The Authorization for Use of Military Force (AUMF)

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's International & National Security Law Practice Group, was recorded on Thursday, August 15, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on "The Authorization for Use of Military Force (AUMF)." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are very fortunate to have with us a pair of highly accomplished attorneys and folks who've been involved in this issue for quite a while. And today we have Mr. John B. Bellinger, who is a Partner at Arnold & Porter, and previously was Legal Advisor for the Department of State in the second term of the George W. Bush administration, and also Senior Associate Counsel to the President and Legal Advisor for the National Security Council in the first term of the George W. Bush administration.

 

      Also with us is Professor John C. Yoo, who is the Emanuel S. Heller Professor of Law at the University of California at Berkeley School of Law. You can find the extensive biography for both of these speakers online, on this event page, or in your email. We do encourage you to check that out.

 

      After our speakers give their remarks today and have a bit of a back and forth, we will have audience Q&A, so please keep in mind what questions you have for this topic or for one or both of our speakers in particular. Thank you very much for sharing with us today. Mr. Bellinger, I believe the floor is yours to begin.

 

John Bellinger:  Great. Thanks, Wesley. So John Bellinger here, and John Yoo and I are old friends and colleagues. We worked together for the first couple of years in the Bush administration when I was at the White House and John was the DAG responsible for national security matters, and particularly war powers in the Office of Legal Counsel. So John and I lived through 9/11 and a lot of war powers stuff together.

 

      So there's a lot to talk about. John, I thought we would probably try to divide this up into chunks to talk about first the President's general powers to use force, military force, for example, against Iran or against North Korea generally, and what Congress's powers are, spend a little bit of time on that, particularly since Iran is a hot topic these days, and then move into the old chestnut question of whether the 2001 authorization to use military force, which was passed in the days immediately after 9/11 in 2001 and has been the basis for counterterrorism operations in Afghanistan, drone strikes, detention, and numerous other things for the last 18 years, whether that AUMF ought to be amended revised, repealed.

 

      And similarly, we still have the 2002 authorization to use military force against Iraq, which was the congressional authorization upon which President Bush relied for the Iraq War in 2003, and that is still on the books, whether that ought to be repealed. And then maybe we would spend some time more generally on just the War Powers Act overall. And of course, I, having spent some time as State Department Legal Advisor, might want to throw in some comments on international law at the end.

 

      But let me just start with a provocative question: Could President Trump launch an attack on Iran, and could he even claim congressional authorization in support? So let me just say a couple of things about that and then turn it over to John. One is the audience here knows the President has extremely broad powers under Article II of the Constitution as Commander in Chief and Chief Executive to use force in self-defense or simply in the national interest of the United States. So certainly the President could authorize the use of military force against Iran or previously, the debate last year was against North Korea, in certain circumstances without congressional authorization up to some point. Certainly, if the United States forces were attacked, even in a minor way, or if there was a threat of attack, or if the President felt that it was in the national interest to do so, the President has very broad powers.

 

      At the same time, and I should say there—and I'll be quite interested in John's views on this—despite statements by some Democrats, and actually, at one point when he was a candidate, even President Obama, that the President lacks the power to use force without congressional authorization except in self-defense. The Justice Department Office of Legal Counsel in administrations of both parties has long said that the President has power to use force without congressional authorization for a variety of different purposes in the national interest. So the President has broad authority to use force, including potentially even against Iran and North Korea.

 

      However, Congress does have some powers in this area. The powers are shared, and as everyone on the call knows, the President -- or the Congress has the power to declare war. And so the question is what does that mean in cases where Congress is not actually declaring war? Is there some limit on that? My own view is that that clause must have some meaning, that the President could not get the United States into a major military conflict with Iran or North Korea that would really be the equivalent of a major war without congressional authorization that the President has broad power to use force in self-defense, for smaller uses of force.

 

      But when the President was threatening to rain fire and fury on North Korea a year and a half ago, and when he has said similar things about Iran, my view is if the President is going to be using force in a way that is pretty clearly going to commit the U.S. into a major military conflict, particularly one that is not only going to threaten our armed forces and put them into a conflict but could potentially, as in the case of North Korea with the Americans in South Korea, or in the case of Iran, result in possibly a harm and deaths of Americans around the world that the declare war clause in Article I has some meaning there and that congressional authorization is required for something that is going to result in a war.

 

      So why don't I stop there. I'll say one more thing on that because it'll open it up to John from his position at the Office of Legal Counsel. In opinions that have been written by the Office of Legal Counsel on the President's powers, it has been, I believe, John, only OLC in Democratic administrations who have said that there is some upper limit on the President's powers, that if the President is going to commit forces in a way that, I think, to quote from one OLC opinion in, I think it was in the Clinton administration, if the anticipated nature, scope, and duration of the planned military operations is going to be prolonged and substantial and involve exposure of U.S. military personnel to significant risk over a substantial period, then that is going to bump up against Congress's Article I powers. I don't think that Republican OLCs have said the same thing, but I'd be interested in John's view on whether there is an upper limit there.

