 Good afternoon. Welcome to the New America Foundation. My name is Peter Bergen. I run the National Security Program here. It's with a lot of pleasure that I get to welcome our distinguished speakers and also our guests and our C-SPAN viewers. Today we're going to be talking about well, it was pretty prompted by an article in Democracy Magazine by Heather Hullburt, which is called Battlefield Earth. And really today we're going to be examining the question of, you know, to what extent the United States should engage in essentially an open-ended war, both in time and space, as everybody knows. The authorization for the use of military force was signed shortly after 9-11. Nobody who voted for it anticipated that it would basically authorize the longest war in American history and a war that is also being conducted in places like Pakistan, Somalia, Yemen, Libya, indeed, because if you remember Al-Libi, who was basically picked up on the streets of Tripoli in October, that was under the auspices of the authorization for use of military force. And there may be things that we don't even know are being authorized by this by this act. So we have a very distinguished panel to discuss these issues with us today. Heather, who is sitting here, the only female, so fairly obviously it's Heather. Has had a very distinguished career in government at the White House, the State Department, working on the Hill. She ran the National Security Network. She's now a senior advisor there. And she will speak first, followed by Benjamin Wittes, who is well known as the editor-in-chief of the Lawfab blog. He works at Brookings. He's the author of a number of books that examine the legal issues that come out of the sort of post-911 world. And finally, and not least, Micah Zinko, who has had a distinguished career, worked at Kennedy School for many years. He worked at Brookings. He worked at the State Department's Office of Policy and Planning. He's now at Council on Foreign Relations. He's arguably, in fact, probably is the nation's leading expert on drones, which of course are part of this story. So we'll start with Heather. Thanks, Peter. And I want to start by thanking Democracy Journal and Albert Ventura, who's here representing them for having believed me when I told them six months ago that this incredibly arcane subject would fill a room, would drive clicks to the magazine and would be interesting and important. And also just to recognize the amount of work New America has done on what it is that's being done in our name under the AUMF. And really, Peter, without the work that you and your colleagues have done, it would be much, much harder to have any conversation about this subject at all. So why would you all come here? And why would we have a conversation today talking about this obscure, acronymed law after all this week? The president is going to make a much anticipated statement about surveillance reform, which has been for the last few months the hot topic in counterterrorism and associated activities. We haven't talked so much about this issue. And indeed, the three of us were just thinking we can't remember a panel on this subject having been held in at least six months. So why are you here? Why does this matter? Why is this a set of acronyms that that we have to know something about? The answer I want to give to that and the answer that the rest of our panel really incarnates is that both from a legal perspective and from a policy perspective, the fact that we are at war and whatever the heck it is, wherever the heck it is, where it war defines the parameters, the shape of so much of what's happening in our national security policy and indeed in our in our national life. Even the NSA surveillance controversy, the legitimation of that actually has been traced by the previous administration and not, I believe, repudiated by this administration back to the AUMF, which makes particularly interesting. The recent New America report saying that Peter and his colleagues were unable to find concrete evidence that the NSA surveillance of metadata had resulted in an appreciable impact on on foiling terrorist plots. So we have this set of legal implications, which if you're an institutionalist, if you care about little things like the Constitution or the balance of power is an enormous deal. But you also have this question of is war is war footing? Are the activities associated with war the right way to counter terrorism? And are they the most effective way? And the fascinating thing about this to me as a policy geek and a government geek is that the effectiveness conversation is the one we're not having that you have you have a report come out saying actually perhaps surveillance doesn't help. Perhaps that kind of metadata is not indeed as key a factor in preventing terrorism. You have someone like Danny Blair, the admiral and former senior intelligence official say, you know, all the effort we put into coordinating military and intelligence activities with Pakistan is getting in the way of the longer term activities, which are actually much more important to solve our terrorism problem in Pakistan. You have commanding general in Afghanistan after commanding general in Afghanistan say we cannot drone our way to victory. You have the President of the United States say this war like all wars must end yet this war shows no sign of ending. We face this fascinating turning point this year. So the first question you would want to ask is actually what is this war that we're fighting under the 2001 authorization for use of military force past seven days after the attacks on 9-11? Obviously, there's the ground conflict in Afghanistan. Combat operations there will end in December, the President has said. So what do we know about what else is happening? Well, from official government sources, we really hardly know anything. We have never seen an official government accounting of how many targeted killings or drone strikes there are, where they've been carried out, who the targets were, how many targets killed, how many civilian casualties, what the intentions were, what the effects were. We, those of us out here in the unclassified universe don't know any of this. Many, many of our elected representatives don't know any of it either. A few of our elected representatives, the so-called gang of eight leadership and senior Intel members know quite a bit of it. But we don't know what they know because they can't tell us. And so we, as a society and even our elected representatives, are simply unable to sit up here and say to you, this is working, it's not working, this is the right approach, this is the wrong approach. What we think we know, thanks to the work of New America and a number of other organizations that have worked very hard to gather up this data, is that you had an aggressive expansion of a targeted killing program aimed at both top alleged terrorists and lower-level folks, but which seems to have peaked in 2010 and started to decline again. Similarly, you seem to have had over that period a dramatic decline in the numbers and proportion of civilian casualties or collateral damage in such raids. And particularly in the last year, you seem to have a turning away from targeted killing towards more interest in the kind of capture that you saw with Al-Libi, as Peter referenced, in the Libya operation last fall and that may have been part of the aborted raid in Somalia carried out at the same time, although there again, all we know is that there was an aborted raid in Somalia. So it's very difficult to say, and most reputable counterterrorism analysts will not get up and blanket say, this works, it's a great program, this doesn't work, it's a terrible program because you can't reckon the costs one way or the other. From the point of view of a legal institutionalist argument, if the Constitution says, and it does pretty clearly, that it's Congress's job to declare war, how does Congress think about whether this is a war that wants to be in or not? How does Congress make up its mind? How do those members of Congress who aren't getting the intel information make up their minds? How do we, as citizens, make up our minds about whether this is an effective way to keep us safe and whether the tradeoffs that it poses between how we define our values and constitutional norms as Americans and how that is part of our global power and what keeps us safe against the convenience of getting rid of someone, not just convenience, but safety today or tomorrow, who might be threatening us today or tomorrow. So the first step here and the interesting thing, as we'll see, is this is both broadly agreed and has very little prospect of happening, that there needs to be a much greater understanding of what it is that the government is doing and what it believes the justifications for doing it are. Last year, we learned because of the leak of a memo from the Justice Department that, in fact, and then we've subsequently heard in public speeches as well, the administration has three different justifications for undertaking targeted killing or other acts involving the use of force overseas. And one is to invoke the 2001 authorization for use of military force against al-Qaeda, against groups or individuals or states that planned, carried out or harbored those who planned or carried out the 9-11 attacks or associated forces. And here we start to get into some iffy definitional questions and having worked in the Clinton White House, I always have to promise not to make. It depends what the meaning of is jokes are. But it depends what your meaning of associated forces is. And then you get into justification number two. The U.S. Constitution says that the president may use force without asking Congress first to defend against imminent threats. So it depends what your definition of imminent is. And there's a fabulous section in this leaked memo, which talks about imminent as not really meaning imminent in the way that I understand it as in imminently Peter is going to tell me to stop talking and let someone else speak, but imminently in the sense of, well, if we get to the point where it actually is imminent and we didn't do something about it when we could have done something about it, then the moment where we could have done something about it counts as imminent. Now, that's