Panel Two: Presidential First Use vs. the U.S. Constitution

Panel Two: Presidential First Use vs. the U.S. Constitution



all right so I think we're past time and still want to get on with this second exciting panel I've been asked to call your attention to the hashtags associated with this event which you're posted there on the screen this is to be a panel on presidential first use and the Constitution we have a hugely exciting panel I'm going to say just a few sentences of introduction about each then we'll be off and running as with the first panel the panelists will be asked not to speak more than 15 minutes under any circumstances so that we should have a good chunk of time for discussion at the end and so without further ado the panelists in alphabetical order Bruce Ackerman is sterling professor of law and political science at Yale and the author of 18 books that have spanned the disciplines of constitutional law political theory in public policy is that constitutional theorist Bruce is the dominant figure of his generation he's made comparably distinguished contributions to political philosophy in public policy in 2010 he was named by foreign policy as one of the top 100 global thinkers Bruce will talk to us about presidential lawlessness the case for fundamental reform Roza Brooks is a professor of law from Georgetown University Law Center from 2009 to 2011 professor Birke Brooks served as counselor to the Undersecretary of defense for policy she has also served as a senior adviser to the State Department professor Brooks is the author of numerous articles and books and of the recent important book how everything became war and military became everything she writes a column for foreign policy and she will speak on the topic of nuclear weapons and the deep state can bureaucracy constrain nuclear weapons John burrows is executive director of the lawyers Committee on nuclear policy and the director of the UN Office of the International Association of lawyers against nuclear arms in those roles he represents his organizations in nuclear non-proliferation treaty review proceedings the United Nations and other international forums mr. burrows is well known as the specialist on tree' regimes and international law relating to nuclear and other non-conventional weapons he's an adjunct professor of international law at Rutgers law school and a contributor to numerous books and journals the topic of his presentation will be international law and the first use of nuclear weapons [Applause] hi last Friday last Friday I found myself in the Court of Appeals of the District of Columbia arguing a case challenging the legality of the war against Isis under the War Powers Resolution the argument was scheduled for 30 minutes 15 minutes on aside it actually lasted for an hour and 15 minutes the panel was remarkably engaged and seriously searching for the right answer in this case the hour challenge had two parts the first is a challenge under the War Powers Resolution of 1973 passed over President v Nixon veto it establishes a clear timetable the president can initiate hostilities for 60 days but if he doesn't obtain an authorization for the use of military force during that period he must withdraw the forces within the next 30 the official position of the executive branch on this was a is determined first and foremost by an opinion of the office of legal counsel of 1980 which has never been withdrawn under the last days of the carter administration saying that this 60/30 timetable is perfectly constitutional it's true that during the Bush administration the first years John you asserted the contrary but this is not the position actually of the Bush administration which whatever you want to share about the wisdom of these decisions complied with the War Powers Resolution by obtaining an authorization for the use of military force in 2001 against Afghanistan I'm Taliban things and in 2002 against Saddam Hussein the question before the court among others was whether President Obama in President Obama never denied but actually affirmed that the War Powers Resolution provision applied to his decision to initiate hostilities on September 10th in an ongoing way against the Islamic state he then asserted that the 2001 and 2002 authorizations should be interpreted as in a way that in an expansive way that would cover the 2014 decision we'll get back to that in a moment I do want to given the Korea issue make it clear and I have written a couple of op eds today on this score one in The Huffington Post and another one in Slate that the clear language of the War Powers Act of 1973 not only triggers the 60 30-day timetable when force is actually committed in an ongoing basis it also explicitly applies to the president's decision to put the troops in a situation which generates an imminent quote/unquote risk of such an engagement the I argue and this is I mean I'm being here my concern is not the merits of this these combats I mean I respect and of course I'm entry of course interested but I'm speaking to you today as a lawyer trying to interpret the law of the United States the my argument is that as a result of the threats tweeted by President Trump in early August we were placed in an imminent position of engaging in hostilities with North Korea and this has been you know verified by subsequent actions if we begin that the president has therefore triggered of this 60-day period which has expired that he cannot exercise military force in North Korea without affirmatively gaining obtaining an authorization for the use of military force that this protocol that we spoke at it was fascinating the promptly under the law of the United States cannot be invoked at the present time without an authorization for the use of military force like the ones President Bush obtained in 2001 and 2002 there is a counter-argument which did not was not raised in this particular in the case that I was arguing before at the court of appeals but which would have to be considered if we took the law seriously that is there has never been a peace treaty with North Korea does that change