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tv   Politics Public Policy Today  CSPAN  November 28, 2011 10:00am-12:00pm EST

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of the strategy for global health care. we will be live again here on c- span at 2:00 eastern as ohio senator, rob portman, will talk about debt reduction as a member of the joint deficit committee. he will discuss why. that is live at 2:00 eastern. >> by the phone calls we get, by the emails week it, but increase participation on these programs, we know we have been successful. >> tonight carlos garcia as pariahs, director of the office of cuba broadcasting, which oversees radio and tv. >> we have done 23 focus groups, and i have been there a year in the week. what we found out is that people in cuba want news. they definitely want news.
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when they seek news, they mention the marquees. >> "the communicators" tonight at 8:00 eastern on c-span 2. >> a look now at the legality in the iraq and afghanistan wars. this is part of a series of debates started by ralph nader to highlight issues that are controversial and rarely discussed in public. this is about two hours. >> good day to all of you. today we are sponsoring through the center for the study -- the center for study of responsive law. we define taboos as it began subjects that are not often discussed in political electoral or mass media circles. the subject today is president george w. bush and president
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barack obama, war crimes were lawful wars? all societies have taboos. they are systemic forms of censorship. they often serve as the power brokers in any society, and in our country they are and difficult to the full expression of the first amendment. broken, weaboos were were able to discuss, debate, and treat the problems. today we have many taboos. the legal profession itself has turned its back, and my
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judgment, on a lot of taboos affecting the subject of rules of law. in our debate we have some of the most acknowledged experts in the field, which i will shortly introduce, but i do want to say very briefly, a few words about the function of law. the function of what is to discipline power. it is to make sure power is productive, fair, and accountable. when the use of force and power goes beyond the reach of the wall, the system of the rule of law begins to break down. it begins to shadow. it is interesting that most users of power and forced onto route there activity in the legitimacy of the law. they are always trying to argue
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the auctions -- actions are constitutional, proper executive order, or observing international treaties. this is a recognition of how important legal legitimacy is in our society, even by those who some feel are beyond the reach of the law. here we have a focus today on presidential power. it affects the separation of powers and the execution of the use of military force abroad. our debaters today debating this very central question that is very rarely publicly debated have the backgrounds of such detailed experience that i cannot do justice to their bios. their fuller bios will be on our
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website, which also explains why we have started this series on debating taboos. i do want to briefly describe the background of these participants. bruce fine is an attorney in constitutional author. he has served in the department of justice under the a magician as an associate deputy attorney general. following this, appointed general of the communications commission. in 2005-2006, he served as the american bar association celebrated task force on presidential signee statements. these were three paper sent to the president by the largest bar association in the world on what they thought were unconstitutional positions.
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he has been associated with the american enterprise institute, the heritage foundation, and the brookings institution. the regular contributor to the mass media. yes testified over 200 times before congressional committees. lieutenant-colonel tony schaefer is a highly- experienced intelligence officer and recipient of the bronze star with 25 years of field experience, including undercover in afghanistan. rs he is known as the subject matter intelligence and policy matter person on matters such as terrorism, data mining, situational awareness, and adapted destructive technologies. there's a whole new dictionary that can be bought around these activities. his book was very controversial.
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heavily redacted, the department of defense bought the first 10,000 copies and recycle them. he is very well known at this time and intelligence operations. he was an eyewitness observer of what was going on in afghanistan. lee casey is an attorney here in washington, d.c. he served in the justice department and at the u.s. department of energy. his work involved in advising the attorney-general and the white house and of constitutional law and statutory interpretation. he is an expert on the foreign corrupt practices act come in from 2004-2007, he served as a member of the united nations of commission under promotion and protection of human rights. he has co-authored many articles with his co-author.
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david ripken jr. is an attorney he has extensive experience in constitutional and administrative international law litigation, including national security related matters. he has also worked in the justice department. he has filed supreme court and appellate amicus greece in several leading post-9/11 security cases and is a frequent contributor in guest on national television networks. our moderators are steeped in the subjects today. stuart taylor jr., a lawyer, reporter, author, and prolific writer for national publications. he covered the supreme court for the new york times in the mid- 1980s.
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the subject of terrorism, civil liberties, and affirmative action. jonathan turley is a professor of law at georgetown -- george washington university law school. he is a prolific author. litigator on behalf of those who challenge official power, including a variety of national security and terrorism cases. a frequent witness before congressional committees, he has worked as a cbs and nbc legal analyst during highly controversial events in recent history. as i said, the fuller bio is on debating taboos. professor turley will now open the floor to each debater. [applause] >> thank you very much. it is an honor to appear with
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ralph nader and this esteemed panel. we are going to be starting the debate with opening statements in which each individual gets five minutes. and i have been given the task of keeping everyone honest, so i brought a stop watch so that i will not be tempted to favor one side or the other. we're going to start with mr. bruce fein. [applause] >> thank you, , jonathan. let me first began by paying tribute to ralph neighbor -- ralph nader. i guarantee he would have challenged the universe. and as posture list for my presentation, i want to begin with two ideas. r is the most important
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decision in the country makes. the second is, the most important idea in the history of civilization is due process. the prospects that you could get it wrong. your require certain procedures to make sure you do not harm civilians or innocent people. that is why it is so important that we entertain this particular discussion with the greatest amount of sobriety. i would submit that the united states has engaged in aggressive war in violation of international standards on at least four occasions since 9/11. first of all, i would submit that 9/11 was not more in the international cents, that there was not the same level of danger that is required in order to unleash the fury of arms and
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violence against the population civilian or otherwise engaged in hostilities. i want to submit a conclusion in that regard by suggesting 9/11 was unique in major respects. number one, because the alleged offender was not a nation. there is no end point that can be conceived to the so-called war. but if we have a perpetual war, no one has even insinuated benchmarks whereby someone says the war against international terrorism is over. that is one suggestion that this may not rise to the level of the war, because permanent or in freedom art and reconcilable. -- because it is irreconcilable. what you are fighting is a tactic, not a prescribed geographical territory. that means military law and
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military role can be imposed anywhere on the planet, including in the united states. it is just a matter of discretion with the president. he may have withheld military loss in the united states now, but under the framework of 9/11, a fight against international terrorism is war. he could do that today, tomorrow, or otherwise. in my judgment, 9/11 itself was a horrible criminal operation. there have been those tried for complicity in those abominations, and have been sentenced to life imprisonment. secondly, if we can go to the issue of invading iraq in 2003. the crime of aggression was established post world war ii, and when country invades another, it is thought threatening yet.
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i submit, what was happening and what we invaded iraq in march of 2003, that was dangerous to the united states. i do not believe it comes close to satisfying any reasonable definition of an imminent danger. many thought he was possessing or seeking weapons of mass destruction. not so remote and there were would satisfy justify -- that was so remote it would never satisfy the justification of war. and the congress of the united states did not authorize the commencement of hostilities. it delegated unconstitutionally the decision whether or not to go to the war. the founding fathers is three unanimous. they do not what one person or one group of people to cross the line between the state of peace
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and state of war. bassam that sole responsibility on the congress of the united states and united states supreme court. so whenever the united nations said, it cannot exclude congress from the decision maker, and never the less we invaded iraq. the libyan port equally, if not more so, unconstitutional crime of aggression. no authorization from congress. no money appropriated by congress. the president went to war unilaterally flouting international laws and constitutional obligations. i think it is time for the american people and american congress to stand up. thank you. [applause] >> thank you very much. i want to know we have a picture
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of the moon going around the sun on the ceiling so we could use that debate. our next speaker is mr. david ripken it will speak for five minutes. >> thank you. my appreciation to ralph nader. let me begin by pointing out the most roll-is driven activity. i would submit to you that law governing on commonly has been divided into two parts. use in belo governing how war is prosecuted, how the conflict is fought. i would briefly address the first part. there is no doubt that states
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engage in local conflicts but it's all kind of, paula bid, and facilitated entities. it is a defense of four, weighed in response to 9/11 attacks and is compliance with the traditional national mall, as well as relevant sections of the un charter. this really recognizes the right to sell defense. respect to my colleague, the fact that it is a war against non-date after is not legally significant. in addition, the hostilities of a nature, intensity and duration more than sufficient to meet the customary threshold, and i am confident. i will submit to you it is from the danger perspective. that is not a factor in international law. the level of danger is quite high, and may be much higher in many traditional wars against sovereign actors.
