 Okay. I want to welcome everybody here. This is the Understanding Lincoln online course that's sponsored by the Gilder-Lambert Institute of American History in New York and Dickinson College in Pennsylvania. We're holding a series of panels as part of this online course called Presidents at War. It's about the enduring challenges that are facing American presidents over questions and controversies regarding their role as Commander-in-Chief. This is one of the defining elements. It's the defining element of Abraham Lincoln's experience as president. We're not going to spend an awful lot of time talking about Lincoln today or in these series of panels. There are three of them altogether, but we're going to use Lincoln and American History as a benchmark to try to offer a kind of thoughtful discussion of the present day and the future. You know, the course participants in Understanding Lincoln are mostly educators, K-12 educators from across the country, and we have a number of hundreds, really, of auditors from around the world, including many educators. And they're interested in teaching their students about the present day in the context of where things have come from. So today, for example, our focus is on presidential war powers, the challenges of managing war. On June 25th, we're going to do a panel on conflicts between presidents and generals, the civil military issues that arise during wartime. And our final panel on July 9th is going to be about civil liberties during wartime. And it will involve several leading members of the press. These panels are all broadcast over the Internet Live on our live stream channel for the Understanding Lincoln course. And they're also broadcast through the New America Foundation, which is our host today and on July 9th. And so we're grateful to New America for their help in organizing this setting. Over the course of this panel, I'm going to be asking the panelists questions from our course participants. We're going to be taking live questions from these participants we're watching online. And at different points, I'll pause and let people in the room here, who are guests at New America, ask their own questions. And we'll give you the microphone and let you interact with the panelists. So let me begin now by briefly introducing the panelists. Then we're just going to go straight to our questions and discussion. So to my far right is John Altenberg. He's a retired major general and a former deputy judge advocate general. John is an attorney who serves of counsel at Greenberg-Tororig Law Firm in Washington. He was, for 28 years, a lawyer in the Army, and he helped organize the appointing authority for military commissions that handled or that was organized to handle the post-911 cases generated from Guantanamo Bay and elsewhere. To his left is Sidney Blumenthal. Sidney is a noted journalist, an author, and a former presidential aide. He was an assistant and a senior advisor to President Bill Clinton in the 1990s and has served as a senior advisor to Hillary Clinton. Sidney has been a staff writer and an author for the New Republic, the Washington Post, the New Yorker. He's the author of several books on American politics. He was an executive producer for an Academy Award-winning documentary, Taxi to the Darkside. And believe it or not, he's found the time to write a trilogy about Abraham Lincoln, the first volume of which A Self-Made Man will be published next spring by Simon Schuster. We have, to his left, Lewis Fisher. Lewis is the scholar-in-residence at the Constitution Project, but he's best known for having worked four decades as the Library of Congress senior specialist in separation of powers issues. He produced numerous reports for the Congressional Research Service. He's the author of over 500 articles on constitutional and legal history, and he twice won the Lewis-Brownlow Book Award. And finally, we have Jeff McCausland. Jeffrey McCausland is at the Strategic Studies Institute at the U.S. Army War College, where he holds the Minerva Chair. He also is a retired Army colonel who served in Operation Desert Storm. He has a Ph.D. from the Fletcher School of Law and Diplomacy at Tufts University, and he previously worked at the National Security Council at the White House. He's also the author of a number of articles and essays, and he serves as a military analyst for CBS News. So you can see we've got a wide range of expertise in this room from different sides of these questions that involve presidential war powers. And what I wanted to do to begin this panel is ask a series of questions about the nature of how wars begin and the conflicts that arise over how they begin, especially between the presidency and the Congress. And to begin that, I have a question from Roxanne Thompson. She's one of the participants in our course. She's a high school teacher at Pulaski County High School in Dublin, Virginia. And she says her question derives from the fact that the last time Congress declared war was during World War II. And yet America has been involved in what she says are multiple wars since. And she wants to know if this is a shift toward increasing the role of the executive branch in making such decisions. And if that shift is necessary, or if the panelists think it's unconstitutional or represents a threat to our sort of constitutional system of checks and balances. So obviously the place to begin here, with this kind of question, is Lou Fisher, who's a specialist of the separation of powers issue. Lou, can you try to answer Roxanne's questions? Maybe by helping us put into context the history of the declaration of war power, and where it's been moving in modern times. Yeah, the framers knew that you could go to war either by declaration or by authorization, the statute passed by both houses. And Alexander Hamilton, one of the federal's papers, said that formal declarations were going into disuse in Europe. So the first war we got involved in in 1798 was not a declared war. It was an authorized war, the quasi-war against France. And we've had many authorized wars in the past. After World War II, certainly the Tonkin Gulf Resolution in August 64, authorized military activities in Southeast Asia. After 9-11, we had an authorized war against Afghanistan. October 2002, authorized war against Iraq. And as all of you know, last year President Obama asked Congress to authorize military activities in Syria. He didn't receive that authorization. So you've always had the choice between formal declarations and authorizations. And so there have been five declared wars in American history? Five, although World War II, there were declarations, I think either five or six declarations for World War II. And then there are numerous examples of use of force authorizations. Many. But there are also examples of unauthorized wars, no? Well, the unauthorized war, of course, most recently, 2011, we used military activity in Libya. President Obama said this would be a matter of days, not weeks, it was seven months long. And maybe we'll get into this later. Obama instead of going to Congress for authority, he got, quote, authority from the UN Security Council. And that's one, to me, is one of the dangerous trends since World War II, is presidents using other bodies than Congress, not just the UN Security Council. If you can't get it from there, you'll try and get it from some NATO countries. So that, to me, is a flat out unconstitutional direction. And Congress is not protecting itself. So, Sidney, you also were an advisor during a period of time when there was an unauthorized conflict, right, the Air War in Kosovo in the late 1990s. Was there a debate in the administration over whether or not to seek an authorization from Congress? And how did that sort of episode play out from your perspective as an advisor? First, I'd like to thank you for inviting me to this forum and to appear with these experts and to appear before these educators. In 1999, when Slobodan Milosevic, the leader of Serbia, who had been conducting aggressive wars in the Balkans and throughout the 1990s, after the breakup of Yugoslavia, decided to conduct what the U.S. considered a war of ethnic cleansing in what had been the former Yugoslav province and breakaway country of Kosovo. Milosevic had conducted various massacres, including its ribbonica of thousands of people. And President Clinton was confronted with this dilemma of what to do. He had conducted various military operations in the region throughout his presidency. He had authorized airstrikes in a strategy called Lift and Strike in Bosnia. And that had broken the siege of Sarajevo and had ended, for all intents and purposes, the vicious war there. So now we were confronted with the new war in the Balkans. President Clinton did go to the Congress. He had been assured by the then Speaker of the House, Dennis Hastert, that the votes would be there and that the Republicans would support a bipartisan resolution in support of authorization. However, as we can see, if we look at the current fragmentation and conflict within the Republican Party today, with, for example, the defeat of Eric Cantor, the majority leader in a primary, that sort of thing also existed within the Republican Party at that time, the then majority leader, Tom DeLay, made sure that that authorization, supported by his very own Republican Speaker, failed. And Peter King, a Republican congressman from New York, said it was a second, it was a version of a second impeachment on the part of the right wing caucus of the Republican House conference and to not only prevent that authorization, but to try and humiliate their own leadership, which they considered to be too moderate and to be compromised by cooperating with President Clinton. So as a result, in the vote for that authorization, it was a tie. It was arranged by DeLay to be a tie. So there was no authorization. President Clinton went forward with an aerial campaign that lasted less than 80 days, miraculously without a single American casualty and with a positive result. He operated under the War Powers Act, which gave him the authority, and with the cooperation of our NATO allies. Well, can you explain that for a teacher? I mean, how can they teach that it was an action under the power of the War Powers resolution if Congress doesn't authorize the activity with the use of force resolution? Well, as Lou Fisher, I'm sure, can explain in great detail, the War Powers Act was passed, I believe, in 1973. And it grants the President the authority to conduct military actions without congressional approval for 90 days. And he can get an extension as well of that. Once you pass that extension, you're in a great territory. And the Coastal War was conducted beneath that period of time. I don't know what would happen if it goes beyond it. Congress has largely been, I would say, giving tacit approval to the presidency in matters like this. In the sending of American forces, for example, under President Reagan, we sent a large military contingent to Lebanon. It ended badly. It went on for more than 90 days. President Reagan conducted an invasion of the island of Grenada to free American hostages in a situation where the government had collapsed during a coup. And he operated without an authorization of Congress. He had to operate quickly. So what you're calling tacit approval is that what you mean, Lou, when you say Congress isn't defending itself, that you think they're ceding too much power to the executive in modern times? Well, I think the War Powers resolution up