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tv   Constitutional War Powers  CSPAN  June 3, 2018 1:20am-2:17am EDT

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watch real america, sunday at 4:00 eastern on american history tv on c-span3. >> next, a disssion on constitutional war powers and how military authorization approved by congress in 2001 is still being used to confront global security threats. this is just under one hour. >> good afternoon, everyone. thank you for joining us today. my name is jeff and i am a director of government affairs at the cato institute. it is a public policy research organization dedicated to the
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principles of individual liberty and peace. scholars produce independent nonpartisan research and analysis on a wide range of policy topics. today's topic, as you hopefully gathered from the title of the event, is war powers. we are here today, not only because this is a perennial issue, but also because of the on congressressure to re-examine what is now a nearly 17-year-old authorization for the use of military force. joining us to discuss this topic distinguishedo's scholars. healy, who holds a
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bachelors degree from georgetown university. and jean glaser, the director for policy studies. he has appeared on numerous television and radio programs, and has written for the new york times, washington post, l.a. times, among others. ba in political
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science from the university of massachusetts, amherst. begin with remarks. there will be plenty of time for questions at the end, so please hold those until after the discussion is completed. with that, we turn things over to gene. >> thank you, jeff. thank you all for being here. as jeff noted, we are in the about of a renewed debate what role, if any, that congress should play in the choice between war and peace. it is the most fundamental decision any government can make, and one at that our constitution entrusts to congress. but, for nearly 17 years now, that choice has been left to the
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executive branch. as a result, the united states has been almost constantly at war. in president obama's last year alone, u.s. forces dropped nearly 26,000 bombs on seven countries. he is the only president, serving two terms, to have been in war every day of his presidency. row havesidents in a into anauthorization enabling act for globe spanning war. it has been made broad enough to cover everything from airstrikes to boots on the ground. the trump administration's
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position, like the obama administration before it, is that congress has already had its debate on war powers 17 years ago and it is one congress, one vote, one time. on memorial day the washington post ran a story. it seems to me it is about time that we are having this debate. at least once in a generation congress should probably wait in on the multiple wars that we are fighting. this debate also presents a pretty substantial risk. congress will pass a new act giving more power to the president. today, john and i are going to make the case that the best way
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to avoid that danger is to wipe the slate clean. replace thed not 2001 aumf. recognize that the original authorization has run its course and sunset it. and for the president to make the case for any new authorization that he thinks is needed. if he does, he can make that case to congress the way the constitution envisions. our constitution's framers believed that war is serious business, and that going to war should involve a broad national housesus, across both and in multiple branches. james madison held it as an that the executive is a
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branch of power most distinguished by its propensity of war. the framers granted the book of the constitution's military powers to congress, including control of the decision to go to war in the first place. that did not leave the president totally disarmed. the president retained some defensive authority. but, absent an imminent threat or provocation, the constitution gave the president no power to launch attacks. the important power of declaring war is best in the legislature at large.
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this system will not hurry us into war, it is calculated to guard against it. that's the way it is supposed to work, but of course it did not always work that way. 11 you can point to examples of presidents launching wars without congressional authorization. the presidential wars of the late 20th century were, for the most part, exceptions to a general rule. they were geographically limited and temporary departures from a baseline of peace. ince the terrorist attacks 2001 we have watched the emergence of a radically different regime. one in which going to war is easy, frequent, and barely debated.
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this system will not hurry us into peace. more beent has america's default setting. the use of lethal force is now so ubiquitous and normalized, in many ways we are hardly able to notice it anymore. in the run-up to the 2016 weekend,over labor day the obama administration launched 70 airstrikes across six countries. yemen,yria, afghanistan, somalia, and libya. 20 years ago this would have been staggering. in 2016, after decades of permanent war, we barely looked up from the grill. the senator is right when he says that for too long congress has given presidents a blank check to wage war.
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he should be commended for but if to change that, our experience with the 2001 anything, itht us is that presidents will push the authority they are given as far as language will allow. it says nothing about associated forces. concept, has become a bottomless without of presidential authority to wage war.
