 Cain is someone who I had not personally met. I've followed your career with great admiration, actually, and watched your tenure as a governor. Senator Cain has one of these unusual political profiles. He's been a mayor and a governor and a senator. I don't think there are many in the Senate that can claim that. I won't ask you which one you've enjoyed most. I think this is always the great challenge, because I think most everybody I've met who's been a governor and went to the Senate really loved being a governor. But I think Senator Cain has brought a great energy to his assignments. This is unusual. I was in the work for the staff of the Armed Services Committee. We never had a senator who was on both the Foreign Relations Committee and the Armed Services Committee. Very unusual. And actually, it was a bit of a leadership bias that that shouldn't happen. They kind of wanted a little bit of checks and balances inside the Senate. But Senator Cain made a very compelling case why his unique interests and skills would be good for the Senate in having both positions. And we're lucky that he's done that. I'm really very excited that someone in the Senate wants to talk about the War Powers Act. I see smiling, nodding heads all in the room, Senator. Everybody's just like this. Now, I wrote my doctoral dissertation on the War Powers Act. And I thought it was going to be very important and influential legislation. And it has not. I went back and looked at this dissertation a couple of months ago for another reason. Kind of embarrassed, breathless, pompous, rhetoric. It was humiliating to read what I wrote. But I honestly believed that the War Powers Act was going to be fundamental in American foreign policy. And the reason is that one of the constitutional fault lines in America is this role of the president as commander-in-chief to take a country to war. But the obligation of America's representatives in the Senate and the Congress to ensure that it represents a genuine national commitment. And the War Powers Act was honored. I mean, people really did take it seriously. But the people who wrote the legislation left and new people have come in. And they didn't have the consciousness of it. And so the War Powers Act continues to be there but not living up for its potential for the American public. So I was very pleasantly surprised that Senator Cain decided this is worthy of his personal time. Let's focus again on this. Because at its core, the question is how does a nation make a national commitment to use its forces? And does it represent the foundational understanding and consensus of the American people? And we've had a wrenching debate in this country for 12 years because we've not done that. So I think Senator Cain is getting at one of the most fundamental questions that we have in American foreign policy. We're very lucky that someone of his background and skill is willing to do that. He's a lawyer by trading, a missionary by avocation and personal commitment, and a public servant. And I think that's a unique combination of qualities that we would put our confidence in his judgment to help us think through such an important question. So would you please, with your applause, welcome Senator Cain. We're delighted that you're here. Well, well thank you and good morning. And John, I appreciate those very gracious words. We had not met before, but I'm a fan. I've heard an awful lot about John and I am a fan of CSIS. And we rely on CSIS all the time in our office. And witnesses from CSIS are often before us on either of the committees and on other committees as well. So the chance to come and talk about this issue this morning was just so easy to say yes to. And I appreciate you coming here. I have two staff members here. Let me just introduce them real quick. Sergio Aguirre is my senior foreign policy advisor and has a specialty in the Middle East and Arab North Africa, which is important for my committee, subcommittee chairmanship. And then Amy Dudley is my communications director and also has a longstanding interest in these issues. So let me talk about my, and I'm a little daunted to be talking about war powers to a group that includes somebody who wrote their PhD dissertation about the War Powers Act. I'm not a scholar of this. I'm just obsessed with it. So obsession is not necessarily a qualification, but I will describe over the course of the discussion a little bit why I'm obsessed with this and then I look forward to questions and answers. And let me do this. In my comments, I wanna talk about the law, the history, the problem, the fix. The law, the history, the problem, the fix before making a concluding comment or two and then opening it up to questions. John started this off pretty well on the law. The Constitution is such an amazing document of checks and balances and compromises. Careful calculated ambiguity in some instances and complete clarity in others. The war powers questions are actually among the clearer in the Constitution. There is a little bit of an ambiguity, but generally pretty clear. Article one, we love in the legislative branch to say we're the Article One branch. I know we're all co-equals, but we got listed first. And in the Article One branch, the congressional power is the power to declare war and then to budgetarily fund military operations. There was a clear understanding by Madison and the other drafters that war would not be initiated and declared without formal congressional approval. Article Two is the executive branch and the president is designated as the commander-in-chief. The president, once a war is initiated, the president is the implementer and executive because what would be worse than having 535 commanders-in-chief? So the pretty clear decision from the very beginning was it takes Congress to initiate war with that kind of a debate of the people's representatives that would flesh out and then coalesce around a popular consensus. And then the president should have the ability, subject to budgetary powers of Congress obviously, but the president should be the commander-in-chief. Madison wrote a letter 10 years after the Constitution was enacted and put in place to Jefferson, describing what they were going for when they did this. And I have this almost memorized, but if it's not precise, it's almost precise. Our Constitution supposes what the history of all governments demonstrates, that it is the executive most interested in war and thus most prone to it. For this reason, we invest the power on matters of war in the legislative branch. Looking at the broad scope of history, it is the executive most interested in war, most prone to it. And for that reason, we invest the power to declare war in the legislative branch. So again, not only in the language of the Constitution, but in the description by the principal drafter, this allocation of responsibility was made pretty clear. That's the law. That is the Constitution in a nutshell and among, again, of constitutional provisions of ambiguous to clear. It's pretty clear. However, our history from the very first days, the ink was hardly dry in this document before we departed from that allocation. And