 

      And I guess I'll say last, last thing, this is all against the backdrop in just the last couple of weeks in the National Defense Authorization Bill passed by the House. There is actually a prohibition in the House version that would prohibit the President from using force against Iran unless it were in a national emergency. I think the way that is actually written probably does go too far and raise constitutional problems, but I think that what Congress is trying to say here, and a number of Republicans have voted for similar provisions in the Senate, does, in fact, reflect congressional powers before committing the United States to a major conflict with Iran.

 

      So I'll stop there. Maybe we'll spend some time on this for a bit and then move on in a few minutes to the 2001 and 2002 AUMFs.

 

Prof. John Yoo:  Thanks, John. This is John Yoo. Really glad to be here with John Bellinger, my old colleague in the Justice Department and White House, and to participate in this Federalist Society teleconference.

 

      So let me pick up where John stopped, which is with these OLC opinions, and then go back to address the question that he began with, which was what's the current President's scope of authority to perhaps launch an attack on Iran or North Korea? I think John's about right when he says in Democratic administrations, OLC has said that at some point, the use of force becomes something that triggers Congress's power to declare war and that any presidential use of force without some kind of preexisting authorization would possibly be unconstitutional. John referred to President Obama when he was a candidate, actually took even maybe a weaker position in terms of presidential power and seemed to suggest most uses of force would have to be approved by Congress, although that was not his practice. And we can talk a little bit about that when we get to the second part of the call with ISIS and Syria.

 

      I think Republican administrations generally have not taken that view, although the Trump administration is similar. So they did issue an opinion with regard to the missile strikes on Syria in 2018. There is an opinion by the OLC that does sort of adopt the previous framework that had been used by the Clinton and Obama administrations, which was almost like a totality of the circumstances approach. If you look at the significance duration object of the war, the use of force, the number of American troops at risk, and so on, that unless those factors sort of built up into some kind of level that became war, no congressional authorization was needed.

 

      The Trump administration opinion doesn't really identify that ceiling or that line where something becomes a war. And then it didn't really say if it crosses a line, Congress's declare war power would require that we get permission. So there is that difference. But the one thing that is interesting is that I think this is maybe the first time the Trump administration sort of adopted the approach that had governed under Democratic administrations.

 

      And we should also note, John, in all these opinions that we'll see in the Justice Department ends up approving the use of force by the President. I'm not aware of any published opinion where the Justice Department said, "Oh, no, you can't do this, Mr. President, unless you go get Congress's approval first." So the second question is just how much are these opinions worth because they don't seem to be limiting presidents, neither Obama or Trump, in their use of force in the Middle East in these cases.

 

      So what would happen if a President thought the situation had deteriorated so far in Iran or North Korea that some kind of preventive or preemptive strike was necessary? Presumably, this would be because both countries were engaged in some kind of hostile activity, not just maybe creating nuclear weapons and the means to deliver them, but other kinds of signs of hostile intent. So it's not just capability but also intentions. So we don't have military forces deployed against every country in the world who has nuclear weapons, like Britain and France, for example. But we also combine that with what do the intentions of that regime seem to be?

 

      I think I agree with John here. Suppose you were in a Cuban Missile Crisis situation. Suppose -- I mean, before you get to a Cuban Missile Crisis situation, suppose you're in a situation where you see nuclear weapons and you think their use might be imminent. I think most people would agree that you could use military force to stop the use of such weapons against us and our troops abroad. Then the harder question is because of the destructiveness of nuclear weapons, would we allow the President to use force in those situations and still call it self-defense in a way, even if the timing is a little farther off, or much farther off?

 

      And here I point to the Cuban Missile Crisis. The Cuban Missile Crisis was the use of force. It was a -- they called it a quarantine, but I think we should all accept was a blockade of Cuba. There was no indication the Cubans were about to launch or the Russians were about to launch nuclear missiles, but we took that step before the weapons could actually be assembled and transferred and deployed in Cuba, and because we though it would destabilize the Caribbean and Latin America and would put, essentially, a Russian missile base just 90 miles off American borders.

 

      If you think that the Cuban Missile Crisis was a valid use of force, that means that we're willing to accept, even in the scope of self-defense, that the President has much broader authority than just having to wait right before an enemy attack on our country. I think that goes true for Iran. I think North Korea's obviously the more imminent case because North Korea has nuclear weapons and is developing ballistic missiles that can reach the United States. Iran, who knows, but they certainly seem to be engaged in a program to research and perhaps build nuclear weapons, and they clearly are working now on ballistic missiles. So if the President thought that those developments posed a threat of an attack on the U.S., it's really kind of a question of timing, but I think that we accept with the destructiveness of nuclear weapons, the President can act much earlier than he used to be able to act.