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most of the replacement aumf's that are currently on the table in congress create far more authority than the original. it is practically certain they will be stretched even further. aumf starts by providing authorization for war against a enemies in at least six countries. 3a the president is authorized to use all necessary and appropriate force against the taliban, al qaeda, and isis. war in theo wage iranian peninsula. that is only the beginning.
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under section five, the president can decide at any time to wage war against new enemies in new countries. he is supposed to let us know within 48 hours of doing so, or at least he is supposed to let congress know. it leaves open the possibility that the president can bury the announcement of new targets and new battlefields in a classified annex, unavailable to the general public. for my money, one of the saddest sentences in the resolution comes up front. the legislative statement of purpose. thaturpose is to reaffirm congress, the president, and the american people stand united in their resolve to defeat the taliban, ikeda, isis, and ,esignated associated forces
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whoever they might be in whenever the president decides to designate them. we pledge our lives, forces, and honor to total victory against the designated associated forces. right toretains the object, but unless they can theer a veto to overturn presence decision, he gets to expand the war at will. the legislation does not sunset. every four years there is a congressional oversight provision. this is not a way of reasserting congresses constitutional powers
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, it is rather a method for institutionalizing the forever war. it turns the constitution upside down. thatis not the way constitutional democracies are supposed to go to war. other members have introduced somewhat narrower aumf's. drafted thate was features a five-year sunset. authority will actually expire unless it is renewed. another one has a three-year sunset. of these include fairly broad associated forces provisions that allow the president to expand the target list. introduced by senator jeff merkley avoids most of these pitfalls. it is about as smartly and tightly crafted as a war
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authorization can be. limited to two countries, iraq and targetstan, must be published and not classified. and it turns things right side up. part, the president is required to come to congress to add new countries and new groups. even this resolution bypasses the debate we ought to be having about each of the core groups that are included in each , that is alaumf qaeda, the taliban, and isis. instead, john and i argue for a war powers reset. f, keeping ite aum separate from a debate on new war authorizations, and
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restoring america's default setting to peace. that asident decides group represents serious long-term threats to our national security, he will be free to make that case to the people's representatives and secure normal authorization for war in the way the constitution envisions. told, for example, in the quarter-kaine resolution, numerous terrorist group now pose a dangerous threat for the united states. the united states was a small frontier republic on the edge of a candidate occupied by
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periodically hostile powers and indian marauders. there were grave threats, there were dangers, and nonetheless our first president george washington was not even sure he had the authority to take offensive action against indian tribes without affirmative authorization from congress. when the framers made these decisions to limit the amount of war power that one person could , i think you could argue that the threats were somewhat greater than they are today. that is something that john is going to talk about. can the threats that they have fast enough and grave the upendingtify
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and overturning of tri scheme fr congressional war powers. in making that case, that the threats today are that grave, is extremely difficult. but he will have more to say about that. >> thank you, jean. thank you, jeff. thank you all for coming. i am pleased to see such a good showing for this issue. as he said, while he focused on a lot of the legal, constitutional, and political , i'm going to focus on
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the other side of the coin. the foreign policy, strategic, and national security implications. i do want to start by talking about the effectiveness and utility of u.s. military forces in the face of these terrorist threats, and whether or not they pose a big enough threat to justify a permanent war setting. i do want to start by building off some of what jean mentioned throughout his remarks. i want to take stock of the scope and the cost, and the effectiveness, of u.s. military action taken abroad under the aumf's.-9/11 strategic,eal financial, and human costs involved.