this is a completely bipartisan thing. Republicans and Democrats have both been guilty. Wigs and Federalists have both been guilty. Presidents and Congresses have all been complicit in this. There is not fault to be put on one set of shoulders. Fault is equally spread. The history is this. In the history of the United States, there have been five instances of a Congress declaring war kind of as thought to kind of be the norm in this document in the last was World War II. Presidents have initiated military action prior to and in some instances, without congressional approval more than 120 times. So despite the clarity, the constitutional language, you have this 5-1-20 dichotomy that seems completely un-congress or, you know, I'm not sure that's a word, completely opposite of what the framers intended. And there have been efforts to fix this along the way in the 1973 act passed by the Senate in July of 1973 passed by the entire Congress in November of 1973 was the most recent one that led to passage. But as John said, in the tough days of the Vietnam War, a war that was never declared as a war officially, but was ratified by Congress in many ways, when President Nixon chose to go into Laos in Cambodia without informing Congress, that led Congress to react very negatively. That was the main motivator, at least in terms of maybe a straw that broke Camel's back for the passage of that War Powers Act in 1973. It passed in a contentious time, President Nixon vetoed it. Congress overrode the veto with the two thirds override. But administrations of both parties, and it's gotten worse, as John said, as the drafters of the act moved out of Congress, administrations of both parties have generally treated the law as if it's not really constitutional. President Nixon vetoed it, citing its unconstitutionality around some separation of powers issues. There are provisions of the 1973 law that would allow Congress to act in ways that the President couldn't veto and then have it be subject to a veto override. And so presidents have always maintained that the absence of a presidential veto around congressional action is a violation of separation of powers. And there's some other arguments constitutionally as well. But basically, presidents have asserted this is unconstitutional. Maybe I'll follow it just to show that I'm a good guy, but I don't really need to. And Congress has certainly not insisted upon a strict letter following of the War Powers Resolution. The recent history is kind of interesting. Let's just talk about 9-11 to today. And one of the points that I think is an important one that drives me to be interested in this is just an awareness of recent history being so variable. Bottom line, we don't have a norm here. There's never been a golden age in this country of a consistent practice for making these decisions. And the lack of a norm is shown by what's happened since 9-11. Three days after 9-11, Congress passed the 2001 authorization for use of military force concerning the attacks on 9-11. Famously, very short, that the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons. He determines planned authorized, committed, or aided the terrorist attacks that occurred on 9-11, 2001. Very simple and straightforward. We are gonna take military action against those who were responsible for 9-11, 2001. We are still operating in a war declared on 9-14, 01, and both the Bush and Obama administrations have determined that that war can be carried out against members of al-Qaeda, against anyone who associates with affiliates or associates of al-Qaeda, no matter when those associates pop up, and no matter when those individuals join the affiliated organizations. So long as the al-Qaeda or affiliated organizations have violent designs against the United States or coalition partners, that's a little bit of a vague phrase that's used by both administrations. By some counselors, many as 58 coalition partners. So somebody who joins an al-Qaeda affiliate in 2020 who has an evil design against Montenegro is subject to the interpretation of the AUMF. We are at war with them, according to interpretations both by the Bush and Obama administrations. I don't think Congress passing that AUMF 9-14, 01 believed 13 years later we would still be engaging in war. There's a real question that we're grappling with now about as combat operations cease in Iraq and in Afghanistan in 2014, what is the viability of the authorization? Obama administration witnesses have testified to Congress, they believe this war as declared will go on for another 25 or 30 years at least. That's one recent history example of a declaration that opened into no temporal limitation, no geographic limitation, those who are connected with an al-Qaeda group who intend violence against the United States or a huge group of coalition partners are subject to this. The Iraq war began with a congressional declaration that was put on the table before Congress a few weeks before a midterm election. The timing of it being presented to Congress was specifically about the midterm elections. Remember, we didn't go into Iraq until March. So the decision was made to put this on the table before Congress, right before a midterm election. The AUMF in that instance said we want to use all diplomatic steps, et cetera, et cetera, but we'll allow the President to take military action if those steps fail. That one of the most controversial wars in American history, its connection with the midterm election was obviously one of the things that made it controversial. In Libya, President Obama put US military assistance into a NATO operation, never sought congressional approval for it, was censured by the House of Representatives for not seeking congressional approval, claimed he didn't need congressional approval because either it was A for humanitarian purposes, which I view as tsunami relief, not involvement in a civil war, even if you're involving yourself in a civil war to avoid humanitarian bloodshed, that's not humanitarian, that's military. Alternately, there was an indication well because it was part of a NATO mission and not direct US involvement, we didn't need to come to Congress. But nevertheless, the President didn't go to Congress and was censured and then in Syria, I'm on the Foreign Relations Committee, I'm one of 18 people that actually cast a vote when Bashar al-Assad used chemical weapons against the civilian population. I urged and others did too, the President do not act unilaterally, honor this framework and come to Congress and the President did and was widely criticized for doing so. You should have acted unilaterally. What kind of signal did it send to others in the world when you didn't take a step? A red line was crossed, chemical weapons were used, you were supposed to take a step, no, instead you went to Congress and I watched members of Congress who had been beating up the President for not doing enough vote no on the authorization. I voted yes on the authorization, voted no on the authorization and then continued to criticize the President for not doing enough in Syria. Recent history shows we don't have a norm for making this most