an interesting definition of imminent and I'm not a lawyer. But to what level do we, the American people, or at least our elected representatives, need to understand that? Justification number three is that international humanitarian law says that states may use force in self-defense. But what constitutes self-defense? If ISIS in Iraq is threatening the Iraqi state and Iraq is a partner of ours, is a state that we have agreements with, but not a treaty ally, does that constitute self-defense? If we know about an al-Qaeda attack imminent not against the U.S., but against a NATO ally, does that count as self-defense? If we know about an attack on a shopping mall where Americans might be targets, does that count as self-defense? And those are all really hard questions that there aren't flip easy answers to. And anyone who tells you, well, the obvious answer is X or the obvious answer is Y, that's just wrong. But what we do know as a society is that at the moment we don't understand how those decisions are being made, and either you basically trust this administration and wonder how the decisions would be made under another administration, or you basically don't trust this administration and don't like the idea that they're making decisions without oversight. And either way, you might come out with the idea that completely apart from your views on the actual legality, morality, wisdom of any of the elements that make up what we're doing under the AUMF. It's time for a review. Now, here we come to the fun of American politics. And when I started working on the piece, the great minds at democracy were very keen to draw a comparison to the 1970s and the great national security reforms that took place then. And I think it's worth highlighting what's similar and what's different about the great reforms of the 1970s. And first, you had just come through a war into which Americans had been drafted and in which hundreds of thousands of American lives had been lost. Second, you had a continuing string of embarrassing intel revelations, including, for those of us not old enough to remember this, that the CIA had stockpiled enough toxin to assassinate thousands of world leaders. And you had a degree, I don't want to exaggerate this, I don't want to say that the 1970s were some sort of halcyon moment, but there was a degree of partisan comedy around these issues. So it was possible to have a debate and to formulate reforms like the War Powers Act that commanded some support, although not a lot of support, and they were very controversial and considered very watered down by both parties in Congress. The last point that we had in the 70s that we don't have now is that within each party, you are more so in the Republicans perhaps, but you had something of a coherent idea about what each party stood for in terms of what American national security should be and how it should be secured, and you had a degree of party discipline. The fascinating thing that you see as you're heading into 2014 and thinking about the politics of these issues is the biggest debates about what to do about the AUMF are not between Republicans and Democrats, but they're among Republicans. They're between Rand Paul, who wants the president to have to come back to Congress any time he wants to use force against any terrorist group, and Lindsey Graham, who says we are at war, the earth is the battlefield and the president should be taking the fight to the battlefield, the whole earth, and basically you can fit every Democrat within that continuum, so when you have one party that really truly has and, you know, not just among sort of random people in the party, you have Rand Paul and Chris Christie fighting in public about what are adequate and appropriate counterterrorism measures, two of the most talked about possible presidential nominees, so at the most profound level in the Republican Party, you don't have agreement about what our counterterrorism strategy is or should be, and in that situation, it's very difficult to be part of a well-thought-out reform process. On the Democratic side, you have the fact that your party is in power and you don't want to embarrass your president and you have a lot of other things on your plate, and you have this White House saying, and frankly, anyone who's watched Congress in the past six months with some justification, well, yes, as constitutional lawyers, it would be much better if Congress fixed this, but we don't trust you guys to do it right. You know, if you can't deal with the debt ceiling, if you can't deal with the budget, how can we trust you to deal with the power of war? So we're in this odd moment that US combat troops will leave Afghanistan in December 2014. The war that Americans thought we were signing up to fight will end. This authorization, in all likelihood, although there is a repeal bill introduced in the House by Representative Adam Schiff and a proposal being talked about on the Senate side, floated by Senator Corker, in all likelihood, nothing will happen and we will enter 2015 with this sort of oddly outdated authorization to fight a war against a group of people who, with really one major exception, are all dead or in custody and their successors, associates, ill-defined. This, most people believe that this is legally okay, obviously, from a policy and propaganda point of view, it's a little dubious. There is the interesting question of whether you're still allowed to hold prisoners at Guantanamo after you are no longer fighting the war, which you were authorized to fight. Now, after World War II, there was a wind-down period of some years. This doesn't mean on January 1st the gates need to pop open. But it becomes harder and harder, and with due deference to the legal questions, it becomes harder and harder in the court of public opinion to explain what it is that we're doing and why we're doing it. And that, ultimately, the biggest reason to look hard at this issue and to have conversations like this and lots more of these conversations in 2014 is, frankly, not because of the institutionalist concerns, not because of the balance of power between executive and legislative, not even because of human rights concerns, but because if your goal is to defeat terrorism, and if you have a long-range strategy that depends on fewer people in targeted countries taking up terrorist tactics, you have to be able to explain what you're doing and how you're on their side. And a war, which is sort of a war, sort of against you, sort of not against you, we're not going to tell you what we're doing. We can't really tell you why your neighbor's house got blown up, and we can't have an honest discussion. We can have a clear discussion. We can only have a super-propagandized discussion about who was killed, who wasn't killed is, from an effectiveness point of view, a problem. So the challenge in 2014, in my view, and I'm actually hoping to pick fight a little bit with the panel, is actually not to get wrapped up in War Powers Act reform or in, you know, sort of how many senators on what day can bar naming who as a terrorist group. But it is to have a national elite conversation, and a national public conversation about what it is we want to do to deal with the post-post 9-11 problem of terrorism and what authority is a president, any president, this president, the next president needs to counter them, how we enact those in a way that uses our legal system, our military, and all of the frankly longer term and much more important diplomatic, economic, cultural aspects of counterterrorism policy as all working together to make sure that we keep going forward and frankly, don't get stuck not just in the name of endless war, but the actual kinds of casualties and horrors of the war that we saw in the last decade and don't want to see again. Thanks. Thank you, Heather. That was brilliant. Ben. So I have a bit of a cough, and so if I burst out coughing, please subscribe, no content to that in any political direction. So Peter asked me to give a sort of overview of the sort of legal issues surrounding the AUMF in 15 minutes, which is a bit of a project. So I'm going to just try to speak really quickly. About a year ago, three colleagues and I, Jack Goldsmith, Matt Waxman and Bobby Chesney, sat down and thought we would rewrite the AUMF. And the idea here was that we were more than 10 years out of 9-11. The AUMF is an instrument that is very focused on a response to 9-11, and we were fighting a conflict that no longer involved groups that even existed at the time of 9-11, though a lot of them had embraced the name Al Qaeda in various parts of the world. And so we thought, you know, if you were a lawyer in the executive branch or in the legislative branch and you were concerned with what I think of as sort of basic constitutional hygiene and you were committed to having an authorizing document for this conflict, it would be better not to say what we were doing was illegal or improper, but you would prefer to be operating on the basis of an instrument that describes the conflict you were fighting rather than the conflict that you were fighting 10 years earlier or that you thought 10 years earlier that you might be fighting. And so we tried to sit down and imagine what would a Congress that wanted to, A, authorize, B, limit and, C, define the scope of the conflict that we were actually engaged in, what would that Congress actually write? And we wrote a sort of an options paper with some choices, which I'm happy to discuss in the Q&A, the details of to the extent you all want to. And this provoked, we released I think in February of last year, and it provoked a pretty raging debate in the sort of legal circles that work on the sort of law of the conflict for a period of about two months until the President's May 23rd speech at the National Defense University. And in that speech, the President said, as Heather quoted, that this war like all wars must end. And as part of his conception of the end of the war, he announced very clearly, and I have to say I admire the clarity with which he said this if not the degree to which I understand quite what he meant. But he said very clearly that he would not sign any law that attempted to expand or continue the AUMF and would work with Congress toward its narrowing and eventual repeal. And so