front in Section 2 says that this is to carry out the intent of the framers. And also, this is to ensure collective judgment, which it does not do, as Jesse explained, that Congress allowed presidents, under some circumstances, to go to war unilaterally without coming to Congress for up to 60 days. And then another 30 days after that. Actually, Clinton and Kosovo was the first president to go beyond 60 days. I think it was around 78 days. But then in Libya, that went on for seven months. And so President Obama even exceeded the 90 days. So I think it was Senator Tom Eagleton was the advocate of the War Powers resolution as written by the Senate, fairly good bill. But the House never thought you could put any restrictions on the president. And then, of course, the House and the Senate go to conference committee and what came out. Eagleton said was a bastard, was a giveaway, was a surrender. And I think it was. There is some good language in the War Powers resolution, Section 8, to make sure the presidents don't use a treaty like the UN Charter or NATO as a substitute for Congress. And there's good language in the War Powers resolution where you can't use an appropriation as equivalent to authorization. So that's good. But otherwise, it's a very careless statute. So, Jeff, there are legal issues. There are constitutional issues. There are statutes that apply. But one of your specialties at the War Colleges is to focus on leadership questions, strategy. What are the strategic implications of Roxanne's question? The movement toward a more aggressive executive commitment of troops without maybe the full consultative process with Congress. If you see that trend in the modern times. Well, two things I think that immediately come to mind, one of which is the ultimate, which is very different in the 21st century than it certainly was in the 19th century for Abraham Lincoln. And that is, of course, the presence of nuclear weapons. And we often times forget the passage of the Cold War that throughout the Cold War, it was widely believed that if a conflict had ensued between the United States and the Soviet Union, there wouldn't have been time for any particular action by Congress to declare an act of war. So you had an aircraft called Looking Glass flying 24-7, and many people postulated the decision to actually go to war, commit U.S. forces, in this case, intercontinental ballistic missiles, might be by a general officer flying around that aircraft as the only survivor of a strike that did in fact occur. So we need to keep in mind that is a reality of the 21st century, though one when we don't talk about it as much now that the Cold War is over. I think, and I really appreciated Sidney bringing up Kosovo. I think Kosovo, in some cases, can be instructive because it was that example of use of power, consistent, I guess, might be the right word or little straightened out on that legally within the War Powers Act. But it has caused us to believe that, you know, the application of air power in this moment might be a good example. Looking at that analogy is the way of head. You know, the use of force and air power is the strategic solution. And people hold up Kosovo and say, see, in 78 days we were successful and it worked out very fine. People gravitated towards that analogy when they talked about the war in Libya. And as Lou probably pointed out, it didn't last 78 days. It lasted about seven months. They've gravitated towards that analogy when there was talk about air strikes or cruise missile strikes against Syria. And it often struck me because I was on the coast of Otas Force that I was reminded, you know, using Matt as a story and a Civil War example. It seems to me someone I read, a Southern congressman once said, all the blood that was filled in this conflict will be able to be wiped up by one lady's handkerchief. All wars that we get into seem to be going to be short and they're all going to be over by Christmas so all the troops get to go home by Christmas. My study of history tells me that hasn't worked out terribly well. And my time on the coast of Otas Force in Sydney probably can lend more light on this as well. I recall as the air campaign unfolded and we got to phase three, I remember being in a meeting and having a very senior person say, well, we're at phase three of the air campaign and there ain't no phase four. What the hell are we going to do now? And it was the combination of a successful air campaign and the threat of perhaps the use of ground forces that from my perspective, that time being on the coast of Otas Force is what caused the loss which the throw in the towel. If I can just add a historical note to what Jeff says. He's exactly right that the threat of ground forces was very important in resolving this issue in Kosovo. And there was also a question of diplomacy. We often forget in military matters that diplomacy is not simply what's called soft power. It really matters. The President Clinton sent an envoy to meet with the leader of Russia, President Yeltsin. And Yeltsin's patients with Milosevic, who he had supported as a quasi-ally, had frayed and he gave up on Milosevic. It was that, combined with the fact that President Clinton had commissioned a plan for the deployment of ground forces, which would have taken a very long time. But just the news of that, combined with Yeltsin giving up on Milosevic, combined to collapse his resolve. And then the air war was proclaimed to have done its work. But it was all of these factors in a very unique situation, not at all easily applicable elsewhere. Although the idea that these are multi-dimensional complicated situations involving force, politics, and diplomacy, that's recurring. I was struck, John, I don't know if you have an opinion on this, but I was struck by President Obama's decision that Lou referred to last summer to go to Congress for authorization for potential airstrikes in Syria. And then it didn't actually reach the stage where they submitted a resolution to Congress. But I thought that was unprecedented, really. Were you surprised by that talk last summer? Or did you find that to be sort of a political or? I'm not surprised by anything anymore, because this has all gone so astray. And I think to respond to what you said earlier about, what can the teachers make of all this, I think that all these examples that all of us are talking about illustrate how many gray areas there are. And students, especially K through 12 in high school, they want it black and white. They want to know what the Constitution says. They want to know what the statute says. They want to know what's the authority of the president, what's the authority of the Congress. And the fact is that there are these gray areas, and teachers might as well use that as an example. Once they delineate the separate powers and how the framers intended it and how it's evolved, then it's time to talk about Congress and president aren't going to sue each other. They work these things out politically. Presidents lose elections because of what they do in this regard and that type of thing. And that's something that's a tool they can use, I think. Well, that's a wise insight. One of my professors used to say it's about separate institutions sharing powers, not about separation of powers. And that's why it's so murky sometimes. But are you saying as a lawyer, as someone who was an army lawyer for so many years, are you saying it's more about politics than law? Absolutely, yeah. And Lou, do you agree with that assessment? Is that how you would teach it, or would you approach it differently? First of all, Richard Neustadt was the one talking about sharing power. And we don't see much sharing power from administrations, Republican and Democratic. We've now got this notion, starting with Harry Truman in 1952 with the steel seizure, that presidents have inherent power. Well, presidents have enumerated powers, they have plenty of implied powers. Inherent, you're talking about some sort of a situation where if it inheres in the president, then no other brands can check him. And that's four times that argument's been used, it's been shot down all four times by Congress or the courts. And the last one was George W. Bush. President Obama hasn't used the word inherent, but he really does use the same thing by saying you can have a 30-day notice for removing people from Guantanamo, and we're not gonna follow it. And basically they're arguing for inherent power. You can ignore the statute or notification to Congress on the recent prisoner swap. I do wanna come back to that issue about Article II powers, and especially this prisoner swap that's been in the news lately. But before we get to that, Jeff, do you agree with Lou's assessment that presidents don't have inherent powers, or would you buckle against that kind of description? I don't like the word inherent. I mean, there are for hours of presidency which were prescribed in the Constitution. I mean, Abraham Lincoln, again, interpreted his power as commander-in-chief to do a whole bunch of things. One was, Frank, that was the power that he used to declare the Emancipation Proclamation by depriving the Souths of manpower. And in some degree, I think President Obama, Lou's point is well taken, would interpret his power as commander-in-chief in the action he takes to make this swap by so protecting U.S. service personnel abroad. And so he interpreted it as well. So I don't know if it's inherent as much as there are, but the law as prescribed in the Constitution, but we all know that these things are interpreted. You know, I often like to use to say- Interpreted powers, not inherent powers. I often like to say in my time working in government when the Pentagon and the White House, you know, one of the watchwords of American government is that time is, you know, when in doubt, mumble. In other words, look for language and then interpret it in a fashion in which you find most appropriate for your policy position and frankly where you're sitting in government. So as we're throwing around, whether it's inherent powers or enumerated powers, I would probably advocate its interpreted powers and the competition for power oftentimes between the three branches. All right, Sidney, I want to get your opinion on this because you're a former presidential advisor, but before I do, I have to ask you, Lou, you said the president has enumerated powers, like listed powers, but there aren't really enumerated powers in Article II like there are in Article I. I mean, the Congress has a long list of powers that it has. The president has a short list that are so broad that it gives rise to the idea that they must be inherent. Not inherent. Now, this is a late comer inherent. Presidents have more than, all three branches have more than enumerated powers. They all have implied powers. So there's nothing in Article II for the president to say that the president can remove the head of a department. But it was understood in 1789 that if the head of a department is not carrying out the law, the president has an implied power to get rid of that person so you can, because the president has to see that the law is the faith that he carried out. So presidents have always implied powers. So let me interject then. So in particular, if you're an educator, right, this is the great example in the 19th century, it's the Tenure of Office Act and the controversy that erupted after the Civil War between Andrew Johnson and the Congress over whether or not he could fire a cabinet officer. But you're saying