important decision. That's the history. The problem, and this is where my obsession came in, I started to be obsessed about this when I was a Lieutenant Governor of Virginia and I watched the vote around the Iraq War because I just couldn't get over the fact, why are we having a debate about this in the weeks before midterm election? I, you know, it's funny, I kind of couldn't get over that. I couldn't get over that to start thinking about, well, what are the equities pro and con in Iraq? I just was like, is this the kind of thing that somebody should throw on the table in Congress a couple of weeks before midterm election? It just offended my sensibility so deeply that that would happen. And I remember Senator Byrd making that argument very powerfully while others were, as John said, it's hard to stand up in the midst of a crisis and be against something that the White House wants to do and something like this. But I remember Senator Byrd just saying, if for no other reason than timing, we shouldn't be politicizing in connection with the midterm election as this decision. And I found that to be a very compelling argument. I started to kind of obsess about this issue and about the problem. Why, what is the problem? Well, I think there's two problems. The first is, presidents overreach and members of Congress abdicate. It is a synergistic relationship between an overreaching executive and an abdicating Congress. So to put this, my 5-1-20 dichotomy, to put it on the shoulders of the imperial executive, which Madison would do, Madison would say, presidents overreach, executives overreach, but to put it on the shoulders of the executive is only a half explanation. Madison wisely saw that executive fault, occupational hazard, but I don't think he recognized a similar occupational hazard in members of Congress, which is we would rather not cast tough votes if we don't have to. And that is the flip side, that is the reverse side of the coin that explains this history, that presidents overreach and members of Congress want to avoid it. It would be better as a member of Congress to kind of finesse a little bit. And if a military operation works out right, Mr. President, you know, I mean, we were with you 100% of the way on this. And if it works out badly, how dare you do this? We're shocked, shocked to see that you would take this step that worked out so badly. This is a tendency to Congress. We had a bill that came out of the Senate, a Senate committee unanimously on the floor a few days ago that could not get passed largely because, even though the bill was unanimously supported and bipartisan because in discussions about amendments, various members of the Senate did not want to be on record with respect to certain amendments that were going to be offered. Members of Congress, if they can, would like to avoid hard votes. And there is no vote harder than a vote to initiate military action. That's the first problem, the synergistic relationship between an overreaching an executive and abdicating Congress. And the second problem is a procedural one, the absence of a decision-making norm. I like procedures, you know, I like rules for thinking about things. Good procedures do not make a hard question like this easy, a hard question, should we initiate military action? Having an agreed upon decision-making set of steps and norms will never make the decision easy. But the absence of an agreed upon norm for thinking these things through, take tough decisions and I think make them even harder. So the fix. In 2006 and 2007, the Miller Center at the University of Virginia, which was founded in the 1970s as a Center for Study of the American Presidency, it's broadened slightly to look at the legislative branch as well. But they grappled with the notion that in the middle of then two wars, this war power's question was critical. And they impaneled a real A-list National War Powers Commission, co-chaired by former Secretary of State Warren Christopher and Jim Baker. And it was an interesting panel, Warren Christopher and Jim Baker, Secretaries of State, Ed Meese, former Republican Attorney General and Key White House Advisor, President Reagan, and Ab Mikva, former Democratic Counsel President Clinton and member of Congress and Federal Circuit Court Judge. Former ambassadors, Doris Kearns Goodwin was the historic advisor, military leaders. Former members of Congress, Senator Slate Gorton of Washington and Lee Hamilton from Indiana. This was an A-list of people who included some scholars, but were also people who had been involved in these decisions from either the executive or legislative or judicial side. And they had been involved in these decisions and they had looked at the lack of a norm and had come to the conclusion that it's time to have a norm for making these decisions. A very dear friend, my great colleague over the years, John Warner is here and John, I'm so happy that you have joined us today. The Miller Center pulled this wonderful panel together and they did a very in-depth study of the history. They concluded that there's never been a golden age, there's never really been a norm, they concluded that all parties bore responsibility for the lack of a norm and they also concluded that having a norm that would be followed would actually be a very, very good thing and that you could develop a norm that would not require either side to give their constitutional prerogatives. Obviously we're not gonna change the constitution here, both sides need to maintain their full constitutional power. They presented a draft bill to repeal the War Powers Act of 73 and put in place what they call the War Powers Consultation Act. They presented it in early 2008. They briefed the Senate Foreign Relations Committee and the Equivalent Committee on the House side about it. And then the study promptly sat on a shelf after they had briefed it. The time just wasn't then ripe for this. I just believe that now as we are done with the war in Iraq, as we are in the last phase of any combat operations and essentially done with the war in Afghanistan, if we can't learn and ask ourselves some lessons from the last 13 years and make improvements, then woe unto us. We should be able to learn from this. I think that the time is right. And so Senator John McCain and I, and Senator McCain was on Foreign Relations and was briefed about the Miller Center's work on 08, I became aware of it when I was in state office and kept a copy of the proposal on my desk thinking, I don't know if I'll ever ever chance to do something about this, but if I do, I'd like to work on this. And I went to Senator McCain when I came into the Senate and he immediately remembered the work and liked what they had done and said that, yeah, let's work on this together. So Senator McCain and I have introduced the Miller Center War Powers Consultation Act. We've assembled a group of 10 senators, five of each party to basically take sandpaper to the act and ask each other hard questions and give speeches like this and hear feedback and then think about, right, we didn't really think about how cyber would fit into this. We didn't really think about how a one-off