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currently u.s. troops are fighting terrorists in various countries. have bombed syria, for example, 13,000 times in the past couple of years. last year alone we have bombed yemen more than 130 times targeting terrorist militants. couple of weeks after the inauguration trump authorized the special forces raid in yemen that was botched. a navy seal killed in the 230 civilians killed. -- up to 30 civilians killed. trop claimed it was a major success, but it was widely viewed as a spectacular failure. even with high profile fumbles
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like this, you barely hear a peak what real authority the president has to engage in these kinds of operations without specific congressional authority. trump has bombed somalia more than 40 times. of march, trop has bombed libya eight times that we know of. since 2014 the pentagon says anti-isis operations have cost more than $14 billion. trop'sbecause of loosening of the rules of engagement. the iraqi and afghanistan wars,
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the two main dealers at issue, came with a price tag of roughly $5 trillion. conservative estimates for the number of iraqis killed exceeds 200,000, not to mention the millions of refugees displaced. it destabilized the entire union and boosted iranian power. the war in afghanistan continues to be an abysmal failure. back in march general john nicholson said trump's new strategy, which includes increased airstrikes and a marginal increase in troop is improving the situation in afghanistan.
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sort of like what his predecessor said. back in 2013 they talked about the inevitability of our success. general david trias, and 2011, said we had reversed the momentum of the taliban. mckiernan, in 2009, said the united states is not losing in afghanistan. this routine goes all the way back to 2001. the reality is, that since the beginning of the obama administration, the war in afghanistan has claimed the lives of almost 30,000 civilians and injured almost 50,000 civilians. the taliban currently controls about 45% of afghanistan's districts. more today than at any point in
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2001. throwing6 years of resources at the problem, afghanistan's government remains more corrupt than 96% of all countries. the number of bombs dropped in afghanistan in early 2018 was the highest it had been since 2013. suicide attacks with a 50% and insurgent attacks overall tripled. recent aumf'stwo proposed enormous costs, wide-ranging confidence -- consequences, without much pushback from congress. manpower,s effort, and allocation of resources are justified as measures to mitigate a terrorist threat.
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the most relevant question is, have these policies been successful in mitigating the terrorist threat? have they achieved that objective in some way? with answeringem that question, of course, is that there is not much of a threat to begin with. can these policies be said to have successfully mitigated the terrorist threat? i think it is really hard to answer that question in the affirmative. in some cases there were some short-term benefits. in the initial stage of the afghan war, militants scattered and that hindered their abilities. over the long term, it turns out
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military force is not all that effective a tool in mitigating the threat. in the long run, have exacerbated the problem. libya hardly came up on the radar as a theater in the global war on terror before the u.s. and european allies overthrew qadhafi. terrorism and then spiked in libya and isis gained a foothold there.
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isis is still the group that engenders the most fear and the biggest headlines. isis grew out of an insurgency that rose to fight u.s. forces in iraq. there would be no isis if we had not invaded iraq. 2006, the u.s. national intelligence estimate on terrorism found that the iraq generationping a new of terrorist leaders and operatives. the hard numbers bear it out. , the number of fatalities from terrorism in the middle east have increased by a staggering 397% since 2001.
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thehe seven countries united states either bombed or /11, the number of individual terrorist attacks rose by an astonishing 1009%. followsin terrorism u.s. military intervention in these countries. if anything, open-ended authorization for the use of has made us less safe, not more. first of all, there is a sizable academic literature on how terrorist groups and or fadeaway. they do not tend to emphasize military force, but rather things like political assimilation and moderation.
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this dries up recruitment and opportunities for violence go away. need to be realistic about the limits of what u.s. military forces can achieve. technically, there is plenty be can do in the realm of intelligence and law enforcement to tackle existing terrorist threats. need to scrutinize how much of a threat terrorism actually is. it is not the existential menace that we are told. it is really a minor and manageable threat. all, the chances of being killed in a terrorist attack here on u.s. soil are infinitesimally small. chances are about one in 140 million. you are more likely to be struck by lightning.
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the average number of americans killed in the united states by islamic terrorism is about six per year. compare that with, say, the 63,632 people in america that died by taking drugs in 2016. or, the fact that non-terrorist homicides have killed thousands of americans in the past three years. try to look up any reputable leading causests of death in the united states. you will find terrorism conspicuously absent.