I stand here before you sort of a year after co-writing this paper to say that at least in the short term, we were completely and utterly defeated in our efforts to extend, define, and add definitional contour to the conflict. Which raises the question why this issue is still important, if it is. The President has said he's committed to bringing this war to an end. We're moving people out of Afghanistan over the course of this year. And we have developed a remarkable series of legal fictions that everybody seems, if not content with, more or less comfortable being uncomfortable living under, in which we get to continue the fight even though we're pretending that the war is over. And roughly speaking, those legal fictions work like this. We continue to do drone strikes using, in various places in the world, using three basic ideas. One is that forces associated with al-Qaeda are co-belligerent with al-Qaeda for purposes of international law. They've joined the fight on the side of al-Qaeda and therefore we're entitled to attack them. Number two, to the extent that that might not be the case, we're entitled as an independent matter of international law to engage, as Heather said, in self-defense. That means if there's an imminent threat, you can use lethal force to repel it. Now, that's true both for international law purposes and for domestic constitutional law purposes. And we define imminence rather broadly. That's not a new thing in American legal affairs, foreign diplomacy. We've done that, I think, at least since the 80s. But the notion that we use of imminence is one that is relatively capacious. And so number three, ever since the president's speech, we've said we're only going to target people with lethal force when their capture is not feasible. And this puts a similar stress on what the definition of the word feasible is. So you can say by taking a capacious notion of associated forces, a capacious notion of imminence, and a narrow notion of feasible, you're able to do a lot of the things that you want to do either under the current AUMF, continuing under the AUMF, or even as you move the AUMF towards obsolescence. Now, everybody hates living under the AUMF. There are people who pretend otherwise. But in fact, nobody thinks, almost nobody, thinks that continuing to operate under a more than decade-old instrument that describes a different conflict, this is not a good idea. But we do it anyway, and the reason we do it is that it's everybody's second worst option. From the administration's point of view, there are operations we still need to do, and Heather alluded to this, it's an important tale that wags the dog. There are people at Guantanamo we don't want to release. There are operations that we want to conduct. This is the authorizing document for those operations. It's a real problem to not have an AUMF. But you also want to be the president who is ending wars. You believe in that? That's part of your self-conception. And I think he's entirely sincere about that. And so the best, the least worst option, as Rumsfeld might say, is to continue to rely on the AUMF while promising that you are moving it toward obsolescence. And this is a sort of convenient fiction for the administration, which has even elements of nonfiction associated with it. Importantly, when the Defense Department testifies about what the AUMF allows them to do, they sound very different than the president sounded at the May 23rd speech. And a few weeks before that speech, senior officials of the Pentagon testified before the Senate Armed Services Committee, the document that they described sounded like a human rights group's nightmare of endless war anywhere in the world. So why, on the left side, the human rights communities, the AUMF is this horrible, endless war, geographically unlimited. But there's one thing worse than the AUMF. And that's what we proposed, which is codifying some prospective authority that pulls away the fiction that this is winding down to an end. And so, you know, from the human rights community's point of view, there is actually something worse than the AUMF, which is no AUMF. And from the rights, or sorry, replacing the AUMF. And from the rights point of view, the AUMF, there were a lot of people on the right would agree with, at least the Lindsey Graham right, would agree with people like me in principle that ideally you would want a document that reflects the war we're actually fighting. But here's the problem. Once you open it up, they're afraid you'll limit it. And so everybody has a preferred option. They go in very different directions. But everybody's second worst option is the current status quo. And that is why we are going to continue living under a very old document. And we're going to interpret it at any given moment in time to allow us to do the things that we're doing. Now, if I sound contemptuous of this as a compromise, let me say I am. I think it's a bad, unhygienic from a constitutional democracy standpoint, way to go about it. But the truth is that, you know, we lost that discussion. And I'm at this point a little bit resigned to the fact that there is not a broad constituency for what I think would be the better, healthier way to do this, which would be to talk about, have a serious conversation like the one this event is about, which is what are the things that we want? Where are the places we want to be fighting a conflict, if any? What are the groups we actually want to think of ourselves at war with? Who do we want to authorize those extraordinary powers against? And what are the mechanisms that we do and don't want to use as a way of defining this? Now, in defense of our political system, let me just say that this is actually a really hard problem. It's hard politically. It's hard in terms of the geopolitics. What are the countries in which you want to think of yourself as in military conflict? Where would you never use military force? What are the groups you think of as just groups that call themselves al-Qaeda, but really they're just sort of garden variety terrorists? What are the groups that you really think meaningfully are groups you would want to use military force against? These are very, very hard questions. And that's just the political and strategic side of it. The legal side of it is really hard. If you declare a state of armed conflict legally against certain groups, normally we think of that as an authorization of the use of force as a fairly static instrument. You're authorized to attack Germany and its allies. You're authorized to attack. You can define that pretty easily. If you have a world in which the enemy is ever changing, how do you deal with that legally? This is a very, very hard problem. And one that, you know, there are no perfect answers to. Congress is not so good at really hard problems right now. And, you know, one of the things that's happened in the last year since I worked on this paper was that, you know, Congress couldn't couldn't keep the government open, right? Relatively easy problems that, you know, are not the sort of thing you would think they actually don't require huge intellectual investment thought, you know, should you pass an appropriations bill such that the government of the United States doesn't shut down. And I do think that there is, you know, one virtue you can say about the current environment. And I know there are people in the audience who will not see this as a virtue, I flirt with the idea that it's a virtue. Is that it is static and self-perpetuating. If you don't do anything legislatively, the authorities persist. And we don't lurch from crisis to crisis, at least in terms of the basic legal authorities. So I would say that in some weird sense, I too see the current situation as distasteful as I find it. As the second worst option. And I think having, you know, what would be the best option is if we could have a serious discussion about what sort of legal instruments we want to govern, you know, the next 10 years or five years of the conflict. What would be the worst option is if we lurched from option to option so that there was the kind of uncertainty in overseas military operations and overseas counterterrorism operations that we have seen in say fiscal matters. I'm going to stop there. Thank you, Ben. That was also brilliant. Like her. Thank you so much for getting the opportunity to come down and speak to everybody. And I want to thank New America, who has been at the forefront of a lot of these issues for quite a long time. And for the better thoughts from the panelists who went before me, I just had five relatively, I think, quick points which touch upon some of what has already been addressed, but maybe provides it in a slightly new light. You know, one of the things that is worth thinking about is the extent to which the capabilities the United States has to conduct some of these operations has morphed significantly since 9-11. You know, one of the I spend a lot of time talking to people in the military and much fewer people in the intelligence community, but certainly in the military, one of the things that makes them distinctly uncomfortable among senior officers and general officers is the extent to which the use of military force is an extremely easy thing now. It used to be, there used to be larger logistical diplomatic political hurdles to using force. And the use of force is now a pretty easy thing to do. And one of the ways to think about this, my own topic is just with unmanned aerial vehicles in on 9-11, the United States had 167 drones, three or four of them could drop bombs, period. Just last month, the Defense Department released its latest unmanned aerial systems road map. DoD now has 11,000 drones somewhere between 350 and 400 of them can drop bombs. And it's important to remember that this capability really emerged. If you go back and read the 9-11 Commission and some of the debates around the ability to find military options to go after Osama bin Laden was that the Clinton administration is specifically seniors in the National Security Council were never comfortable with the options the military came up with. It was using the Northern Alliance. It was a huge logistical footprint. It would cost billions of dollars. You would have to put in an armored division, and they were simply unsatisfied with