 We were sternly warned not to spend too much time praising the biographies of our esteemed speakers. You just heard a very brief set of the highlights of Harold Koh's biography, but the really important thing to know about Harold is that he has made a career of making the legal profession, the human rights profession, the national security profession, and the White House angry at him for his efforts to do exactly what we're going to talk about here today, balance the competing demands of law, human rights, and the realities of warfare past, present, and future. So we start this conversation at a moment where the war of the present, if you will, the conflict we're fighting against ISIS, has been going on for more than six months now without benefit of any of any oversight or brush of authorization from Congress. And we're at this really interesting moment where we say, you know, if the tree fails to fall in the forest, does it make a difference? Does the fight that we're having on the hill right now about whether, how, and for what Congress should authorize the president to do what we've already been doing for six months make a difference? And Harold's going to bring us up to date a little bit on where we are with that fight and why it matters, and then we'll try to get into some of the bigger conversation about what this fight tells us about the role of Congress and through Congress the public is in the future of war. So thanks, Heather, and thanks for including me in this conference. I'm just a Connecticut lawyer, but I learned in the Beltway bottom line up front, and it's pretty simple, which is supersede and sunset, but not silence. That concludes my remarks. No, we're talking about the future of war. So we should be able to agree on what war must be and what it must not be. So it must be lawful and it must not be perpetual. It has to end. And so that's the balance that the administration is trying to strike in the AOMF between lawful, sufficient legal authority to defeat ISIL, and ending the forever war, namely not perpetuating the longest war we've had in our history by letting it mutate to fight everybody who comes along. Now this is important because we're at a rare moment in this town where people are actually talking about this question. There are very few moments apart from Pearl Harbor or 9-11, where people actually are all ready to consider the question. But right now, I think Congress is too fixated on the first goal, it's sufficient legal authority. And so they're overlooking the second goal, which is how to end the forever war. And I want to say that that's more important because the armed conflict with al-Qaeda that began in 2001 is 14 years old. It's the largest, longest war in American history, eight years longer than the Revolutionary War, ten years longer than the Civil War of World War II. If it goes on longer, it will be a forever war. And it's distorting. So as the President said at the NDU in 2013, how do we continue to fight terrorism without keeping ourselves on a permanent perpetual war footing? The balance that we're trying to strike then is between sufficient authority and how to eventually bring the war to an end. And I want to say this very carefully. If Congress over broadly authorize a fight with ISIL that mutates endlessly to include new enemies, and if we don't have a process for reexamining this AUMF, then Congress would have passed the 21st century Gulf of Tonkin Resolution. And history will have its judgment on that. So how to prevent this from happening? Very simple. The new AUMF must say something about the 2001 AUMF. What's the relationship between the new ISIL AUMF and the 2001 AUMF? There are two possible relationships, addition or subtraction or substitution. Let me say addition or substitution. First, it can simply add to the legal authority that the President already has under the 2001 AUMF, in which case it's redundant. It's a three-year belt to go along with the existing AUMF suspenders. Why would Congress want to pass such a bill if it's purely additive? I'm not sure why either Democrats or Republicans would want that. On the other hand, it could be read as a substitution or a switch where the ISIL bill, the ISIL AUMF, becomes the President's exclusive lawful authority for fighting Congress with a narrower specific later in time statute. And some of the administration tell me that's what they think it's doing. It's substituting or switching, not adding, but it's silent. It doesn't say anything about that. This is a huge omission. Is two and two four or is two and two two? We have to know. So in brief, my takeaway and your takeaway should be that they should supersede and sunset but not have silence. And that's what needs to be added. Now there's language if you want it in the Democratic bill from the Center for Relations Committee section six says simply the provision of this law shall supersede any preceding authorization for the use of military force versus ISIL. And in addition, it sunsets the 2001 AUMF, not just the ISIL AUMF, three years after enactment. Now, if we're going to have to look at the state of the conflict with ISIL in three years, why not look at the whole picture? And I've heard no good argument against either supersession or sunsetting. I'll say it again. I've heard no good argument against either supersession or sunsetting. Because if Congress is not voting to supersede, it's not doing anything real. It's just giving the President more authority. He already has two AUMFs. If you had a third without a sunset, that perpetuates the war. And you have belt and suspenders when the suspenders have already been stretched pretty far. Second, a sunset, and this is so important, it's not a repeal. A sunset is not a repeal. It's not even a proposal to repeal. It's simply a collective agreement to assess the situation together as a nation in three years' time. And it helps that we're operating under a veil of ignorance. So I heard from last speaker about Kant and I heard about John Stuart Mill. You know, John Rawls talks about the veil of ignorance. It's good that we don't know who the President and who Congress is