an implied power is different than an inherent power. Can you delineate that for a teacher? An implied power is something that is implied in an enumerated power. So since the president has the enumerated power to see that the law is the faith they carried out, and if some head of a department isn't doing it, then by implication, the president has the power to remove that person and put someone in who can't carry out the law. So that's an implied power, but it's tied to an enumerated power. There has to be an argument. Inherent is up in the blue skies. It's just flying out there and it exists and no one can check it. And Congress can check implied powers. The president does have an implied power removal, but as you know, Congress has many statutes placing limitations on removals. So any notion I think of inherent power goes totally against the Constitution. I just wanna say one quick thing on Lincoln. He didn't use inherent power. He did all those amazingly extraordinary actions after April 1861. He never claimed he had authority to do what he did and he couldn't have put it more beautifully when he came to Congress in July 4, 1861 and reported on what he did when Congress came back in session. He said, I don't think I went beyond the constitutional competency of Congress. So he is saying I exercised not only my article two powers, I article one powers of Congress and therefore to make what I did legal, I need your authority even if retroactive and Congress passed retroactive authority. So I thought that was about a clear statement that I exercise congressional power and you have to pass legislation. Good. So it is appropriate that we invoke Lincoln in the understanding Lincoln course and what Lou's referring to of course is from April to July of 1861, Congress is out of session and President Lincoln is commanding the country at a time of an outbreak of civil war and he sets foot a blockade which is an act of war in the 19th century. He raises troops, he spends money and then he goes to Congress with a special message on July 4, 1861 asking for approval, authority and expansion of those decisions. Later those actions would be subject to a famous court decision called the prize cases which was rendered in 1863. But Jeff raised a different issue about what I would consider to be inherent powers, the emancipation policy, probably the most sweeping exercise of executive power in American history and I do wanna come back to that but before I do, I wanted to get Sydney's opinion on this. Do you see Lou's distinction between inherent and implied as a useful way to think about this or do you have a different way of describing for a classroom the sort of exercise of article two or commander-in-chief powers by executives like Clinton or Obama or others? Presidents have different ideas about this and different presidents vary. Theodore Roosevelt said the office is as big as the man makes it and he expanded the powers of the presidency enormously in domestic affairs and the office has changed enormously over time. It was unprecedented what Andrew Jackson did in issuing the proclamation against nullification and that was against the idea that a state could nullify a federal authority. That nullification movement of states' rights was led by John C. Calhoun and Senator Thomas Hart Benton who was the floor leader for Andrew Jackson in the Senate said when Jackson starts talking about hanging, you better get some rope. So Jackson certainly meant it and would have had there been resistance to his proclamation, sent the US military and may well have led it himself and certainly would have conducted treason trials. Calhoun was personally fearful of what Jackson would do to him. So when Lincoln was thinking about the beginning of the war, he kept Jackson's proclamation of nullification on his desk and in his study, he had only one portrait of one president and that was Jackson and it's because of that. So the presidency has changed a lot over time. The powers have expanded and sometimes it's felt receded. So the discussion is not abstract. It's not merely a matter of a semantics. It's a question of how presidents conceive their own power and their circumstances and political situations and we can talk about all the presidents over time up to the president in that context. Okay, but let me get an assessment from you. I mean, Luth seems to think that Congress has ceded too much power in recent years to presidents. Do you agree or do you feel as if the balance is about right or do you feel Congress has been too strong? I think it depends on the question. I think that- Let's zero in on war powers and think about it in those terms. I think that once the Congress, for example, granted the authorization to President Bush for the Iraq war, the authorization for the use of military force, it basically conceded everything to him and granted him everything and everything that followed. And there was, and there is today, for example, a controversy involving the Select Senate Committee on Intelligence report on torture during that period, which is felt by many people to have been against not only international law, but U.S. law. And that, it's a 6,000 page report. It is now secret. President Obama is in favor of releasing it. Senator Feinstein, the chairman of the committees in favor of releasing it. There's a lot of resistance to it by other members of Congress and by former members of the Bush administration. So it's taken this much time for Congress to come to terms with what was a very central and controversial policy that flowed from that authorization of force and concession of presidential power. So I think it's a question of, I tend to regard these as specific cases rather than general ones. All right, well then let's switch phases here and talk about a handful of specific cases regarding the conduct of wars. And then I'm gonna open up the floor to questions. So if you have questions in mind, keep them ready. But John, I wanted to go to you and if we're gonna talk about the sort of nature of war and how presidents manage it, one of the first issues is this question in the post-911 age about military tribunals. And the question of how to handle these enemy combatants in terms of military justice. And so I wanted to ask you what was your experience in organizing this authority for the convening of the military commissions at Guantanamo Bay and how seriously did the administration take their responsibilities to military justice and how did you try to achieve justice in this sort of irregular era? There's a lot in that series of questions. That's why you're on the panel. Well, let me say first of all that there were at least four or five potential venues, any one of which would have been okay and acceptable and legal for prosecuting people were suspected of war crimes. We could have come, as everybody knows, broaden the United States and tried to monoracle three courts. We could have asked other countries to try to create an international tribunal. We could have tried to create a national security court and the other one, of course, is military commissions. Military commissions is one of four tribunals that are included in the Uniform Code of Military Justice and go all the way back to the Articles of War that preceded the Uniform Code of Military Justice, which was passed in 1950 and then amended several times. The other tribunal's most well-known, of course, are courts, Marshall, which can occur anytime, but there are courts of inquiry, which is another tribunal within the Uniform Code of Military Justice, which occur all the time, war time, peace time. And then the two others are provost courts, which are a post-war type of court that we haven't seen since World War II in my recollection. I always am prepared to be corrected by Lou because of his vast knowledge and then military commissions, which are specifically war crimes courts and you don't have to choose one to the exclusion of others. And that administration chose to do military commissions. Why they chose in November of 2001 to announce that and to do that, I've never found an answer. It probably was for political reasons or public relations reasons, I'm not sure. But one of the things about military commissions and their use in history and we used them in the Revolutionary War in 1781 was our first use of what we would call a military commission. It happens after the war, usually. And when that happens after the war, you don't have the intelligence issues and the sensitivity issues and the use of classified materials and all the infrastructure problems that this country's had trying to do military commissions in the last 12 years. So that's the first question that I think people ought to ask when they start to analyze that is why did we do it so quickly? And your answer to that is you don't have an answer. I don't have an answer. I mean, I think it was foolish, personally. You think it was foolish? I think it was foolish to organize justice to military commissions. I think it was foolish to bother with military commissions. They had the authority to detain based on the AUMF. You detain people until the war is over. Based on the authorization for the force. Based on the authorization for the use of military force, they could have detained people. There was no need to say, we're gonna try and buy commission right away. Save that decision for later. Well, that's first. Lou wants to speak, but before I do, I need to follow up. So would you think article three courts, regular courts, would be the best use in the post-911 era of justice seeking for... For what we were choosing to use commissions for, I think they were appropriate. It was an appropriate exercise of presidential power and it flowed from the AUMF. We had the authority to detain people on the battlefield and to prosecute them for war crimes. And it's an appropriate use of presidential authority to use the military commissions. I just need to clarify. So it was an appropriate use of authority, but you think it was a foolish strategy? I think it was foolish to announce it when they did. Oh, I see. There's no need to bother at the time. Compounded by the presidential order itself, which was the only word I can think of is silly, okay? There's, I guess, a group of lawyers looked at what they had and they looked at the current case from World War II. It was an 8-0 decision that said military commissions were okay the way they were done. And so they wrote a presidential order for the president to sign that was very similar to the order that President Roosevelt signed in 1942. Almost word for word, except where it said Roosevelt, it said Bush and other things, okay? Only problem with that, which sounds very lawyer-like. We've got this precedent at work, let's just use the same order. The 42 order was based on the 1920 Articles of War, which were revised by the 1948 Articles of War after World War II, revised again by the 1950 UCMJ, completely, two huge amendments in 68 and 83 not to even get near talking about the 50 years of jurisprudential progress and the evolution that had occurred in military justice and they're using a 1942 order based on a 1920 statute. That's not very lawyer-like. And so they should have started over again and said, well, what would military commissions look like in 2001? And let's publish, let's create the order that would support military commissions as they came out in 1950 in the UCMJ. Well, I'll turn to Lou to comment on that, but before I do, and then Jeff, but I have to say, I was worried about bringing