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9/11 was a dramatic event and it leus to misinterpret the threat of various groups. it was not an indication of a new level of global threat. i think the record speaks for itself. if you catalog all of the attempted terrorist attacks and 9/11, theytes since all essentially fall into one of three categories. the first category is that the attacker have some operational connection to foreign terrorist and, through their own incompetence, failed to successfully carry out the attack. category is that the
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attacker had zero operational connection to overseas terrorist committed or attempted to commit some awful attack on their own. isis-inspired,d -inspired, or lone wolf threats. in the third category is that they are entrapped by undercover for a phony plot. it is almost comical level of stupidity and ineptitude that these would-be attackers have, and a lot of experts believe they never would've had the ability or initiative to conduct the attack without the
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fabricated sting operation. isis has never once conducted a successful terrorist attack here on u.s. soil. there is only such a thing as isis-inspired attacks. the blank check for war on these countries does nothing to stop this. you might as will argue that u.s. military action could have prevented sandy hook.
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there is this dramatic disconnect between fear felt here at home about the threat of the actual utility that specific u.s. military operations have been preventing attacks here. the taliban is another group specifically mentioned in the mf, but it isthe au not clear why. they are only a threat to to the extent of americans living amongst them in afghanistan. one actually claims the taliban is going to come here and attack us or our allies. the claim is that, in the absence of an aumf authorizing military force against them,
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there will be a safe haven where they can plot national attacks. true thatly not afghanistan would have operational utility for these ps to hatch terrorist attacks against us. it is a myth that al qaeda's presence in afghanistan leading /11 was integral to those attacks. actually, they can be a liability. about the unique things isis is that insist upon obtaining territory, which is strategically stupid, is now we have a target. the benefit of groups like al
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qaeda is that you do not know where they are. rationale for a presidential leaky.heck is extremely 9/11 haveof our post exacerbated the threat rather than mitigating it. i do not think they should be confused with tying the hands of the president. says, whoever holds that office has in parent -- inherent power to repel attacks on a case-by-case basis. thank you very much. [applause]
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>> thank you both for your fantastic presentations. we will go ahead and open the floor up to questions now. for those of you who do have questions, we do have a micropne somewhere, so please wait for that to arrive. the state your name and affiliation, and if you would, please state your question in the form of a question as opposed to a statement. >> thank you so much for coming today. i just have a question regarding the associated forces in some of the different proposed aumfs and the post-9/11 one. i'm wondering to what extent there is a difference in how they are defined to the scope of that and the one that senator corker introduced, or associate forces is a part of senator
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merkley or representative shifts? i have looked into those as much as i have the senator corker one. >> so the question is about speedy associated forces. >> in the various -- >> and what differences there are between the post-9/11 in regards to the aumfs and the one proposed by senator corker. >> the phrase appears nowhere in the 2001 aumf. it was sort of an extrapolation from the language about harboring or aiding the perpetrators of 9/11, which you can argue there was some extra authority in there to sweep up new groups. what's happened in the decade and a half since is it's been daisychained out to include
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groups that are not strictly associated with the original targets of the resolution, including isis, group that was excommunicated by al-qaeda and was actively at war with them. i think the history of the 2001 aumf with regard to associated forces says that when you are starting with basically nothing, and it's been allowed to expand in that dramatic fason, that you have to be very careful about what associated forces provisions you specifically right into an aumf. off the top of my head from my recollection, in the tightest definition of associated forces, i don't want to rifle through too many papers here, is in the merkley aumf.