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indeed the fact that this is a non-conflict has been recognized as much by us, but later to recognize the attacks as an aggression by invoking article 5 of the north of the antic treaty. from a domestic all perspective, the use around force has been authorized in the case of this a war of al qaeda and television. -- and taliban. the fact that there have been no declaration of war is not constitutionally significant. indeed given this authorization under the teaching of youngstown achieved, the president is acting at the very height of constitutional powers. apple points to dramatize for you why this is an armed conflict and not a terrorist attack. oklahoma city. the attacks came from abroad. it would not a home grown attack.
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-- it was not a home ground attack. if you think about the physical loss of life, more americans than any other time except for pearl harbor alr. okayed it is acting politically driven to fundamentally reshape the balance of power in a large chunk of the world. the fact that it is a global war is nothing unique about it. war has occurred on a global scale throughout human history. going back to antiquities. the fact it is criminal in nature because it is not a sovereign entitled to use force under any circumstance is not legally significant. all it does is provide us with opportunity. and other circumstances. the effect of this has been
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recognized in every case since 9/11, including a case of an opinion of five justices specifically acknowledges the point. we are entitled to exercise the right of individual and collective self-defense. there are other reasons it was a lawful war. we have absolutely of no deficiency as far as the basic use of belem principles are considered for any of the wars that have been discussed. think you. >> thank you very much. david it's the current record of giving up 30 seconds of his own time. and we are now going to turn to colonel schaefer who also has five minutes. >> think you for having me. it is an honor to be here.
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defense of war. let me hit a few points. we will go back and talk about the specifics in the second. have does a tribal war loard to do with 9/11? let's keep in mind that some of these guys live and die within 5 miles of their village. the legality of the action is completely unfounded, and connected to the realities on the ground. how many number two's does al qaeda or the taliban have? it seems like we're killing one every month. some of you have seen me talk about this before. i am not anti-war, i am anti stupidity. the fact that we have an unwavering push to punish those
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that did not like us, does that justify the fact that they're not like? also, when we talk about the idea of defense, what does that really do? by all accounts, a pretty bad guy. it we're talking about defense of war, held far does this proactive defense extent under what authority? -- under what extent of authority? my context only we could have arrested them. would you put this in legal context, all u.s. citizens are due at some level of their day in court. why are we not applying riegger's believe the very laws
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that would apply that? i am an intelligence officer. i cannot talk to dead people. there is a real loss of capability to do the right thing for the community. and i am a practitioner. i have been living at the end of the spear for the past 50 years. these are laws that are derivatives of larger constitutional issues. and i would like to believe i've been taught to live with than those. i have worked a lot of the past 25 years to avoid having to follow laws to establish constitutional objectives. you have to look at what you gain when you avoid falling the law regarding the american people. it is in your best interest to do that diversion, or will it become a habit that the next politician could take advantage of it? that is why it has to be pure. laws dea of setting up fals
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has to be rigorous we put down in process, and those that practice this understand what the good and bad points are. and i have seen over my time in service, what i would consider war crimes. where women and children were not considered a degree target. let's talk about mexican drug lords on the southwest border. mexico is a foreign country. what if we decide the mexicans are now due predatory -- what if we decide they're now doing pretty drones? we see something going on in mexico. we see a drug lord who has be headed people. really bad guy. we decide he is outside in going to take him out. we shoot the predator and he is gone. when it happens, we take out our
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runner in north dakota. five citizens happen to be in the wrong place. how long will we accept that? probably about 10 minutes. why is like in afghanistan or pakistan less relevant? this is what we have to think about when we look at the reality and application of the law. thank you. [applause] >> thank you. he gave up 40 seconds. we will see if mr. lee casey can do better than that. >> i am afraid not. five minutes. thank you. i will argue the u.s. has prosecuted this were lawfully, particularly with respect to al qaeda, taliban, and assess it. the loss of four established a series of basic rules about how
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war may be prosecuted, and about how enemies may and must be treated. here is a great dividing line between combatants who are legitimate targets, and non- combatants were not. at the most basic level an enemy combatants is a combat and on the other side. a very well-established category that was not invented by the bush administration, and sometimes known as an enemy. this classification is not limited to service members and duly enrolled in the armed forces of the state, but includes a regular forces, independent of state authority. those that are part of a regular national force that has a regular command structure carry their arms openly, and otherwise -- otherwise complies are known as lawful and privilege combatants, and
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entitled to a number of import rights and privileges. those like al qaeda and the caliban who did not meet the requirements -- and taliban are considered and privileged combatants and have far fewer rights of defeat or capture. in addition, the category of combatant includes regular or irregular forces. where to draw the lines into together conflict can sometimes be difficult, especially in this conflict where the opposition deliberately has adopted a very secret and non-transparent
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method of organization and command. there is lobbying build up on that issue since the supreme court said that individuals held at guantanamo bay are entitled to habeas corpus proceedings. the d.c. circuit and this -- district of record have been building up the body of law on who actually falls properly within these categories, and we can talk about that if anyone has questions. i would like to emphasize, because already the start of there have been questions raised on that. the fact of the matter is if you are military targets anywhere in the world you may be found, it is not limited to the battlefield, trenches of the
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front line, however you want to define it. now, to carry a such an attack, there are certain rules. you have to follow rules of discrimination. you cannot deliberately target civilians. that is the military objective you're trying to achieve has to be relevant or way properly against the potential for damage to civilians in civilian objects, which often are called collateral damage, perhaps to anodyne the term. when carrying out an armed conflict, you are not guilty of a war crime if you kill civilians. you are only guilty of it if you do it deliberately or in a way that does not follow their rules with respect to proportionality.
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he was a combatant in a legitimate target. the fact that he was an american citizen did not change that. the court's made it very clear that your citizenship is not the determining factor, but rather your status as a combatant or non-combatant is. i will stop there's a we can get on to questions. maybe even on have saved 20 seconds. >> 9 seconds, but he was counting? -- who is counting? each person is entitled to minutes to rebut what others said. i want to note there are cards you can write down a question, and my colleague, stuart taylor, will be selecting some of those questions and asking them of our participants. if you fill out those participants, they will be collected for the section, which
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comes later. i will turn it over to bruce fein for any bottle he would like to make. >> stating that in our post/9/11 conflict the wars have been nine ishtly regulated by law freezing china for the political rights. there may be provisions out there, but they are honored in the breach, rather than the observance. for example, when there have been lawsuits brought challenging things like torture and kidnapping against the administration, the state secrecy rule comes in and says you cannot even filed a case, because to disclose who is the culprit would be a state secret, and therefore these cases become dismissed. with regard to the mentioning of mr. alwalki, what is that based
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on? the president of the united states has not released a single fact to congress that demonstrates the truthfulness of that. that is why we have trials. what he is described as the queen of hearts and alice-in- wonderland. we do not do that if you are complying with the rule of law. then we have the massive violations of the foreign intelligence surveillance act. this is in respect of of the provision for howard is to operate in times of war. after over five years, ultimately congress alter the statute and became -- the practice became regulated by law. that is a huge number in invasions' and privacy. what about the extraordinary renditions? we subcontract out interrogations' for countries like egypt or syria to understate -- undertake tortured
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otherwise. mention is wateratur boarding itself. it has not been prosecuted. i think the example of the honoring their rule of law and the time of war is a breach. >> think you. now we will turn to david ripken who has two minutes for his rebuttal. and-- thank you. guest: if you look at histog wars are not an exception. how will we know when this war would end? it certainly would not end on a surrender in a battlefield, but the traditional international criteria and a brief definition that would have to be met is when they offer effective resistance and project power
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effectively. that does not mean you kill every single one, but i am hopeful it would undoubtedly take a long time. this is indicative of the level of threat we're facing. if you are an enemy combatants, you are a legitimate target and you were in the world 24/7. with all respect to my good friend bruce, this is an issue that exclusively in the promise of military commanders and the president of the commander in chief. outside of an aerial -- narrow context of habeas, there's never been any judicial engagement in that determination. in large part because you are not going to be able to ask the court and drop a bomb or put a ban that crisply into someone's body.
