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tv   Sen. Chris Murphy Discusses War Powers  CSPAN  December 7, 2021 12:56am-2:04am EST

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>> greetings. good afternoon. >> greetings. good afternoon welcome to everyone in the audience and those of you watching remotely the director of defenset policy studies and a welcome all of you to the policy for an event with mentors streaming on the cato website twitter and youtube also live on c-span. you can submit questions by # or via the cato event page. for many decades the us has
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find dozens of armed conflicts without a congressional declaration of war and indeed the last time that congress passed the declaration of war was in world war ii despite america's incredibly active postwar global military presence congress has not been completely absent for decisions of war and peace that the general trend of the executive branch and the end of the us military mission in afghanistan begins to reverse the trend but the article one powers as many have argued were active legislative role of arms sales to bring policy decisions back in line with the constitution and reviewed the likelihood of dangerous military venture is him abroad this year bipartisan groups ofan legislators in the house and senate have introduce sweeping reform bills that would begin the reassertion of the legislation war powers their
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delighted have one of those and all the effort here with us today we will discuss the role congress of us foreign policy and the recent push to reassert the legislative branches oversight over war authorization arms sales and emergency declarations. we are joined today senator murphy will give introductory remarks the center schedule does not allow him to stay for the entire event but we are grateful to have him here with us. senator chris murphy from connecticut is a sponsor ofer the national security powers act of 2021 which is cosponsored by senators bernie sanders from vermont and mike lee at the top. he serves on the senate foreign relations committee and the chair of this foreman one —- formulation subcommittee.
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he's also the chair of the senate appropriations subcommittee on homeland security. senator murphy, florida shores. [applause] >> thank you very much for the introduction. thank you to my friends at the cato institute for hosting me here today. i am grateful to be joined sorry i cannot stay for the full remarks. but i look forward to hearing their work. i'm looking forward to this discussion and i want to thank cato forig highlighting what i believe is very broken balance of power of national security matters between the congress teand the executive branch and i'm grateful this is a moment where we have moment in congress that is more engaged in this issue than any time
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before of my service here and thmay be hard to have a discussion of her founders who is ensure charge of declaring more but how do you start anywhere else but in 1793 hamilton and madison do you are back-and-forth contesting their different visions of the balance between the legislative branch and the executive branch and one essay madison gets a lot of credit is the primary driver talks about what happens when the emergency arises that necessitates quit quick rapid military action and you can see there would be limited moments that the president has to act but he cautions that these shouldd be ins should be
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few and far between because he believes is most understood that congress it is really important that congress reserved this power to decide when american interferes in the world for itself and that these emergencies are great and extraordinary cases and should by no means be submitted to so limit the organ of the national will as the executive of the united states i would paying a lot of presidents to hear them describe as the national will that the founders and in particular madison believe there was one branch was a place for the great were supposed to happen especially those of national security connected to the foreign
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entanglements think that needed to happen in congress and in another essay madison says those whoar are two conductor war cannot in the nature of things be proper and safe judges whether a war ought to be commenced or continued or concluded another fascinating idea that those who are in the bed business of conducting don't have the proper distance to make sound oujudgments whether it should be started continued or concluded our founding fathers believed the executive branchh and the legislative branch to share foreign policy making the the exception of conclusion when it comes to war and foreign entanglements had to be invested in the people's
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branch and it's interesting because the president most often respected this investment of national security in the congress think of the earliest unitary engagements and the conflicts that the barbary states the words with native american tribes on our continent all the cleared by congress the president is withholding the decision to commit us forces and resources and tell a decision was made for by congress. and another national security matters they also respected the question of alliances in the early years they were entered into mostly through formal treaties requiring congressional sense. it goes without saying that we
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are here for this reason that over the years the shifts found legislative power with respect to national security matters to executive powers has been substantial those that are using frequent means to enter in the war without consulting congress the pace of us military activity today is fairly breathtaking americans would tell you we were at war in afghanistan that we saw our war in iraq but in fact we deployed combat troops to no less than 20 nations be conducted at least 14000 unmanned airstrikes in every corner of the world our military has killed almost 50000 civilians through manned and unmanned strike since 2001. presidents over the last 20 /
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30 years have used a few methods to escape from madison's requirement were to be declared by the people's branch of government and these are more frequent and more nuanced first presidents will often decide that the actions of the military does not constitute war defined that most recently in yemen and also unmanned aerial strike second presidents often declare the circumstances or some exigent that they cannot come in time and this is contemplated by madison. but now these emergencies whether they are connected to an imminent attack or necessary to retaliate seem to come on a monthly basis. lastly the president has decided the action is covered by an existing war