going to be. It's good we don't know what's going to be happening with ISIL. Because what we want to know in understanding an appropriate role is whether Congress will be at the table in deciding what kind of battle we want to fight. So that's my bottom line here. How to strike the balance between sufficient legal authority and not having an endless war that distorts the shape of our society going forward, that shifts resources, that subjects people to a kind of extraordinary emergency powers that creates human rights issues. The answer is simple, supersede and sunset, but absolutely not silence. Now, there are a lot of people here who have ability to affect this debate. And I say take that message away. Thanks. So you dropped the Gulf of Tonkin in there and that's obviously the sound bite of this. What sound bite? Gulf of Tonkin? They don't teach you anything up in Connecticut, do they? So the relevance of that, it seems to me, is the eventual takeaway from the public about the Gulf of Tonkin Resolution is we relied into war, war loses its legitimacy. We have, it seems to me, this huge problem with this new form of war, of how war gets and keeps legitimacy. And this leads to some of the points you were making. It also leads to the problem of can our Congress function well enough to give war legitimacy, to ensure that there's a lash up between what we're having our troops do in our name and what we actually think we've agreed. Do you, putting your hat back on as an administration policymaker, do you see any realistic hope that the Congress we've got can actually have a sunset debate in three years time, can look in a timely fashion at whatever ISIS morphs to next and what needs to happen to make that possible? So Congress says all the time it wants to debate and have oversight over war making, it says it every single day. So if you have a forced moment where they have to talk about it, even if simply to say we renew, I mean they renewed the Patriot Act when its sunset, it doesn't guarantee a massive debate. But it means that Congress hasn't given an unlimited blank check in which they have no oversight. So why should they want to do that? Now I know people might want a blank check, but so does my son and I don't give it to him. So if you are serious, I mean the question here is, are people serious? They may not be, most of the time on these political issues people try to avoid making tough decisions. I can understand that, but here we are. And the question is, you have two authorizations to the use of force on the table, the 2002 and the 2001. Both of them are old and both of them have cited as authority. Now the president's asking for a third one, which he says he'll sunset in three years. So why not a fourth one? Why not a fifth one? Why not forever? Congress can give these blank checks and then it could say it did something and have no oversight whatsoever. But if you're gonna have a meaningful oversight and a meaningful constitutional process, there must be a moment where we all talk about it. And why not do it in a couple years' time when we know who the president is, when we know who Congress is, and we know how well we're doing against ISIL? Earlier panels have talked quite a bit about the nature of national security being competitive coalition building. That the society that does best in conflict of the future will be the society that's best able to pull together diverse and changing and effective coalitions. It's often ill understood by those of us who don't come from the legal background or who aren't familiar with societies that maybe visibly fetishize international law more than we do, the relevance that legal norms play in building and holding coalitions together. Can you talk a little bit about why it matters that this conflict is conducted lawfully and how our coalition partners and how your counterparts in our allied governments look at our seeming indifference to the legal basis for what we're doing? Well, when I was assistant secretary of human rights and we dealt with China, which wanted to be a great power, we said, if you want to be part of the international system or a leader of the international system, you have to play by the international rules. And that applies to us as well. Our allies, particularly the smaller allies are deeply committed to a system of international law because it's what gives them a seat at the table. And they were very, very badly bruised during the first decade after 9-11 by the feeling that we were essentially invoking international law and it helped us and avoiding it when it didn't help us. And I think the administration has gone a long way toward two things. First, trying to put our domestic actions on a statutory basis and second, trying to square that with international law. So what I'm saying here is simply a continuation of that general theme. If you're gonna fight a specific war against ISIL, have a statute that for three years puts you on that basis, consistently with international law and demands review. And if you really mean it, switch. Switch from the 2001 AOMF to that. Leave it otherwise unchanged. But say in three years we're gonna take a look at it and decide whether Al-Qaeda, the Taliban and associated forces are the real enemy in 2018 or not. I'm not sure why that's a devastating thing to act. 17 years after 9-11 to ask, do we really wanna be declaring war or have a declared war against a group that we may have decimated? And by the way, in every other war in history, we've done that and that's how Congress keeps its input in and that's how we stay true in international law. How do you answer the critics who say, and I think you're not human if you haven't felt this at some point, why on earth are we even having this conversation about an enemy that burns human beings alive, puts women into sexual slavery, throws people out of buildings? What on earth is the role of international law that was designed as a system between peer states if the future of war is dealing more and more with this kind of opponent? Well, Senator once asked me, professor, and by the way, in Washington, professor's not always in term of