 

      Put aside those. Suppose that the President saw Iran causing a period of instability or attacking our friends and allies in Saudi Arabia and Israel. Could the United States use -- could the President use force in that situation? So I would agree with John. Right now, there doesn't seem to be any congressional authority to do that, and it would be purely a question of the President's Article II authority. My view is that the Constitution really leaves that open, that they gave the President, the Commander in Chief, power and command of the military and the executive power. Under Article II, Congress has the power to declare war. It also has the power to fund that military, and to raise it and create it and dictate its shape in the first place. And I think that the Constitution does not really establish a line of when Congress has to say yes or no beforehand, but it leaves it to the political interactions of the two branches.

 

      And I think, really, this wasn't a question until 1945 because until 1945, Congress had chosen not to create any permanent large standing military, so presidents would pretty much have to go to Congress and say, "Please build me a military to fight this war." Now, since 1945, Congress has created a huge standing military, bigger than most of our competitors combined in the world. At some points, it's been bigger than all the militaries in the world combined in the world. And it's an expeditionary military. It's not designed for homeland defense. It's designed to conduct wars in other people's countries. So I think Congress has plenty of tools if it wants to prevent any kind of war flaring up with Iran or North Korea or anywhere else around the world if it wanted to use those powers over funding and raising of the military, but it chooses not to.

 

      And I think this is where I'll stop because I think in all these situations, Congress is very happy to create the tools that the President would need, and now the President has, to launch aggressive attacks or preemptive or preventative attacks. Congress doesn't really every try to stop him beforehand. Congress doesn't also want to take the responsibility and accountability, so they rarely vote on anything beforehand one way or the other.

 

      John and I both know the 2001 and 2002 authorizations to use military force. I bet a lot of people in Congress would have preferred not to pass any law and not to have to go on the record at all on either the Afghanistan and Iraq wars because they'd rather give the tools to the President, have the President go out on a limb, have him make those decisions, and then just criticize him afterwards. And I think that's what'll happen with any kind of issue with the Iranians or the North Koreans. And I think, ultimately, the Constitution permits that because it structured the presidency to be the branch that could act quickly and decisively in response to unforeseen events. And legislatures, certainly 535 person legislatures, are poor at that.

 

      So thanks a lot for hearing me out. And John, I'm curious to hear your thoughts about Syria and ISIS and the AUMFs that we have on the books.

 

John Bellinger:  Why don't we do another 5-7 minutes on sort of these broader level presidential congressional powers, and then we'll get into these interesting 2001, 2002 AUMF questions. And there's actually a nexus there because one of the hot topics in Washington right now is can the President actually use force against Iran pursuant to the 2001 AUMF?

 

      So one, I generally agree with John. I think I maybe, just sort of, maybe 5 percent more over in terms of congressional powers even though I've, like John, spent most of my career as an Executive branch lawyer. And certainly, the dividing line in the Constitution is not clear. I agree with that. And the courts have said that when members of Congress have tried to litigate presidential war powers. And contrary to what some Democrats say and what President Obama had said as a candidate, the President clearly has got very broad powers to commit the military without congressional authorization. And Republicans and Democrats have both acquiesced in that over more than 50 years.

 

      I think if there's any difference between me and John, it might just be sort of -- and maybe this is less sort of legal and more sort of policy, but I'll try to put it down to a legal point is just that this extreme upper limit of if a President wants to do something that is going to really commit the United States into a major military conflict -- and it has come to a head, sadly, with this President. We don't really know whether this is just sound and fury signifying nothing or whether it's real when he makes these threats against North Korea or Iran, but could the President, without any congressional authorization at all, could he have made a strike as he threatened to do against North Korea which could have then probably resulted in the loss of life of many hundreds of thousands of Americans in South Korea and possibly millions of Koreans, all without congressional authorization? While the American people have elected the President, they've also elected their representatives, and the power to declare war and the power of the Congress to represent them on a major issue like this must mean something.

 

      Similarly, with respect to Iran, Iran is accomplished in asymmetric warfare. If the President were to launch some sort of an attack on Iran, it's quite possible that there could be attacks against American cities, against American embassies, with Americans killed all around the world. And does the Constitution really just give that alone to the President? And maybe, to put a fine point on it—and I'd be interested in John's view on this before we move on to the 2001, 2002 AUMFs—is it probably is going to come to a head a little bit unless it's just stripped out altogether at conference in the National Defense Authorization Act.

 

      But let's assume for a minute that the House and the Senate actually were to get together and take this House-passed resolution that purports to prohibit the President from using force against Iran except in self-defense. There was a similar provision amendment that ultimately did not pass in the Senate, but it had something like 53 votes, so the only reason that it wasn't included is it didn't reach 60, but there was actually a majority including a number of Republicans. So let's assume that there actually -- Congress did pass literally a prohibition on the President for using force against Iran but with certain carve-outs for self-defense that were -- clearly gave the President some flexibility.

 

      I guess I, John, would say that that would be constitutional. If you and I were in our old jobs, we wouldn't like that, and we would try to negotiate, and we would howl, and the President might veto it, and so forth. But is that actually unconstitutional for the elected representatives to the American people if they limit it enough to prohibit the President from starting a major war with Iran without congressional authorization? I guess I would say if it were written in the right way that that would be constitutional.