drone strike far from a field of battle against a combatant in Yemen, how we would address that. So we have introduced the bill, we introduced it in January. We have a working group that is taking sandpaper to it and doing talks and gathering feedback. We view this as a long-term effort. This is not something that we're gonna be able to just put in and have a few debates about and pass quickly, but we think we're working to build up momentum for the notion of an improvement. And I'll tell you this, quickly, the War Powers Consultation Act basically does three things. First, it defines what is war for purposes of triggering voting in Congress and presidential consultation with Congress. So you kinda have to define what is war because it's no longer state v. state. In non-state actors, cyber, drone strikes, there's so many different ramifications that the Madisonian view of the U.S. versus England with a peace treaty signed with flourishes on the, maybe like a peace treaty signed with flourishes on the deck of a carrier in Tokyo Bay, this isn't the way wars are done these days. So the first part of the War Powers Consultation Act tries to get it at what is war and we use sort of a functional definition of anything that would require use of American troops for more than seven days for kinetic action in another country excludes humanitarian, excludes some counter-terrorism operations, but we have work to do on this definitional point because I think the definitional point is getting more and more complicated. Second thing it does, it addresses a common problem, a president saying, I consulted with Congress about this. Now, presidents say I consulted with Congress and that can mean a whole lot of different things. I'm on the Foreign Relations Committee and the Senate Armed Services Committee and it's at one point in the run-up to some of the actions that the president has contemplated in Syria, I read in the paper that the president said, and I get along great with President Obama, he said, we've consulted with Congress about this and I thought, well, I'm in Congress and I'm on the Armed Services Committee and I'm on the Foreign Relations Committee and I'm a really good friend of the president but nobody's called me, what does it mean to consult with Congress? I mean, it could mean consulting with leadership, it could mean consulting with a few people that I know will likely tell me yes. So the second problem that Bill gets at is trying to establish a norm for what consultation with Congress means and the way we do it is through the establishment of a permanent consultation committee, a 20 member committee, bipartisan, bicameral. The leadership in each house is four and the chair and ranking members of the four key committees in each house, Armed Services, Intel, Appropriations and Foreign Relations. So it's 20 members, 10 Democrats, 10 Republicans, a permanent committee with a permanent staff and the White House would be in permanent dialogue with that committee about any hot spot or challenge around the world that might lead to the need for military action. The dialogue with that consultation committee would be consulting with Congress. It would be consulting with Congress. The third piece of the bill is establishing what the War Powers Act of 73 established, the circumstances under which Congress will be required to vote on the initiation of any military action. There are certainly instances, and Madison foresaw this where a president would have to act prior to a vote of Congress. In 1787, I mean, getting Congress to ride their horses back from Vermont would take some time. So if you're under attack or if your naval ship is under attack or an embassy is under attack, a president is gonna act as commander-in-chief instantaneously, however, there was the understanding that that would be ratified by a subsequent congressional vote. All thought that would be the case. And so the third thing this bill does is put a mandatory voting requirement in place so that it's not seen as a sign of presidential weakness to go to Congress and ask for a vote with respect to military action, but it is just the norm. This is just what we do. And members of Congress have to go on the board and cast a vote in order to, some often before, most often before, but at least in the aftermath of an emergency in order for there to be military action carried out by the U.S. So that is what we are working on, and it really hinges right off this, I think, strong Miller Center study, but we're trying to look at it in light of current realities and update and improve it. The Miller Center report actually proposed a statute that was based somewhat on work that Lee Hamilton and others and Senator Joe Biden did in the early 1990s. They recognized that the 73 act wasn't really working. They made Iran at trying to put a bill together. They never introduced it because, again, time wasn't right and they couldn't reach complete accord, but a congressional awareness that we ought to be able to do better than we're doing in establishing this process has been something that has been kicking around for a long time and I'm excited to work on it. Let me conclude and just say this and I'd love to open it up and take questions. I'm obsessed by this not just because we can do a better job of honoring the constitutional allocation of responsibilities. I love Madison and I love the Constitution, but it's not just because, well, it's in the Constitution and we're not acting in accord to the Constitution that I'm really focused on this. And that would be a good enough reason to be focused on it. But I think it's not just because it's in the Constitution. It's because the constitutional allocation of responsibility was an expression of a deeper value that is really important. And John talked about this at the beginning. The initiation of war is the most momentous decision that we would make. If you don't have a process that involves the complete involvement of both the executive and legislative branches, and you allow an overreach and an abdication, then you're asking people to sacrifice their lives when the political class hasn't done the hard work to reach the consensus. I mean, shouldn't the political class do the hard work to reach the consensus that the mission is worthwhile before sending people into a theater where they could be injured or killed carrying out a mission? If we're not willing to do the hard work, both branches, to make the determination that the mission is worthwhile and to give some definition and scope to that mission, how dare we ask people to risk their lives around something when we've been too indolent or too politically afraid or, well, I have better things to do, then try to reach this consensus. There is a moral obligation on us to reach that consensus before we ask people to sacrifice their lives to carry out the mission. And if we do it, we do it with a process that involves a debate and an education in American public because they're watching for us as well to kind of see how we approach these questions, how we debate them, how we discuss them, and they become educated by that debate as well, and they're