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as far as a lot of techniques that mr. fine mentioned, all i can tell you is this, this is the most carefully-prosecuted war in human history. the collateral damage is the low was never a people prosecuted for the violation of war. there has never been war in human history that has been launched with greater attention to the rules. >> thank you. now we will turn to colonel schaefer. >> i have seen directly their roles have been avoided where they gave a green light to an operation that resulted in the deaths of civilians and could have been avoided. i did not know how that is following the rules and avoiding civilian death. let's go to civilian first. you might remember the cold war. i was a counter-terrorism by in the 1980's. i was against the red army
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faction in germany. they killed german soldiers. we were very precise and to things, our use of intelligence to figure out who they were, where they work, and deadly force. we did not kill german civilians, because we've got five guys were down the block. we did not. proportionality was used successfully to prosecute an effort of intelligence and special operations against an adversary that was being supported by the russians. that threat was dealt with precisely within the bounds of law without collateral damage. now, the argument that we have these individuals that are combatants i find unsupportable within the constitution. no law that i understand in your allows for the government to unilaterally say he is no
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longer a citizen, therefore not supported the protection of the constitution. within the context of the constitution, it isn't our interest to prosecute him based on the violations. the current standing order regarding -- as i understand it, the current authority to go after these global come patton's asked to do with anyone directly affiliated or involved in the 9/11 attacks. they continue to deny that he get anything to do with the 9/11 attacks. what was he doing to be a threat based on the current authorizations? >> thank you very much. now we are going to have lee casey have his two minutes of rebuttal. >> with respect, his citizenship is not relevant to question of
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the constitution. it is always, what process is due when engaged in the a legal conflict like we are? the government is not required to prove beyond a reasonable doubt that the individual had plans on attacking our combatants. it may have to have some reasonable basis for that. it certainly does not need to go to trial. the fact of the matter is that is true regardless of whether it is a conventional or unconventional war. people that were uniforms and run tanks are human beings, too. uniforms and run tanks are human beings, too. this provides the same protections for individuals that fight lawfully. our courts have never suggested we cannot run a war without first attempting to prove the individuals put involved by
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standards that are combines. very briefly with respect to libya as a war of aggression, the crime of aggression is very ill defined, but in this instance the actual protecting of the civilian population was taken in connection with our nato allies, and did not violate the u.n. charter, and hence could not be considered a war of aggression. thank you. >> thank you. stuart. >> i have 15 minutes in which to ask questions. i will ask and which the ordered the debaters have already spoken, and their chances are supposed to be less than two minutes and greed of it with less than that.
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let me ask you first, bruce. you mentioned 9/11 was not war. congress voted and authorization for military force to authorize war-like measures in response. was that appropriate, constitutional, and the equivalent of a declaration of war? suppose a nuclear bomb had fallen off and -- on 9/11 killing 50,000 people, would that make it different? >> it seems to me as a provisional matter and have been authorized by the constitution, but remember it was limited to pursuing those who were involved in 9/11 or harbored those that did. it has been applied well be on that. the courts in the administration treat them as authorizing legal force against anyone who is part of al qaeda.
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the administration has never develop benchmarks for knowing who or is not al qaeda. tony -- tony can recite actual first for knowing how flimsy that is. my view is that in the aftermath of 9/11, and even after the fall cleared, certainly after months, it was clear the danger created by the organization, abominable as they are, was not sufficient enough to justify war. i do not believe congress could stand up and say because we believe there is a crazy man we can go attack them because it is a threat to the united states. and i think the time has elapsed to demonstrate that our knowledge of the dimensions of al qaeda are not such that entitled the congress to place us in a state of war. if i can borrow a few times, if
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we use this, we would have fielded an army of 3.5 billion. multiplied the entire population by 126 and constructive everyone. i do not believe you can manufacture and in flight data to go to war when it does not meet the threshold of threat. >> you mentioned the hundred- year war. if it turns out to be the hundred year war, you know there is funding and congress that would not only authorize, but require military detention of accused terrorist captured in the united states. should that go on -- is that ok? should it go on for as long as the war does? suppose he had been in italy and the italian government would not arrest him, but the italian secret service was ok with us killing him. what about that? to go there are two distinct
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questions. one is whether the status as up a combat makes you a legitimate target, and answer is yes. in a place like italy where we would be creating violation under international law. as far as the basic legality of an attack, you did not lose your state as an enemy combat in. if a german officer happen to be in switzerland on vacation, you're still a target. one thing i want to emphasize very clearly, the notion that this is not a serious threat is absurd. this is a far more serious threat if you consider the basic function of a government is to protect the people, the homeland from attack. this is the worst attack that took place on american soil. we're talking about entities that are trying to reach other
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attacks in use weapons of mass destruction. what will it take for us to appreciate the seriousness of the danger? this is not a serious argument as a matter of law, but as a matter of military analysis and thinking and planning. affectively gauging war against a small group that is able to penetrate from time to time american homeland and bring death and destruction and may have to thousands of americans in trying to do it at the level of dozens of thousands is horribly dangerous. any normal person would see that. it is not a question of how many of them are out there. >> thank you. tony shaver. what about the killing of osama bin laden? was the decision to kill him rather than capture him, whoever made it a war crime, and who do you think made it? what is the state of the evidence on that?
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take a good question. some the answer that into parts. first, the bin laden question. who made the call? i think the decision was to kill senior officials. i have no evidence of that. unless he walked across the room with his hand up, he was not coming out of there alive. secondly, i do not believe it was the right decision. i believe in a situation like that you be little the situation, the rule of law. the idea that we capture people, let's go to [inaudible] we went out of our way to capture the leader of panama. he was holding out in a radical capital. he was brought to justice and
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put in jail. it is about us, not them. the other thing about osama bin laden, we have had a lot of experience dealing with capturing people and bringing them back. if anwar milaki that's not back into new york, would have been the plan on that? the it is we need to bring people to justice in one form or another. the bottom line is you have to bring them back, put them on trial. if the it is to kill them, you kill them, but do it legally. there are threats out there, however, we need to do it in a way that we only kill bad guys when necessary.
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>> you mentioned the limitations on the lights of on lawful combatants. , which raises the question that may be more historical, but so would interest, terrorist interrogations'. worth of push-approved interrogations' legal? will they be approved hour after, and article 3 of the geneva articles applies to terrorists? with respect to what reporting and other forms of aggression of interrogation methods, water boarding is the most troubling. you are as close to the wind as to possibly can it was done in three cases to three
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individuals. whether in any of those cases it crossed the line, i am not sure you can make that decision without knowing how it was done in any case, but it could have. whether that would result in a war crime or war crimes prosecution is a much more complicated story, because you have to look at intent and knowledge and lots of issues that are not necessarily clear. with respect to other methods again, the question is are they severe event to be tortured? are they severe enough to be cruel or degrading for such treatment? we have new definitions of those since the original authorizations were given some years ago. congress has to find better both cruel and degrading treatment,
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as well as torture. it is not in the military manual whether it would be a war crime would depend on whether it is done in a manner that is so severe to meet the definition that congress has adopted, which this bill involves -- which still involves how severe is the discomfort that you're doing to a person, as opposed to a blanket definition. >> bruce, same question with variation. sticking to what we know was authorized from the top of the bush administration by way of interrogation methods without getting into what people might have done that was not authorized, should people have been prosecuted for that? how many of them, and should
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they have included president bush? take it seems to me the answer is divided into two questions. were they culpable criminally, and was it more appropriate given the circumstance of the time than simply forgetting about it and letting the rule of law be tarnished? i think certainly that they would be held culpable in violation of wall, just like president nixon in office was ofnd guilty of obstruction an justice and otherwise. i think it may have been justified to give them pardons. being part and does not exculpate the crime. that is something that was apparently never considered by president obama. he just forgot about the whole situation and that i am only forward-looking, which will put an end to the rule of law.