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authorization part of the reason my colleague and i are pushing an effort to get at least two more authorizations off the books and those that have been stretched beyond a reasonable interpretation to cover more action abroad and when it comes to the alliance structure ire would argue that presidents today rarely enter into treaties because they have found other ways to cement alliances that don't necessitate coming to congress. why go through all the trouble to negotiate the treaty and have it signed off when you could have just a couple of billion dollars in arms and have those armed sales find that nation to you just as effectively as a treaty. we don't have mutual defense treaties with saudi arabia or morocco but they are bound to one way shape or form those
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highlighted by the $100 billion sales wishes greenlighted by president biden the sales don't have to be approved by congress and that the executive branch can do without it congressional approval. >> so this is the national security powers act which is introduced by myself senator lee and senator sanders and our belief is this piece of legislation can reset this balance just briefly let me explain how it does so the question of warmaking and arms sales first and foremost it makes explicit what i believe to be implicit in the construction of the warmaking power of the constitution.
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if the president does not have authorization for particular military activity, then he cannot use public funds to carry out that activity. those in the constitution and the war powers act itself, i would argue that is stipulated. our national security powers act makes it absolutely clear that without authorization from congress the executive branch loses funding authority to do that. we squeezein the timeline to make sure congress gets into the game at an earlier basis and the war powers act gives some significantly way to begin substantially way it better defines what war is right now that is left almost to the complete open interpretation of the national security powers act to define
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in statute what hostilities are you don't get another situation like yemen to refuel claims and give targeting advice does not constitute hostilities in the administrations mind. with arms sales the change we made is simple but it is incredibly meaningful. right now, the president doesn't need congressional approval to sign off on arms sales that congress has the power to disapprove. with that resolution of approval or disapproval has to be passed and then signed by the very president who is proposing the sale. meaning, you need to have a treaty majority, two thirds majority in the house and in the senate to effectuate a resolution because it is inevitably going to be vetoed by the president. instead the most important arms sales with presumption not every arm sale but for the
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big arms sales especially to the non- treaty allies, the nations where the arms sales is effectively finding the united statess to that country, we require the president be proactive congressional just like he or she would need for a treaty or for declaration for the same for the big arms sales because in practice and in principle they have the same impact often as a treaty. i'm looking forward to continue to broaden the coalition of interest groups and members of congress working on this legislation there's a reason for this to be a republican issuer democratic issue i am proudly introducing this piece of legislation in the middle of a democratic presidency because i believe that this balance needs to be reset matter who is in the white house and at a moment when the country is having a pretty open
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conversation about democracy we have to understand this is part and parcel of that conversation americans wonder if iter is still relevant to their lives anymore a lot of that has to do with their economic existence is much tougher than they ever expected they not see them doing something meaningful but increasingly they see their sons and daughters and neighbors be put at risk overseas they are taxpayer dollars used to fund massive engagements in places of the world completely unfamiliar to americans and they don't feel they have any input with the big decisions being made. they never see a chance to engage with their member of congress. they never see a debate in the united states congress. you cannot fault them when they start to wonder if democracy still works in the
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way they were taught in school the power to declare war vested in the people yet i have never been asked by my member of congress. lessons 20 years ago whether or not war is something i approve of. the most consequential moments was the day he decided on the outdoor water with the chief of staff to refrain from watching airstrikes in syria until he had one congressional approval. now word she literature leaders saw this as a sign of weakness and indecision and they urged him to take the fight to syria without congressional authorization but i saw that decision is a declaration of strength. the strength of our constitution, this document in series of words onto paper to
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limit without coming to congress first and i saw the impact those that americans are not invested of matters of national security daycare are much more about bread-and-butter issues but there is a catch about war and peace and foreign-policy but that is not the case when it matters. it was labor day weekend 2013 when president obama said he would ask congress for a vote and i can count on one hand the numberke of moments those as an elected official when something matters so much to your constituents that they don't wait to come up to you and enter into a civil conversation they yell their opinion to you from across the supermarket it matters so much to them that was one of those moments. labor day weekend i was home in connecticut and wherever i
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went people had an opinion about the wisdom of entering into war with syria. i will tell you almost to a person they wanted me to vote against that authorization and so to me that is assigned the first they have when it comes to input of the big questions of national security and i will admit these decisions whether or not to declare war or selling arms to other countries is tougher and harder than they were generations ago the enemies are harder to define. they are always changing and metastasizing sometimes it is hard to tell when a war and were an enemy is defeated by madison and are founders believed that forcing a public debate around matters of four and peacet. and national security would make this country safe. they were right and i'm so