an army lawyer that you'd be cautious and very restrained, and you've already used the word foolish and silly and so I'm very proud that Big Retired has given you the ability to speak candidly. Lou, did you want to comment? You raised your hand. Yeah, very quickly, I said that three presidents on four occasions invoked inherent power. And one of those was George W. Bush. After 9-11, he issued this military order, setting up military tribunals. And that got into the courts and the Supreme Court struck it down and it was the Hamdan case. And I ended up writing three amicus briefs under my own name, challenging what the Justice Department said, because one of the arguments by the Justice Department has said this fine because of the John Andre trial in 1780. John Andre was a British spy. Yes, John Andre existed. Yes, there was a trial. And I said in my brief, how can the Justice Department find presidential power in 1780 when there was a Continental Congress? There was one branch of government. There was no president. There was no separate executive branch. This is a stupid argument. How did these things get out of the Justice Department? So the Supreme Court struck it down in the Hamdan case. All four times inherent powers have been invoked, have been struck down either in the courts or in Congress or both. Well, this panel's moving in the right direction. It's moved from foolish to silly now to stupid. So we're escalating the dialogue. Jeff, you want to try to double down on the language? I think I'll try to double that. I'd like to clarify, it's one of the big misconceptions about this, I think in many people's minds. And I've gone to Guantanamo twice. I don't recommend it for anybody's bucket list as a vacation plot if you want to go to. But I think there's a misunderstanding about what's going on in terms of the detention of these people we still have around 140 or so. Now if you go back to the Civil War analogy from it, if you go to Appomattox Courthouse, which is a fascinating place, you'll find Appomattox Courthouse a printing press. And why that printing press was important was because after April the 9th, they were turning out these release statements that each Confederate soldier got that said you get to go home. Basically saying you don't need to be a prisoner of war, you're released to go home. And that normally has been the case. When the war is over, you send them home. If you think about the fall of 1944, we had a large bunch of German POWs that were in places like Arizona and New Mexico. And as Allied armies were racing across Europe, these guys were probably thinking, hey, I might make it home for Christmas. And they might have been the most disappointed people in the world when the Germans conducted their counter-offensive in the Ardennes, which ended up being in the Battle of Bulge. But shortly after World War II, they were released and sent home. I think there's a misguided belief, and perhaps John was the commenter of his experience, but I'm pretty sure he agreed we talked about this, that many Americans believe this whole system was set up that those who were incarcerated in Guantanamo at some point in time would be brought before some kind of a legal proceeding, a military commissioner or whatnot. If you were found innocent, you would be released and sent home. If you were found guilty, you would be incarcerated. Well, the fact of the matter is only a small fraction of the people at Guantanamo are in fact even considered to be facing a military commission for acts that they committed which are considered counter to the laws of war. And the majority are being held because they are considered to be threats to the United States that we strongly believe would return to the fight and do us a reputable harm in this war, which doesn't have the character of a state versus state war. There's no Robert E. Lee to surrender, there's nobody to show up on the battleship Missouri to sign a surrender. So the consequence is you keep these guys endlessly, not because you're going to try them in a court of law, but because of what you believe they will do as this war progresses. And in fact, you could appear in front of a military commission, be found not guilty for whatever you're accused of and still be incarcerated because you're considered to be an enemy combatant and still posing a threat. So I just believe that we're just waiting everybody to go to trial and then the innocent go home and the guilty stay incarcerated, I think is in the minds of many people is just simply incorrect. Okay, well, this brings us then to the Bergdahl controversies, but let me start that discussion and then after we're done with this, I'll open it up to the floor by asking a couple of questions from our participants. One is from Catherine Kilker who's a high school teacher at St. Charles, Missouri. And she just wants to know, just as a basic matter, who has the authority to authorize trades for prisoners and how is that authority granted? What is the relationship between the executive and the legislative branch in these matters? So Lou, let me go to you first and then I can open it up if anybody else wants to comment, but how do you describe the authority to regulate prisoners of war as a legal matter? Okay, I have an article on this, it's in the... We asked 500 articles, so he has an article on everything. I do a lot of articles at the National Law General, I think it'll be in next week, but it's called President Obama and the Prisoner Swap and the subtitle is Return to Plenary Executive Power. And what I point out is that we all know after 9-11, the Justice Department, often with secret memos, came out in defense of plenary, exclusive presidential power and that led to the so-called torture memos and many others. There was no recognition in those memos that Congress under Article I has in the room to play at all. So that was the case and those decisions were reversed by 2003, 2004, Jack Goldsmith was head of the Office of Legal Counsel and the Justice Department at the time. What I find interesting in my article is that in January 2009, with the new Obama administration, they point out not just the early opinions were wrong, but the later ones as well and they reversed and threw out a lot of those memos, pointing out in January 2009 that in addition to whatever presidents have, Congress has its own Article I powers. And you have to, so it's very, very nice rejection of this plenary model. And yet with the Sergeant Bergdahl, it looks like there's a little bit of recovery going back to the Congress can pass the statute saying you have to notify us 30 days in advance before you release anyone from Guantanamo and that clearly was not followed. So I'm waiting for the Justice Department to say what we said in 2009 is incorrect and we're gonna change that or say that what you said in January 2009 is correct and stick with it. But it's all over the place at this point. There's no coherent argument by this administration. So in Article I, Section 8, Congress has authority to regulate the rules of war. And that would be the sort of constitutional authorization to pass statutes that would regulate things like prisoners of war. And then that statute guides presidential behavior during the exercise of commander-in-chief powers. And in the case of the Bergdahl swap, Congress has passed a statute requiring the president to notify them if any prisoners are to be released from Guantanamo Bay and they didn't do it. And the administration claims, now you're not calling implied powers or inherent powers but plenary powers, right? Exclusive powers to act without oversight from Congress. Is that what you're saying they're claiming? And to me, when they use words like plenary and exclusive, they're, those are substituted for inherent because they're talking about powers so included within presidential powers that Congress cannot by statute restrict it. That's the argument being made now. Right, Congress cannot restrict these powers because they're inherent to the presidency. That's how you would connect them. And in this case, this is something they outlined with what we now call a presidential signing statement that was issued when the statute was adopted. The president expresses his objection to certain elements of the law, though he doesn't veto it. You find all of these presidential signing statements to be unconstitutional, I assume? No, we don't have time for it. There have been some cases where presidents in a signing statement did the right thing by flagging an unconstitutional language in the 1943 appropriation bill. There was language which was denied salaries for three executive department people because they were subversive. Well, that in the Constitution, you can't do a bill of attaining to which is legislative punishment without judicial trial. And Franklin Roosevelt signed the bill because it's an emergency appropriation bill, but he did in a signing statement, flagging and it was essentially litigated and was struck down. So there are some signing statements that are appropriate, but President Nixon at one point in a signing statement said the Mansfield Amendment on Vietnam, although I'm signing it, is not the policy of this administration. And that was one of the few signing statements to get litigated and the judge, a district judge, says it became the policy of your administration when you signed it. So that's the other side. John, you wanted to make a comment? Yeah, I agree with Lou that the administration did not comply with the law that Congress passed. And I would choose Lou's word implied to say that the president as the commander in chief has powerful implied authority when one, it's an emergency and two, American citizens' lives are at stake. And we may find in the wash afterwards that it really wasn't an emergency and his life really wasn't at stake, but all he's got to do is pass what we jokingly refer to in my profession as the straight face test or the giggle test. Can he look in the mirror and not giggle when he says, I think it's an emergency and I think that this guy's gonna die if I don't get him now. And I think even most members of Congress, if you took him aside and talked about him, was saying, I really want the president to act if he really believes that. And so I think that's the rationale that would support them not complying with the law. Now this battle over presidential power to interpret laws or execute law or selective execution of laws, especially during war time that presidents are concerned about. That did come up during the Civil War, although it's not usually described this way, but it goes back to the Emancipation Policy that Jeff was describing. Congress had an Emancipation Policy long before the president did. They called it Confiscation and they passed a series of two laws during the Civil War in 1861 and 1862 that involve seizing rebel property and of course also regulating the fate of runaway or captured slaves. Now sometimes teachers conflate those two things. They think of slaves as property and they think confiscation involved the seizure of slave property, but that's not the way that Congress saw it. They never accepted the principle of people as property and so they created a separate category in the law to treat slaves as sort of captives of war, what you might call prisoners, and to regulate them on the basis of international law and they authorized the president in their second Confiscation Act to free them forever and the president was gonna veto that law because he thought it was