entitled to it. History has shown, even recent history, that the American public, in a time of crisis or war, will almost always support their president, but that support can fade pretty quickly if there isn't a broader consensus than just the presidential dictate that this is something that we should do. But if there is a debate and a consensus reach between the executive and the legislative, that support of the public for the mission is more likely to be long-lasting and steady, and that's a good thing for those who are fighting the battle. The last thing I'll say is this, I have a worry about the posture with which members of Congress and the public approach these difficult matters, and my worry is sort of like the, I worry about the outsourcing of responsibility. If in Congress you can allow military action to occur by presidential dictate without casting a vote, if in Congress very few people have kids in the military, so their own children are not likely to be those sacrificing life or limb, if in Congress you can do what was newly done in Iraq and Afghanistan, which is funded on the credit card rather than funded through tax, even the Vietnam War is unpopular as it was. We taxed ourselves for some of the costs of that war, so there was a broadly spread financial obligation on the current generation. But if you can do it without a vote, if you can do it without your kids potentially sacrificing, if you can do it and you can put it all in the credit card, if you can do it now somewhat through the contracting out of operations to contractors rather than use of the military, I start to worry that the outsourcing of all the tasks and the financing and all of that takes away from the necessary gravity of the decision and the decision making process and would over time lead us to make decisions that aren't as good as they should be in this most important area. So that kind of describes, again, I'm not a scholar, but an obsession isn't a qualification for tackling an issue, but I am obsessed with this issue and I'm very happy that Senator McCain, now he and I voted the same way on the Syrian authorization but in our committees, and we're both on armed services and foreign relations, we've often been in different places on how we would vote, but we're not in a different place on the belief that we need a more normative process that will in fact be followed that the American public will count on as being followed and that's why we're so excited to be working on this together. Thanks for the opportunity to come and just kind of explain it a little bit and I'll look forward to maybe taking some questions and advice and suggestions. Thank you a lot. Well, thank you Senator McCain so much for coming today and talking about this issue. Obsession may not be a qualification but it's a good precursor along with passion to getting change in an area that requires it so we're very appreciative that you're taking this issue on along with your colleagues. Can you walk us through an example of how the commission committee would work using whatever you prefer, Libya, Syria, how would it function different from how things operate today? Let me use an example. I'll use a hypothetical example. We'll turn it on to work. Let me use a hypothetical example and just kind of walk through the way the procedure would work and because the statute doesn't alter constitutional roles of either Congress or the president, each side could flex its muscles and there will still be a little bit of studied ambiguity in this just as there is in the constitutional language that would allow a president to defend unilaterally and then seek later constitutional vote but the president will be in consultation with the consultation committee I described over a series of challenges around the globe. Say there is something that happens that really requires an emergency response and the world seems to be producing a lot of these days and I suspect that will continue. At that point what the president would do under the statute as drafted is would go to the consultation committee the consultation committee under most circumstances would have been aware of this was a problem, here's a hot spot, could create some challenge but the president would go and would deliver a report to the consultation committee saying the following has happened and I believe we need to take the following military action and we need to do it very, very quickly would present that to the consultation committee. There isn't a requirement of a formal vote of the consultation committee at least not yet but the president having briefed the consultation committee on the general issue and then presenting this report I think we need to do this, we'll get a sense from the relevant leadership of Congress this is a good idea, this is a bad idea and that's an important thing and if the president's told it's a bad idea by that combined leadership then a yellow light going up should suggest caution. The president at that point could initiate military action in the event of this kind of an emergency. The consultation committee would introduce in both houses a resolution authorizing military action as described in the report to the consultation committee dated May 14, 2014 and there would be a required up or down vote in both houses on a resolution of approval that essentially has the presidential proposal as an attachment. Well if Congress approves obviously the action goes forward. If Congress disapproves at that point a resolution of disapproval is introduced and there would be a debate about that and if a resolution of disapproval passes the president can veto and it would be subject to override. So there is that back and forth dialogue between the president and Congress. Obviously this does allow the president to do things what if the resolution of approval doesn't pass and a resolution of disapproval doesn't pass. You can see that a resolution of approval failing in one house and a resolution of disapproval failing in the other house. Well this would be an ambiguous area still where the president might act but there would have been a full airing of this before the American public in connection with these two votes and that very airing in the public participation in the debate would surely offer the president some guidance about what to do going forward. But that would sort of be the norm. In a circumstance where there isn't an emergency it would continue to operate. It could continue to operate significantly like the Syria example. The president would come to the consultation committee and say look I think we need to take military action. The action we need to take there's not an imminent threat against the United States so we can have the debate in Congress first and that would pursue through the current route which is through the foreign relations committees with resolutions on both sides. But the basic idea is to normalize consultation and then normalize members of both houses have to go on the board. If you're not willing to go on the board about the initiation of military action sort of why have a Congress. You also mentioned the gray area here. There's so many ways