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glad that a lot of people are committed to reviewing the national security powers act because i really believe that if we reinvest congress through the statutes with the power that are founders believed should rest in the article line branch then it will be a safer place of thank you to the cato institute. >> thank you very much senator. one question before you have to head out someone asks if you think the war in afghanistan would have ended sooner if congress had more of a role? and to echo that i want to get your opinion how do you and
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your other sponsors view the role of the war in afghanistan for all of this? is that the closing of a chapter of a long-running conflict that congress wasn't doing enoughve for oversight or how did that play into your decision-making quick. >> i think congresses abdication of national security extend to oversight not just the formal declaration we can tell this to the prism of iraq and afghanistan so it was ten years ago when visiting members of congress to afghanistan were beginning to be told that the minute that we left and the forces departed the taliban would take over why on earth did take us ten years to make a decision whether we should stay or go or we oriented policy the way things we were doing was fundamentally broken a decade ago? so my hope is that by passing
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this legislation or reversion it breeze little courage to congress not just on the formal mechanisms to declare a war but on the oversight itself and frankly it will make executives a little more careful how they engage with congress. if an executive knows they need to get proactive approval from congress to approve an arm sale and will share much more information with us about national security policy. i just want a two-year fight with the administration to allow every member of the senate to have one staffer to have access to classified information. it is stunning amount of information that remains classified that most members
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of congress cannot access and that is deliberately tried to record information on the conduct of war often to try to shade from public view information that is embarrassing. not necessarily classified but embarrassing and now with more congressional access we can do better oversight but i do think that this legislation although not formally over oversight will give a better sense of that mission. >> thank you. i appreciate it. [applause] >> great. this is the start of an excellent conversation thank you for coming today i will now introduce my colleagues to introduce one —- to start the
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conversation now a policy analyst at the foreign-policy department he works on primarily issues of arms sales the co-author of the arm sale risk index and senior vice president of policy and of constitutional powers including indispensable remedies of the constitutional impeachment power as the cult of the presidency america's dangerous devotion to executive power and as a reminder when we do do the q&a you can ask questions in person or online please submit them via the streaming page or the #cato fp. please start us off and those
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were safe havens and they go way over the time limit i will keep theseie fairly brief. >> so when we talk about arms sales they frequently what they look at what the discussion is framed upon our issues of strategy and security and issues of economics and we talk about ?strategy are the these were part weapons going to help us fight adversaries use have to when you search cato institute
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with four broad areas of risk to create problems for the united states. >> if you look at iraq and afghanistan, this is exactly what blowback is. second is single meant us is called in conflicts otherwise it would not want to be involvedu. in and then currently in yemen and what they continue to supply weapons that are continuing to be used by civilians in yemen. the third is we use weapons we see this in the philippines during the pandemic where the filipino government uses weapons to amass opposition to the government we find the idea that these can be dispersed in the wrong hands because they go to other
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nations that the taliban has access to the weapons in afghanistan. >> so it is the supermarket problem in part but is also legislative so i will talk about the legislative problem and how this will work tost overturn this and changes so first i would get the brief history of weapon sale legislation and why congress cannot do anything and how this helps. so a brief history nobody really cares about restricted restrictions until the seventies and you have us using weapons to help israelis fight ande then withdraw from vietnam and then watergate and now congress cares about weapon sales so in 1874 they
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cosponsored the being impact really wasan the initial plan to restrict weapon sales any sale over $25 million congress had to review and add 20 days to point a joint resolution of approval or disapproval. first the president can just sell weapons at 24.99 million and get around the 25 million-dollar barrier some think it is convenient because then congresses recesses than the president can propose a sale congress doesn't have time. on behalf of the sales there is no timeline so a lot of the sales were occurring before congress could intervene then there was no discussion of commercial sales. so congress reevaluates in 1976 passes the arms act and
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then this solves a few problems. first it lowers the 25 million-dollar mark and then congress had to be notified and had 30 days to review on top of that added language of commercial arms experts in providing congress quarterly and annually with annual reports. here's the problem between us 30 pieces other legislation congress still cannot restrict the president and has not nonsense congress ever invoked that to stop the sale it was very clearri with donald trump where he said five times often times was successful or twice it didn't get through congress because they didn't have enough votes a simple majority
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in the three times they did get the simple majority trump isused his powers to overrule. so this is the two broader spots and then you hear about war powers that not weapon sales. second the president has a veto he can use at any point to stop the weapon sale from occurring or to stop them from occurring.
