tv David Barron Discusses Waging War CSPAN May 13, 2017 2:45pm-4:01pm EDT
>> i didn't use gary cooper. there is your thought, george c marshall and john purging said that in one way or another. >> i would like to invite all of you, 12:00 to 1:00. if you have any questions. [applause] [inaudible conversations] >> the military writers symposium, judge david baron, winner of the 2017 william e colby award for his book waging war, provide a history of the
relationship between the president and congress with regard to war. >> good morning. maybe there is an on off switch? don't touch it. it is working? okay. good morning, everybody. good morning. >> good morning. it is just for the video. let me welcome all of you. the liberal arts faculty college of liberal arts, research fellow at the war and peace center. i would like to welcome you to this timely and important
presentation by judge baron. it is a great pleasure for me, and honor to have you address this crowd about your new book. waging war, the clash between presidents and congress, 1776, i do want you to know that you are speaking in vermont and there was a time when vermont beat congress and the president to declare war. three month before the second world war the university of vermont ran out of money, the legislature called special session to help it out and legislature met sometime during the hearings. any of you hear about this nasty fellow in germany, this hitler guy, he has been going around terrorizing his neighbors and minority groups and before you knew it they declared war on
germany. three month before pearl harbor, i just thought that might be of interest. the constitution states that it is congress who declares war but it is the presidents more often taken us to war and decided how to wage it. in his book, judge baron opens with an account of george washington and the continental congress over washington's plan before the british invasion. congress ordered him not to do so and he obeyed. baron takes us through all the wars that followed. 1812, the mexican war, the civil war, spanish-american war, world wars one and 2, iraq and the war on terror. congress criticized george w. bush for being too aggressive and barack obama for not being
aggressive enough. and recounting how our presidents declared and waged wars, baron shows these executives get their way without openly defying congress. i am interested in the sections of the book that follows the iraq war, there will be a lot of questions on how all this is in the age of the drone and the idea that we may not have large war like this in the future, going to congress and making it obsolete. they came here in the 19th century, his advice the american president has more power under the americans don't know it.
is that true? judge baron, the united states circuit judge, court of appeals. it includes the district of maine, massachusetts, puerto rico and rhode island, the professor of public law at harvard law school, previously served as acting assistant attorney general of the office of legal counsel, the department of justice, commander in chief, at the lowest end, the books that won the prize of waging war, clash between presidents and congress. judge baron will take questions, open the room for discussion. i would ask that those who wish to do so please wait until you
get the microphones and so, judge baron, the floor is yours. [applause] >> thank you for that introduction and for having me here and the awarding of the prize, a wonderful institution, it has really been a privilege particularly the students who have escorted me around, that is it for his role in welcoming me here and my fellow writers who are with me. >> i want to give a little context. it began around 2004-2005, it came in the midst of the war on terrorism, through the
administration in office for broad scope of the president's power as commander in chief. he thought history was written up for stories that a nonlawyer might like, a particular pleasure to address a room of people with few exceptions, the dream of every legal academic, it is a great pleasure to do it. some time later, i was asked to join the obama administration, working for real, and my perspective on the questions were different, they had changed as a legal matter so much but more because the question i was interested in was the right answer legally. and how do presidents and their
legal advisors deal with the real dilemma that is posed when congress is clashing with the president over how to fight a war and i went to tell the story and the history of how those concepts played out, what presidents have actually done so people understand how people grapple with a very vexing problem. with that background i want to start at the end of the book and give you the perspective i had when i was in the office of legal counsel that led me to think history might matter and i will walk through three presidents or three commanders in chief who dealt with this problem to give you a sense of the pattern or tradition i see about how these problems are managed that i think is not as well understood in the age when we talk about the imperial president and the president can do what he wants. that narrative is a powerful