it. And the solution, which was developed by a small number of people in the Air Force, in the Directorate of Operations, the Joint Staff, and in the CIA was to put a missile, an anti-tank helicopter missile on a platform that was created simply to spy. And what that platform did was it provided three immediate and inherent advantages over all other weapons platforms. One, the ability to persist over a target for much longer periods of time than you can with manned aircraft. The second is the responsiveness, where you have the surveillance and strike platforms made. And the third obviously doesn't put service members or pilots at risk of being captured or killed in hostile environments. And that's a significant change. And subsequently, this capability that was developed to kill one guy has killed something like 3,600 people in non-battle field settings since the first one on December, I'm sorry, November 3rd, 2002. So there's been something, by my count, about 460 targeted killings, about 99 percent of them have been simply with drones. And it's important to understand that the drone is the distinct reason for a lot of these. There was at one time a strong, enduring, normative opinion among the Indian intelligence community and the military that we don't conduct non-battle field killings of this nature. And it was the position of the U.S. government in particular to admonish other governments who did it, specifically the government of Israel. And what was once largely unthinkable in a lot of, among a lot of communities in the U.S. government is now fairly routine. And the number of strikes have come down, as Heather pointed out, a peak in 2010. And the reason that the number of strikes peak in 2010 in Pakistan specifically is because they match directly with the surge of U.S. forces. And they also, if you map the number of air strikes in Afghanistan, which you can find is an unclassified number, they also sort of match the same. The second capability of special operators and here special operations command, you know, at one time I know there was something like 10 Hollywood movies either in theaters or in development of just about the Navy SEALs alone. Special operations command is doubled in size. Its budget has more than tripled, now deployed in over 100 countries. Admiral McRaeff and the current head of special operations command has a great line, which is everyone was really attracted to the Osama bin Laden raid. And he said, actually it wasn't very sexy. It was a very standard raid. We did 11 similar raids that night in Afghanistan. And the ability of special operators combining fusing intelligence collection and going after time sensitive targets is just changed exponentially. And everyone you talk to in the special operators world will tell you this. I can go into some detail if you're interested about a case study I studied very closely where it was in the summer of 2002, the Bush administration almost authorized a strike in Kermall in northern Iraq, which was against where Al-Zarkawi, who later became the head of the Sunni terrorist groups in Iraq, was living and they almost went after him. And it was a complete disaster. I mean, from start to finish, they had months and months to plan and they never had confidence in the capabilities and the risk associated with the mission. Now conducting a similar raid would be a fairly routine and fairly standard. The third capability is offensive cyber capabilities. And as we learned from the one of the recent leaked Edward Snowden documents in 2011, the U.S. conducted 231 offensive cyber capabilities. These are beyond just Stuxnet, but the ability to disraid, disrupt and destroy an adversary's computer networks. And if you go and you go and reread congressional hearings about what are the situations under which the U.S. will use offensive cyber. What is the strategy? What is the supporting doctrine? What is the understanding for one such missions can be undertaken? Nobody seems to know. It's always under development, under review, but not quite there. So it's important to understand that capabilities that were nascent or far less developed on September 14th when Congress passed the AUMF are radically transformed and more enhanced and sort of more standardized throughout the U.S. government. The capabilities that did not exist now exist in great abundance. The second issue I would just mention is that people have discussed this. We've never been told who we're at war with. Al-Qaeda and associated forces is sort of a convenient tent. But if you refuse to articulate the scope of who you can go after, it's really hard to assess when the war could end and how well you're doing. There are various bits and pieces for how you could try to figure out who we're at war with. There's the biannual White House War Powers Resolution Report where they list some countries where military operations occur, but there's a classified annex. Apparently more detailed. The State Department has something called the Foreign Terrorist Organization List. Currently there are 57 groups who are considered Foreign Terrorist Organizations. By my count, something like 9 or 10 of them have been targeted by the United States with lethal force. But we've never been said whether you have to be an FTO, a Foreign Terrorist Organization, to be lawfully targeted. And if you actually look at the State Department and you add how many people are members of those FTOs, there's something like 10,000 different people. So the scope of targeting is quite is quite bigger than you'd think. It wasn't until February 2013 that Senator Ron Wyden, who's a member of the Senate Intelligence Committee, was provided a list of countries where the US uses lethal force. And it wasn't until May 2013 that the Senate Armed Services Committee was told who is directly targeted with lethal force under Title X military operations. At a hearing in May, Michael Sheehan, who was at the time the Assistant Secretary of Defense for Special Operations, low intensity conflict, he said, I'm not sure there is a list per se. Levin was then apparently provided some list. That list has never been made public. And when the Pentagon spokesperson was asked why has been made public, he said doing so would cause serious damage and national security because elements that might be considered associated forces can build credibility by being listed by the US. We cannot afford to inflate these organizations by naming them. So it's important to understand that the reason we don't know who we're at war with is because the Pentagon is worried that these groups will brag that they've been named and have been targeted. Which leads, of course, these groups don't need additional fuel for their PR efforts anyways. But this is the official reason why we can't know who we're at war with. The third issue which people have discussed is the AUMF is not merely out of date, but it's really deeply misleading. The notion that Al Qaeda and associated forces, it assumes a sameness to all the scope of targeting. It assumes that individuals targeted in Pakistan are the same as individuals targeted in Yemen as the same as individuals targeted in Somalia and in Libya. It's really not true at all. That's an immense operational fiction. The types of targeting the US has done in Pakistan, which is primarily about force protection for US individuals deployed in southern Afghanistan. It's primarily about going after individuals who want to attack what they consider the apostate regime in Islamabad, very different from who the US has gone after in Somalia, very different from AQAP elements who have been targeted in Yemen. Even in World War II, Congress declared war against six specific states. Everyone, all the Axis, got their own congressional declaration of war. And that only lasted, you know, five years. And here you have the situation where we now are 13 years in, anyone that's an Al Qaeda and associated force who is explicitly not named is sort of provided under the same umbrella. The final issues or one other issue is that another significant shift since 9-11, which is worth considering is what I consider outsourcing outsourcing lethality. And these are lethal strikes by other states who receive firepower and intelligence, targeting intelligence to the United States. So since 9-11, the US has provided targeting intelligence for lethal strikes by Pakistan, Turkey, Yemen, Ethiopia, Honduras, Uganda, France and Iraq, at least. According to State Department reports, a lot of these air strikes result in civilian casualties. It strikes me that if the US is concerned about who it targets with lethal force and what sort of civilian protections they should be provided, it might be worth part of the conversation to think about when the US provides the enabling logistical or intelligence support that allows other countries to kill individuals. Final issue is the politics of this. Obama has said on many different occasions that he wants to engage with Congress and the American people and repeal and repeal the AUMF The problem is that this message has not been received by the Commander-in-Chief's message, hasn't been received by the rest of the US government. At the May hearing with a number of Pentagon officials said, I think the AUMF currently structured works very well for us. Caroline Cross, who is the Consulate General, the lead lawyer at the CIA in her December congressional hearing, she also said, I believe the AUMF has currently drafted a sufficient and the interpretations adopted by this administration is legally available interpretation. So there's no appetite within the individuals who actually conduct the operations for changing AUMF. And I think unless there is high level sort of senior demand for it, it's never going to happen because you have to make the operators comfortable before senior civilian policymakers will have the courage to sort of implement change. I'll just add by or close by noting, I was reviewing all of the sort of op-eds and congressional speeches and editorials around the week after 9-11. And one of the things that a lot of constitutional lawyers and military officers were happy with was the narrowness of the congressional mandate that was bestowed on President Bush that this was nobody thought at the time that the U.S. would be at war for 13 years or would have