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and then the lobbyist groups need to do a lot more to say that thiss is important we should let the sale go through. they just don't care about ovsales but when congress wants to improve the sale for purposes to attack civilians and more importantly because right now congress has to pass the d joint with there will be no requirement to do that and
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there is no sale and they need to be delivered in 60 days. the president still has to that justification for each sale and for anyone to be coproduced outside of the united states so far this is comprehensive legislation and now the things it doesn't address there is still a high bar of notification to get the state department to give notifications to all congresspeople as of now it still controls commercial sales and there is no precise method in this legislation. with that said this legislation will work with some weapon sales.
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thank you. [applause] >> thank you all for being here physically or virtually jordan has covered arms sales i will t cover the two remaining issues under the national security powers which is war and national emergency authority. looking at what theti constitution has to say about presidential war and emergency powers to where we are now life is terrible what congress might be able to do to make it less terrible and the general prospects for reform. i am really happy to say that i was worried but nobody here that i can remember said coequal branch that is
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something you often hear. i think people who are on the right side of these issues often senators and congressmen talking about recapturing congresses constitutional authority will say we are a coequal branch like up here who is entitled to their opinion and a little respect. but it always seems to me that sells congress short in the physical architecture by design it leans over the presidents house that constitutional architecture has a similar design congress comes first as madison said in the small our republican government the legislative authority predominates and on
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paper, especially when it comes to constitutional powers over war in national emergencies, congress is absolutely dominant, not coequal virtually every war and military power that belongs to congress to make rules and to provide for the militia to execute the laws of the union and importantly to declare war. what does the president get? according to the first sentence of article two he gets the executive power in the presidential all partisans are with you have tried to torture out of that clause to give the president the power to launch words that now there is the executive power principallyit the power to faithfully execute the law to
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make concrete policy decisions that congress has already made article two section two makes the president commander-in-chief for the army and navy of the united states and another clause that the executive power enthusiasts have seized upon our presidential power to make war but as hamilton explains federalist 69 the commander-in-chief cautious makes the first general and add role of us armed forces and generals and admirals have an important role the generally they don't get to decide when and with whom we go to war. i should say i'm a little embarrassed to go to the federalist paid a purse senator murphy went with the deep cut between madison and hamilton but the point is in
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that constitutional scheme the powers are largely defensive it is described as the power to repel sudden attacks which is not include the power to launch them whatever the president thinks it might be a good idea. and the declare war clause was considered to be a limit not a legal formality and then at the philadelphia convention to explain at the pennsylvania ratifying convention what that declare war clause was understood to mean it was there so this will not hurry us into war and not in the power of a single man to embroil the country because the power is vested in the legislature at large as for national emergency powers and
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another aspect of presidential powers that this legislation addresses, justice jackson put it in the case in 1952 that the framers knew what emergencies were but they also had the pretext that they suspected the emergency powers me candle emergencies so aside from the suspension and of habeas corpus they made no express provision for the extraordinary authority because of the crisis i do not think we may rightfully amend their work but if you squint while you are looking you may be able to make out a single emergency power article two section three gives the president the power to call
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congress into session and extraordinary occasions like the national emergency and that is so congress can tell him what to do that is the national will determined by congressss of course what we have now looks dramatically different than what i just described this system will not hurry us into war that's the way it was supposed to work but in the 21st century as senator murphy alluded to we have seen a radically different regime in which going to war is easy and frequent and rarely debated and in 2017 barack obama left office as the first two-term presidents in american history to has been at war every single day of his presidency and his last year alonent dropping over 26000 #-number-sign seven different
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countries and nine months into his ten year donald trump had blown past that tally all based on the theory that congress three days after 9/11 had preapproved all of this activity in the 2001 authorization for the use of military force one congress, one vote, one time and also president trump also sees dangerous new ground ndusing the targeted killing machinery set up earlier on in the war on terror to eliminate iranian general major general qassem soleimani first time the president has publicly ordered and assassination of the top government official for a country we are not legally at war with. this system will not hurry us into piece. on the home front with the