respect. He said, you keep bringing up the Geneva Conventions, the terrorists haven't signed the Geneva Conventions. And I said, you know, Senator, the whales haven't signed the whaling convention either. It's not a contract. It's not about, or as Senator McCain put it very well, it's not about them and who they are. It's about us and who we are. And it's about a minimum standard of treatment. And we profess to be leaders of the human rights community. In fact, I think we are. And it's partly because we care about these minimum standards. When you think about how US law on declaring war and commercial oversight of war has evolved over time and you look at this conflict we're having now, where are we going? What's the next? What's the next? What will we be talking about at the fifth or 10th ASU New America Future of War conference? What's the thing that we most urgently out of the several really key problems with the current AUMF debate, what's the thing that it's most important to get right now for the conflict we face in five or 10 years? So, law drives conduct. And the war powers resolution, which was passed in the early 70s, was about no more creeping war, no more extended ground troop commitments. And it was one of the many factors that has helped drive activity away from that. But what it did was it created a greater premium on actions that could be completed in less than 60 to 90 days and on covert actions. And if what we're moving to now is cyber conflict, special ops and drones, the laws that we have aren't very good at addressing those situations because they speak in terms of physical concepts like armed forces equipped for combat, entering enemy airspace, et cetera, et cetera. Which means we need a process for updating these laws to the 21st century. And in fact, we're in a moment of absolute deadlock where we can't even figure out whether we wanna fund Homeland Security or not. I mean, I didn't think that was a tough question. So, if you do not have a situation where the political branches are able to update the laws to meet new situations, then you're gonna have to get people to either say the law doesn't apply, which I think happened a lot in the last administration. We're in some kind of black hole. It's a Tina Turner moment. What's law got to do with it? What's law but a secondhand emotion or a sweet old fashioned notion? I think the better way is translate. Translate the spirit of the laws, Montesquieu's idea. Maybe the exact words of the Geneva Conventions or other laws of war don't apply. But what is the spirit that applies to the situation? And you can debate whether the translation is accurate or not, but at least you're trying to be true to the spirit of the law. What makes this moment special, and that's why I said what I said is, there's an unusual confluence of events where the president has asked for an authorization for the use of military force. The chairman of the Senate Foreign Relations Committee is interested. The chairman of the House Armed Services Committee is holding a hearing tomorrow. People are talking about it. And it's something where the president went back to this issue having decided in an earlier time it wasn't politically opportunity to raise it. So if we're coming into a debate like that, let's strip away the details and get down to the bottom line. And I think the bottom line is supersede and sunset, not silence. So 10 years from now we will come back to this conference and we will look back at the discussion which led to the passage of an AUMF and the creation of the Tina Turner Doctrine as one of the first outcomes of this conference. And with that I wanna invite your questions. We've got a lot of people in the audience who have had a great deal to do with this issue set over the years. So we've got about 10 minutes. Okay, Charlie Dunlap. Dean Good to see you. We hear a lot about we don't want a forever war and I think everybody agrees with that. But as we say in the military, the enemy does get a vote. And are you concerned at all about the sunset clause and the impact that it'll have on allies and the adversary? The adversary will obviously build a strategy against that for years. And could we not address the out of control blank check through Congress's authority to govern the resources that the armed forces gets? Well, I see the productive way in which the Congress's power to govern the resources being applied at the moment. So I mean, the point about having a deadline is it makes people talk ahead of the deadline. If I want my student to talk to me about their paper, I tell them the deadlines next week, not because I think they're gonna finish it next week, but because I think they might come and talk to me. And that's the process. So the war powers resolution try to use deadlines as substitutes for dialogue. But what we need is real dialogue. And I think if you don't have a dialogue, then it's been delegated. So for example, some people think that you should have some sort of foreign terrorist organization, FTO designation, where Congress gives some kind of authority and then other people add names to the list. And I worked with the FTO process for many years in the State Department. You never get any credit for leaving a name off the list. You just get blamed if it's not on the list. And a group with that name or somebody connected to it does something. So you've created a ratchet where Congress is endlessly giving perpetual authority. The executive branch has incentives to add Heather Holbrook and her family if they happen to have a funny name. Because why should they not have that on the list? And that's not dialogue. That's not real oversight. That's not meaningful. So the question is what's meaningful? The problem is Congress uses gimmicks to promote dialogue. And the President talks about dialogue, but it's often easier to operate without dialogue at a moment where they're actually talking about a process. Let's create a process that actually forces or guarantees some kind of dialogue. And if you want to get ahead of this set, a sunset in three years and in two and a half years they'll be talking pretty seriously. They