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so is an infantile justification to avoid a hard issue for political purposes. i would need to know little more of the facts to decide whether i have -- would have exercised the pardon power. that is how i think it should have been handled. >> david, given in libya the justice department, correct me if i am wrong, told the president did did not have power to extend the bombing campaign, is there any limit at all on presidential powers to make war without congressional authorization, or is that the core constitutional presidential authority? >> there are really two parts to the answer. one are the types of uses of force that the president cannot use and his own authority, and second, to extend this to make
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it recognizable, i would extend the congressional farm really does not to do with corp. will issues -- really does not to do with cooperation issues, and not more to do with changing the governing rules that govern our surety and bring about perfect or as a matter of domestic law and international law. as a practical matter, the president can use force anytime he wants to. it is a political question that is beyond the political competence. the president is not above the a czar./ second of all, that is what impeachment is for. if the president is acting in a way that there is sufficient concern for the co-equal legislative branch, you go for
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the process of the house trial and senate trial. higher price to pay, but that is why things are not meant to be easy. that is how framers intended us to proceed. >> thank you. i do know, the senate armed services committee has approved legislation that would not only authorize indefinite detention without trial which we've been doing anyway, it would also mandate that it be military detention, and the question is, what do you think of all that, including the you think we have been violating the wall all along? >> it is clear there is a habeas corpus issue that needs to be examined in more detail. when you look at this, i look at it from the practical perspective and traditional perspective. during world war ii we had german saboteurs show up here. they were essentially tried in secret and some level of
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tribunal. the idea was they were not going to be lingering in definitely as enemy combatants until the war was decided. and so i as a practitioner do not clearly understand what is different between the fact that these guys were captured essentially as non-combatants wearing civilian clothes, which at that point in time they lost all geneva convention protections. but the decision of our judicial system and executive branch was to give them due process. the results of the due process was some died in someone to prison, but the bottom line was there was a resolution. i find it abomination of our system that we of been at this war for 10 years and there is no clear resolution to the idea that an individual, no matter who they are, based on our own principles and traditions is still a question right now on what to deal with these
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detainees. holding people indefinitely i do not see as legal or practical. >> my last question will be for a week. -- be for lee. as president bush or president obama done anything that you think is illegal in this area or particularly troublesome, if not illegal, and what would that be? to go in terms of knowing, based on what i know about what president authorized, i would say no. those abuses have been dealt with and are being dealt with, but in terms of president bush's decision to go to war after 9/11, in terms of president obama's decision to use force
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with libya, i think those were well within their presidential powers. and i think president bush had specific authorization from congress, which put him at the very height of his authority. with respect to libya, given the nature of the conflict, i think that also was well within the president's authority to use military force without a specific congressional authorization, at least as far as it went. >> thank you. i yield the floor to jonathan with apologies of going over two minutes. [laughter] >> thank you. i would like to start with bruce. we talked about international obligations to investigate and prosecute torture. do you believe that president obama has violated international
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law when he appeared in front of the cia not long after he took office and assure the employees of the cia that he would not allow them to be investigated or prosecuted for these types of abuses? >> yes, i think that is clearly an admonition of is good faith requirement that he attempted to enforce other than sabotage the treaty. this comes with a background of him having stated and echoed by his attorney general that in his view water board was torture. how did you then make consistent is the obligation to investigate what he thinks is torture? his statement that water boarding is torture means of was to have abandoned this as far back as aristotle, the inconsistency is playing there. it is another, i think, tarnishing of the rule of law.
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i want to repeat that it is stated that the rules of war are regulated by all sorts of highly intricate supplications -- stipulations and principles. if you write them down and do not enforce them, they are really not worth anything, and that is what has happened with the president of the united states. >> thank you, bruce. you took us from galileo to wonderland to aristotle. i am going to now turn to david rifkin. david, i want to see if we can bid on some terra firma as as to where you were standing. your colleague mentioned that he thought water boarding came close to the line. i would like to ask you of -- like you a series of questions. first of all, in 2008 you told al jazeera that's basically my view is a water boarding is torture. do you still hold that view?
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>> water board and those circumstances is torture, but we have to be very precise. it is the point that i think my colleagues are missing. what reporting is a capacious term. -- water boarding is a capacious term. if you have two or three drops of water on a person's face covered with gauze, and you were doing it to induce psychological fear, it is not. we have to be clear about what happens. >> i understand that. let's try to keep the foundation a little further laird out. you agree of the international treaty torture is a war crime. >> torture is -- not to be legalistic, but torture is a crime, because it can take place outside of a war context.
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it is not necessarily a war crime, but i guess, torture is a crime. it is a federal crime penalized not only international -- under international law, but our law. that is correct. there are circumstances where >> in april 1988, president ronald reagan signed the convention against torture. in his signing statement, reagan emphasized "each state party is required even to prosecute tortures' or are found in its territory or to extradite them to other countries for prosecution." just as a general proposition, do you agree with president reagan as to our obligation to prosecute anyone in our territory that committed torture? >> that is correct. as you know very well, one of the issues was, given the nature
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of the signing stake, whether or not it applied. of course, to the best of everybody's knowledge, this did not take place on american soil. second of all, you can always construe the language relevant in the overall legal system is, for example, even if you felt the torture was on american soil, but there is evidence to establish that the you do not go forward in engaging quixotic prosecutions. there are provisions about what level of 70 1/2. remember, warble playing criminals go free in this country over time because the prosecutor does not feel that he can present a sufficient case, to the jury eventually. >> what ronald reagan said is we have to prosecute torturers who are found in our territory, not prosecute for torture on our territory, but if they're in our territory, we have to prosecute
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them. do you agree? >> that is not technically correct. there is language in the ratification of a torture convention. if i am not mistaken, that with the position of the bush administration that the scope -- the first question in any context of criminal prosecution is the scope of jurisdiction. jurisdiction in the territorial. jurisdiction get the nationality-based. i believe that it apply to actions that took place in the united states. >> and you agree with that position? >> it is not a position of if i agree with it. we could have taken a broader position. there is a question of the significance of revocation statements and to their obligations. if we believe in the rule of law, it that is what the senate was told of the time was ratified, that is what it meant. >> welcome i am asking about your view. that is contested. many people say it is not true. >> it is a debatable proposition. it is certainly not a clear-cut
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propositions. i want our viewers to understand, there could be circumstances where you do not go forward with the prosecution if you feel you cannot make a case. this is a specific intent crime. all crimes require specific intent, but this is a particularly specific event crime. there was a big issue in the so- called torture memos, what was the intent of interrogators, but we are spending all this time talking about waterboarding that was done to free people, instead of looking at the totality of our conduct. i want to emphasize for everybody that no other country in human history has ever been this restraint, this law and rule-driven. >> let me see if i can push this a little further. in this case, in terms of what happened with waterboarding, you had people like khalid shaikh mohammed who was water boarded
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183 times. you have another person -- i think he was 100 times. another person was water board at 83 times. that is not true. khalid shaikh mohammed was waterboarding 183 times in one month. now this went beyond what was described in the doj memo, and the sessions went beyond 40 minutes. this is some of the information we have confirmed. so given the fact that you have sessions going over 40 minutes, 183 sessions in one month, wouldn't you consider that to be credible evidence to support a formal investigation of torture? >> with respect, jonathan, there were at least two investigation i am aware of. as careful lawyers, we know something now, including evidence you described. we had a career lawyers in the justice department, believe me, who love to rescue people who they believe broke the law.