 

Prof. John Yoo:  That's interesting, John. Yeah. First, before I get to that, I do want to flag, I think the Obama/Trump approach to this doesn't make sense to me. I accept, John, your point that there should be some meaning to the word war, and it establishes some kind of line. I think that the Obama/Trump Justice Department approach doesn't make a lot of sense to me. I'm not saying I have the perfect definition of what's a war, but remember the -- I think the first time this is really articulated this way was in the Libyan conflict.

 

      And the Obama administration basically said, "Well, Libya's not a war because there's no American troops on the ground, so there's very light casualties." But a lot of the other factors that you just listed were present that you would think would be a war. We were almost, essentially, trying to kill the Head of State of Libya. We were raining bombs down on the country. We were trying to overthrow the regime, and we had a lot of military assets going in, just not troops on the ground. And just because the enemy can't shoot back, it's not clear to me that doesn't make it a war. It doesn't take account for magnitudes. So suppose we dropped a nuclear bomb on somebody, on a country without nuclear weapons. Well, they can't shoot back. So I've found their efforts to define what the conflicts were very unsatisfying.

 

      But that goes to maybe my answer to your point, John, is I actually think the Constitution doesn't define war, and it relies on Congress and the President to work it out, to fill it out by politics because we're never going to get, as you said, also, John, judicial decisions that say this is a war; this is not a war. The closest case we have is the Prize Cases at the beginning of the Civil War. And there, the Court essentially says it's up to the President and Congress, and they responded to the Civil War.

 

      So take your hypothetical. They way it would work out, I would think, is Congress tries -- this current Congress tries to pass a law saying the President cannot use force in Iran or cannot use force against North Korea except in cases of self-defense, and the President vetoes it. And I would expect any President to veto that. Nixon vetoed the War Powers Resolution. You would have to have two-thirds of the House and the Senate override his veto. And the President, I think, could try and go ahead and use those forces anyway if Congress doesn't do anything else. For example, Congress doesn't start cutting funds, or Congress doesn't start reconfiguring the military to make it very difficult to carry out a war in those regions.

 

      Then I think—this is to get to the point of a subject of a different teleconference—but then I think the Congress has grounds to impeach the President. And you have the two-thirds vote majorities that you would need in the House and Senate because they all voted for the law. But to me, the Constitution requires the House and Senate to go ahead and enforce through its own means its interpretation of the Constitution here on war, just as the President could say, "No, I don't think Congress gets to define what a war is or not."

 

      And then one last point on the -- I think a really excellent question you raised, John, is what does the declare war clause mean? You said a few times it has to mean something. And we're debating about the 5 percent maybe we disagree about on all of this. I think declare war clause originally wasn't really about starting wars or preauthorizing the use of force. I think it was about the legal effects of conflict because back in the 18th and early 19th Century, the international law definition of what a conflict was was very important because it led to a lot of consequences in terms of what kinds of ships could be seized and so on. And they had very different levels of what we would call armed conflict, imperfect war. Often, the United States would use force without declarations of war.

 

      And so I think the declare war clause has come to assume a much broader colloquial meaning than I think it legally meant back in the 18th Century. But that doesn't mean -- Congress, I think, had a perfect check all the way till 1945 was just sort of power over funding in the military, which they exercised all the time back then.

 

John Bellinger:  Why don't we spend 10 minutes on the two AUMFs that we do have and possibilities for repealing, amending them, whether they've been stretched too much. And then we can open it up. So just to set the table again for people, during the last two congressional authorizations to use military force were both passed by Congress in the Bush administration in 2001 and 2002 -- John, I think you were there for both of them. I know I was there for both of them and had involvement in the drafting of both of them.

 

      So as a reminder to listeners, immediately after 9/11, Congress passed the famous 2001 AUMF, the famous 50 words, very sparse, that says that the President is authorized to use all necessary and appropriate force against the individuals, nations, and groups who were responsible for the 9/11 attacks, or the people who harbor them or assist them. That has been the legal basis for almost all counterterrorism action under three presidents for the last 18 years. The invasion of Afghanistan, probably close now to 1,000 drone strikes in five, six, seven different countries—I can't even count them all—Pakistan, Libya, Yemen, various other places, numerous counterterrorism operations, detentions of thousands of people. So a lot hung off of that 2001 AUMF, including against groups that didn't even exist on 9/11.

 

      And so the debate for the last 18 years, as listeners know, is has that really been stretched too far? As John said, most of the members of Congress who are there now were not around to vote for that, and yet, they're being told that, oh, Congress has authorized whatever it is that we're doing now against some group in Africa or somewhere else that they weren't even around to vote on. My personal view is that the 2001 AUMF has been stretched too far. I've spent a lot of time in the Situation Room debating whether it covered this or that. And I'm largely comfortable with it, but it has -- it's 18 years later. It's being used against all sorts of different groups and different countries. I have written now for more than 10 years that it ought to be updated and amended. I have testified a number of times before the Senate saying it ought to be revised and updated.