unconstitutional for other reasons and he actually decided for reasons that Lou and John have just alluded to that he had to sign it because of necessity, but when he signed it he issued his draft veto message with it, it is a presidential signing statement and that was the trigger in the summer of 1862 for Lincoln to draft the Emancipation Policy which he announced after the Battle of Antietam in the fall and which became the order on January 1st. Now that's what Jeff was referring to at the beginning of this panel, right? That's the most sweeping exercise of presidential power in American history, at least in my opinion and I wanted to get the, you know, maybe Lou and Sid, I'll start with you Sidney because you're writing about Lincoln now. I mean, this exercise of presidential power in emancipation, at least during the Civil War, was a sweeping exercise of power to free people and it was done in some ways in defiance of Congress. You know, they supported the principle of freedom but they didn't believe the president was the one necessarily to execute it. How would you teach the emancipation policy as a presidential war powers issue if you were addressing it in that fashion? There's an entire literature that would fill this room and more on the Emancipation Proclamation. So very briefly, to begin. Well, now you sound like a real teacher, right? You know, teach emancipation, you have 45 minutes go. Right. You have 30 seconds. I have 30 seconds. To begin with, slaves, you referred to slaves not categorized as property. They were declared contraband of war by a general, very early on, General Benjamin Butler. And it was accepted by Lincoln that this was a clever way to deal with runaway slaves. So in the beginning, slaves were considered contraband. They were not considered to be citizens. They weren't considered to be property. They were in this zone of being contraband. Lincoln had more than a conflict with the Congress over the Confiscation Acts. He was criticized by the radical Republicans as being weak and vacillating on the issue of emancipation. And he not only issued a signing statement to the Second Confiscation Act, partly because he thought it was a bill of attainder. But he also vetoed two emancipation proclamations issued by generals in the field. The first was issued by John C. Fremont in Missouri on his own authority as a general. And Lincoln regarded that as the usurpation of his presidential authority and believed that a general in the field under any circumstances could not be making that kind of policy. And then there was a second emancipation proclamation issued by another general named David Hunter. Lincoln didn't get along with Fremont. He got along with Hunter. But in either case, he vetoed it. The politics were contentious, delicate, and Lincoln did not consult with many people in issuing his emancipation. But, and he was very worried about the legality of it, the general count, what we would call now the general council to the Department of War, man named William Whiting, who was Massachusetts, wrote the first book on this subject was called War Powers of the President of the Presidency. And Lincoln read it and talked to Whiting. And this was a great, some historians say, there was a bookseller in Boston who pressured him and there was this and that. This was very important to Lincoln's mind because he was very oriented to, he was consumed with the idea that he'd do things as much as possible within the law and constitutionally. And this argument was very convincing to Lincoln and felt that it had provided the legal basis for his action. This argument went back to an argument that was first made by John Quincy Adams in his congressional debates with John C. Calhoun. And they grew out of what was called the gag rule when the congressional majority controlled by the South would not accept petitions against slavery to even acknowledge in the Congress. And Adams was the great crusader on what was called the gag rule to present these petitions. And in his frustration, he said, there will come a day when there may be a conflict and it will be a bloody conflict. And in that, the president, and remember Quincy Adams had been president and was the son of a president will have the authority as the commander-in-chief to emancipate the slaves. So it was Quincy Adams who said that. And it was that idea that animated Whiting's treaties and that Lincoln then applied in the Emancipation Proclamation. And so the consequence of all that is that it seems to endorse or at least condone the use of inherent presidential powers or implied presidential powers. I don't know if we, I want to be careful how we use the terminology Lou was discussing. But how do you see emancipation as an implied power? It seems inherent to me. We've only had one civil war. This was a civil conflict. This was not a war with a foreign power. And the war was conducted as a civil conflict to suppress an insurrection. Which is mentioned in the Constitution explicitly. Right, but Lou, and then after I get Lou's opinion on this I'm gonna turn to the floor. Lou, it seems to me like emancipation is the most inherent power of all. Now, do you see it that way? I assume you don't. I don't, I'm glad we're talking about this because the focus is so much on what Lincoln did with his emancipation proclamation. And in fact, leadership was in Congress. And as you suggest that Lincoln is worried that Congress is going too far with the Confiscation Act, particularly the second one. Congress also abolished slavery in the District of Columbia. Congress also passed a statute that said any American soldier who took a slave who had escaped and returned it to the plantation would be thrown out of the military. So Congress was pushing very, very hard and I think credit should be given. Let me just punctuate that because it goes to something that John said. What Congress is doing in some of those cases that Lou just referred to is the revising the Articles of War. This is how Congress regulated the conduct of war before the Uniform Code of Military Justice that John talked about that was implemented in 1950. So people are teaching this history. They need to know all of that. But Lou, again, this seems to me to be a case of where Congress is taking these steps in 61 and 62, but then the president takes power from them in an inherent way, no? Well, I think what Lincoln was doing with his Emancipation Proclamation was building on what Congress did. So I don't think Lincoln was ever claiming he had any authority, plenary, that Congress couldn't check and participate in and share in. So it's just a confusing area. You don't see the Emancipation Proclamation as an assertion of plenary executive power. It's an assertion by Lincoln building on what Congress was doing at the same time. And I don't think Lincoln would ever have questioned the capacity of Congress to pass legislation altering what he did. So this is my step. This is my first step. And I think he knew Congress had plenty of authority and he was exercising it to make his own policy. I just want to say one other thing on presidential leadership. There was James Buchanan elected and he gave his inaugural address. By the way, a graduate of Dickinson College in Carlisle, Pennsylvania. And he said, in his inaugural address, there's this issue of slavery is before the Supreme Court where it will be speedily and finally settled. So Buchanan wasn't going to do anything. Leave it to the Supreme Court. In a couple of two or three days later it came down and dredged Scott against Sanford. So that didn't exactly speedily and finally settle that issue. Let me just add one footnote here about emancipation in the district because we're speaking in the District of Columbia which has a holiday called Emancipation Day based on that. Lincoln was not in conflict at all with Congress about emancipation in the district. He was very supportive of it. And emancipation in the District of Columbia was compensated. There was compensation. Lincoln as a congressman in his one term had drawn up a bill for emancipation in the district. He never presented it on the floor because the situation was so bad politically that it would have been pointless. But he worked very hard on emancipation in the district. And it was something that he thought of. Emancipation in the district was the great cause for emancipation for decades because the district is the only federal territory in the United States. It's not a state. And it was felt that slavery was legal in the states. And a distinction was made even by those who were the greatest anti-slavery members of the Congress that freedom was national and slavery was local. So the district became the focus of that struggle for a long time. And all those petitions against slavery that Adams was trying to present were about emancipation in the district. So this is a long, long struggle. And Lincoln, as a former congressman, had a good sense of what the role of Congress would be, particularly on this issue. OK, I've been promising to go to the audience. So we'll have our first question back there to the right. Hi, Leandra Bernstein, reporter with Rio Novo Stee. I have two questions about presidential war powers in overriding or being constrained by international law or international treaties. And this is for Mr. Fisher and Colonel McCollum. So in the case of treaty powers, what is your view of the almost religious nature given to the NATO alliance in dealing with the Ukraine crisis? Should there be a restriction on the US president's power to act based on, for example, invoking Article 5 in the situation of Ukraine? And secondly, as far as international law is concerned with the Iraq invasion, the most recent, sorry, not the most recent, the one in 2003, where international law is concerned waging aggressive war outside of the United Nations is not exactly covered under the law. So what is your view of that Iraq invasion and then the potential for a Syria invasion this past summer or still to this day? All right, so these are important questions. Let's start with the NATO and the Ukraine, because we didn't really cover that enough, I think, earlier. We did talk about Kosovo. But Jeff, will you start this? And then we'll open it up to it. Let me do the NATO piece, and I think Lou is much better talking about the 2003 invasion. In the case of NATO, you're exactly right. We have an Article 5 commitment. And if you read the Constitution, again, I'll defer to my two attorney friends here and scholars, but there is a supremacy clause, which says treaties are the supreme law of the land. You need to read that very carefully, because that's what it says. Having said that, we Americans, as part of our foreign policy, have created a whole bunch of alliances, some bilateral, some multilateral. NATO is the most well-known. But a lot of bilateral agreements as well with places like Japan, the Philippines, there's a question about Taiwan, et cetera. And many people would argue or interpret that those are, as I think you suggest, the extensions whereby a president must act because of an international legal requirement based on that treaty, which, by the way, also has to be ratified by the United States Congress to be an effective treaty legal instrument. And perhaps we don't talk about that as much as we should in terms of extending those particular guarantees. I, for one, happen to believe, as we expanded NATO at the end of the Cold War, this should have been a much more lively conversation than it was as we added more and more