in which military conflict has expanded beyond what Madison could have envisioned. And I know the legislation as it's currently drafted has I think the term is significant military operation and anything lasting more than seven days. Lasting more than seven days. And so I wonder how you are thinking about. You mentioned that the definitional issues one you have to get at. But how do you think about first items that don't immediately seem to hit the seven day mark but creep over it. And I assume you know that pretty quickly by day eight. And things that are maybe in cyber, maybe in space, maybe they're defended as counter-terrorism but you question that. How are you thinking about all those gray areas and how you might tackle that. So yeah, very good question. We're really digging into this. The way that the act is currently formed the definition of war for purposes of triggering the congressional voting requirement is use of American troops for more than seven days. The consultation responsibility is continuous and doesn't depend on the seven day limitation. That is a reference to the voting requirement. But we really are grappling with definitional questions and I'll tell you the one that I find the most interesting and I haven't reached a resolve point in this in my own mind. But at a recent armed services hearing the head of US cyber command was before. Everyone in this room is really into these defense sessions. You know what this time of year is, it's NDA time. We are in one, you know forced structure or forced posture hearing after the next. Hearing about the budget, hearing about the various commands, global commands and the service branches and we're digging into it. We had someone before us from cyber command. And the individual was talking about circumstances in which a cyber attack might then lead to war. And I said, well, so are you saying that a cyber attack itself is not war? But it's something that could lead to war. And the head of cyber command said, well, you know we're grappling with whether a cyber attack itself could be war. So imagine a nation launching a cyber attack that crashes part of the American financial institution causing major chaos. And imagine a response where we crash somebody else's power grid or municipal water supply causing major chaos, you know death, loss of life, economic catastrophe, et cetera. But in the phraseology even used by military thinkers in this area, a cyber attack is something that could lead to war. And I asked, well, could a cyber attack without kinetic movement of troops in and of itself be war? And they acknowledged, well, we're trying to grapple with that question. So I don't have, and Senator McCain and I have certainly talked about it a lot, but we haven't reached the final point of resolve on that issue yet. And one of the reasons I love doing speeches like this is every time I do, then I get somebody calling the office the next day, calling Sergio, not me. And Sergio is the poor guy that has to deal with all this. And saying, well, how about this? Think about it this way. And we're gathering good intel. When Senator McCain and I introduced the bill in January, he just gave a very interesting speech. There's the famous picture of the signing of the peace treaty with Japan in Tokyo in 1945. And many of those pictures include his grandfather, who was there and on the deck when the peace treaty was signed. But he just said, that's just not that style of how wars start and how wars end with nations shaking hands or Lee giving the sword back to Grant. That's just not the way, that's not the world we live in now. And that means we do have to think through these definitions. And the Miller Center did this work on 07 and 08. So they were in a modern era. But I don't think they really thought about cyber, for example. So that means we have to think around some corners here. Well, and I suspect pushing the issue from this angle, from the Hill perspective, may help press any administration to start to define for itself some of these questions. I'm going to turn it over to the audience in one more question. But I do want to ask you about AUMF, because you raised it. As you mentioned, there's the original 2001 legislation. There has been discussion, even from the president in the State of the Union, I think a full State of the Union ago, about whether to modify it or to get rid of it. There has really been no movement on that. And I know it's a very difficult course. Where do you stand on modifying, continuing, or eliminating the AUMF? I am deeply, deeply troubled by the AUMF. I'm so troubled by it. And I'm trying to wrestle with what is, if you just ask me my Rorschach, I sunset at the end of 2014. We're having the dialogue about what is the right thing to do. But that is what my gut is telling me right now. And I'll tell you the two reasons for that. The language that I read to you is pretty simple. That the president is authorized to take necessary and appropriate force against those nations, organizations, or persons that aided, planned, abetted, or committed the terrorist attacks of 9-11. For the purposes of deterring future acts of international terrorism. But it wasn't, we're going to wage war against anybody who might do international terrorism in the future. It was we're going to wage war against those who perpetrated the attacks of 9-11. And that has been interpreted so very broadly by both the Obama and Bush administrations. That language, as I indicated, has been used to say we can take military action against members of Al-Qaeda or affiliates and associates who intend violent action against the United States or against coalition partners. Congress didn't authorize in the AUMF for us to take military action against those who would take action, who in the future might take action against coalition partners. That was not in the AUMF. But that's been the interpretation of both administrations. What strikes me about this, no temporal limitation, no geographic limitation. The definition of associate and affiliated organizations, which is not congressional but administrative, is extremely broad. We had a hearing a year ago and had White House administration and DOD officials before us. And I asked, if someone is born in 2020 and when they're 15 years old, they join an organization in 2035 that has recently popped up and claims an affiliation with Al-Qaeda. And that organization has an evil design against one of the 58 coalition partners like Montenegro or Denmark. Is this authorization of military force, does it allow us to take military action against that individual who wasn't even alive and whose organizations didn't even exist on 9-11? And without any sense of sort of irony or anything, the response was, yeah, obviously. And then I said, my follow-up question, and I think Senator Graham asked the same question, well, how long is this war as declared and as interpreted by both administrations? How long is it going to go on? And the answer was, well, we think it would probably be about another 25 or 30 years. I just have no doubt that that's not what Congress intended on 9-14-01. I don't think that they were voting for an