one. and talking about george washington when there was a constitution, lincoln during the civil war, fdr during world war ii, i am cherry picking so the story will sounds better if i pick some others. let me start at the end of the book, i joined the obama administration its first day january 20, 2009. i was returning to the office of the department of justice where i worked as a young lawyer in the clinton administration, the office of legal counsel. it was an obscure office, most people back then assumed it was in the white house and they were vaguely disappointed and mystified when they learned that it wasn't. thinking of my parents in particular. the office was not obscure anymore after all the
controversy that had been stirred up by the positions it has taken on the president's unchallengeable constitutional powers to interrogate, detain and wire top. putting forth those constitutional positions that first appeared, i spent the better part of three years working on a long pair of scholarly articles, it offers little support for a sweeping deal congress had no right to check the president's conduct in war but i was walking down constitution avenue for what seemed like 1 million people lining the washington mall as i began to begin running the office of legal counsel. i would be the acting assistant attorney general until the president's nominee could get confirmed. something as it turned out that never happened. over the next 18 months until i stepped down, addressing these to control the conduct of war. not in the abstract but for
real. the key question, through the transition in which i also served, with the legal positions taken in the prior administration, the powers of the commander in chief. it was implemented in consequences as he had done as a candidate and now that he was president in his own right he put on his own commitment to changing interrogation practices, limiting surveillance and even disclosing the facility at guantánamo bay. his success in making these changes might depend on the cooperation of congress. what was the new president to do if confronted with an effort by congress to block his favorite way of conducting this ongoing war? what he too content congress had no right to do so? if he wouldn't do that what would he do? those questions were not in the forefront of my mind on that first day but if history was any
guide they were sure to arrive. that is the nature of the dilemma. to highlight the point the unusual condition we are in and i was in when i was serving in office, we are living in a time in which there is an authorized conflict by congress and has been for more than a decade and is likely to be for years to come. ever since the attacks in 9/11, congress passed an authorization to use military force by the president to take on groups responsible for the attacks on 9/11 and that led to operations in afghanistan and based on interpretations of that statute, in a number of countries throughout the globe. on top of that there is also an authorization for military force in iraq. the question was less who gets to start the war and more who gets to decide how the wars
fought once it started. by what means, what tactics can be used, what is the scope of it. with that let me start with our first commander in chief, george washington. he, as you know, takes his command from the continental congress, not far from where i used to teach at cambridge, massachusetts. his first major conflict goes surprisingly well. he captures a number of high-ranking british officers and moves to new york. by this time, britain is aware they are up against something more significant than they imagined and they have a masters naval fleet off the coast of new york, and washington is there with his troops and he sees no possibility of victory. he is thinking how do i get out of this? i need to retreat and do it the best way. his choices are a clean retreat
or what makes more sense to him a retreat in which he burns it to the ground, the thinking is clear, if they are going to take the city i would rather have nothing to show for it then they take it because why would we leave this major city in the hands of the enemy? washington received his commission from the continental congress and it said follow the rules and orders of that congress so before deciding to burn down new york which was his preferred tactical decision he writes to the continental congress in a letter to john hancock in philadelphia and says new york left his winter quarters for the enemy. you can recognize that is a leading question. he expects the answer will be no, why leave it, that is not the answer he gets. the next day john hancock right back on behalf of the continental congress and tells washington under no circumstances are you to burn new york to the ground. ..
and would be in retreat all the way to valley forge. but washington does not order the burning of the city but a fire does break out after the retreat because any said sobel commander of not bernie or to the ground but -- sensible commander would not burn new york to the ground. but it is what we're willing to do for ourselves said he had no part but now to move on with washington without complete model following the battle things keep going badly for the revolutionaries.