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they have to be co-belligerence with the three groups that are identified in that aumf, taliban, isis, and al-qaeda. and you also include a provision, interesting to see what effect this would have, but when there is an associated force, the president, the authority can expire without congress doing anything. there has to be continuing repeated certification that the group has the ability to attack the united, demonstrated incredible ability to attack the united states homeland. so senator merkley, the narrowest grant of that authority, and senator corker and senator kaine, the broadest, includes if i recall correctly that they are engaged in expansive definition includes
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people that are engaged in hostilities with our coalition partners instead of just the united states, the united states armed forces. and it has very little bite in terms of restraining the presidents ability to add friends and friends of friends of friends, the way the 2001 aumf has led to such extensive mission creep. >> back of the room. just wait for the microphone. >> thank you for speaking with us today. i'm curious as to what implications would arise from congress regaining control over its wartime powers, given that over the years and in the future
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is likely to be more and more polarized? >> well, polarization makes it hard to get things done, for good and for bad. when it comes to war, arguably the thumb on the scale should be against precipitous action. i'm not sure that, you know, one of the things that has seem to be the most bipartisan, the biggest bipartisan consensus in washington is for, is often time for continued war authority. i'm not sure that the drift towards more ideological polarization along the parties in recent decades. i'm not sure it makes a great deal of difference. i think in these things the problem has always been and increasingly it's a bigger and bigger problem, getting congress
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to accept the responsibility that the constitution really gives it. madison had this idea that said sort of a self perpetuating machine where the interest ambitions would counter ambition, the interests of the individual actors within a branch would lead them to defend their respective branch's turf and authority, and what we've seen in recent decades is that works fairly well for the presidency. anybody who occupies the presidency always ends up trying to do what dick cheney said that was his goal, is to leave the presidency stronger than they found it. but it's a very difficult to try to get congress, to get individual congressmen and women
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to buckle down and care about these core constitutional responsibility. there's a lot of them. they don't have the individual incentive. it is a shell game for the american voter, you know, trying to pin down loose, exactly -- who is exactly responsible for the last 17 years of war. so the polarization doesn't worry me. what worries me is the institutional incentives that make it difficult for the system , for congress to take responsibility and for the system to function as it was intended. >> just to second that point that polarization can at times be helpful for constraining war powers, think back to 2013 when the obama administration was approaching the decision to formally ask congress for authorization to bomb syria for no good reason. there's a lot of things that caused opposition.
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it was lots of public opposition and lots of people calling in to their elected representatives and so forth. but the republicans definitely like to post whatever obama supported and it might've stopped a very stupid initiation of force. and if you contrast that with what's happening recently with april 2017 and april 2018 when trump engaged in these symbolic military attacks on the syrian regime for no strategic or tactical or national security reason whatsoever, he did so without even aiming to congress congressional authority and he took it upon himself. that's the situation which everyone in congress can't just say thumbs up or quietly abide because we are not being asked to take responsibility for it.
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when you put responsibility back into congresses hands, polarization or not, they tend to take these questions or series as opposed to just to give it to the president. >> additional questions? yes. >> my name is max. thanks for putting this all together. my question is regarding much of the war on terror is fought online. against various jihadists terrace and things like that. so does aumf like include war efforts on part of the united states government fighting this? and should it? and i guess should we be concerned about -- [inaudible] getting caught up in american surveillance state in regards to the aumf? >> i kind of wish more of our
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wars were fought online. [laughter] with regard to cyber warfare, that's an interesting, entangled question. the aumf talks about all necessary and appropriate force. so i suppose if there are any reason to wage, like a stuxnet type of cyber warfare against a nonstate terrorist actor, you could make a case that falls under the rubric of necessary and appropriate force. for law enforcement, intelligence operations, against the lone wolves or transnational terrorists affiliated individuals, you are not really in the realm of the aumf, other than i think it does speak to,
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be careful what you authorize. because among the things that the 2001 aumf has been cited for, congress arguably never contemplated, was invoked a number of times in the bush administration for so-called terrorist surveillance program. it had been invoked for the detention of a u.s. citizen, jose padilla, captured on u.s. soil. so these things do have a tendency to be interpreted far more broadly than the initial, than anyone contemplated in the initial authorization. if you go back and look at what people in congress were saying at the time and what little debate we had before we passed the 2001 aumf, you don't get the