used that mandate for 13 years. President Bush at his great speech, he gave the National Cathedral Prayer Service on the evening that Congress passed AUMF. He says, this conflict was begun on the timing in terms of others. It will end in a way and that an hour of our choosing seems that the discussion about when that hour comes is now ours to have given that the individuals directly capable for the events of 9-11 are largely longer with us. Thank you. Thank you, Micah. Well, Ben, if you were rewriting the AUMF today because it seems to me that perhaps you and Micah are sort of in agreement, which is what we need is an AUMF that names our enemies specifically. Who would be on the list? I mean, where's the cut off? So I presume Al Qaeda would be on the list. So look, there's, broadly speaking, there's there's three ways to do this if you're Congress. One is to make an itemized list of the groups that you want to authorize force against. Now, this is the traditional way to do it, right? You know, you are authorized to use force against the imperial government of Japan. You are authorized to use force against the perpetrators, the individuals, the persons, states, organizations responsible for 9-11 or those that harbor to them. You're authorized. So one is to name the target organizations, groups, states, people specifically. Now, this is impossible to do in the current context because organizations change and they change their names. And the more specifically you name them, the more quickly the instrument becomes useless. And this has been a problem even under the AUMF. It's why the words associated forces, which actually don't appear in the AUMF, have taken on such weight because, you know, a series of organizations have sort of shown up in the conflict that weren't, you know, that aren't obviously described by the original document. So the second option is to describe the category of organization and then leave it to the executive to figure out which organizations at any given moment in time do and don't meet those descriptions. So it's a practical matter. I think there's little debate that Al Qaeda would be on your list. However, it's categorized. Correct. So what about a group like Lashkar-e-Tayba, which has killed Americans and actually sought out an American target in Mumbai in 2008? Where would that would that be on the list? So look, I mean, I, you know, I have always refrained from I'm not an analyst of the groups. I'm not I'm not a terrorism expert. And so which groups belong in which category is really frankly beyond my expertise? What I work, what a hypothetical. This is a group that attacked Americans specifically sought out an American target overseas. Forget about the name of the group. Let's say that this group is called just we hate Americans. Would this we hate Americans group be on your list? So look, I don't think that hating or targeting Americans is in and of itself enough to justify military conflict. There are a lot of groups in the world that don't like Americans. There are a somewhat smaller subset of groups that actually do something about that. To me, the what made the AUMF worth passing? Look, Hezbollah has targeted Americans. Yeah, about 20 years ago. I mean, right. But, you know, we did not pass an AUMF that that said, go, you know, obliterate Hezbollah from the face of the earth in response to that. That he is. And so, you know, what what made Al Qaeda and what made the AUMF, you know, worthwhile in my judgment, was a sudden sense that there was a group of global reach that was at that time projecting force against us and that we lacked law enforcement means of confronting because they were camped out in areas of the world in which the rits of our courts don't run and frankly the rits of other countries courts don't run either in any meaningful sense. I think that is reasonably approximates the the category of group that I would want to see us continuing to exert military force against. Michael, what's your view? I mean, my primary concern is not what legal support the president receives or has to conduct operations because the president can always as Commander-in-Chief one, he can declare an inherent right to self-defense to he could for any covert operations, any title 50 operations can sign an individual president from a memorandum of notification to conduct any operation and report it to the appropriate committees he can place as he did under the Osama bin Laden raid special mission units from the US military, put them under title 50 authorities, call it covert. This happens all the time. So the the means by which the president can target individuals is pretty limitless. What I'm more interested in is the credibility and assessing the honesty of what the US government is doing. And this gets to the only way you can really do this is to have some sense of who is being targeted, which is why I would be quite happy if the US named the individual groups who are being directly targeted because it's very difficult to assess effectiveness of strategies unless you do. If it's just always a morpheus shifting target groups change names, etc. Well, then what are we doing? I mean, last in 2012, there was 15,000 fatalities from terrorism. 10 private US citizens died from terrorism. Most terrorism has nothing to do with America, nothing. When we see it emerge in areas of North Africa and the Middle East and South Asia, it has nothing to do with us. And we should be limited very narrowly and laser like on those individuals who do pose a threat to the US homeland and potentially US diplomatic services abroad. But that's very few people. Peter, if I can jump in and actually try to draw those two together, Ben, you didn't draw the consequences from from your criteria, but I will that if you if you put criteria that limit it to groups with a global reach and groups that are explicitly aiming at targeting Americans in some kind of large scale more than targets of opportunity way, that, in my view, eliminates most of the groups that commonly get trotted out now when we get told what a threat resurgent al-Qaeda linked terrorism is. And again, it's, you know, hard to I would not like to have to have this fight with someone who has access to a lot of classified, but we do need people who have that access to be having that discussion on our behalf. Well, by the way, Heather, I think you can have that discussion based on public information. Let's say an American is killed in Syria by an al-Qaeda affiliate, right? This is a public event. So the notion that somehow there's this realm of classified data which prevents us having a serious conference. It's just that's an analog about the drones, right? Drones are public events. The drone attack is a public event. But actually, I would counter that. And as much as it's a painful tragedy, any time an American is killed anywhere in the world, and someone who travels and has family members who travel is something that concerns me greatly. When did one American getting killed somewhere be a reason for our country to go to war? Is that the definition of war that we as a society want? And if it's not, then you have to base your judgment of groups on something other than they killed one American because that means that they're trying to do what al-Qaeda was trying to do in 2001 and collapse U.S. society. And, you know, Lashkar-e-Tayba is actually a great example of that, a nasty group that nobody should have any sympathy for that definitely would like to do harm to any Americans it could easily get its hands on. But do we have any evidence that they are planning to do anything that harms us foundationally as a society? No, we don't. So there are a couple other confounding variables here. One is that the enemy does get a vote as to whether you are in a conflict with them or not. And, you know, this is this is not to say that everybody who stands up and says I'm at war with America should we, you know, give that vote it's due. But there are groups who, when they say it, you know, we've learned from some experience that they mean it. The second thing is that groups that are affiliated meaningfully with groups we are at war with. I mean, the concept of co-belligerence is not without meaning. Now, whether it means as much as the administration has put on it, I will actually defend what the administration has done on that. But I understand it's controversial. Whether or not you would go that far, it surely isn't irrelevant that a group sees itself as a wing of al-Qaeda, that a group has joined sees itself as having joined the fight in, say, Mali against a government in the banner of al-Qaeda. And so the question of how seriously you take the pronouncements and ambitions of the constituent affiliate groups is a very difficult one in sort of defining what you understand the proper scope of the conflict. If you're rewriting the AUMF, how would you rewrite it? So you would have to, Congress would have to have a debate and say we are at war, this is what we are at war with. And I actually, I quite like Ben's criteria, groups with a global reach and an avowed goal of harming core American interests. And who would you put on that list, your list? I actually, I don't know that I would take the list approach at all. Well, just I'm just asking your opinion. Who should be on that list? OK, so core al-Qaeda, maybe al-Qaeda in the Arabian Peninsula and maybe al-Shabaab based on what we saw about the training in connection with the raid in Kenya which looked like it had sort of core al-Qaeda quality to it. And so this gets to Ben's point, which I think is a good one, which is this list would kind of have to evolve because you wouldn't have put Shabaab on this list before the Kenya mall attack. Right, and I don't know that I would now, as I said. But the point is it would be an evolving list because, and you might also get off it at a certain point. Well, and then. Hasbola would have been on it in 1983 and wouldn't be on it today. This brings you back to this kind of second worst of all possible worlds because you don't want, you don't want everybody to sort of stay on. You don't frankly want it to be like FISA where you have the authorities and then you sort of can't go back and revisit, do we need them? You don't want this authority to be, this statute to be in ten years just like the statute