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and would like to make -- ok, we had two for secured told investigators he decided not to go forward. they believe on the rule of law. this a non-political people at all. we have to have a considerable level of credibility to those results. >> but we could still prosecute for a war crime. so do you believe right now that waterboarding that is done 183 times in 30 days and for sessions that would be of 40 minutes would be enough to you to say we need to investigate this new information? >> again, presented this week, these are very troubling facts. but what we're missing here again, and i know that we are civilized people living in the 21st century, but calling it 180 + waterboarding sessions describes an application of a few drops of water to some of his face mask. if that is what it means. it is much more difficult question if you take somebody inch of the person said in the water. one thing in which everybody
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seems to forget, we have waterimported thousands of our own people, thousands. it that is true, we have been engaged in torturing against our own people, which nobody seemed to care about. >> but those cases were with consent. >> you cannot consent to torture, slavery or prostitution. some things and not subject to being consent. so it is not at all a clear-cut picture. >> let me ask one last question. i appreciate you moving through these quickly. i know it is not easy. in 2003, george w. bush told the public, before the iraq war, that "war crimes will be prosecuted, war criminals will be punished, and it will be no defense to say i was just following orders." and as you know, the just following orders in defense was rejected at nuremberg, and we helped create a precedent. now, president obama, as you heard me ask bruce, went to the
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cia and said, i understand that you're following orders and i am not going to allow employees of the cia to be investigated and prosecuted. do you believe that president obama was correct or is he in violation of the basic principle? >> matt mead vociferously defend president obama. i think a lot of other people misconstruing what he said. it did not say that i am convinced that law was broken, but for some crass political reasons or because you are "just following orders, i am not going to prosecute," that would be troubling. i think after the campaign, having come into office, having gotten access to all information, including previous investigations by the justice department, he must have been advised by his senior legal advisers that there is no credible basis to proceed. and he went forward and reassure the cia about it. the other interpretation is, i think, highly insulting to the president and is not supported
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by any evidence i am aware of. >> thank you very much. i am going to now go to colonel tony shaffer. you have a unique position on this panel as someone who has been -- i should say, it's on the ground. as i am sure you're probably aware, after world war ii, this country prosecuted a japanese officer who was accused of an incident in which a u.s. citizen was "tied to a stretcher with his feet in the air and his head towards the floor, water board over his face, caused him to gasp for air until he agreed to talk." he received 50 years of hard labor for that. do you see any distinction between our case against this japanese officer and the cases that you read about involving the united states program? >> no, frankly, if mr. rivkin would consent and collect evidence ties, we could go to the bedroom downstairs and set
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up our own little waterand boarding thing is to test it out. i do not think it was just a few drops of water. not to be over dramatic, no, i do not think there's any legality within the context of the lock-land warfare. i have to go out and do things, remember. i -- there was a classified program which allow for this to exist. i have done a lot of classified black operations were, and a lot of us who were on the inside understood fundamentally that this is probably illegal, but that an international losses cannot torture people. some of us may not have no specifics of the japanese outcome of waterboarding. but let me be very precise in this, most of us, as practitioners, understand that torture really does not give you anything except information which people are going to tell you to make you go away. a special operations unit give up the technique of your been authorized to do it. why? because they had to sort through everything someone would give
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them, because half of what they're getting, more than half, was false. so the practical application of the reality of the authority was not matching up with the outcome. and anything talking about jurisdiction and proportionality, the idea is you're doing something proportion to achieve an objective. it was not at shooting of dep -- it was not achieving objectives. if the act of torture worked, the information that came out of that is representative of that, and then at the results of that, that is, we to the terrorist action. and that would make it legal in my judgment. nobody can show that. >> thank you. i would like to turn finally to lee casey. when you were speaking, you talked about how, in your view, with regards to enemy combatants, the military "made targets anyone anywhere in the
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world where you are found." and we're talking about enemy combatants to the but you said that there are rules, ok. it the president united states is saying that he has the right to take out a list and write the name of a u.s. citizen on it, and that citizen will be killed, and you have said that you can kill the citizen anywhere in the world, even just outside these doors. so the president has discretion to do that, whether the rules limiting it? >> again, there are the roles of distinction and proportionality, which is to say -- here, a distinction would not be such an issue because he is an enemy combatant. proportionality would be. the question would be, how much collateral damage would there be? >> who enforces the rules? >> the rules are enforced by the court, by congress, and by the president. but let me finish, before we move along -- in addition, with respect to a tax -- to attack in
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this country are in another country, you do not have to respect mutual rights. you cannot necessarily want to an attack into a country where you do not have permission to do it. in addition, it is also true that you cannot attack even someone who is an enemy combatant if they are not capable of resisting, which is to say, for example, one of the early cases, the individual called the dirty bomber, jose padilla, was surrounded by fbi agents in chicago when he arrived in this country. he was an enemy combatant, but you cannot just shoot him because he was not capable of resisting. in such cases, you cannot go ahead and just kill someone. and so all of those rules would also have to be taken into account. >> first, you said it could be in force by the court. as you know, efforts to get the al-awlaki business and these other people on the hit list
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into court have all been rejected. both the bush administration and the obama administration said that the court does not have jurisdiction. do you disagree with them? >> no, with respect to the question of who the president decides to target, i think the court, perhaps the d.c. district court was correct, that is a political question. but again, the fact that in that instance, the court stepped aside and said we're not going to review whether this individual can or cannot be attacked did not mean that they're not legal rules, and it does not mean that those legal rules are not applicable in can be enforced, perhaps in this case by congress that it believes the president is incorrect, through impeachment. >> the court can review the names, so who would have standing to go to a court and say, and would like a policy review? the courts have also rejected that. with awlaki, they said he himself would have to come, even
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though there were told that if he appeared, we would kill him. so would anyone have standing who is not on the list? >> with respect to awlaki, i think the judge actually said that he was not showing up at the u.s. embassy, i think the judge said, saying i would like to surrender and please accept my surrender, in which case obviously his surrender would have been accepted. with respect to the enforcement, it may well be in this instance that the policy -- again, it might well be with congress as opposed to the courts. >> my last question, and i am out of time, but you mentioned that you cannot kill someone if they cannot resist. does that include a vaporizing them with a drone? we have got people who are vaporized without another -- knowing they are under attack.
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in the case of bin laden, all records are that he was shot immediately when they came into the room. are those unlawful killings because the seals could have captured him, and more importantly for some of these people, they did not get a chance to resist at all? >> no, they're not unlawful killings. first of all, in determining whether someone is capable or not capable of resisting, you do not have to accept danger to yourself, which is to say, the case of bin laden, he could well have been capable of resisting. he was not surrounded by fbi agents, and the fact that the individuals who went on that operation chose to shoot him, as opposed to trying to take him prisoner, was perfectly legitimate, unless he actually -- again, came out and was actually not only willing to
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surrender but not capable of resisting, and that was obvious. with respect to vaporization, you know, the predator drones, and such, the goes back to whether you have to give someone a notice before you attack them. that is simply not what the law requires. under the laws of war, there be no particular reason why that world that existed would not apply to anyone. >> thank you. thank you very much for that. i want to keep us on time. so we're going to turn out to the debate-led q&a. your questions have been given to stuart taylor, who is reviewing them. we're going to shift -- start a short time for each of the bidder can ask a question, limited to two minutes. we're going to start with bruce fein. >> this is a question for david rivkin.