the legal situation well we could argue about that and I'd be happy to but the important point for our for my purposes is how is it that nobody in the administration is arguing about how is it that it is that people in Congress are arguing about it but this is viewed as some kind of deviant discussion when we are talking about the law of the United States it's one thing to say many people have gotten tenure on the proposition boo sacrament is wrong that's that's not what I'm saying what I'm saying is that the very argument about taking the law seriously is no a few up Ed's some statements this is different from you see the I'm entirely in favor of the effort by a congressman on both both parties and in both houses to assert a new you know to pass new legislation that's fine but that presupposes we don't already have legislation we do how has this happened that's the question that I want to raise first and what could we do about it the there in Leicester middle clock back could I get some water I'm sorry I'm I wasn't no no the glass the glass will be sufficient yes thank you now maybe maybe something's in the water I don't know thank you very much thank you very much the oh sure is it I'm sorry is that better and please tell me again the let's turn the clock back to the 1960s yes that's right what can we do about it but I'm going to begin by beginning at a point where something had been done about this within the executive branch you see because the president let's imagine I were to win this case before the Court of Appeals or the Supreme Court or the unbanked DC well you know we have it would be four years before I received a declaratory judgment saying that yes President Obama did violate the War Powers Resolution the president has this tremendous first mover advantage and as I mentioned to you in the Korean case the issues are legally distinct we would have to have another lawsuit in the meantime the protocol would operate the the the basic thesis of my minutes is that we need to have a construct a a legal a credible legal guardian within the executive branch to constrain and articulate the legal requirements imposed by Congress the and I begin my story in the 1960s because that's what we had in the 1960s it was called the office of legal counsel in the Justice Department a body that still exists at that time and it's still an elite body of 2530 first-rate lawyers in the 1960s this body consisted entirely of longtime elite civil service lawyers who had served for decades each person had served for decades and had gained a tremendous amount of experience you know one talks about the executive branch but of course there are many different components of the executive branch there are many different legal problems raised in different components civilian and military the there was only one political appointee he was the assistant attorney general office of legal counsel and occasionally he had a one political assistant but not very often there was the White House Counsel Sam Rosenman was appointed by Franklin Roosevelt in 1942 he was an old friend of his he served as an Irishman was served as the governor's counsel when Roosevelt was the governor and he two minutes left oh my god okay in an event the today to switch very quickly to today the White House Council has 35 or 40 political lawyers who every new administration they're swept clean and a whole set of new political lawyers come in no institutional memory and most of these lawyers have only had a little bit of experience so for example Robert Bauer who was the White House Counsel at the time of the war against Isis was a lawyer for the Democratic National Committee and a personal lawyer to President Obama he didn't know anything about national security law the at the same time the office of legal counsels a shadow of itself it's still much more independent than the White House counsel's office is but it is full of people who have are in or out in inside outsiders who move in and out and and the like when the office of legal counsel is preparing an opinion which said oh no this idea that the old 2001 and 2002 resolutions authorizations applied to this new war against an entity that didn't even exist at the time of 2001 or – you have to go to Congress and get 60 days for a new authorization Bauer responds by saying stop and then calls out do anybody who is respectable do you have an opinion that will back the president up jeh Johnson who is the general counsel of the Department of Defense says no we need a new AUMF Harold Cole my colleague next-door neighbor comes as legal adviser to the Secretary of State and writes an opinion forget about what that opinion said this moment represents the total disintegration of the integrity of the legal guardian the political white house lawyer is forum shopping for some somebody in the executive branch who sort of reputable who will back the president up this is not the rule of law thank you very much [Applause] okay it's good to be here the apocalypse my favorite subject I actually do a weekly podcast that if you don't listen to I hope you will listen to it's called deep state radio you can find it on iTunes and all the usual places you can find podcasts and and it's become a running joke in that podcast that I spend all of my time deep in a in a missile silo or a hardened bunker of some sort because I spent so much of my time talking about my various ways in which her horrific the awful things could happen so I'm quite delighted to find myself at a conference in which we're spending our whole day on that subject and and I I'm joking about it but I'm actually quite serious I am stunned I live in while ago and really geniu right outside of Washington DC I spend my time inside the beltway and it's quite stunning to me how Cavalier at least in that inside the beltway world we have become about some of just the existential threats to human civilization I hear people tell me all the time with complete seriousness things like well we've had nuclear weapons for more than 70 years now and we haven't had a nuclear apocalypse yet so I think that shows that