and the continental congress is demoralized they want to make hay of the capture and go behind the war effort. and so to complain about the treatment with the way the british are treating them but a high-ranking british officer but though way they were treated at the time is better than you might expect so he had 20 servants assigned to him and they to be within the 6-mile radius of his homestead. so the continental congress sees this and says you have to treat him better. and they order washington into a new reality -- retaliate in treat him as as badly as the american
general has been treated so they took away all but one of the servants so the high-ranking officer thinks this is an affront to the dignity of the people and his own dignity but nonetheless he complies and rights to washington as commander in chief and it says you are a dictator. you don't have to put up with this. if you don't think i should be treated this way then don't treat me this way. the you might think the commander in chief with throw that in the wastebasket but he writes back to the captured officer and says i did not have the power he suppose of the authority nor the
inclination. that is a very powerful statement the remember washington thinks it is a terrible idea so even as he writes back he is also writing to john hancock and convinces them to relent and among the things that he says is the orders is that i am supposed to retaliate for bad treatment but what if i can assure you there and not treating them badly that i should not have to treat this general badly so he was in the process to interpret in his favor. after months of back and forth they allowed him to do a prisoner exchange so that is the first real period of clash with the congress even before there is a constitution but it is such
a model for the prerogative of congress but also hostility towards his choices that they could find some way to fight the war on his terms without having a provoked out right competition. second story. the second existential moment for the united states that was the formation of the country when it was formed in abraham lincoln was president and commander in chief when congress is out of town. so congress is gone you can do you want what can they do about it? but it is also a terrible because you're not supposed to do that much when they are out of town.
so the first issue of is when do i call congress? they're not supposed to come back for many months given the recess. they cannot come back the next day the kids they cannot fly back. it will take a few weeks but how many? he said a couple of weeks if he decides not to call them back until july for a special session i believe it would address on july 4. why wait that long but no longer? there is a theory the one that i find interesting is abraham lincoln very much wanted congress to be the position to ratify all the he had done in he had done a lot. he ordered a naval blockade suspended habeas corpus
although that would go all the way up said he had taken a very dramatic steps more than any other president and he wanted their approval. in particular he wanted the border state delegations purpose of the way the election rules were set the terms had expired and they could not have a new alexian and tell much later so he works with the governors of those border states to see if they can do the elections earlier so this session is set when they are in place to be seated in lincoln monitors that very closely so when they get their low and behold they support them in a special session.
so already the commander-in-chief has done more on his own bin any in history but from the get-go has his eye on congressional support. he is told when congress gets there visit deal in he may help and it proves to be true. they tell lincoln within a week we will pass the law. it will be in the senate and ratification of everything of all that has happened and lincoln is fairly optimistic but it is the bed of a train wreck all sorts of division within congress then they start debating if they should talk about what has nothing to do with the war and has to go up to the very last day of the session they
suffered a tremendous setback in now to say we could business if we don't get support for the commander-in-chief so that tips congress to the point to ratify what lincoln had done. now 1862 has congress on his side congress was somewhat reluctant but now congress is even bolder than the president space much more aggressive action and emancipation and there is a statute that has been proposed that could effectively ordered a commander in chief to free the slaves from the occupied portions of the south that the enslaved people or
property and they shed do a wartime measure so no congress is pressing so the debate is very strong in just to give you a flavor of that one of his friends who is the senator from ohio take steps to say this is an outrage that is the role for the commander in chief and this is matched by opposition by others that say think about it if you have a president making a calamitous decision to retreat from a battle that is catastrophic and then
watch the country fall because of the debate? pcs he does not have the votes in congress so he needs to work and he says go talk to lincoln so he tells him either the abolitionist will run the war from congress or you run it as commander-in-chief otherwise your allowing congress to run the war. so he gives a very convincing speech in the next day lincoln signs the bill. but what is amazing about this the date they needed him to veto the legislation lincoln is in the carriage ride with the secretary of navy to say i think i will
issue the "emancipation proclamation" and actually that goes further. and wellington has decided in his mind brothers are telling me congress is against me i think they're giving me permission slip they're sending a policy of the emancipation that i was worried but now i have decided to issue that when he issues it he wraps it in the language which he quotes in full just to show the connection of what he does and what congress has done some of the last tory -- story with fdr as you know, roosevelt was leading a country reluctant to get
into the second world war after we talk but how the first world war ended but it that the love the roosevelt was more interested in helping european allies but was hemmed in by a variety of statutes that they are hard for americans to legally give support to the french in particular and churchill was begging him for destroyers that the u.s. had control of the he feels he cannot give them to their british without committing a crime without aiding another country during a wartime conflict so roosevelt turns to the lawyers in says there would really like to get the