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last presidency with the last president not subjecting him to to much abuse but it did show the danger of taking the federal code with over 100 statutory powers through which the president can unlock emergency authorities simply by saying the magic words of national emergency. it seems never that previous presidency you could use such powers for the and run around in a budget battle to snatch funding for a project congress has refused to support at the levels wanted but that is what president trump did
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february 2019 when he declared a national emergency at the southern border to build a wall and shipped billions of dollars that congress did not appropriate for that purpose. congress be damned. sometimes we talked about the constitutions in the framers we sound like we say keep faith we don't want to make james madison sad. i say that's not the spirit in which i would make these comparisons. i think it's important to know what the law is if you want to change it constitutional law but what i would say in particular in the area of emergency powers the skeptical view is borne out and reluctance to see unchecked
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authority that we learn again and again and then have wisdom in it. probably got here. the phrase flipped the script is right and a threat than modern president centered regime has done jordan talked a little bit about this in context of arms sales. and then the defensive tools to push back and the way things have evolved in recent decades and then in many different areas and then the
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president proposes and disposes. thanks in part to a 1983 supreme court decision that congressional attempts to rein in presidential action have to themselves to the gauntlet of the ordinary legislative process and to be subject to presidential signature or veto. >> and with this decision the upshot is to shift the default setting of american
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governments and you can see how this is operated by president trumps use of the veto power eight of the attendees those issued during his single term the president feedback attempts to reverse unilateral actions, congressional majority referred to as three of those cases involving arms sales to saudi arabia and the uae. there is another with the war powers resolution to stop support for the saudi war in yemen. and despite the fact jefferson called the veto a shale to protect against the legislature it is a weapon to allow the president to seek new powers that is what
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happens with the details of the attempts of the house and senate to overturn the border wall emergency and with a targeted killing of qassem soleimani and then to restrain his ability to further wage undeclared war against iran. but with those arms sales so that unilateral actions require congressional approval to stick. that acting as a couple of other things as well to
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lightning speed definition of hostilities and future presidents cannot argue as the raobama administration did in libya that it is not hostility if you bomb them in a cannot hit you back which is the argument for going beyond the time limits of. the war powers resolution. senator murphy talked about enforcement mechanism and then the sunset of for existing aumf including the blank check that has caused presidential mischief. something it does not do it will not resolve the issue of 2001 au enough replacement but
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it doesn't tackle the problem of the existing emergency delegations throughout the federal code but perhaps sometime in the future that suggests delegations would be worth pursuing at some point. so what are the chances that this can be passed? but at least with the presidency the stars are better aligned than any time
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they had been is probably watergate. they are probably in a better position than they were in 1973 when the original war powers resolution at least running for president in 2008 and senator biden went on record to say george w. bush should be impeached to be try to take the country to war with iran without congressional approval and then the decade before that he introduced the war powers replacement bill that in some respects the bill we have been talking about today would have been automatically cutting off funding that congress did not authorize. it's not clear how much that
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is work by decades and politics is enough to get on both sides of every issue. and those that do that arduous and humiliating things you have to do to win the presidency and up saying now i would really like to say or see hisve power. but let me close by saying any such measure whether or national security powers act or something else before could get to the president's desk congress needs to pass it. that would mean even more work for congress going forward that means they would have to stand to be counted and then
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the war that the president wants to fight. and those remarks back in july senator murphy was almost apologetic using the word look workload several times. for the senate foreign relations committee and armed services committee it would increase the workload. and thatt it would be better off the way that we export wars. it's probably not wrong to think- you have to control members of congress to do their jobs. because leading the president take the calls has turned out to be a steep field for individual congressmen are
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women it takes a huge weight of responsibility so i can't buy a temperament or tax status if anyone should vote for a particular bill may be able to save more generally client that might be worth the extra work it's no secret that they call that very low esteem with long-running survey data
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that can to have quite a deal and some are very little they had quite a deal to get the number congress has been stuck at the o valley of central percent for points behind television news. but with those political pundits all of those to outsmart the ten headlights and colonoscopies and nickel back.