we have now. So how, given the brokenness of our legislative system, I don't have an answer for how we design a war authority that doesn't become static in exactly the way that you described. It raises a bigger issue, which is when are we not at war just real large? Well, and this actually frankly comes back to the questions that Micah raised, which is as it has become easier and easier and easier to use lethal force, how do we institute real oversight and protection and democratic decision making about this whole category of near war? Which frankly, we're going to see a lot more near war than we are going to see actual war. Well, here's a question for all of you then. I mean, one approach you could imagine that is sort of more than just a US approach is to have some kind of Geneva protocol and all convention about the use of force that would be, well, obviously drones would be the kind of issue that you'd focus on. But in a sense it's about in what circumstances can states use violence outside their own borders in a way that we all agree collectively as a, is that would that, I mean, the Geneva convention has been written on a number of occasions, would that kind of approach work and is that a discussion worth having? It's very much a discussion worth having. There is no substantive agreement even between the US and its allies as to the answer to those questions. And I think the likelihood that you could get agreement as to, I mean, it comes back to these questions of how imminent does a threat have to be? And, you know, there has been some convergence between the United States and the European governments on those questions. There has not been a lot or there's not been complete convergence. And I think the idea that you could get a written document that even the United States and Europe could agree to is improbable and what you've seen in our international relations with Pakistan is that there is zero agreement as to, although there are accommodations, but there's no conceptual agreement as to when you have the authority to use force on the territory of a neutral party. Yeah, it took 10 years for the international community to agree that the use of biological and, I mean, to agree that 1925 convention against the use of chemical weapons after the use during World War I. So the fact that there's going to be disagreements about something isn't necessarily a reason to just say, hey, we shouldn't be having this discussion. No, I didn't say that. I mean, I think it is to the extent that you can. And I think, look, the US European convergence has been substantial. What is it? What is it? So the convergence is the Europeans have come to accept a more, a less temporal understanding of imminence than they had. That is, they've moved toward our view of what imminence means, at least de facto. And we have moved solidly toward the idea that imminence is important. And so the president's May 23rd speech said for the first time, we will only use drone strikes, use lethal force in circumstances of imminent threat, even under the AUMF. And now, what that means is a hard question. But at least at the conceptual level, there has been a significant movement both on this side of the Atlantic and on the other toward a more, I wouldn't say, I don't want to overstate it. I don't want to say there's a common understanding. There's a more common understanding. Let me ask you a question for everybody, which is, you all know that the Chinese announced about a year ago that they were planning to use an arm drone to kill a notorious drug trafficker. I think he was in Burma, just over the Chinese border. In the end, they decided to capture him. By the standards that we employ, clearly this would have been a legal strike from the way that we think about threat. Oh, I think not. Because? I mean, we generally speaking, the authorizing document for those strikes is an authorization for the use of military force, which we contend is international law compliant. And as I understand, the Chinese position toward drug lords, this was a law enforcement operation. We don't really blow people up in law enforcement operations very often. Really? I mean, doesn't this get to the right to the heart of this whole issue, which is, this guy, I think, had also, he kidnapped 14 Chinese, I think, sailors. He was more than just a conventional drug trafficker. I mean, isn't this the whole point of the discussion, which is, this is an example of somebody who posed some kind of military threat to the Chinese, in their view. I mean, he was kidnapping their servicemen. And he was outside. He wasn't feasible to capture him, at least initially. I mean, and this gets to the question of this kind of Geneva Convention or protocol idea, which is surely, since the Chinese have already demonstrated that they can, they may well use, basically, our own rationale that we need to have some kind of international rationale here that is agreed to, even as complicated as it is. I mean, I don't think the analog would be a Mexican drug cartel type who is not posing an imminent threat to any hostages, but in general causes, poses a significant threat as a general proposition. We, A, don't use drones in those situations. We consider them law enforcement operative. When you take stuff out of the context of the AUMF, you lose a lot of military options. And that's why the question of the scope of the AUMF is actually important. Understood. But, I mean, the drone strikes are not completely dependent on the AUMF. They're also dependent on the Article II authorities the president has, right? So when the AUMF expires, it's not like drone strikes are going to end. So, so, Micah, do you have any sort of views on? Well, I would say, I disagree slightly with Ben, spend a lot of time with European leaders, European capitals. And I haven't seen much convergence. There might be some convergence over eminence, but there is still strong disagreement about what is a direct participant in hostilities and can therefore be lawfully targeted. The issue of signature strikes in particular drives EU countries up the wall. The only... What are our signature strikes? The signature strikes are is a targeting criteria that has a long history in the uses of force and actually began under President Bush, but it's targeting individuals who don't appear on a key list who aren't known by their names, but through patterns of observable behavior and through intelligence collection appear to be affiliated with the group who is therefore targeted. And it's important to understand the very first target killing the US ever did outside of Battlefield November 2002 in Yemen. There were six individuals in a car, only one of them they knew the individual's name. One of them was actually a US citizen and wanted to lock a lot of six. So signature strikes have been with us the whole time. The Obama administration does not acknowledge it conducts them. And there is some rumors that it might have stopped doing them, but they have never publicly acknowledged it. They've done them or that they have stopped doing them. And that's really the disagreement. And just to get to the Chinese issue quickly is that the individual who the Chinese would not technically drone strike, they were going to put munitions or explosives on a remotely pilot aircraft and essentially bomb the little compound he was on. He was eventually captured to Laos, actually. But he had killed Chinese foreign nationals on the Mekong River. He'd taken hostages several different times and had killed them. And by the Chinese definition was conceived of as a continuing imminent threat to Chinese nationals in and out of the waterways of the Mekong River which come into China. And so they made the contention that he could be lawfully targeted. But they decided to capture him just because he was easily captured in Laos. Geneva Protocol, international conventions, norms. Yeah, so the way I would start that, I mean, just to make explicit something that was implicit, it would be enormously helpful for the US to acknowledge that this was a legitimate and even good subject for international discussion. Frankly, because that helps create norms that bind others. And frankly, if the disagreement with the Europeans is still intense in the ways Micah that you described, actually having the Europeans come out and complain loudly in public actually wouldn't be a bad thing in terms of trying to rein in the kind of use that you're concerned about in the Chinese case. So you could imagine starting with series of parallel declarations, these are our principles for how we use unmanned vehicles. These are ours. These are ours. These are ours. And sort of let the marketplace judge, if you will. And there's a great history in arms control and other areas, whereas you say it takes a decade or more to get to an agreement. But you start with this kind of we're going to let everybody else know. And agreements happen when the United States loses its monopoly, right? I mean, then it's in our interest to have an agreement. I mean, we and our monopoly is gone. Yes. On armed drones. Yes. How many countries do you think have armed drones? Mike is the expert on that. Only three states have ever conducted drone strikes outside of their borders. The United States, Israel and Great Britain has conducted about 400 in Afghanistan. They there are there are barriers to developing the capability, though. It's not as going to be as fast as I think some people imagine. And it's important to understand the sort of architecture of capabilities that allows the US to do strikes at a geographic distance. That's not what you're going to see. People don't simply don't have the satellite bandwidth to do that. Which country do you think other than the Chinese probably have a capability or will have a capability shortly? Iran, Russia? Russia is not till 2020 by their latest. Germany has been claiming since 2011. They were going to buy 16. Now the new defense minister says, I don't know. You look at a lot of the deadlines when people say they're going to have drones. They don't meet them. And then there are a lot of countries who make claims about having drones like the Iranians. I don't believe half of what they say. So the Pakistanis have a drone? Not armed capabilities, no. But you will see this capability used in regional