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sense that anyone contemplated that they were committing the united states to open ended multi generational warfare. joe biden was in the senate at the time saying this is nothing like the gulf of tonkin resolution. we are not saying added, go pell-mell, go do anything anyway. this is much more limited. well now it's been in existence to close as twice as long as the gulf of tonkin resolution and it's hard to tell the difference between just and open ended wholesale delegation congress is war authority. i think that something we have to pay attention to even when it comes to areas like surveillance. >> that said, by and large i think what you will find is the issues are treated differently. authorization for use of military force i think is more traditionally defined as bombs and bullets, and not quite
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cyber. there is cyber warfare but most of the use of the internet in protecting the country from potential attackers, i mean, there's a confluence of bureaucracies roam the fbi to the nsa to the cia that operate in that realm. in many cases with regard to u.s. persons, they will need a warrant and do have to go through the process. and with overseas people, the gloves are off in any case with regard to the intelligence unity in the realm of the internet. i think what you find is those things are separate. >> additional questions? this one in the back. >> my name is jesse. in eisenhower said farewell address, he once against the -- warns against the military industrial complex. what role, if any, do you think
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there's pressure being put on by, let me trade very lightly on this, but big defense contractors who are located in districts of very posh, influential members of congress on committees that have crazy amounts of influence, and the military just like for example, we see the tapes of lyndon b. johnson and his military advisor, advisers telling him pretty much lies to try to keep him in vietnam? what role if any do think the military industrial complex has in keeping the aumf and keeping the status quo? >> in my opinion it is much more to give the effect of the industrial complex. it is less specific to an aumf or the specific role of the military and the role on terror. but you are perfectly right to point out, it has always amazed me that members of congress who
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in public are very practiced in praising the military, putting high military officials on a pedestal, and then the generals will get in front of a committee and testify and say, we really don't need money for this weapons system. it's not relevant to the way we fight. who are typically submissive to these people say well, grew it because it's awful to me and my district and my campaign money, and so that is a factor and less the amf debate and more the broad scope of the fact we have a massive military effort in the world. 800 military bases in 70 or 80 countries around the world. we've engaged in more individual military interventions in the past 30 years than we had in the previous 190 years of our existence, and that does relate to the growth of the military industrial complex.
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but there are other factors as well. in the bureaucratic interest in much of u.s. government and national security realm to inflate threats and pretend like we have existential threats hiding behind every corner. because no one wants to go to their superior at the end of the budget year and say, you know, actually i think i'm chasing ghosts. why don't you fire have my staff and demote me? there are bureaucratic and budgetary interests that keep this expansive national security state that we have, and prevent a narrowing of the definition of u.s. national interest. >> i think we have time for one more question. >> i want to ask about something
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a little beyond the authorization for use of military force and ask about authorizations for the use of military cooperation. in chapter 16 of title ten, for example, or the foreign assistance, foreign assistance act? yes. there's all sorts of authorities to help friendly countries or really anyone who might be helping us with counterterrorism. do you see those kinds of authorities as being appropriate under the constitutional balance of power? what would you characterize policy implications? >> i think by and large of the credit has to rethink its approach to alliances. it used to be the case that you made alliances to help you fight wars or protect against wars that could be around the corner. now we just have alliances for their own sake and they are supposed to cover lots of
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things, not just national security questions. they are supposed to cover democracy promotion. they're supposed to cover intelligence sharing. they are supposed to cover economic cooperation. i think we need to rethink how permanently we cooperate on a military and national security level with allies, not to say that we shouldn't cooperate, but constant military cooperation and sharing to chase threats that i think are either insignificant or imaginary is not helpful. and i think contributes to the ballooning effect of our national security state. >> okay. and that concludes today event. thank you all for coming let's get our speakers a round of applause. [applause] [inaudible conversations]
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>> this weekend, the latest of our profile administered -- interviews with trump administration officials. talks about his prior experience working on capitol itl for mike pence and what has been liked to work in the white house for president trump. ,atch the interview tomorrow 7:30 p.m. eastern. here on c-span. c-span, where history unfolds
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daily. in 1979, c-span was created as a public service by america's cable television companies. we continue to bring you unfiltered coverage of congress, the white house, the supreme court, and public policy events in washington dc and around the world .now a discussion on the around the world. next, a okt e increased use of autonomous weapons by the military and how international law in the rules of engagement are being interpreted. from the brookings institution, this is 90 minutes. >> good morning everybody. i'm going to


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