states to the NATO alliance with not having a really, I think, great conversation about, quite candidly, whether or not this was in the battle interest of the United States, and quite candidly, whether or not the United States wanted to rush off in time of crisis in the future to defend in particular. May well have been the case that we would have, but I would have liked to have a better conversation. In similar form right now, I don't think many Americans are aware of some really serious challenges we face in Asia, based in part at least upon those same sort of obligations where many people would argue under the treaty we have with Japan, we're obligated to defend Japanese territory. Well, that now has interpreted to a bunch of uninhabited islands that actually the Chinese say belong to them, or that's interpreted by the Filipinos who have treaty obligations with us to be some places that only appear at low tide in the South China Sea. And whether or not you want to go to war over these things, I think you ought to think about it. Having said that, back to NATO for a second, a couple of things are important to remember. First of all, Ukraine is not a member of the NATO alliance. That's the first thing that we need to keep in mind. Second of all, having said that, I think we made now a foreign policy, not illegal, but a foreign policy here, as in the 90s, and this really goes to a number of administrations, the Bush administration, the first Bush administration, or the Clinton administration and subsequent, in assuming that we could expand NATO, and at some point in time, the Russian Federation would wake up and say this was really a great idea, which I never ever, myself, believed to be the case. In the test case, I always thought, frankly, was the Ukraine, former Soviet state, rest of them had not been part of the Soviet Union, and a huge state. And any thought of Ukraine moving in that direction, I think would result in a Russian reaction, and we've seen that to occur. Finally, I think we need to read the NATO treaty. NATO treaty in Article 5 is one of those things that's frequently quoted and rarely read. If you read the Article 5 of the NATO treaty, all it says is, if there is a threat to a member, we will consult. Now, I had a German diplomat say to me one time over, I think it was over Kosovo, I would call him. Maybe it wasn't Kosovo. But anyway, he said Germany can fulfill its NATO obligations by sending in a postcard with our firm regrets. And if you read the treaty, and what that actually specifically says you're gonna do, he was correct legally. Now, sometimes over time, we get a perception or interpretation, perhaps. Maybe that's our discussion of the Constitution. That broadens that, but actually the language says that. And to summarize, this will be a question now as we think future about expanding NATO. This will be a question as we think about our obligations. Quite frankly, I just returned from the Baltic Republics and who are all members of NATO. And they are very interested in U.S. commitments to their defense in light of what's happened in the Ukraine. So, you know, that's one of the biggest differences between Lincoln's era and ours is that he had no collective security arrangements or treaty obligations. There was no United Nations, no Security Council. But there was international law, or at least there was an expectation that international rules applied to the United States. And I have several questions here from participants about international law as it's evolved. And I want to ask one or two of them now and then we'll go back. Paul Frankman is an eighth grade social studies teacher from Aurora, Ohio. And he has done some work with the American Red Cross on Francis Lieber, who was kind of a pioneer political scientist who helped write what they called the Lieber Code during the Civil War, which codified international law and tried to offer a series of regulations for union soldiers. So Paul has a series of questions. I wanted to put the first one to John. He wanted to know how international law or to what extent the understandings of international law from the Geneva Conventions and the additional protocols have been a basis for organizing mission planning and strategy and operations for the U.S. Army and exactly how are they written into the Uniform Code of Military Justice. And I thought maybe I'd put that to you, John, first and then we would broaden it out. I'm trying to think of if there's an instance in the code, the Uniform Code, where they've actually incorporated something from the Geneva Conventions and I can't think of an example. So they don't do that. Well, not in the code. The code is a disciplinary code. The code is like Title 18 of the United States Code that tells you what are crimes and what are the procedures and what are the protections for the individual accused. The reason why Paul brought it up is because the Lieber Code was written out as war orders by the Union Army in 1863. He wondered if it was the same today. No, it's a different code. It's a completely different code. When Lieber wrote the code that greatly influenced even the Hague Conventions 30 years later and other international treaties, when he wrote that the Articles of War were in their fourth or fifth iteration. The Articles of War were amended from 1775 through 1948, seven times. We've always had the Articles of War for the Army and the Articles for the Government of the Navy for the Navy until 1950 when we decided to put those two together in the Uniform Code of Military Justice. A disciplinary code, no corollary to the Lieber Code. Okay. And Paul's other question, do you have any comment or observation to what extent does international law, the Geneva Conventions, the additional protocols have an impact on mission planning today? Oh, greatly. It's first and foremost in all planning is first and foremost in how we write our policy, how we train our soldiers. It's one of the things that really kind of threw the military in 2001. Jeff and I were both Desert Storm veterans and we were actively involved in collecting Prisoners of War and how we treated them and all the rest of it and conducting article, what they're called, Article Five Tribunals under the Geneva Convention to determine the status of an individual whether he was in the military or whether he was a civilian or whatever. And the military was fully prepared to conduct Article Five Tribunals in Afghanistan in 2001 and 2002. And the order came down from the civilian leadership, we're not gonna do Article Five Tribunals, we're not gonna bother. These people are either Al Qaeda or they're Taliban and Article Five Tribunals are when there's doubt about what the status is. There's no doubt about what the status is. And so they had it shoved down their throat by the Supreme Court three years later when they were told a really good idea would be to conduct combat status for future Tribunals, guys. And so that evolved in 2004. Which decision was that? The Hamden? No, it wasn't Hamden, I wanna, maybe you? No, the B'bunian was later. I wanna say Hamdi or Rasul, one of those two. There were four post-911 decisions at the Supreme Court level. It was a Justice O'Connor opinion. And they created the Tribunal process after that. But had they done that in 2001 and 2002, the way the military was trained, prepared, and planned to do and was already ready to execute Article Five Tribunals, it wouldn't have had all that mess later. Jeff wants to interject, but before he does, so just, your conclusion for an educator is that in the modern day, the US Army and the Executive Branch, Congress, they take international law seriously in organizing conflicts. Oh, it's number one. I mean, you don't even think about putting together a plan or a deployment without all the considerations of international law first. And General Order One, it's always written for a specific deployment or a specific conflict, embraces all the tenets of international law. Well, what's a disconnection there is that international law is rarely taught in the K-12 classroom. It's an afterthought. And you seem to be suggesting that it's a primary thought in modern day planning. And Paul's point in other discussions is that in the Civil War, it was also a primary consideration. The Libra Code is proof of that. Jeff, did you want to make a comment? Yeah, the one point I want to make is one of these two things may converge to also to the degree of the Laws of Warfare and the Uniform Code of Military Justice. And we've seen this in the conflicts in Iraq and Afghanistan. Frankly, it's prosecuting our own soldiers for desecration of dead. Right. It's prosecuting people of that. Killing of civilians who were, you know, just were murdered to prosecute that. Sergeant Bales is very terrible in the current Afghanistan being prosecuted for that. So, and soldiers prior to deployment are frequently briefed. And it's a requirement to be pre-briefed in this kind of stuff before deployment. And following some of the incidents that when things got really bad, there was almost a standout at one period of time in Iraq to make sure everybody understood what those requirements and those rules and those laws were and the consequences for violence. One thing that's unique, though, about the battlefield in the 21st century we've discovered in Iraq and Afghanistan, frankly, is the presence of so many civilians on the battlefield because you have so many contractors on the battlefield. Some of those are people who provide particular expertise in the flying of drones. I've seen that, or fixing particular pieces of equipment. The clearest problem is, of course, security people. And at one point in time when I was in Iraq, the second largest armed force in Iraq after the U.S. Army and Marine Corps were private security guards of multinationals working for corporations. And frankly, their legal standing, particularly when they used their weapons, was a point of sort of, maybe Lou or John want to talk about this, sort of a grayness. And I called just the other day, they were celebrating a case with a shooting I believe was in 2007 by Blackwater in downtown Baghdad. And just now, some seven or eight years later, it appears that it's going to finally come to trial because there's a real question of can you try an American civilian for acts he committed in a foreign land back in the U.S. court? Because he or she is not subject to the U.S. military. But Jeff, is there a cause and effect between what John was saying? The U.S. Army is under strict guidelines regarding international law. And so therefore in the modern era, they've been using contractors to get around those guidelines. Is that the implication? No, not to get around those guidelines, but I can tell you down on the battlefield, there's a real friction because I've seen military commanders who were operating in a particular area and had a very strict control of how force was implied. And then there would be a bunch of contractors who come in who were often perceived as having a lot looser rules than how they would employ force. And that could complicate the military operation, particularly if you were responsible for that particular. There actually a time, I think, was a friction. Furthermore though, the other side of the equation, why do you have these security people there? Well, it's just to take on missions that you really would rather not have the military tied up doing. How do you secure the embassy? How do you secure diplomats when they're moving throughout the streets