 

      More recently, to link this to the last topic on Iran, and this had made a number of people worried, is that the administration has said without a lot of detail that the 2001 AUMF which authorizes the use of force against the people who committed the 9/11 attacks could be used to use force against Iran. Now, they haven't been clear on exactly what they mean by that. I think what they mean -- I hope what they mean is just that it's very limited to if Iranian airplanes, for example, were interfering with U.S. counterterrorism strikes in Syria, the U.S. could, essentially as a defensive matter, shoot down an Iranian plane. On the other hand, if an anybody is suggesting that somehow the 2001 AUMF authorizes a major attack against Iran or an agent of Iran because we think that Iran overall is sponsoring terrorism around the world, I think that would be ludicrous.

 

      So the big debate on whether the 2001 AUMF ought to be repealed -- some Democrats just think it ought to be repealed altogether. The administrations in the Obama -- actually, the last three administrations, Bush, Obama, and Trump, have said, "Oh, we're perfectly comfortable with the way it is." My view is in the middle is that it really has been stretched too far, ought to be updated and revised to reflect modern counterterrorism operations.

 

      And then lastly, we also have the 2002 authorization to use military force, which was the congressional authorization to use force against Iraq to compel Saddam to comply with his U.N. Security Council responsibilities. That was the basis for the Iraq War, which was, of course, authorized. Iraq War long over; that AUMF is still on the books. For the longest time, it wasn't necessarily being used for anything until the Obama administration claimed that its use of force against ISIS in Iraq and Syria was actually authorized not only by the 2001 AUMF but also by the 2002 AUMF.

 

      And interestingly, the Trump administration is now saying that they don't want to have the 2002 AUMF repealed either. I, frankly, would be inclined to repeal the 2002 AUMF. I think that was certainly passed for an entirely different purpose. And to the extent that administration lawyers are still relying on even little vapors or wisps or threads of it, I think that's probably a big stretch.

 

      But why don't I stop there and turn it over to John, and then in a moment, we can open the floor up to questions.

 

Prof. John Yoo:  Yeah, I'll try to be brief so that we don't -- we do leave some ample time for questions. I think that we're sort of assuming in this discussion that Congress has to authorize use of military force or we're not getting into these presidential power questions we were just talking about. So if you were to assume that presidential uses of force, aside from perhaps self-defense, have to be authorized by Congress, and then you look at the 2001 and 2002 AUMFs, as John said, we were both there. We both worked on the text. The thing about the 2001 AUMF is it is extremely broad. And we did draft it that way, and Congress did pass it that way. It is unlike any previous AUMF in that it doesn't designate a region, it doesn't designate a time period because if you go back to that time, we didn't really know a whole lot about Al Qaeda and who supported it, who harbored it. We didn't know if there were other countries involved. So it was written in that way.

 

      The other thing we weren't sure about, and I think the facts as John has described them have borne this out, is we didn't know whether Al Qaeda would change and morph, and we didn't want to write a law that would make it easy to evade in a weird way by Al Qaeda 1.0 closing its doors and shuttering its windows and then reconstituting itself under a different name, and then all of a sudden, we in the United States having legal confusion about whether the AUMF applied to them.

 

      So I think the interesting place where this is brought to bear is the Syrian war, the Syrian civil war. So intervention against ISIS was justified by both, as John pointed out, the Obama and Trump administrations as justified by the 2001 AUMF. And there was criticism, and they said ISIS didn't exist at the time of 9/11. ISIS itself is all the way over in a country that wasn't itself the subject of the original war in Afghanistan. But I think that's why the law was written the way it was because it's kind of a factual question that allows us to make a judgement on the law is that ISIS was part of Al Qaeda and broke off. And it doesn't seem to me the fact that ISIS and Al Qaeda were at loggerheads or were competing against each other for the loyalty of radicalized Sunni Muslims who wanted to get involved in terrorism. That, to me, doesn't mean it suddenly falls outside the AUMF.

 

      One interesting thing is an interesting next question whether -- if you recall President Trump's strikes on Syria, which are not the ones that were against air bases and military facilities in response for use of chemical weapons. That's an interesting question whether that would fall within the AUMF because that's an attack on the Syrian government. And it was justified kind of as a retaliation, although that's illegal in international law, so it's more of a response to prevent them from using chemical weapons in the future. But it did involve ISIS, so it's a nice question whether President Trump's Syria strikes, in contrast to President Obama's Syrian interventions, are actually covered by the 2001 AUMF.

 

      Whether it would provide the grounds for Iran is also, I think, a factual question. John's right. The AUMF was passed a long time ago. We're talking about situations now that seem very different than what was anticipated back then. On the other hand, Congress chose to pass language that was deliberately as broad as possible because no one really could predict what was going to be found in the future.

 

      But with Iran, I think it's a factual question. I have not seen anything, really, that shows that Iran was involved with the 9/11 attacks, that Iran -- there are always these media reports and stories that say, "Well, Iran might have given safe passage or allowed some principal members of Al Qaeda to operate there." I would think it would actually be incumbent on a President if they were going to try to use force in Iran and justify it under 2001 that they would want to summarize some of the evidence that suggests factually why Iran would be one of those countries that qualifies as involved in -- it says planned, authorized, committed, or aided the terrorist attacks of 9/11 or harbored the organizations and persons.