aid to britain and they say yes you do it would be very awkward reaches you define those statutes so eventually over the course of many months the system is worked out whereby the lawyers through the indirect route to appropriate a for the british through trade and they give us items in return so structured that way the lawyers sign off. so no fast forward with the attack on pearl harbor congress has declared war it is 1942 so now who runs that? the way this conflict arises is some of that has to do with actions by the president and by the supreme
court and they come together so keep your eye on these two they will come together at the very end is starts with this set of saboteurs with land off the coast of long island they land on the beaches they take them off and buried them in the sand then they head out to with the plan to sabotage buildings and also off the coast of florida. many of these have been to america and fortunately for the germans they had former love interest when they get there. some of them go shopping that was not the plan. [laughter] the plan doesn't work out
very well one calls the fbi that blows up the whole plan all eight are captured in roosevelt ordered them to be tried as enemy combatants with the full force of the military commission that was held in the office of legal counsel so that history is very present. so the child immediately goes to the supreme court that summer in emergency session and the court is fairly sympathetic to the argument they say of the analogy imagine if a plane came carrying any soldiers and they drop them by parachute you would not have to treat them as lawful citizens in this is the different. they came by submarine but
it is still an invading force and the president should be able to treat them that way. but the complicated issue what should be the rules for the military commander? and congress passed some rules and day are relatively favorable that creates other procedural things that roosevelt had not included so the justices star asking the government's lawyer they say that the commander-in-chief is not bound by statutes and they're almost leaping over the fence to save you really mean that? then he says no
i don't really mean that so then are you giving up on the argument? will i don't mean that either of which i didn't say any of this. [laughter] as this goes on the next data court issues its judgment for the president is as opinion will follow in october. that is significant jumping to the actions of the president and that has to do with inflation if roosevelt thought there was a severe threat besides the german army he thought it would sap the amaral of the country and make it impossible for the wartime production that was needed said he is looking for a way to bring
us in he like to cap farm prices but he is told that he can do that said his aides say maybe should issue the executive order as commander-in-chief and then just kept the farm prices. but the support of congress will not budge. and then just flirted with this idea and then said nothing about it. and then roosevelt says by labor day to do with the inflation crisis.
and then basically take over the economy. and then with the drama of the ball. and that is a big ultimatum. to do what i asked for. and then what follows to say give them what he wants to rehabing dictator. eventually he gets that legislative change all along having bet secret opinion to explain what authority he needed to rely on in rather
than advising they found a different statute to give power to affect those same price controls. all the way back to washington. even with the continental congress in that has played out with that broad power over the economy they said they would issue the opinion in october the then chief justice stowe says than having a problem and i quite can square for those in the articles of war and i have a bigger problem and those
that have gone executed. and so does no problem to decide how to treat that enemy force that is beyond congress's power to control that does not go over well given what roosevelt was say what they might do as commander in chief. to say congress cannot restrict the president and that is where the dilemma is said to i just want to see how they get out of this dilemma. may be the justice with the supreme court and rights to
his fellow colleagues miscalled f. of soliloquy. and this is what they think because of the debate so to think of their reflections in to be expressed with the black agreement and resolve with the matter stating this resolved. i think i know with a constitutional adjudication to say something like this. what in hell do you think
you are doing? have a we got he enough of a job without having you fellows on the supreme court with the thoughts and feelings as to who has what power the president has the power to establish the procedures under the articles of for that does not apply to this case. don't you have any more sense than to get people riled up with a favorite pastime? an abstract discussion of. [laughter] to be engrossed in your own interest with such conflict that is a pastime for peacetime not long after the opinion is issued from the
judges of debt is exactly how all fits together to see the commander-in-chief of the president of the united states and then to have the articles of war formed with procedure and i end with that to be a statement in times of war i think a better reading is to say we all agree the articles of war to prevent with different views of how they get there. with these abstract questions there is a real virtue of it as long as we
all try our best so with that i am happy to take questions. >> how does this apply to guantanamo? and then obama is trying to close that. >> there are two ways with this ongoing litigation the president issued the executive order with the few days then and with a series of statutes prohibiting them to transfer certain detainee's so those
restrictions of the administration to fully complete with bad example of congress regulating the conduct of for in the president is responding to that not unlike how they responded to the continental congress. for this is a significant point the way the separation of powers works with that natural tempering force. that has to be the case for go into have a more aggressive approach than the president might. that has a conflict of how to wage war.