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do you believe that any detainee held at the back room of prism in afghanistan is entitled to have any judicial review, even when there -- through habeas corpus, the supreme court extended? or are they just outside the universe? >> what matters is not what i believe. what matters this the d.c. circuit precisely rejected this view. again, i want to emphasize that this is the first time in american history with this level of unprecedented judicial engagement. we talked about the fact there is not judicial engagement in the use of force on battlefield conditions. but hundreds of cases now are rising and of the detention in guantanamo, decisive reduction of the proposition that even individuals held in custody, an american custody are joint custody overseas, outside of guantanamo have --
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[unintelligible] we have to take the answers from the courts, whether we like the outcome or not. >> you are suggesting many of the questions are beyond judges. is it your view, and this is consistent with the rule of law, that any detainee held at guantanamo could be circumvented in his right to habeas simply by shipping him to back room -- bob rahm, and saying that you had habeas corpus out of gitmo, this is in respect of of what the court rules. >> the point was pressed home, bruce, as you probably recall in oral argument. i vividly remember before the panel of three judges in the d.c. circuit. again, we have a very unique constitutional regime, and we're talking about a general proposition as the constitution implies. the constitution applies that it is regard to aliens only when they're on u.s. soil. post-9/11, we put guantanamo in
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a different basket. by and large, actions by the u.s. government are not subject to the constitutional norms and not enforced by the courts. that is how things work. >> you know that at guantanamo bay, citizens are detained at guantanamo bay. >> ok, you can stay here, because in a better two minutes? >> well, i would like to pose my question to tony. my question basically is this. the logic about bringing people to justice, can you conceive of any war where in all instances you would be able to go and arrest without putting undue risk to the seal team or any other team, an obligation to bring somebody back, that you can never use deadly force against even a person like bin laden, under even your own logic about the scope of authorization. we cannot use deadly force against him? not as a matter rules of
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engagement and whether he was surrendering, but you basically said we should have gotten them. did i get it wrong? >> no, you're correct. i think your column is now giving draft dodgers and new excuse. if use this to an individual being a will to resist, if you're able to do that, apparently you're going to put yourself in danger. so from here on, you feel that you might be put in nature walk going after back as to resist, you do not have to go, by your logic. so think about that. we have to understand the capability of resisting, and what you're asking me related to the individual that was the target of a legitimate, he was a combatant. however, within the context of eight guys coming at you with guns and you're coming out the sleeping, the question is not a practical one.
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there was no time, from what i understand from the raid, that any seal was ever felt that he was threatened in that event the to the ideal here is we should apply deadly force standards on the streets of america. the first thing you do with a cop, you take them off the street, you do an evaluation of the standards, where they followed, and was it a legitimate killed? i do not believe in any military setting this would have been illegitimate killed. >> you're basically suggesting that a bunch of our best soldiers just committed a war crime. do you believe that their operational judgment in their situational awareness on the battlefield at that time -- >> we are out of time peter i am told to hold the line here rigidly. i thought you're talking about the promotion process until he said the seals. we're going to have to go to your question.
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>> my question is for mr. david rivkin. it has to do with the idea of cia black sites. and i am going to put it in a framework so you know where i am coming from when gotti wanted something to happen, it happened. so when we talk about blacks sites in creating the my foreign countries, we use u.s. taxpayer dollars and the setup of the sites. use taxpayer dollars to have cia or special operations officers capture someone. the ucla contradict aircraft and given to a third country. you say, here is the guy, go torture him, are we culpable for that torture? >> [inaudible] by a third party, then there's the liability. it is in respect. there's nothing illegal about
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running black sides. there's nothing illegal about using taxpayer resources, nothing illegal about cooperating with friendly intelligence services. only in a situation where you or somebody or substantially direct somebody to engage in acts of torture that you may have a problem. i have no basis to believe that that occurred. but rico as a statute does not apply to governmental activities. other statutes might be involved, but rico is irrelevant. r ico was an example of the culpability context. i understand it cannot be held accountable for being mafia. the concept here is that we spend congressionally appropriated money to conduct things which would be held up by an international law says illegal, and even if we do not directed. >> there is the gang of eight and the staff of both
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committees. so this is again an instance where the exhibit of fully complied with an irrelevant statute. >> was the executive telling the truth information to congress? >> i was not present during both meetings, but i believe there was a lively dispute about the scope. >> thank you very much, david, and thank you, tony. now lee casey gets his two minutes. you can take is a victim. >> actually, my question is for bruce. i guess, it is sort of a two- part question. one, what level of violence do you think is necessary for an act of war? second, do you think that congress can authorize the use of military force short of the declaration. >> the second question is neither. congress can authorize the use of military force. military force does not inevitably indicate war.
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-- war, however, puts you into an illegal architecture that, despite verbalism, the law is generally silent. the politics is against holding anyone accountable. what level of violence justifies war? but the their clues in the constitutional language with response to have use corporation assigned times of invasion or rebellion. that level of threat, sovereignty. and of course, there was not met when the u.s. supreme court held habeas corpus had been illegally suspended by the military commission act and the actions of the executive branch. this is not a question of you could in geometry, were you can specifically the number of soldiers or whatever it is going to be in matters of degree. but if you look in 9/11, certainly what we know now, maybe 50 al qaeda by the counter terrorism task force in afghanistan could of 50 alone. you did said that in this auditorium and have lots of space left over.
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that is not a level of violence that justifies throwing away the of the customary trappings of due process, the precious liberty. i think that is all the question we need to confront that question and -- to present. >> very quickly, what a lot to think apply it to the tripoli war, did the laws of war apply to that operation? >> with regard to the tripoli war? >> chipley conflict. >> international conflicts, yes. that was conducted by thomas jefferson. >> even though not against the state. >> the barbary states said their juridical existence. and north africa, even though we did not draw the boundaries, is precisely as we have today. >> the next debate may be the status of the barbary pirates. stay tuned to next month. i will turn it over to my friend, stu. >> thank you. i have 15 minutes to relate
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audience questions. i would like to apologize in advance to their more than 30 questions. they're all thoughtful and excellent. i do not think i am going to get to 30. it you'll answer briefly, we will get to more than we would otherwise. the first one is for burrs. does the fact that the justice department tells delicious as waterboarding is illegal mean that they cannot be prosecuted for waterboarding? but the the u.s. had the right to define torture in ways that do not purport national law? >> the first question is whether or not, at the president relied in good faith on legal advice of the justice department, that immunizes in the prosecution. there is good faith building to the rule, as well as a blight in the common law. it was implied in water did with regard to one of the burglars. i did get was bernard barker. as long as it was a good faith interpretation of the law, the
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answer would be he would be ultimately shielded from prosecution be above that oftentimes very fact specific. adolf hitler relied upon all sorts of legal advice he got on the invasion of poland but that did not immunize him or subordinates from zaremberg. with the finding torture, the u.s. can define torture -- the president cannot redefine torture as it is specified in title 89 the u.s. code. that is quite specific. with regard to international interpretations of torture, it is in the treaty. no indication that there was any effort to try to differentiate between the treaty definition of torture and it being implemented. i do not see any leeway. it is true that in one of the more blurry elements of torture as defined in the statute is whether or not what was done was calculated to create an imminent fear of death or to cause protracted or prolonged mental searing or trauma. in that time it can become a matter of difficulty and
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application. but i believe the center cannot be manipulated by the executive. >> thank you. a question for david. if the u.s. is free to take out by assassination anyone it feels is a so-called combat and anywhere, what is stopping other countries from assassinating their enemies on u.s. soil, such as iran wanted to kill the saudi ambassador in washington, d.c.? >> two answers. first of all, as as a nation is in international law. marjah -- more than just the killing or local killing, it only applies for internationally protected person spoke killing an ambassador, even of an enemy country, is an assassination. you're asking me, however, in another country believes that there in a state of war with us and they are attacking on our soil or somewhere else in the world, and american military officer or secretary of defense,
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to the extent they believe that, they're not -- would be an act of war. iran has been engaged in a low- grade activity, engaged in numerous of britain's against american soldiers, including the towers or blowing up the marine barracks. the have been engaged in acts of war. again, to me, with all due respect, the fact that we, in good faith, believe that we're in a state of war, and that jedd did we speaking, we are. and we carry a military reparations against enemy combatants, the fact that somebody can do it to us does not diminish the legitimacy of what we're doing. >> thank you. the question that i will direct to tony, what you propose is the next step, given political realities and congressional
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reluctance to address these violations? >> which violations? >> the thick of the violations that you think have occurred in any law. >> their two primary violations. first, the scope and premise of the authority for military force has to be better defined. if you are a common terror in the less if you leave it to the commanders to determine what their actions are involving combatants, that will set up an arbitrary standard which has no relevance to the authority. i do not believe that is a viable force for this country to continue. now we're targeting sheepherders to have never lived more than 5 miles from their villages to to to terrorists because they support, by we believe, some way al qaeda. so we have to standardize what exactly that authority really means. we cannot kill 20 million
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pashtun. cannot. second, regarding detainee operations, detainee individuals the other two factors led to clarify. first, habeas corpus. whenever someone is captured, even if they do not have geneva convention productions, you have to figure out what you're going to do with them. indefinite detention is not viable. it does not represent us as a culture. so we have to clarify that and what torture is. i think my book, we talked about operation dark heart, and there might be in a moment in time when i would use and like jack our. the colonel did something i support. he took a gun and shouted over someone's head to get information, which was tactically relevant, and it worked the biggest and noshing -- saying the should not intimidate, but the question becomes, should we have a program which allows torture at the black sites throughout our own hands? >> thank you. a question i will direct to lee casey.