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[laughter] but may be congress deserves the disrespect that it gets if you think how many powers were ceded to the president over the years is it really surprising it is held in such low esteem that it has been allowed in debating society is not even very good at debate. >> there is more than a little truth to that. if folks want to be popular, it is part of the statics part of the respected institution so with some degree of self-interest to let congress get its groove back we know it would do for the rest of us so even members of
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congress can have some good so with that i will sit down for question and answers. [applause] from the q jeff davison and the anonymous user there is an issue of partisanship and how
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that has congressional war powers i'm sorry it wasn't on partisanship my bad. but then when it is not bipartisan do you want to take a crack at that? >> it's a real problem it is less of a problem so madison has a view that it would counter ambition and in the interest of the people for each branch to defend the constitutional rights and it hasn't worked out in modern times particularly when the presidency and the legislature
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brands sure in the same hands when you have dick divided recovery you tendency partisanship working in a way that gets you more oversight and more pushback from congress but i think this is a huge problem but only 12 republican senators voted to disapprove president trumps border wall emergency and you know for a fact that the tally would be radically different if barack obama invoked a national emergency power to build solar panels or something like that so it's a huge problem outside of those brief times when it works in
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favor of interbranch fiction i do believe it is something we need to get beyond and that is one reason i generally applied institutionalist like senator murphy of either party and mike has a similar record for anyone who is willing to go against the president of their own party on these fundamental issues of power we need to see more of it. >> we have one from you of and use monitoring and from global exchange asks licenses and end-users certificate for mexican police and military do
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not identify the users and that violates relations how can you control for experts? >> and then in period these are to help with this and then there is a fairly large problem but i think that is something that is legislation like this were to be passed. >> . >> my question has to do with the armed exports most
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powerful argument given for arms sales is economic and the simple fact that if the united states industry doesn't sell certain arms to foreign buyers and the french and the british and the israeli any number of countries will do so. if you know of an analyst that could speak to that is the overriding issue of every discussion about export. >> i can do that. so generally speaking from the strategy point if the us does
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not do it somebody else will fill in. >> i skeptical about that argument to suggest it is a pretty inefficient industry it seems fairly logical that those could still that those that need russian or chinese weapons. and to say saudi arabia cannot get that generally speaking that's not the way this works because the military is made up of us weapons and they just cannot turn to russia and give up but that deal happens whether or not with the weapons but the deal if they are not attached to whatever
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conflict they will be using. >> do you see this how it began on one hand if you don't give us your weapons we'll give them to somebody else. that is true but in the alternative is we will not be a part of your war. that's the biggest threat to freedom. >> werek getting blinking light to say we are technically over time. >> to go off the last question with the supply tendencies build brings what reform would you like see congress human asked to ensure that they
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don't approve of? >> that this is a great first step. fairly pessimistic on the arms sales and this being able to pass. generally speaking, democratic congresses don't want to restrain a democratic president and a republican congress may want to restrain a democratic president, but they are not going to do it on weapons sales. the national defense authorization act which has these small little amendments that do help evaluate risk or stop sales to reducing the conflict nem and, a really important -- conflict in yemen, are really important. >> any closing words? gene: no. >> thank you all for coming.
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apologies for running overtime. great to see you all in the audience. thank you to everyone watching at home as well. big round of applause for our participants. [applause] thanks. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2021]
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