disputes because the one thing we learn from the US uses of drones in other states is that they lower the threshold for when civilians will decide to authorize military force. People do things with drones that they would not do with other manned aircraft. They also do things against drones like Iran does against US predators in the Persian Gulf where they both try to There's electronic warfare against US predators in the Persian Gulf all the time. There have been a series of Iranian attempted shootdowns of US predator drones. They don't do this against manned aircraft. Drones are seen as an acceptable way to sort of poke at the United States. But they don't do it against manned US aircraft. And so drones have the capabilities when they proliferate widely to destabilize in ways that other weapons platforms don't. And that's one final question before we open it up. I mean cyber warfare, there are a lot of sort of analogs in a sense to the drone question, right? Because it's sort of it's relevant easy to do. It's potentially, you know, it lowers the cost of attacking. To what extent, I mean, is there a Geneva Convention on Cyber Warfare that we need to think about as well? I mean, there's one place the US and they're trying to do these track two and track one and a half dialogues in various countries or what are the rules of rule for acceptable cyber operations and what is the distinction between essentially preparing the battlefield which is going into another country's information systems to attract to extract information and what is actual kinetic like effects and destroying their computer systems which is a high level. What was Tuxmede an act of offensive warfare or was it sabotage? It was an act of offensive warfare against what we would consider something that was a threat against the US. Just, I think it's worth being very skeptical of the idea of an international cyber norms agreement that anybody would follow precisely because unlike air power even in the form of unmanned aerial vehicles cyber operations are done almost exclusively in secret. They're almost always deniable. They're almost always denied and they're very, very difficult to attribute and that makes compliance very difficult to contemplate. Which actually makes it more important that you develop norms on the air as you can develop norms so that you have even some kind of carryover that says there have to be some limits on what you do with cyber even if we have no prospect of agreeing what they are. We're going to open it up for questions. If you have a question can you raise your hand wait for the microphone so identify yourself. We're beginning with this lady here. Hi, my name is Sahar Khan and I'm a doctoral candidate at University of California in Irvine. I've been studying a lot of these groups and most of these groups have a lot of state support which we basically called state sponsorship. So I wonder whether reforming the AUMF what kind of effect would that have on essentially these states that sort of sponsored the groups. And the example that comes to mind is the Haqqani network. Pakistan was very offended for obvious reasons as to why when they were designated as a terrorist group. So I'm interested to see your opinion about whether reforming the AUMF or changing it or even leaving it as it is what kind of effect does that have on diplomatic relations between states that are fighting or that are operating together on counter-terrorism strategies. Thanks. So on one level the answer to that is probably none. The AUMF is a U.S. domestic statute and under current U.S. law we can attack groups that we think of as associated with al-Qaeda, associated forces of al-Qaeda. And if we re-oriented that law so as to provide a different basis for authorization for force against some all or even potentially more of those groups, right? You would still have the central architecture of some sort in place which is a U.S. domestic statute that authorizes the use of force against certain groups perhaps including groups like the Harkhani Network and those would raise that statute would raise the same concerns with the states in which you are conducting operations as the existing law with one important caveat which is that you know one of the things that the U.S. AUMF whatever it is that we're operating under has to be with to avoid further exacerbating relations with certain countries is arguably notionally in fact really compliant with our international law obligations and you could imagine a certain circumstance in which Congress would want to be very aggressive and would pass statutes that would authorize operations that are not in fact international law compliant. You could really imagine that you know being an irritant in relations with the states in which those operations might take place. With that caveat I think it probably is not a you know not a particularly significant factor one way or the other. You actually raise a really important point if you turn your question around a little bit and unfortunately your question tells us more about the U.S. than it does about what happens next in Pakistan but one of the reasons that the current dysfunctional situation works well for American policy makers and one of the other reasons that we have so little information is that it is quite embarrassing to governments Pakistan in particular but not only Pakistan to acknowledge that these operations are taking place and that they are taking place against entities that as you say there are credible allegations that they receive considerable support. So you're in essence and probably not just in Pakistan working with one arm of the government against the other. Now how do you as a policy matter keep that up if you have to make public if you have to say in advance if you have to say why you did it if you have to say who was targeted that becomes unbearably embarrassing for a government and if you're dealing with say a weak civilian government it becomes potentially lethally embarrassing. Now the last thing to say about that is you can sort of stop the argument there and say well that's a good reason that has to remain secret and by the way a reason that some strikes have to remain under the authority of the CIA rather than be moved to the Defense Department because if they're kept under the authority of the CIA there's less prospect of there being openness and transparency about them or you can say there's a fundamental flaw in a policy that's dependent on the government of the country where the policy is being carried out not being able to acknowledge the policy is carried out and whether or not there are short term effects this policy is not going to have the long term counterterrorism effects that we want. So that's the level of debate talk about the AUMF ought to bring up which obviously would have big effects for Pakistan and other societies but because it is so very awkward and because the short term concerns are real I don't know that I think that's going to happen. When combat operations are over in Afghanistan as you mentioned Heather one of the trickiest items are the 40 prisoners at Guantanamo who are regarded as too dangerous to release against whom there is no evidence that they've done anything wrong. What would you do about them? Well, there is a sort of straightforward solution now if we're not in the realm of politically feasible but there is a fairly straightforward solution which is to bring them here charge the ones that can be charged in civilian courts as we have done with great success with people like Al-Libbi who's not exactly a nice guy and then that gets you down to a smaller number than 40 whom you would either have to flat out release or and this here I come back to my World War II example which is an interesting one the U.S. managed apparently to release everyone we held within a few years now the last German POWs were released not free to Germany but to Britain and France where apparently they were still doing manual labor well into the 1950s so there are a variety of clearly legal and more dubious that people at different places along the spectrum might find more or less objectionable places that those folks can go if the administration were given a free hand to dispose of them without the current restrictions reporting requirements sort of an overhang from Congress now likelihood of that happening not huge so then you're stuck with the counter problem of do you keep them in the U.S. in some kind of not very legal limbo rather than dispersing them and that is going to be a fascinating little problem that Congress has taken upon itself and is going to have to resolve in the next year or so by the way should answer or sharia beyond the on the list who attacked our consulate or so-called consulate in Benghazi I mean what I would say is you know again I'm not a I'm not in any sense a specialist on any of these groups but no their actions I mean would their actions put them on the list what I would say is define your criteria of groups that of what the category what the behavior of groups that you want to authorize force against and then allow the executive to designate groups that meet those criteria subject to congressional review I'm asking you a direct question attacking one of our diplomatic facilities would that get you on your list I mean look I I think that it is always appropriate to use military force to defend your diplomatic facilities and and so I have no problem with the idea that if a group attacks an American consulate kills the ambassador you might respond to that even preemptively respond to that with military force that does not that doesn't give me a moment's trouble So would you be at war with this group or would you just be responding with military force because you have Marines at this hypothetical diplomatic facility so look I have you know I would not pass a specific authorization for the use of military force designated at one group in response to this single attack on the other hand I would have a a statute in place that would allow that group's designation to be covered by an existing authorization Okay This gentleman here Ken Meiercourt, World Ox I agree with the young gentleman here that the damaging of the Iranian centrifuges through the stuck necks of Ireland was an act of war was that attacked just or authorized