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whether the criteria for determining a person to be a combatants? where does the burden of proof lie? the d.c. circuit recently decided in the latif case said it would be a presumption of irregularities for all the evidence. is there history that shows of the government's evidence is often all the way unreliable? >> ok, in terms of the criteria. traditionally the criteria are, are you associated with an enemy force? and, what is the nature of that association? you do not need to carry a gun. you can be cooked in still be a legitimate target you can be a radio operator -- there are all sorts of different jobs. with respect to this conflict, all of that, i think, of lies. but it is also true that the d.c. circuit has been in the process of enlightening us to some extent. it has been investigating those
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rules and has concluded a number of cases that you have to look at holistic play and on a case by case basis. keep in mind that with the presumption of irregularities means is that the evidence that the government brings in is accepted as having been regularly gathered then put together. in other words, you do not have to prove that the agent who wrote the report actually did interview three individuals in afghanistan. there's a presumption that it was taken. it is not a presumption of the truth of what those three people in afghanistan said. the court can still review that and consider them to be inherently incredible or whatever, and indeed, the detainees can also challenge it. >> thank you.
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burris, if one accepts the arguments that the wars are illegal, what are the obligations of the u.s. citizens under nuremberg? >> the first obligations under nirenberg, in my judgment, is to petition congress for impeaching the president for high crimes and misdemeanors, subject to a trial. i drafted an article of impeachment against president obama for illegal war in libya. it has not gone very far, but that is what we can do as citizens but as a matter principle, the declaration of independence says that at some point of time, if every act of government is designed like that, we have a right to resort and to establish a new dispensation. we're not there by a longshot bid but i think what the founding father said is that the mp to process was to be a surrogate for what was earlier age rooted talk, like against
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julius caesar. that is what our obligation is. to insist that members of congress stand up or we will not elect them. and one other thing, the latif decision is overwhelming redacted. most of it is all classified. >> thank you rokita this is a question that the questions are directed to lee. -- thank you. this is a question that the questioner directed to lee. estimated that in iraq range from 150,000 to 1 million. do you accept that this is an taxable amount of collateral damage would civilian in non- terrorist casualties? >> you need to look at it with respect to each separate operation. the concept is applied military act-by-military act. what you're asking is whether the war itself was were the, whether the amount of damage
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that was done to the civilian population of iraq, the amount of injury and damage that was done to our people who fought the war, was worth it. with respect to that, only time, i think, will tell. was it worth it to establish a democratic government in the middle east? as weekend a member of it as it may be, and in the future will that lead to positive change there? i do not know. >> thank you. i will direct this to tony. how should the u.s. defendants war waged by non-nations, and their drone attacks ever lawful? >> the latter question first -- and drone attacks are lawful. they are a tactic, as are night raids are a tactic. like any tactic, like any weapon, it is all about the
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legal application of that as a capability. that is something we have within our arsenal. technologies developed to the point where that is a viable technique for taking out leaders in remote locations. with that said, i think there has become an overreliance on a technology as a metaphor for progress. showing if we are killing people, we must be making progress. and then targeting individuals in their countries. my answer is it should be the tactic of last resort, speaking both as an operator and having lived within the legal constructs of our defense committee for the past 25 years. the default position, we should capture rather than kill. the cia shooter who killed cia officers in 1993, they captured him in pakistan. captured. did not track him down and kill
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him but of a captured him. that is the position we should do. frankly, that should be our standard. only should we go to a third country and do something of we can do reasonably well and rendition and bring them to justice. otherwise, i did not feel we have sufficient understanding what a combatant is. if you're leaving it to commanders, they will go to whatever they need. but you have to go to capture rather than kill whenever possible. >> the question is -- there are three or four questions of the same nature. using 9/11 as a legal foundation for the war's end aggression in afghanistan and iraq. how would your argument change if it is shown as it is becoming increasingly obvious by the scientific challenges in the 9/11 commissioners themselves
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that 9/11 was not the event that was described? what if the so-called conspiracy theorists are right? >> well, there will be conspiracy theories as long as mankind exist. i do not know if we can or should pay much attention to it. 9/11, like the kennedy assassination, have been extensively looked upon. i believe that all the theories about 9/11 not being an attack by al qaeda have been proven to be utter rubbish. it is not just the position of the u.s. government. it is the position of every normal government in the world, including many countries that do not wish us well, including russia and china. and it is also the position of al qaeda. so that is really a conspiracy, we have a super conspiracy unknown in human history where everybody has conspired to bring this about. >> thank you. bruce, i will enter this question a little but could you
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may have touched on it already. the citizens placed on assassination lists, citizens or targeted, let's say, have the same right prior to the killing that they would prior to a trial if they were captured? as does the question is, with the sort of drone attack that was done to al-awlaki ever be legal? let's suppose that it was clear that he could not be captured. >> i think that if you are examining the parallel in the criminal-justice system, you first expect there to be a warrant issued for the arrest of mr. al-awlaki for a crime. it was said that he was complicit in all sorts of crimes, including the fort hood killings and whatever, perhaps in siding crimes against americans. but the fact was, he was not subject to any indictment, any charge whatsoever, unlike, say, osama bin laden, who was under indictment by a federal grand jury.