as they have to do in Baghdad or Kabul to conduct their activities? How do you secure journalists? And we have lots of journalists traveling around these places. How do you secure sites where you're doing aid and development for building a sewage treatment plant or whatever? Do you want to tie down soldiers on that spot doing that or would be purable just to hire some people to secure it while it's being constructed? So it's not really to get around the rules so much, Matt. It's to allow your forces to do what are really soldierly things and then economically fine or efficient ways to have those sites still provided security. The challenge has been how you provide legal answers when, in fact, they're engaged, use their weapons and sadly kill people. Okay, Lou, comment? Yeah, I wanted to clarify something on the treaty power that's brought up that treaties are the law of the land, but treaties cannot amend the Constitution. They cannot violate the Constitution. And to be specific about that, when starting around 1943, people began to decide how to build a world organization, the United Nations. Everyone knew what happened under Woodrow Wilson that there was a large amendment to protect the war power of Congress. There was nothing wrong with it. Link, Wilson in a letter to Senator said there was nothing wrong with it. It was very stubborn. He didn't want it. And the treaty was never passed. The Versailles Treaty. And we never joined the League of Nations. So all of that was known in 1943, 1944. You have to protect the war power of Congress. So the UN Charter says that when military action is used, each member state shall contribute troops or equipment and so forth in accordance with their quote, constitutional processes. That's the UN Charter. So every nation had to do that. And when the Senate was debating the UN Charter, Truman was in Potsdam and he sent a cable to his senators, put in the congressional record, made public, says I want you to know that if I ever use US troops in a UN action, I will come to Congress first and get congressional authority. Okay, that's a pledge. That's not law. But after the UN Charter was passed by the Senate, Congress had to decide what are our constitutional processes. And in December 1945, they passed the UN Participation Act. In section six says that anytime a president inches into a agreement with the Security Council to use US troops, he shall come to Congress and get authority. And Truman signed that. No protest, no signing statement. And that's still the law of the land, still in the US code. And we've violated, Truman violated not only his personal pledge, but he violated the statute. You cannot have a president and the Senate take Article One power and give it to an international organization like the Security Council or to a regional organization like NATO countries. You cannot have Germany and Italy become substitutes for Congress. Are you saying Truman violated that pledge in Korea in 1950? Yes. And elsewhere? That's the only one I know of. It's a big one because others have built on it. Right. Clinton many times went to NATO countries or to the UN, Obama of course in Libya. And once you have a precedent, even if it's a bad one, it's precedent and people build on it. Right. Like the John Andre case. Okay, we have another question in the back. Thank you. My name is Peter Billerbeck with Senator Tim Kaine's office. I have kind of a two part question here that first one was about the detainee law for perhaps for Colonel McCoslin. It seemed like, or maybe Sydney as well. It seems like some people are talking about the linkage between active hostilities as potentially providing a marker for DTNAs to be released. However, as I think a couple of you guys have mentioned, most of that authority is drawn back to the 2001 AUMF, not even the 2002 Iraq AUMF. And so does it seem to you as well that any release or closure of that facility would ultimately be tied in with reform or repeal of the 2001 AUMF? And then my second question is perhaps to Lou Fisher. So a lot of what you said about the war powers act is fairly critical of the role of Congress and kind of the lack of involvement of Congress in that. And our office along with Senator McCain's office has put forward a proposal to change that and to add some more kind of some more teeth, some more consultative AUMF to that as well as shortening the time requirement. You've been critical of that approach and I'm wondering with your criticism in mind, do you see any other approaches to reforming the war powers act as preferable or as better alternatives? Thank you. Like the first question you just talked to me, I actually subjected to John. I think John's much more of a person changing the statute applying to Guantanamo than I am. Yeah, and that's also why I said earlier I thought it was foolish to announce commissions in November because if you're in a conflict, authorized by Congress and you're capturing people on the battlefield, you get to detain them until the war is over. Now, the debate shouldn't be do they get a trial? Do they get lawyers where you're keeping them? Those are all set by international law. You get to detain them until the war is over. 425,000 German and Italian detainees in December of 44 as Jeff said. And from 65 to 73, hundreds of Americans detained by North Vietnam. And our government never said give them back. Our government never said they should get a trial. Our government never said give them a lawyer. But John, just to clarify, right? Those are prisoners of war, not enemy combatants. Isn't there a difference? Well, not really. They're detainees. They get prisoner of war status because of the way they conducted themselves. We do not, the detainees we have at Guantanamo don't get prisoner of war status because they don't comply with the law of war. So you're not gonna give them the advantage and the benefit of being a prisoner of war. So in terms of treatment of detainees, we never asked for our people back. We just said you better take care of them and give them back to us when the war is over. And we waited, what, seven or eight years for that to happen. So we could have kept those people at Guantanamo and not worried about whether we tried them or not until now the debate that should have occurred instead of talking about law and order and lawyers and trials and all the rest of it and how many rights did they get? The debate that should have occurred was well, how are we gonna know when it's over? You know, there's no capital to capture. There's no one to give a surrender and so forth and so on. That's the debate worth having even today. How are we gonna know, you know? And the AUMF will affect that. You know, when we finally conclude if we do in the near term, you know, what will happen to those detainees. To me, we misuse the word irony sometimes but I think the irony in all this is that Guantanamo is number one, a world-class detention facility. There is no better facility in the world and in the history of warfare, in the history of warfare, no detainees have been treated better. We're stuck with it. You know, it needs to close for other reasons but not because it's a bad detention facility and not because it's illegal to hold the people that are there. There are policy reasons and political reasons for wanting to close it. But I found in my experience that when people visit Guantanamo, they come back with two different responses. One, they come back praising the facility and all that is involved in how those people are provided for or they come back and they don't say anything because they've been critical before they went and when they went down there, they saw firsthand these people are really treated well and they're treated fairly and they're provided for like nobody's been before and so when they come back, they just shut up, they don't say anything because you really can't criticize the way those people are treated down there. One thing on that though, I think it's one of the important points under international law that I found fascinating down in Guantanamo. Now, a lot of people understand that after these guys can't go back unless they want to go back. That may sound kind of silly, but when you detain somebody on a battlefield, you have a responsibility to protect them. And in the aftermath of the Second World War, the United States and Great Britain captured an awful lot of Ukrainians who had joined the German army because they didn't like Joseph Stalin very much and a lot of those Ukrainian units were positioned on the western front for logical reasons. At the conclusion of the war, the Russians said, please return our nationalists to us and we returned all these Ukrainian and now German POWs back to the Soviet Union and they all ended up in Siberia. At the end of the Korean War, there were a lot of North Korean soldiers who were prisoners under our protection. They didn't want to go back for North Koreans for very obvious reasons. So when you detain somebody, you have a responsibility to protect them. And there have been a number of unique circumstances where we decided for whatever reason that these guys were no longer a threat to us and we wanted to repatriate them. We didn't repatriate them because we interpreted that quite candidly that they would be killed immediately. And the classic story of this, of course, are the Uyghurs who are Chinese ethnic group that were incarcerated at Guantanamo and we discovered over time we thought they were no longer a great threat to us and the Chinese were more than delighted to take them back to Beijing but we didn't think that was gonna be a terribly good deal for them. And over time, we've had to find other countries around the world who would take them because of this over time, development of an international legal precedent that you have a responsibility to protect them once detained and that's why there are Uyghurs living in Albania right now. Lou and Sid, did you wanna comment on the other question? Let me go to Sid first and I'll come to Lou. I think the point about when the war is over is a very salient one. It's very hard to, it's gonna be very hard to determine when these wars are over. Are they over when the president says that regular U.S. ground troops are withdrawn yet we still have some special forces present? Is it over then? So I just, I think that's a, and what's the relevance of that to the Bergdahl case, for example, is that a post war exchange or is it during a war? So it's an interesting question. On the question of Guantanamo, I don't have the exact numbers and of people who are now being held, I believe it's 140 some people still there. I think Guantanamo exists in the twilight zone. As I understand it, about 80 people there, I could be wrong on the exact numbers, have been cleared of anything and they're just there and they can't be released. So that's a majority of the people being held there are not guilty of anything. Then you've got people who've been scooped up in these early sweeps and caught up for a variety of reasons, some of whom were named by their enemies and they're called enemy combatants. It's hard to tell what they are or they're simply innocent parties who have been caught up there. Then you have people who haven't been charged with anything there. Then you have this group of people who don't want to go back to where they came from because they might be killed. And in the meantime, this issue can't be resolved in our political process. So this is a pretty bad situation and it's even relevant today because