open-ended war with no temporal limitation, no geographic limitation, against folks associated with Al-Qaeda or other organizations, even if those other organizations had no role in the 9-11 attacks and those organizations might have designs against countries other than the United States, that's not what was intended. And so we're wrapped up in a significant challenge about this right now. There is a very prominent jurist being a proposed nominee for a judicial position that's being considered by the United States Senate, who is involved in memos, and this is the baron nomination, which has been the subject of a lot of press recently. And there's a superbly qualified individual, but the only reason that it is causing some challenges because of this AUMF breadth issue. So I think we need at a minimum to take that AUMF and dramatically reshape it. If the AUMF expired at the end of 2014, of course the President and Congress would still have all statutory powers, all constitutional powers, all powers granted by treaties that have been ratified, all powers that are part of international law of war, the power to defend the nation, the power to conduct military operations, the power to carry out counter-terrorism activities, there's statutory powers to do counter-terrorism activities, there's a whole range of powers that the President has to defend the nation, Congress has too. You don't need the AUMF in my view, but there are those in the Senate who say, well, I agree with you generally, it's too broad, the better thing to do would be to come up with a chapter two narrower version than to allow an expiration, and I understand that too, but I'll tell you the second reason why expiration appeals to me. We gotta have our VJ day moment. I mean, we gotta have the moment after 13 years where we get the picture of the sailor kissing her boyfriend in Times Square, and where we celebrate the sacrifice of the million plus people who've been deployed in war for the last 13 years. What are we gonna do, just go on for 25 or 30 years, and so we're out of Iraq, we're out of Afghanistan, but the war's still going on, so we can't really say welcome home, we can't really have the celebration, we can't really mark the chapter that we're still in the middle of. I just worry that not allowing the AUMF to expire means that we are not going to do what we ought to do to acknowledge the sacrifice of those who've served, and more than 500,000 people have served multiple deployments. I think they're entitled, and I think we're entitled, to say the war is over, and of course, the battle against international terrorism continues to go on, and we're gonna have to define our strategies for dealing with that, but these two wars, with the presidential election in Afghanistan in 2014, and with the ending of US combat operations and the switch to a train and advise and assist mission, that this period of war is over. I heard a young college student give a speech recently, and it was a speech about a number of issues, but she said, I don't know anything about war, but all I know is war. I don't know anything about war, but all I know is war. I think we're entitled to mark the end of a chapter, and I don't think that we will do that without the AUMF expiring, that's... Okay, let's go to the audience. We have a question right here. You can give your name and affiliation, please. I'm Charlie Stevenson, I teach at SICE. I commend you, Senator, for two features of the bill. One, dealing with the abdicating Congress problem, and secondly, broadening the definition of conflict away from the war powers regime, which really focuses on ground troops. I think there are ambiguities and loopholes. I have a suggestion on drones and cyber. Great, fantastic. And it's really modeled after the covert action law that I helped write 40 years ago, requiring presidential findings and notification to Congress. And it's even been incorporated by President Obama in his cyber directive that came out as part of the Snowden leaks, where the president has to make a personal decision if there are significant consequences. So what I suggest to you is the model is if the president personally has to approve an operation, Congress ought to be notified. Okay, this is, I'm just making sure I'm getting this. And maybe afterwards, if you could just mention to Sergio, because I think he might wanna follow up on that as well. Please, all the way in the back. Yeah, sitting in the back row on the corner. Stanley Kober, I'm a constituent. In Pacificus number one, Alexander Hamilton wrote, it is the province and duty of the executive to preserve the nation to the nation the blessings of peace. The legislature alone can interrupt those blessings by placing the nation in a state of war. I don't see that as consultation. It's a very clear divide. Only Congress has the power. And that's Hamilton, who's usually regarded as the greatest defender of executive power. And I'm puzzled, that's never mentioned. So perhaps you could address that. As I see this, we're short of time. There is no presidential discretion, no presidential initiative here. I'd also raise the issue of Talbot against Seaman, the Supreme Court decision. That sentiment, the Hamiltonian sentiment, is very close to Madison's sentiment. However, Madison and the Framers did debate this issue about presidential initiative and did conclude that as part of the president's commander in chief power under article two, there would be instances where a president would have to take military action to defend the nation prior to, not without, ultimately, there would need to be a congressional notification. But prior to congressional action, and that was just a reflection of the reality of the day, congressional sessions would not be year long. They would be for brief periods of time. Members of Congress would go back home. So there was a recognition that a president might have to act to defend the nation. And then we got to get Congress back and have a formal ratification vote. So the Madison, as the principal drafter, and maybe I'm Virginia-centric in this too, and I lean on Madison more than Hamilton for that reason, but as the principal drafter, while Madison strongly believed that this was primarily a matter of legislative prerogative, they did acknowledge at the beginning that there would be instances where a president might have to act prior to congressional approval, but then there would be a mandate for subsequent congressional ratification. Hello, Senator. Good to see you. What a wonderful presentation. I'm Andre Sovizo, and I'm a wonderful president, Obama's presidential partners. And I'm a member of an organization called Veterans for Peace, and a businessman in Vietnam too. But anyway, the question is, I really was intrigued by your last comment on outsourcing, the dangers of outsourcing. And we saw that so clearly in Iraq. Oh, you know, Halliburton, no complete contract, and KBR putting in such poor wiring that American soldiers were electrocuted in a shower, and just a whole lot of things. So I want to ask this, Senator, if it's very difficult. And if another form of outsourcing, and the evils that implies, is