have to. They have to. And it could be that the deadlock is worse than, I don't think it can get worse. So it'll probably be better. So that does raise the question of whether the AUMF itself is a gimmick, Harold, since we've been fighting for a number of months before it was passed. I prefer the term action forcing events. Fair enough, Greg Craig. Harold, I'd like you to contemplate a scenario that I know is unrealistic, but might possibly occur where the Congress does nothing on this issue because of the wide disagreements as to the scope of authority the President should be given. And the President then asks you, what are the legal consequences and the political consequences if the Congress does nothing at this point? Well, that essentially happened six months ago and the President started fighting this war against ISIL under 2001 AUMF authority. I wrote a blog post on this and the excellent Just Security blog to which I direct your attention, www.justsecurity.org. But my basic point is what, as Greg knows better than anybody, what is legally permitted is not always what's best politically or as a matter of good governance. And fighting war is based on old statutes and stretching them, leaves the President hanging out there until a mission goes bad or until Congress decides that it doesn't really like that interpretation after the fact. And then you have debates over how much Congress acquiesced or not. So in this town, there's a lot of talk about doing stuff straight up. This is one of those moments. Hi, my name is Colin Agee. I wanted to run with your Tina Turner analogy and I'm thinking of the song Proud Mary because the song starts out nice and easy and that it gets nice and rough. Yeah, I thought about it all the time. Left a good job in the city. There you go. And so your point is well taken that wars should not last forever. But I want to pin you down. Does that mean that you advocate that we should be more aggressive so that we could drive them to a favorable conclusion? And do you think we've got the national will and the political ability to take that course of action? No, I'm saying if you have new wars against new enemies, have new moments of political debate and authorizations. We're a long way from September 11th. So how long are we gonna ride the 2001 AOMF horse? You know, arguably we rode it too long already. You know, when these other wars, which were huge events in our country, when we thought the enemy was essentially defeated, then the Congress reconsidered whether to fight a new war against a new enemy. And by the way, when that happens, the executive branch goes to Congress and presents the intel on what it will take. And you have a new moment of agreement. It's a recommitment ceremony to a consultative process and recommitment ceremonies work even between people who aren't getting along so well. Okay, so now we've entered into the marriage therapy. So it's probably pretty close to the end, but we'll take one more question. Hi, Harold. It's Harvard. Hi, Harvey. How you doing? American Bar Association. I just wanna turn for the last question. The concept, which I think you've been thinking about what your current thinking is about the law of armed conflict and cyber conflict, which was we dealt with yesterday. And was Stuxnet an act of aggression that crossed a threshold? And where your current thinking is about how you apply the law of armed conflict to the cyber arena? So I think we need generally accepted principles on this, and it has to be done at a multilateral level. Just before I left the government, I gave a speech out at Cyber Command, and we did something very simple, which is we said, are there 10 propositions on which everybody in the government agrees? And remarkably, there were 10, plus there were three more on which people were ready to say something publicly. And then I said, well, since everybody in the government agrees on 10 propositions about how international law applies to cyber conflict, why don't we write them down? And there's a lot of concern. Why do we say anything about this? I think because we want people to know that we are operating in the cyber conflict realm differently from the Chinese and others who would prefer for this to be a black hole. We're trying to translate. So that was in the Harvard International Law Journal. There is the Tallinn Manual, which has tried to do it in exhaustive detail, but that's not state practice. So I think the next step is to take shared principles to our major allies and start to get some basic agreement on propositions. And the question, what is aggression is a huge deal because as you know, the International Criminal Court is a couple of years away from finalizing a crime of aggression, right? So will it be that someone who authorizes, and as the most tricky thing, which Harvey know better than anybody, is in a world in which response, I'm sorry, action and response are instantaneous. How do you know who the aggressor is? Which is one reason why the president was so careful, I think, with regard to the Sony incident to call it an act of cyber vandalism as opposed to aggression or some other term that's very fraught or triggers other activities under international law. So I think that's what you're gonna be talking about in the years ahead. And it's an incredible challenge and it goes to something else very basic about law. So much of our law, so much of international law turns on certain territorial concepts and physical touchings, sovereignty, territory, crossing borders physically. And when you have someone sitting in Maryland hitting a key, how are you gonna characterize that? And there's a limit to how much it can be done by extrapolation from physical concepts. You're gonna have to come to a new set of paradigms on this and this is better done in consultation with like-minded countries with the same kind of commitments and similar technological capacities as well as similar commitments to international law. Well, on that note, the Tina Turner Working Group will meet in the back over lunch and please join me in thanking Harold for this very provocative, thought-provoking.