>>. >> much of what you has written is conflict of interest in refacing today that there seems to be no unity of thought or action on the part of the executive or the legislature. and to find those major conflict of interest and sometimes even regional. separation of powers doesn't stand outside of politics and as a functioning
democracy with the failure of the system with that is part to ensure civilians there with those types of decisions and that is for very similar reason. with congress and in between congress with a force of the disagreement to have different popular views. and to see conflict and controversy in to be off the rails.
into go with democratic input. and that is the alternative. so history with france with international war of any kind. between the jefferson party and they were not even shy. noted anybody think of a material interest with their own political well-being at the same time it is striking how often they are pitched at a higher level of
seems to me with some of the writings that seems less plausible but then the commander in chief would put down with those federal forces. wanted to have those standing forces and once the commander-in-chief would do that to personally commanded troops on the horse. and then as the military and leader the way anybody could control him. and then to authorize to take personal command and
that it is impossible. with the presidential candidate for what day are dressing battle. and with that american power abroad that is in some ways less of a concern is a different world they imagine to as much war fighting as united states had something recognizable to less as a system of checks and balances that is possible is he going to for? with that language that is
trouble spot how to be gore about the daily business with the historical argument what the president in the military can do or can do?. >> the great question came up those clauses that we were teaching and a couple of things to about but those books are understood that is relevant obviously not what i wrote that and certainly when i was in the government working a tremendous amount of time and with those
divisions of responsibility and then one message and then to keep up with that tradition that constitutional structure in that legal idea to understand that mission and that message comes through for a long time that the second thing is the appreciation i have for the difficult choices in confronting it is true though lawyers become military warriors but with the operational military personnel you make very hard
decisions in very difficult times that they will critique as being unlawful although the lawyers advising the president's in my favorite example the attorney general for james buchanan and he wants to know what can i do? water my powers as commander-in-chief? so he says to jeremiah black what can i do? that would like to answer in five days. that is not very much time. so let's give a straight down what the questions you're asking me.
and he asks you can to sign that piece of paper just to be clear. and i think that moment is criticized for the answer that they gave what was viewed as too weak by those in the north but that is the subject of controversy but for you each to remember to go in these positions and not to forget your own agency. or the way the you participate in the process. they all say what everyone.
they try to take control what am i actually being announced? are we clear? and that was a way with our own reputation to defend even though it a subordinate position. it doesn't mean the right answer is no but to agree with a commanding officer that is all we can do. but you have to be aware of the stakes of that decision. >> and would be interested to know your perspective on how you think would change
your didn't change with the obama administration when you sat down with those folks to reinterpreted?. >> i am not sure it changed so much but the most amazing thing to be is the amount of effort that went into though wearing and then to leave this issue. that took a lot of skill and judgment. with a the question this fundamental than rather than being frustrated in trying to figure out the answer i can appreciate there was a virtue in that took the
efforts of the parts of the court and the president to do that. it comes with a cost with ambiguity people can take a vantage but no means to say all judgments is the one we should be proud of. over how to conduct that for and then they'll look back with regret. so there is no reason to have good outcomes every month. and that is a willingness.