the fact that I remember poignantly when I was still in my nine years of wartime service in Vietnam, watching President Nixon get rid of the draft to take the steam out of the anti-war movement. And Joseph Califano, the Secretary of Health Education and Welfare, wrote a prescient column in The Washington Post that this will lead to a bifurcated society in which very few Americans ever experience the horrors of the battlefield, because it'll be less than 1%. So in pursuing your noble objectives, and they really are, of a War Powers Act that's redrafted as you're talking about, would it be helpful, maybe impossible, but if we had all national service again? Yeah, great question, Andre. It is a very good question. And I grapple with that. Right now there's two of us in the United States Senate have children in the military, and it's probably the same percentage over on the House side. And I do think that that in subtle ways can change the calculation. The Senate today is not the Senate of a Senator Warner where significant percentage of the Senate during your tenure had military service. That number is getting lower. I didn't serve in the military. My father did, and my father-in-law did, but I didn't. And so most people did not serve in the military, and most people would not have children that would be in potential danger of service. And that does create challenges. And I'm struck when I visit Israel, and I've been to Israel three times. I love to go out and visit iron dome batteries, and I went recently to one in Eschelon and see 19-year-old boys and girls, to me, they're young men and women, they look so young. They're serving, and that universal service is an important part of the ethos, the small D-democratic ethos of that country. I'm struck by it. However, I'm also struck when I talk to our military leadership about they pitch the virtues of the all-volunteer forces that everybody wants to be there. Now, they may want to be there because they hope to get a education benefit, or they may want to be there. There's a lot of reasons why they want to be there, but everybody does sign up wanting to be there. And they really believe that offers some significant advantages over a broader draft or some compulsory service, where they might have people who don't want to be there. Now, you asked it not about a draft, you asked about a compulsory service, national service of some kind. So presumably, if you didn't want to be there in the military, you could be there as a VISTA volunteer. You could be there in the Peace Corps or Teach for America or something like that. I have asked my own staff to pull together every bit of proposed national service legislation that's been kicked around only to start to look at that. I don't yet have an opinion or thought about how we would do it, but I have at least asked them, pull together any bill that's been floating around on this for the last 15 or 20 years and let's just get them all together and take a look and see what we think about it. I asked them to do that after I came back from a February trip to Israel and again had that experience of seeing the ethos of a universal service requirement and how I view that as a positive in that much smaller country. Senator, we are out of time on your calendar. I'm so appreciative that you came today. As I mentioned to you before we met, my partner in crime, Louis Lauer, who runs our congressional outreach and I have been trying to create a venue here at CSIS to make sure that we have a place for members to come talk about security issues because of this very reason because many fewer are interested in defense and security and fewer have served and you have kicked off that series just tremendously with your great passion for this important issue. So thank you for coming. Thank you. Could I ask, could I let Senator Warner maybe say one more? Oh, of course, please. Could I, I would like to ask if Senator Warner, Senator Warner and my father-in-law, Linwood Holton, who was the Republican governor of Virginia from 1970 to 74, were in the Navy in the Pacific and then came back to Washington and Lee and were in the same fraternity and graduated from Washington and Lee after World War II and Senator Warner has not only been a public servant who I have admired, but also his very, very dear family friend and I'm really honored that he would come and I picked his brain a lot on these issues relating to the armed services and foreign relations billets because of his experience in this area. This, I really wanted to come to thank you for your initiative on this. And when I was there in the old Puzzle Palace, we debated this issue over and over again. You'll see that our neighboring state, West Virginia and Robert C. Byrd took the floor usually on a Friday afternoon and everybody was gone and invited one or more senators to come over and debate this very issue. It's vitally important that you address it because of the complexity of modern day weaponry starting with cybersecurity, go on to mess destruction weapons of small size, all kinds of problems. It must be addressed, must be clarified and at the same time preserve the constitutional respective rights of the executive and legislative branches. In answer to this gentleman's question about the service for all, it's quite appealing but you come up against a very quick realization. If you're gonna have a man or a woman in uniform and give them the GI bill and certain amounts of healthcare, are you gonna do the same thing for the young man or woman who does other types of service? Then you begin to look at the fiscal cost of that and that issue suddenly takes on a different appeal. And lastly I would say, I have to confess, I was one of those sailors on VJ night kissing the girls. The only thing I remember is the first girl grabbed my white hat and I never saw it again. But I was in the loop in Chicago at the most time because we had Navy Pier, a big installation of that. But what you need to do is to make sure your legislative history as you build up this issue is written and presented in such a way that the average man in the street woman has some comprehension of the enormity of the need to get some resolution and clarification in view of the modern day weaponry. And I'm very proud to see that you are carrying on where I had clouded fields for a long time and you're doing a wonderful job. Thank you very much. That's all I want to say. Senator Warner is such a tough act to follow to come on to the Senate Armed Service Committee after two senators for 36 years, 30 and Senator Webb, six had been, the Virginia Senate representative on Senate Armed Service had been both a decorated combat veteran and a former secretary of the Navy. And I said, look, I didn't serve in the military and if I'd been secretary of the Navy I think I would remember it. But I came on to this committee with huge shoes to fill but I've been able to count on good advice both from Senator Warner and Senator Webb and that's helped me start to climb the learning curve and thank you so much, John, for coming today. I really appreciate it. And thank you all. I'm glad to be here with you. Thanks. Thank you.