 

      But then also, there's also language that says in order to prevent any future acts of international terrorism against the United States by such nation's organization and persons. People often leave that or forget that, and that would seem to suggest if Iran is committing future acts of international terrorism and had been involved in the past somehow with 9/11, they do fall within the 2001 AUMF.

 

      I agree with John that it seems like it would be time to modernize it and update it. What worries me is that I could also see a Congress with, say, Rand Paul in the Senate and it used to be his father, Ron Paul, in the House not wanting to update it but just to severely cut it back or to even repeal it and replace it with nothing. And that would really worry me. And that's why my default would be leave it alone because maybe what Congress will end up doing could actually make things worse.

 

      With regard to the 2002 Iran AUMF, and here I'll end, I think John's quite right. I think the grounds of that -- the grounds to use that evaporated. The Iraq War is over. There are no U.S. troops really operating in Iraq except maybe in a small advisory capacity. I think the 2002 AUMF has sort of expired under its own terms because Iraq doesn't present a threat to the national security of the United States anymore, and those U.N. Security Council resolutions that are implemented by the AUMF which regard the WMD programs in Iraq don't -- it's just factually  not relevant anymore. So I quite agree with John that that one sort of seems to have died out.

 

      Maybe it's my turn to say if John maybe has a response or wants to comment, and then we'll open it up to questions.

 

John Bellinger:  No, I think that covers it all pretty well. There'll probably be some questions on that. We can get into the War Powers Resolution generally. John touched on the Obama administration. I think almost everybody, including people even quietly inside the Obama administration thought it was a bit of a stretch, the War Powers Resolution, to claim that what they were doing was not hostilities. We can talk about the validity of the War Powers Resolution, but why don't we just open it up for questions?

 

Wesley Hodges:  Well, very good. Thank you, John, and thank you John. Here's our first caller.

 

Jack Jordan:  My name is Jack Jordan. I'm in Kansas City. And I'm asking a question not only as a lawyer but as an Army Ranger in the 80s when the Beirut embassy was bombed. And my question is that -- and also based on the experience with Iraq, and Iran in Iraq, whether there's any reason to think that any military action against Iran would not be tantamount to a declaration of war?

 

John Bellinger:  Well, this is John Bellinger. First, sir, thank you for the question. Thank you also for your military service. I came from an Army family, and one of the great privileges that I had during my eight years in the Bush administration just to work with all of our military services, so thanks for your continued interest.

 

      So that's mostly a factual question. It's going to be based on intelligence, and so I'm now mostly out of this. I'll just give you my gut sense, and John may have a view as well, is that you start poking Iran in really any serious way beyond maybe just shooting at one of their vessels or a single plane or anything like that, and even that is risky, but if you really start using force against them in any serious way, a major strike or something, then you really do risk provoking a significant counterattack in an asymmetric way, which is the real concern is that Iran has got terrorist resources at its disposal around the world in many, many, many different countries. I don't know enough about their military, but we have the best military in the world. I think we could probably defeat their military fairly quickly. But if they unleash terrorist assets all around the world to blow up Americans in our own cities or in our embassies or our allies in different places around the world that that's the real risk here.

 

      And to be very candid, that's something that I have concerns about with this President is he just doesn't have enough experience in this area to realize that those are what the risks are. So I hope that he really is getting good advice on that and is listening to it. And that does kind of feed back into the legal question of if your advisors at the Defense Department and the intelligence agencies are telling you that, well, Mr. President, what looks like a kind of smaller strike against Iran, against targets in Iran is likely to prompt a major counterattack through asymmetric terrorist resources that could kill thousands of Americans around the world. Should Congress end up having a say in something like that?

 

Prof. John Yoo:  Because there's no court decisions, as we were pointing out, and I think a lot of this has to do with practice, one thing I can point you to is an example where we did use force against Iran in situations very similar to what's arising now. And I can tell you Congress didn't cut it off. The courts refused to get involved. And so, at least to me, this is the reflagging operation.

 

      So in the 80s, recall that during the Iran/Iraq War, Iran tried something very similar to what it's up to now. They tried to sink a few oil tankers. They mined different approaches in the Strait of Hormuz. It actually had, in some ways, a much larger effect on oil markets than it would now because the United States doesn't have -- didn't at that time have the superior position it has now with oil production. And so the Reagan administration created basically armed convoys to escort these oil tankers through the Persian Gulf region

 

      And what happened? Iran tried to attack. It successfully did attack U.S. naval vessels, and we responded by -- last I looked, I think we sank several Iranian frigates, destroyed these sort of smaller craft. I think ultimately, we destroyed oil and military facilities, oil platforms and so on. In the end, people here in the United States in our constitutional system, there were lawsuits brought by members of Congress claiming that President Reagan had violated the declare war clause. The court said they were nonjusticiable, never reached the Supreme Court. The D.C. Circuit and the lower courts refused to decide, and Congress took no action.