things said it is interesting. and all this time later raised show care about this topic and then you talk about the seriousness that legal teams from the military take this so and they're at their dinner table and this particular thing is a major topic and it goes right down. if you make a statement but how should we get that information so low that they do know? is there a couple
of bullet points that we could share with others as we talk about this?. >> and to read just reading the history that they are generally aware they have much more of an orientation that history is taught well in the so people come to these with a general understanding and how many times and then told every
single time it is a civil war. it is the revolutionary. is no the first time from world war two that requires a different way but that has its own strategics doesn't that mean we have to think about it? in what is striking to me is that the goal community seemed to back off? therefore the old rules don't apply. other people confronted something new called we apply those old rules to this circumstance? just think you're confronting a new problem to be unfettered? i guess that is
the overwhelming fame. and then the second one and at that time when they made a great outside claims with the hostility toward the war that was ongoing and emerging as the two things were coming together that these are not unrelated if you have a president that feels entitled it is not surprising the presidential system as of whole to be corrupted that is not the feature of this president
but the direction of the president even going back to presidents that he has advised. it is ironic to announce the birth at the moment that congress was asserting itself aggressively. and sometimes around the dinner table that narrative of he does what he once. they do worry that narrative resets expectation about what is possible and what is expected. with a fuller understanding of how complicated it is how presidents have not been willing to present themselves and it gets lost
to remind ourselves of a more complicated relationship i think that is important. >>. >> to the relationship between president truman, i do you have some thoughts? what are your opinions?. >> that wonderful book that is out right now about that particular disagreement but my focus is on congress rather than the civilian or military side that this is something i've inexpert on bed truman -- i.m. and
expert on but treatment or correa which was the first large scale military conflict post-world were to done without the declaration of war. and we haven't said several door to bed at the same time no conflict of that scope for scale. and that is no way that truman out conflict can arrive in which they don't declare a war but also not as the president -- president with the second goal for with the operations in afghanistan for
authorization and seeking to use military force of that scale. >> thanks for writing the book and a like the fact that you raise the fact that armed intellectual combat is a normal for society it is interesting to have a second analysis and have more of a stampede effect sometimes they lose track of the fact sometimes of their fighting the odds are there is a better outcome and then stampedes ahead. as saying on lawyer to bring up the fact that they should
be the head to. -- the head. so in character one thing important to remember someone can see a conflict and one thing that is interesting roosevelt with respect to giving destroyers to churchill if there is any time to do it it is now. but to have a fair amount of time to make that decision so over that period of time in the structure of the deal is different there is the
amount of time that pace -- that passes there is a real cost the amount of time people remained in place with the anxiety and fear that would sweep england there were fearful they didn't get the protection that they wanted. but it is striking to me the patience that a number of the commander in chief practiced surrounded by people who say you have no time to decide but then there is more time than they thought so that enabled the debate to play out in the spirit of your comments. >> gone the way over i ask
but it was written after that and at the time in 2011 the then some folks were looking at socially engaged or politically engaged part from around the world for ago while working on that i was very aware of said different show that i was not doing the people tried to make the world a better place. i knew there was another show of people trying to get their own using culture i thought it was on the other side of the exhibition but to use coal church to get things done in the world but of course, they would say are you aware of the two-party or that in fact,
marketers are doing this in my answer is yes. i am aware and it is very interesting so that is the book but i was really interested in a few things and on the our level of want to put art into the conversation because in many respects we talk as if we are in 1822 that modernism is just taking off in the language is still remove from the other world. but i would say most have been radically inc. even with public-relations or branding strategies and just to say the production is a
very powerful force in the way they express themself which we know. the what was interesting is the difference between art in the larger cultural forces this scale is money that we don't talk about like a rich harvest then you sort of far but in general though one of the idea though one expression as a discrete act they lately think of it says in the juices and impressions but one of the task was to put language with fact to talk about that one impression.