by the AUMF The short answer is not I don't think And nobody would contend it was Then somebody authorized it then violated the constitution violated the congress's monopoly on declaring war shouldn't they be prosecuted And as a follow-up question is there any sign that well the Iranians are supposedly you know you would expect them to retaliate and there was a case of thirty two thousand computers getting knocked out in Saudi Arabia subsequently that I think a lot of people think was Iran was behind We get into the situation where we could be at war with Iran and the American people don't even know they're at war You raise a lot of different issues there let me take off a couple of responses to a couple of them No conflict with Iran is covered by the existing AUMF The president has independent authority under the covert action statute under which I'm fairly certain any such action would have any stuck net action that we were involved with would have been taken it wouldn't have been done pursuant to an AUMF it would have been done as a covert action I think it's worth mentioning in addition and again just to to get back to the political aspects of this that the members of congress who you postulate would feel that their constitutional place was violated would be falling over themselves to approve that particular action which which leads you to this interesting and you really see this in the history of the war powers act by the way the only time and administration is pressed to fulfill to the letter what the war powers act says is when congress is controlled by the other party so our political approach to this question here has been has been almost always first and foremost about political power and only secondarily about the questions that we're discussing up here and I think I think it's just important to have that clear in one's mind in back right in the back thank you and then the other person in back Hi my name's Benjamin Kraut I'm law and public policy scholar with temple law school just in terms of thinking about long-term unintended consequences of rewriting a document like the a u m f do you believe that or not believe that it would perhaps encourage a culture at peace with the perpetual state of conflict kind of seen with the current maybe get the other gentleman as well bunch of questions together because they're running a little bit out of time here hi there samster just with mclatchy newspapers uh... i was wondering if the panel could comment at all on a specific definitions recommendations for co belligerence you know whether it's al-shabaab or isis or al-nuza front is it funding that they're receiving from core al-qaeda or is it direct contact on a certain you know amount time some future legislation would need in order to kind of make this a little more transparent as to who the actual enemy is and who we can actually attack or respond militarily good questions unintended consequences and what what constitutes a co belligerent with absolute and utter ignorance about the legal definitions of the term what i would want to see in co belligerence is evidence that you have meaningfully and effectively signed up to the global aims of core al-qaeda and i'm i'm sure there would be a good legally validated to do that in terms of long-term effects i completely agree with what the questioner said and it's very difficult to to quantify that you know we referenced briefly at the beginning uh... the a u m f is just if is is invoked to justify the ns a surveillance which of course includes things like uh... the looking at the the correspondence of the leaders of brazil and germany uh... neither of whom last i checked is a co belligerent with al-qaeda and indeed in the german case is a co belligerent with us against al-qaeda so um... you do have this kind of creep and you have had a creep of authorities like that again if it's if it's not only easier to use force for technical reasons but also easier to use force because we're so afraid of terrorism because terrorism produced what we saw on nine eleven unfortunately we have lost a number of u.s ambassadors to the u.s. diplomatic personnel over time and we didn't tend in the past to start wars over it to get back to the question of whether the group that attacked the banghazi consulate in a way having worked at the state department i'd be delighted if we took it more seriously when bad things happened to our diplomats but it wasn't before nine eleven in the american tradition that we would we didn't go to war after the kenyan tanzania bombing attack uh... and so we have drifted as i said in my presentation to this mindset where war is the answer to war is the hammer a state of war is the hammer and then whatever the problem is is the nail and terrorism a very very serious problem that oftentimes war this kind of use of force without explanation without justification without the full participation of the recipient societies not necessarily the best the best tool for and war such a potent political tool at home that we can't have the conversation about what is the smartest way to deal with the group that attacked the banghazi consulate what is the smartest way to deal with what's going on in iraq now we don't we don't know how to have the conversation without using the paradigms around war and our political leaders find it very difficult to have that conversation and not recommend tactics that the public recognizes after this decade of everything being framed in terms of war and and just to follow up on that for you guys it is inconceivable that you know you everybody's reference to president of almas may twenty-third speech in which he said we need to sort of basically and this endless war it is inconceivable that a first-time president would make that speech i think right because the political cost this is something you do in your second term because the political cost in this country now saying something that we all know is true which is this problem has largely been eliminated are are so great if if you know and are at the consulate's attack with somebody who one day was part of al-qaeda in some very loose in that way and the political costs are very very high for saying we should have a discussion about ending or or or ameliorating this sort of state of permanent war is that a sort of legitimate that the political is very hard to have a real conversation about this politically so it is hard to have a political conversation about this politically but but i think for more honorable reasons than that i i i i i think the reason it's hard to have a political conversation about this is that we actually don't fundamentally agree as a society about what the role of you know of of military force and violence is and what the what the weight of our response what what weight we should give to more traditional extra territorial law enforcement tools and what weight we should give to military and covert action tools in the conflict and when you try to define the parameters of the military conflict you are to a great extent addressing that question which is what what what's the is this an extra territorial set of law enforcement problems where you hold the article two powers of the president in reserve for exigent circumstances or is this fundamentally a military conflict that you use law enforcement as a as a uh... you know occasional or even frequent tool of the military struggle and those are very different models for for how you think about it one way or another it is a hybrid conflict but but but you're you're addressing what the weight and what the dominant component of it is and we don't agree on that and that's why the conversation is very hard to have and i think that's a that's actually an honorable reason to have trouble having a conversation i just want to say a brief word on the unintended consequences question one of the difficulties of our current environment it you know and and if you think that in the absence of a renewed revamped different sort of a u m f we will drift something that looks a lot like you feel very differently about that project then if you believe as i believe that in the absence of intervening legislation what you're going to have is a a piece of sufficient military muscularity that it looks like unauthorized low-intensity conflict over very long periods of time i think that is a very i think that's the likely outcome we're going to have a kind of very militarily active piece over the next period of time and that it's going to look a lot like war a lot of the time and the question is do you want to think of that as something that congress defines the parameters of in which case you're in that messy business of pretend of authorizing it and those that will have the unintended or maybe intended consequences of legitimizing it or do you want to deny that that's what's happening and um... let a lot of that legitimacy not happen at the cost of relying to a great extent on article two inherent authorities i am in the former camp i i don't think the president should be doing this stuff on his own to the extent that we can avoid it and i'm willing to get my hands dirty to avoid that and yes i acknowledge that my hands and be dirty michael final i just said that the words of the president any president points to it to justify using military force uh... don't constrain him or her and if the a mf is rewritten or not rewritten it will not make much operational difference in when any president decides he's a military force or not the capabilities exist in great abundance these are broadly endorsed and supported by the american people over seventy percent of americans in every poll support uh... all sorts of drone strikes no matter how you define the scope of targeting appetite on congress for changing this is next to nothing oversight of a lot of these sorts of operations is quite minimal uh... every president wants maximum authority and minimum oversight as does this one as well future ones if a citizen's you care about these issues uh... there's a range of things you can do to make your voice heard and you can try to work for your policy makers do it but on the current sort of uh... track there's a path dependency to this perpetual war on that sobering note uh... i want to thank michael band and have a for an absolute brilliant presentation thank you