces when called into the actual service in the United States and he shall take care that the laws be faithfully at the laws that Congress has passed but President’s Council two presidents have often relied on on broad ideas about what article two of the

26:05 Constitution allows the President to do there’s a Supreme Court case law on this sometimes so there’s a difference between holdings in dicta and in court history the holdings are the decisions that the members of the court sign on – and those are binding on lower courts and they are precedents that

26:25 later Supreme Court’s do rely on although they can be overturned dicta is pros if there’s something that whoever wrote the opinion puts in there they think it makes sense to making the case for the holding and there is some pretty expansive dicta pros in certain cases

26:47 there was a curtiss-wright export corporation versus United States that’s one of the big ones more recently is that potoski versus kerry but note that the holdings well not so much in Civitas key but in curtis right the holding itself didn’t really touch at that particular aspect but it was the the

27:07 broader language of the dicta now the other thing is that you know persons presidents often make signing statements saying that Congress shouldn’t have included this or that provision in procreation Act or some other act because it impinges on the president’s authority now that’s all very good and

27:30 interesting but you have to understand that article 1 section 8 Clause 18 of the Constitution better known as the Necessary and Proper Clause says the following it says the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers – those are

27:51 Congress’s powers and all other powers vested by this constitution in the government of the United States or in any department or officer thereof and so that’s why I provided to you an article that I recently had published in the hill the title is no presidential power is beyond Congress because under that Necessary and Proper Clause Congress

28:12 actually can pass anything that it was anything that I can get agreement on which can be challenging these days but it can pass laws that condition and structure the president’s exercise of his authority it’s whether they are specified in the Constitution or whether they are provided personal into a power that

28:34 so there’s really nothing that is outside of the legal scope the constitutional scope what Congress can do it’s really a question of prudence and temperance and making sure that the president has the latitude that is appropriate for the job and Congress has gone too far and so this authorization for use of military force

28:54 that’s words on paper that’s not that’s not fully written it’s not carved on Stone Congress can change that the president could also refuse to do things that he didn’t think Congress had clearly authorized it says conquer the the AUMF says that the president is authorized these not that he must not

29:16 that he had or has a responsibility to clearly morally there was a responsibility to go after the attackers and and the people that aided them but the president can say look I don’t have the power to go into Syria and so if we’re gonna do that then I need Congress to step up and do that and that’s exactly what President Obama did his

29:36 credit he didn’t do that in Libya but he did do it in Syria he said I would like Congress to provide me an authorization to remove Bashar al Assad from power and create a new coalition government and seeing how not so well things were going in Afghanistan and Iraq Congress was not inclined to do that because of Isis

29:59 however and related things president Trump has put American forces into Syria there’s a serious constitutional question about that defense priorities we are of the view that that is not an appropriate thing to do that that is in fact an unconstitutional action because Congress hasn’t approved going into

30:20 Syria and of course there was the bombing of the sharat airbase in Syria with the tomahawks after President Trump decided that there was sufficient evidence that Assad had used chemical weapons so it’s been expanding it’s been

30:41 creeping along over the time now what is a way forward we’ve got a political culture problem it’s not just Congress although that’s part of it it’s society-wide there’s a lot of there’s a lot of things that people care about right so it’s not entirely the American

31:03 people aren’t entirely to blame for the Congress and the president doing things abroad that by and large don’t directly impact the American people all that much at least directly there are some serious concerns about how we can sustain our civil liberties in a time of perpetual war and there have been some legislative

31:24 vehicles that have eroded some of those or have not fixed problems that have been uncovered recently the Congress has passed legislation reauthorizing some foreign intelligence surveillance authorities that many members found very problematic but the majority decided to keep them and expand them so you know

31:46 part of it is the the way that the house in the center are organized and what the incentives facing members are sometimes even though it might be the right thing to do there’s a lot of pressures on members and you know that’s hard to resist sometimes especially when your leadership when the Democratic or when the Republican leadership and the Democratic leadership and when a lot of people that you trust are telling you

32:08 that the thing that you don’t want to do is thing that you should do I think another part of the problem here is that there isn’t really an organized way to force trade-offs just tonight the Congress is debating a budget deal that would raise the caps under the Budget Control Act quite significantly about

32:30 300 billion dollars over the next two years perhaps more we haven’t I haven’t seen the CBO report for that yet but if we had to consider trade-offs between you know should this thing be going on in country X on the other side of the world or should we use those funds domestically whether it’s for deficit reduction or for tax reduction or to

32:50 spend on something else then that might actually force a debate about whether these things are worth it or not so [Music] all right at this point I think I’d be interested in taking any questions that folks have I think you can use your your

33:12 platform here to pose them and I will patiently wait for them oh I should also say that it’s not just the president’s fault and Congress’s fault the courts have a role to play in this as well some of the questions have arisen due to the detention facility at Guantanamo Bay

33:34 there have been habeas petitions habeas is a process by which someone who is being incarcerated can appeal for the adjudication of their case and potentially be released because of the 2001 authorization for use of military force and the subsequent legislation that has expanded the definition of

33:56 what’s meant by Associated forces the courts have generally deferred to Congress and the president over a so-called political issue President Trump recently signed an executive order stating that persons from Isis who are now captured can be brought to

34:16 Guantanamo Bay for in for interrogation and to be held indefinitely and we’ll see what happens there it may be that the courts will decide at this point to get involved and require Congress to modify or replace the AUMF so okay so

34:38 you’ve heard me talk about how unbalanced the current AUMF gives too much power over the president it does but that is kind of a phenomena that’s an outgrowth of deeper problems of congressional inaction and of presidential overreach both of those things are there there’s been a

34:59 long-term trend for Congress to defer to the executive branch and there are some reasons for that as the federal government’s scope as the activity is that it’s involved in and have grown it becomes increasingly difficult for members of Congress and their staff to intelligently structure specific rules and so it becomes easy to just pick it

35:20 over to the executive branch agencies and let them worry about it that’s politically useful as well because that means that members of Congress can be behind you know a broad principle like we support clean air we support clean water or you should go get those terrorists that attacked us on September 11th but it doesn’t it doesn’t really provide the executive branch with clear

35:41 direction and so that’s where the mischief in the executive branch first to come from we’re giving broad instructions and then it’s up to the agency personnel and ultimately the political appointees and potentially even the president to decide whether or not it makes sense to do that so any

36:01 questions Maddie is there anything that you’d like me to touch on that I haven’t yet okay well thank you so much for joining us I have provided some readings

36:24 that should be useful to you it’s not just Congress’s duty to taxpayers but also service members to make sure that they’re grappling with these questions and answering them in an appropriate way that serves America’s national security interests and provides a return to the American people so thank you very much

36:46 all right thank you so much Kurt this was really really helpful now for all the attendees this is gonna go up on our YouTube page so you can always post questions in the comments about YouTube we will also have the link to all of these resources that Kurt has provided in the caption for the YouTube video if

37:08 you have any questions please feel free to reach out to me I’ll put my email right in the chat box and I’m more than happy to answer any questions that you guys might have on whether it’s about more other debate webinars or if it’s about any other Bill of Rights Institute programs we have another webinar coming

37:29 up on February 15th the speaker is Matt Wilensky he is one of the leading experts in the universal basic income or universal base income so that should be really interesting it’s going to be a really fun webinar so thank you guys for coming and once again please reach out if you have any questions thanks guys

37:51 thank you very much