 

      And so if it's a use of force that rises to that level, even though I may constitutionally think the President could do it without congressional permission, at least from that precedent, it seems to me a President can go that far. And past practice suggests that that wasn't considered a war sufficient that you would need congressional approval even if you were in the camp that thinks we always have to have a declaration of war first.

 

      So if you were to take the other position of what is the outer line, then you would think Congress has to -- that Congress's rights have to be triggered. I think you're talking, at least under even the DOJ opinions, you're talking about some involvement of U.S. ground troops. So it seems to me like if you use the Navy, use the Air Force, you can drop thousands and thousands of bombs and missiles like what we did in Kosovo, and which we did in Libya, and which we kind of did in Syria. And that doesn't seem to a lot of people in the government and to the courts to trigger the declare war clause, so maybe it has to be something like a large ground invasion like the Iraq War.

 

      But again, personally, I think that's really for Congress to police. If Congress thinks that the President is using the forces that Congress has authorized and appropriated in an improper way, Congress can always stop it, and they most usually choose not to.

 

Jack Jordan:  I guess I'd have to say in a follow-up question that it seems that -- and in part, a response to that is that the 80s are profoundly different from where we are now. Where we were in the 80s, Iran had a little bit of a local counterbalance with Iraq. And thanks to us, that has been removed. So Iran has Iraq on its side, essentially. And now, we wouldn't have any sort of a local counterbalance to Iranian military force. And if anything, we've created a more powerful Iran with the experience that they had in Iraq because they, effectively, by using their proxies, even though we have an awesomely powerful military, they effectively defeated us.

 

Prof. John Yoo:  I take your points about what's going on there tactically and strategically. I'm not sure whether that alters the constitutional view only except insofar as John's point was, well, if we were to start a conflict where there's a large possibility of significant numbers of U.S. military casualties and civilian casualties, is that how we measure a war? So your point might bear on that because if the U.S. is weaker in the region, Iran is stronger, Iran has—and this is a point I think John was referring to—Iran has more ways of, as it were, attacking us than they used to because not just terror cells, but of cyber. Does that mean that Congress has to approve?

 

      On the other hand, I would say because of these new means and technologies they have of attacking us, it may be that the kind of congressional preapproval is less and less practical. And so that's a reason why Congress doesn't want to get involved because they don't want to make a mistake, either encouraging a President to be too adventuresome or tying a President's hands and preventing him from reacting quickly to something like a cyberterrorist attack to prevent it from happening.

 

Jack Jordan:  I would take the position that I understand that you don't want to use the argument of what can somebody do to us to justify taking action, but on the other hand, you have to consider the consequences to us as a nation. I mean, look at 9/11 and the amazing consequences to the whole nation caused by a very, very small group of people. You have to take that into consideration in thinking what are we going to allow the President to do unilaterally versus what Congress would approve the President to do.

 

John Bellinger:  I'll just say, and then we'll see if we've got some other questions, but I'll just say I agree completely with that point that part of this is maybe just macro level, it's almost not-legal, it's sort of meta-constitutional of when you're making these enormous decisions, even if we've elected the President, do we want our elected representatives also to have a say on something like this that's that big. And I would say yes, even though I, as the President's former national security lawyer, do believe the President has very, very, very broad powers.

 

      But there does reach this upper limit when if he's threatening to commit us into a major conflict in North Korea, a major conflict in Iran that could have serious -- because really, you can imagine people around the United States, and this is sort of what you were saying there, for Kansas to say, "Hey, wait a minute. I didn't sign up for this. I've got bombs blowing up in Kansas City, or in an embassy around the world." So at least at the meta level, I would say I think that the Congress ought to have a say. And frankly, even the declare war clause does seem to say that.

 

Prof. John Yoo:  [Inaudible 48:33] and I agree with that point. And we both did that when we were in the administration is even if we didn't think the President needed to get authority to respond in Afghanistan, even people who have a very broad view of the declare war clause would have said that was self-defense, and we didn't need to get any kind of authorization. We both -- and not just us alone, but many people in the administration thought we ought to get one anyway because it was just a good political thing to do to get everybody to support the use of force in Afghanistan and whatever other places we need to go in response. Putting aside what the constitutional doctrines were, the only small thing I would say is the harder question is whether you would require it, of course. And that's maybe where the 5 percent we disagree.

 

Wesley Hodges:  Thank you so much, caller. We do appreciate your questions. Caller, you are up.

 

Caller 2:  Suppose Congress were to deauthorize the [inaudible 49:31] to use warlike powers. Could he still issue letters of marque and reprisal?

 

Prof. John Yoo:  Yeah, that's an interesting question. Let me try to address that. I kind of lost you just on the sound there, but I think your question is what -- is, essentially, can the President still issue letters of marque and reprisal, and what are they? And so this is a really interesting question because we don't really issue letters of marque and reprisal anymore. There are people who think they were essentially banned by a maritime warfare treaty of the late 19th Century to which we were a party. But if you go back and say, well, what was their original purpose? So there's some people who have a very broad view of the declare war clause who say, "Well, the marque and reprisal inclusion in the declare war clause shows that the Framers wanted Congress to control not just a fully declared war, but all these intermediate or lesser forms of conflict because they put in marque and reprisal."