US Special Forces captured someone who was alleged to be involved in the killing of the US Ambassador in Libya and other Americans and he's now being held on a ship, I assume in the Mediterranean and being interrogated. Some Republican members of Congress are demanding that he be sent to Guantanamo where he would disappear and not be heard from. At the same time that people on both sides of the aisle are saying we need to know what he says. So we're in a lot of gray zones here with these issues. Lou? Yeah, on Guantanamo, part of the problem is that there was a bounty system and many, many people were picked up and taken to Guantanamo because you get $5,000 if you say you're Taliban, $10,000 if you say al-Qaeda and a lot of people were brought in under that system and eventually were let go without any apology or remuneration or anything. On the Senate bill, I have written about it and I had written early about the Senate bill, relies very much on a Baker Christopher report done out of University of Virginia at the Miller Center. My concern is a lot of it is relying on a committee of 20 people. I don't like subgroups. I think even the junior member of Congress has the right to vote on going to war, going from a state of peace to a state of war. And just to get us back to Lincoln again, on the prize cases, the person who argued the case before the Supreme Court, Richard Henry Donner Jr. He happened to also wrote a book, but he argued in court that the prize cases on the blockade was a domestic matter. And he said, obviously with Lincoln's blessing, says this is a domestic matter. If it were a foreign affairs matter, if it was going from a state of peace to a state of war against another country, that can only be by Congress. And the Supreme Court picked up that language. So even then Lincoln understood what that is and Lincoln, when he was a member of the House, was one of those voted for resolution condemning poke for the Mexican war for unnecessarily and unconstitutionally starting a war. All right, well, I don't agree with all of that, but I will say we're out of time. So, but I wanna squeeze in one last question. We've raised this issue of the end of war a couple of times and we have an auditor in our course who emailed a question that I think would be a good way to close for us. It's from Thomas Bruno. He's from Georgia. And he wants to know which branch of government has the power constitutionally to set timelines for troop removal. Now, you know, this is about the end of war issues. And so I wanted to raise that issue as our final question. This also, by the way, came up in the Civil War. We always sort of celebrate, I guess it depends on where you're from, but we celebrate the end of the war on April 9th, but that's not really the end of the Civil War. That was the surrender of Lee's army at Appomattox. Fighting continued for months after that. And in fact, the president in the Congress, this is now President Johnson after Lincoln's death, and then the Congress argued over the declaration of the end of hostilities straight through, you know, for three years after the Civil War, because it's a question of whether it's a war or an occupation and under what terms legal or political you wanna declare hostilities to be over. And so, you know, this is I guess an ongoing and now more difficult question in the post-911 age. And that's what Sid was just referring to. John mentioned it. Do the panelists wanna give a round of opinions of where we're heading on the murky end of these sort of irregular wars in the age of terror and how this process might get resolved in a battle of powers between the Congress and the presidency? I'll start with John and then I'll just come down the line here. I'll start by saying that the war has been, from my perspective, against Al Qaeda and linked organizations. I've never used the term that the first administration used in these wars, because it's not a war against the tactic, it is a war against specific people who are enemies, are sworn enemies. 96 and 98, Fatwas and all the rest of it and all the attacks. So I think that's, it's becoming more difficult rather than, you know, well now we know we cannot or we can defeat Al Qaeda because it's murkier because of these other groups that have formed. Like ISIS. Especially like ISIS because they kind of, they kind of are a part of Al Qaeda but they're very much not a part of Al Qaeda and so I think it's even more difficult than it was three years ago. Like before I pass it over to Sid just to follow up, do you think President Obama would need another use of force resolution to use airstrikes against ISIS or is that covered under the Iraq use of force resolution? I don't know enough about the facts. Well he could argue that he can do it and certainly others would say you don't have enough authority to do that. All right Sid. And this is generally now this question you alluded to before. Do you have any additional comments to make about the war issues? Take Iraq, the formal war in Iraq ended when both President Bush and President Obama had sought status of force agreements with the Iraqi government that were denied, refused. So and then we withdrew American forces because we couldn't keep them there without the status of force agreement because our troops would then be exposed to all sorts of terrible possibilities. So that war is formally over without a declaration of the end of war. At the same time as we can see with the events that are going on now, a spin-off from al-Qaeda if you wanna call it that or an al-Qaeda-like group is now very active in Iraq and has seized large territory. Is that our enemy? Who is our friend? What do we do? When is the war over? These are open-ended questions now for policymakers in Iraq. Afghanistan is a somewhat separate issue involving somewhat separate actors. And we will still have special forces in Afghanistan. There will be a new election for a new president of Afghanistan. What's the resolution there? That's an ongoing situation. So we're in a world of uneasy perpetual warfare. Lou, do you agree or do you wanna make a different set of comments on that? I think if we're careless about a language, if we believe fighting terrorism is the war then they'll never be over. That's too, too broad a term, war against terrorism. I think on what's going on in Afghanistan, I'm not comfortable with the idea of picking 2016 as some sort of an end game or end date. We've invested a lot of lives and casualties and money in Afghanistan to have in some gains, certainly for women and children getting an education. So I would hate to see us blow out. This is an American podcast, I know you can't hear me. I can't speak to you right now. I would make you hear me. So I think we have a commitment there for a long, long time. And I also think if we want to minimize terrorism, one way to do it is not kill innocent people with armed drones. You kill eight people and you've just manufactured thousands and thousands of people who hate the United States and are dedicated to doing something to damage it. Just to follow up very quickly, do you think these drone activities of violate international law or US law? This is for you, though. I don't think you can kill innocent civilians under any legal system. Okay, Jeff, do you want to bring us home and give the final comment? I think I disagree slightly with John. I always feel uncomfortable with it. Maybe it's with Lucid, you've got to be precise about your language. Calling it the war on terrorism, I thought was a big mistake because terrorism isn't instant. If from the beginning we'd call it the war on al-Qaeda, I would have been a whole lot more comfortable with that particular effort. But I think we are, and I agree with Sidney, potentially in this era of endless war, if you look at even in Afghanistan, I've been out there, we're fighting against the Taliban. Well, the Taliban really only want to control Afghanistan. The reason we got into a war with them was because they were allowing al-Qaeda to use territory to train organized and equipped forces which have ultimately attacked us. So the continuation of that war is really a function of our fear that if they got in power, they would do that again. But really they as a direct threat to the United States, I've never been persuaded. In terms of dealing with al-Qaeda, to use that precise language, one of the problems we have, not to sound flippant, but I always say al-Qaeda is like a franchise. It's like Burger King, okay? You got different franchises that keep popping up all over the place. So now as the war began against al-Qaeda, what do we see now? Well, we see Lashkar-e-Tayba, which is a terrorist organization in Pakistan that is a dreadful organization, trust me. We see AQAP in Yemen, which has actually attempted strikes against the United States. The infamous underwear bomber came from there. The print cartridges with explosives came from there. The guy who tried to do the bomb in Times Square was trained from there. So we're doing strikes there. We see Al-Shabaab in Somalia, which has affiliated some degree with al-Qaeda. We see Boko Haram in Nigeria. We see Ansar Al-Sharia in Libya. And I could go on and on and on and on and on. These have some tie to al-Qaeda, but it's not a corporate organization with one CEO. They're franchises all kind of doing their own thing while having some point of unity. And ISIS perhaps is the most classical or ironic because they're so extreme they've actually been kicked out of the al-Qaeda franchise as being too extreme even for al-Qaeda. So that puts us in a position of having to deal with this which may look like, to some degree, that how does this all come to a closure? And it's so complex and has to do with a whole bunch of issues particularly across the Middle East having to do with religion and demography and economics that it'll go on sadly for a long, long time. The one way though that Congress can control and this has been a change is always gonna bother me. Congress ultimately has one way to end wars. That is don't fund them. And because the Constitution, and I'll defer to Lou if he wants to comment, very precisely says the Congress is gonna pass a bill that pays for all this. And we have seen examples in our history. Some would argue looking at the end of the war in Vietnam at least U.S. involvement was ended by Congress because Congress said we're not gonna provide any more material assistance in terms of U.S. munitions to the South Vietnamese government. And that kind of unplugged the U.S. out of that particular conflict despite the fact that the president wanted it at that time to continue. Oddly for the war in Iraq and Afghanistan we've allowed this budget now to be separate. And I've always thought that's a bad thing. We have a budget for the war and we have a defense budget. And this thing confuses a lot of Americans as we spend like this year about $85 billion on the war in Afghanistan. On top of that there's a $535 billion defense budget. I think we ought to talk about those as one whole and that would be a much more logical and better argument. So I wanted to give the last word to Lincoln but I don't think I can. I mean, other than to say he would have been amazed that there were billions being talked about in the U.S. budget. But I want to thank everybody for participating. I want to thank the panelists for their great job today and I want to thank all of you online who are watching and participating. So let's give a round of applause for the panelists and thank you. Thank you.