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so at least he would have, by requiring a warrant, some judicial check, rather than simply having the president arbitrarily identified anybody in the world. secret evidence, secret law. i will kill you, and then congress will decide whether to impeach me. i will want any greasing cannot know anything about what i did because of state secrets. i would say you'd end up with a system of warrants that authorize that kind of force once it was shown. in the warrant process, that an attempt to capture would be futile. i want to amplify on this idea that has been insinuated to the underside that anytime we can avoid a risk to ourselves, we can use legal force to prevent that risk from occurring. that would suggest that if we are at war with iraq and we do not to risk any danger to our soldiers, we just launched icbm's with nuclear warheads into iraq and incinerate them. right? well, you kill these civilians, but yet, head, we cannot fight a
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war without risking the danger of the soldiers rights. this would make hiroshima and nagasaki become the stable of how we fight wars. >> thank you. we're past the time for audience questions, so i regret the ones i was not able to ask. we're at the face of estimations. david and lee a degree that david will summarize for up to two minutes. after that, you can directly follow, bruce, two minutes. >> we are beyond local here, ladies and gentlemen. i think, on balance, the entire record of prosecuting those wars makes me proud. we spend too much time, in my opinion, for the most of the questions about interrogation, not that they're not important, but this is a small part of the overall spectrum. i would submit to you that i in no other war in human history has there been this unprecedented level of political
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attention on how to do things right, even with regards to the torture memos which were very unpopular. i do not know of any country that would bother to ask of unquestioned and try to reconcile the dictates of law. serious debates from the justice department, within the executive branch, between congress and the executive, enormous level of judicial engagement. the campaigns, prosecutions of people who violated laws of war, numerous prosecutions. and people who fail to report crimes or allow crimes to occur. so we should look and the unprecedented level of attention to minimize some collateral damage. numerous times not using force. there was concern, and this is the enemy that fights out of civilian areas, that pretense to be civilians when levels of collateral damage or going to be high. the most difficult environment
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in which they will always be right. but there can be no other war in the above were any civilized country has done better. that me close by pointing out the danger. once again, this is a different debate, not about law. it is debate about nature, a military threat. we live in the world were a very small group of people can inflict unprecedented levels of destruction and mayhem. unless we understand that -- by the way, the job of any military establishment is first and foremost to protect the american people. if we're not going to appreciate the proposition, we're going to pretend is because we do not want to have tang's driving our planes flying and thousands of troops marching in lockstep on the other side, that that is not the danger of, we're forfeiting any basis upon which the government has came into being. again, that is the threat we face. i think we approach it with care and dignity. i am frankly very proud of the rebutted that has been involved
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in this war. i am also very proud that we continue to debate those issues. many democracies tend not to debate them. thank you. >> well, i believe the wars have been unprecedented in their assault on the constitution of the united states, the very first casualty. and we have established a set of principles to bar from justice robert jackson, at the nuremberg prosecutor, that will lie around like loaded weapons, ready to be used when any caligula comes into the presidency interested in the principal and extended here at home. all of our liberties rest on the benevolence of the president of the united states. under the principles we have established and have been touted by the opponents here or are dissidents, a president did on television today and announce he has secret evidence suggesting there's going to be even worse devastation than 9/11 unless we
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suspend the constitution, he is empowered to detain anyone in the united states he thinks is so versatile at guantanamo bay. and he is going to suspend the entire constitution because his first duty and only duty is to save us from danger. and that would be lawful authority, according to the prevailing legal principles that have been announced during the state of war. to me, that is frightening. and we need to remember that we adhere to certain principles because of what it says about us. irrespective of what it says about the enemy or the adversary. is it abraham lincoln and said, as he would not be a slave, so he would not be a master. as we would not be colonized, so we would not be a colonizer. as we will not wanted torture, we will never stoop to torture are flouting the rule of law. that is basically what this is about. if we want to stoop to the
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magician and the enemy, not raising ourselves just a little notch, no, we can do that. but that is not what the united states with about. when we drafted the constitution -- well, as long as it is better than king george iii, we're ok. that is the ambition. no, it is to be americans, were the rule of law is king. [applause] >> i want to thank all the participants. i think they met the standard of elevating debate in this country. and i will not even hold them to a comparison with some political debates that we have been seeing on tv recently. [laughter] i think they have given us a taste for more. i hope that this debate will find its expression in debates at law schools and debates by bar associations. our profession is supposed to be the first signal for the rule of
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law and when it is violated. also, among the general citizenry and all over the country, wherever concerned citizens want to reflect what is meant in the preamble to the constitution, which is "we the people." secondly, i think one of the questions that are on some of our minds have come out of this debate is the balance of power between the three branches of government. the fundamental question that i took from many of the comments of the partisan fence is yet unanswered -- from the participants as yet unanswered could a that is who decides. one view is the inherent power of the president to conduct foreign and military affairs has much wider latitude than that their critics would allow. but i think we do not need to engage in back-and-forth to realize that the judiciary has limited itself in deciding that
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questions that are raised by the citizens are political and therefore outside the judiciary. it has limited itself in the way it interpreted the no standing to sue. some of the citizens can raise these issues in a judicial arena. i think also, members of congress having recently advocated their role under the constitution. we really do not have hearings like the fulbright's hearings on the vietnam war. it seems that congress is willing to delegate its authority to the president, which is something that some of iswpoints we say appropriate, and the president has those inherent powers as commander-in-chief. but whatever view we take, the medals in question will always remain -- who decides, within the formal framework of the three branches of government, when and on what issues and what
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kind of counterchecks there are? and second, what about the people? what is their role? derivative leak in generating processes of decision making that affect these issues. as we all know, these are not just legal issues of technical detail. they referred to the safety of our country and the world. how we treat the world and how the world treats us. the cia has a word for that. and that is excessive use of wrongheaded force leads to blowback. in the stage of blowback, it is not ending. so it is very much an issue of the safety of the world and whether the law will discipline power and the use of force throughout the world or whether the use of force and the in
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discipline of power will prevail over the law, domestic and international. i hope that this will expand the attention to taboos in our society that have no place in a society that is given the first amendment, the preferred free them, in our constitution. that have no place and giving everybody a role, however remote and however preliminary, in trying to make this a better country and a better world. those of you who are interested in more information about the taboo project, the debatingtaboos.org is available for your visitation could all want to thank each and every one of these participants who had elevated the debate with a level of position -- precision not ordinarily viewed on television, and in this case, we're talking
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about sees been covering this debate. so i do want to thank david rivkin lee caseylee, and stuart taylor. i want to thank tony shaffer, bruce fein, and jonathan turley for a sterling performance that invites us to want more. thank you very much. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011] >> coming out live on c-span networks in about 20 minutes, at 12:15 p.m. eastern, former national intelligence director dennis blair will talk about how defense cuts could and that military readiness. c-span2 will be live at 1:00 p.m. eastern when the u.s. senate gavel plane to continue debate on defense programs and policy. c-span3 is also live at 1:00
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p.m. eastern from newton, massachusetts, as congressman barney frank announces his retirement after more than 30 years. he is a top democrat on the house financial services committee, and he chaired the committee during passage of the financial reform law. another live discussion here on c-span at 2:00 p.m. eastern with ohio senator robb portman on debt reduction. he was a member of the joint deficit reduction committee which fell to reach agreement, and he will talk about why. >> by the phone calls and e- mails that we get, by the replies to text messages, by the increased participation that we have seen on our programs, we know we have been successful. >> the communicators continues its look at u.s.-government sponsored protests on other countries. tonight with the director of the office of cuba broadcasting, which oversees radio and tv. >> there have been three focus
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groups. i have been there a year and a week. what we found out is that people in cuba want news. they definitely want news. when they seek news, they mention the marquees. >> "the communicators," tonight at 8:00 p.m. on c-span2. >> next, a look at disaster response and a possible feet for the national guard and the joint chiefs of staff as part of the defense authorization bill that the senate is expected to take up today. we will show you as much and this as we can until we take to the aspen institute live in about 20 minutes. washington journal" continues. host: congress will address the defense authorization bill. in it are issues related to states and governors. let's start with a dual command status. what is that, and why was the
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put in place? guest: it is part of a proposal that developed through the council of governors, which brings together governors with the secretary of defense, and senior white house offials to really address what has been a long-standing concern for governors, which is the coordination of state and federal military forces during a domestic military response. this is something that really comes from the lessons learned from hurricane katrina. it is not unique to hurricane katrina, but we have had instances where there have been state and national guard forces operating under command in control of the governor. at the same time, the world of the three forces operating under secretary of defense. the release of a competing chain of command. when you are talking about trying to save lives and protect property, you need to make sure everything is as well coordinated as possible, and a
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dual status command appointment is a mechanism to ensure everything is coordinated. what it does is provide of national guard in most instances to simultaneously direct federal and state forces to ensure we are operating seamlessly together to save lives. >> you mentioned hurricane katrina. give us an example of how that can break down when you're getting directions from different authorities, how can that go wrong? guest: when you're talking about something of such a masse scale as hurricane katrina, you have so much going on. in the beginning every response is essentially a local response. you're going to have your local police officers, firefighters, emergency management responded. they will form an incident command center. when they need assistance, the state will come in and back that up. if it goes beyond that level, states could turn to other
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states for assistance. you are laying response upon response asset. say we have a massive earthquake come in europe folks that need to be extracted from buildings, you would have a number of sech and rescue teams stepping in to try to provide response. with some of the different assets doing things at the same time, you still need to make sure you are record dating to provide the best response, and operate seamlessly together. the few were stovepipes and chains of command you have, the better it is for everyone at the end of the day. so pipes and fewer chains of command you have, the better it is for everyone at the end of the day. host: what was the consensus of how it worked? guest: i think they were pleased. hurricane irene with the first instance where they were
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appoted for a natural disaster. in the past they have only been used for planned events the presidential inaugurations or special security events like the super bowl. we have months of time to plan for that. but hurricane irene this was the culmination overt a two-year effort to address this issue, and we work with folks at the department of defense to develop all whole training and certification program for national guard officers. we have developed a memorandum of agreement that now 45 governors have signed with the secretary of defense, which set up -- which facilitates the agreement of the gulf that is. we saw this during the hurricane. it was a great effort. it showed the partnership for emergency response. host: another aspect is the proposal to give the national guard an equal voice on the joint chiefs of staff. guest:

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