 

      On the other hand, I argue, well, each clause has a more specific meaning. I think declarations of war are about the totally legally full-blown wars, and then marque and reprisals really were specific kinds of war that I thought makes sense to be in Congress's hands because Congress is in charge of defining and implementing international law. And marque and reprisals were a particular form back then of essentially letting privateers or quasi-private people basically on the high seas to use force with the permission of the United States. So there are people who argue today the real possibility of marque and reprisal would be almost like bounty hunters or to allow private actors in the cyberworld to act on our behalf who aren't really formally part of the United States government but are still there to advance our interests or use force on our behalf, like government contractors, for example, today.

 

      To me, it just shows the marque and reprisal clause now because that kind of warfare has disappeared or become obsolete unless we were going to try to have this kind of quasi-private, quasi-public form of warfare, so this really has kind of died out. And I just sort of think the clause just shows the reading of the declare war clause is that Congress is in charge of the international law ramifications of a conflict, but that doesn't really have to go to authorization of who gets to decide whether to use force in the first place under our domestic law.

 

Wesley Hodges:  Well, very good. Now, looking at the time, we're -- it's 2:30 Eastern. I'd like to take the moment to turn the mike back to Professor Yoo and Mr. Bellinger. How about we start with Mr. Bellinger? Do you have any closing thoughts for us today?

 

John Bellinger:  The only thing I will say as something we didn't touch on, but maybe for -- I know everyone on the call is interested in it, and I think it is a subject for further debate and scholarship, and that is the War Powers Resolution itself, which is the cause of at least some of the internal wrestling inside the Executive branch and the wrestling between Congress and the Executive, and actually, a lot of time that John and I even have to spend internally. I was the last lawyer inside the White House on the war powers reports, the six-month reports and the 48-hour notices.

 

      As many Federalist Society members, there's sort of much loose talk about it being unconstitutional. I think Republicans have never sort of really pinned down exactly which parts might be unconstitutional. What we do know, though, is that it's almost 50 years old. It certainly was passed at a different time. It doesn't fit very well the kinds of conflicts that we are in now. Certainly, Section 2(c) which purports from Congress to define the constitutional powers of the President as Commander in Chief and Chief Executive is clearly wrong as a matter of law because it purports to limit the President's powers to certain things that the President and Congress have long viewed that he's got more of. And really because of this mismatch over the last number of years between the statute and military uses as now, it encourages presidents, particularly President Obama, to try to interpret their way out of it, which is why President Obama ended up claiming that the 2001 AUMF actually covered ISIS and why what was going on in Libya wasn't actually hostilities.

 

      So I'll just end with the thought that the War Powers Resolution itself is, I think, something that needs to be reviewed. John McCain, when he was still alive, and Tim Kaine, on his side of the aisle, actually put together a bill that said that there needs to be a revision of the War Powers Resolution. So I'll just leave people with that thought and thank everybody for listening.

 

Prof. John Yoo:  I guess just on the War Powers Resolution point, I think that Congress doesn't even believe in the War Powers Resolution. It rarely tries to enforce it. And I think one thing I don't know if you noticed, I noticed, John, back when we were negotiating the 2001 AUMF with Congress is they didn't really believe in it, but they do like to keep including it, and any AUMFs just that they want to -- sort of they make a nod to it, but they don't really try to enforce it. You don't see people in Congress demanding to cut off funds, for example, because the President's in violation of the War Powers Resolution.

 

      But the larger issue is I do think it's right that we have all kinds of new ways of waging armed conflict. Cyberspace is becoming more and more an area as well. And we have different kinds of enemies, and it seems to me the AUMF approach of thinking of Congress and the President acting in this way right before a conflict might itself be obsolete because we are constantly in different levels of hostilities with all kinds of actors, seen and unseen. And I think that's just becoming more and more fact of life because of technology.

 

      And so the President and Congress eventually may come to some other kind of legal regime or constitutional understanding to govern armed conflict, but I think the past where we thought of, well, we can pass something in Congress, and then have a huge mobilization, and then invade. I think that might be wars of the last century. Maybe the Iraq War will really be the last one that really has that kind of timing to it where you could then take the time to have a debate in Congress and pass a law, and that instead, you're going to see something that's much more along the lines of broader delegations with much more discretion left to the Executive branch.

 

      With that, I'd like to thank John for joining me, joining us, and The Federalist Society for hosting this great podcast on this, really one of the most important issues that you can discuss in constitutional law. Thank you very much. It has been a great pleasure.

 

Wesley Hodges:  Well, Mr. Bellinger and Professor Yoo, it really is our privilege. And on behalf of The Federalist Society, I would like to thank you both for the benefit of your very valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you all for joining us for the call. This call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.