we've really learned how to manage this and I think no it doesn't it just shows that we haven't blown ourselves up yet 70 years in the grand sweep of human history is the blink of an eye it shows us nothing whatsoever and I and I think that trying to find a way to feel these threats in our bones is absolutely critical to beginning to create the legal architectures and even more important I'm going to talk about this the the bureaucratic and cultural architectures that minimize the likelihood that we do indeed end up with some sort of catastrophic outcome but let me let me just take take a step from the profound back to the mundane I'm gonna try to really quickly run through several different questions one are they're legal constraints against a presidential first use of nuclear weapons – should there be legal constraints three are there practical constraints are there bureaucratic cultural constraints separate from those legal constraints if any and then actually the fourth part of my talk has the title some random thoughts so we'll get to the random thoughts after that so number one are there clear legal constraints against a presidential nuclear first use notwithstanding my dear friend Bruce Ackerman I would I would have to say no there aren't and what I mean by that is that although there are certainly strong arguments that we can make about the War Powers Act about the constitutional balance of power between Congress and the presidency and so forth that partly because of the reasons that Bruce was suggesting towards the end of his talk they tend to be outweighed by the arguments made by smart lawyers sitting in the White House in the State Department and so on and that which ends up meaning there is no actual legal bar in practice and and let me give an example and I think this is what Bruce was talking about towards the very end I hope he'll say more about this and the questions the decision to use force in Libya under the Obama administration you will not find a president more committed in theory to the rule of law than President Obama was certainly I think it's a sharp contrast to our current situation and yet in part due to some form shopping and so on and so forth despite what seemed like a a rather clear prohibition on using force without congressional authorization through the War Powers Act and so forth the Obama administration did precisely that because Harold Koh my friend and versus made a series of arguments about the ways in which bombing from the sky did not count as a deployment of US troops and so on and so forth and we use force anyway and there was no consequence there nobody impeached Obama you know there were a few sort of noises made in the press people like us made noises nothing happened so I don't think much as we would like to say you know when we said when Bruce says things like the president cannot use force in North Korea without congressional assent I think the Asterix too that cannot unfortunately is well he sort of can because we can't stop it and we don't have the mechanisms that exist to translate that in in some in some neat simple automatic way into stopping it you would think it should be enough to say gee mr. president the texture is pretty clear you can't do that and yet it turns out no there's also and I won't talk about what I know my colleague John burrows here will be talking about in a few minutes the international law framework there is no unambiguous international legal prohibition on the use of nuclear weapons in 1996 for instance the International Court of Justice issued an advisory opinion on nuclear weapons and came to the not terribly satisfying conclusion that although the use of nuclear weapons would be quote generally contrary to international law that the court cannot conclude definitively whether the use of nuclear weapons would be lawful on or unlawful in an extreme circumstance in other words a whole lot of gosh don't ask us guys so is there a legal constraint part one not really not the kind that you would like to have for matters of this level of significance to should there be a legal constraint hell yeah and I think Elaine's scary's book the nuclear monarch I think says this much better than I can I think in all kinds of ways both on the level of textualism when you think about the text of the Constitution itself when you think of the text of existing legislation but also when you think more deeply about norms about what does it mean to have a democracy why do we have this Constitution in the first place yes investing this level of world destroying power in the hands of one or even a few is deeply and profoundly counter to any vision certainly the framers of the American Republic could ever have conceived of and I think would have been uttered the horrifying to them I think that one of the points that Elaine has made in her work is the ways in which the existence of weapons that can kill so many people where decisions rest in the hands of so few are always profoundly undemocratic and I and I do as an asterisks here would say that there are also all kinds of ways in which many of our other modern methods of warfare have profoundly anti-democratic implications there's a terrific book called forged through fire by political scientists John Fear John and Francis McCall Rosen Bluth that points out the historical connections between the evolution of democracy the expansion of the suffrage the granting of political rights to large numbers of people on the one hand and the existence of manpower intensive forms of warfare on the other hand to put it very simplistically when elites need the masses because they need to throw them at other masses in wars then they trade off by granting rights to ordinary people when forms of warfare are high-tech etc don't require a lot of human beings to go out and get themselves killed you tend to have the opposite effect that you get a contraction of democracy and I do think that we face similar threats when it comes to things like autonomous weapons or drone warfare and so forth if you don't need to say to the population of the nation you need to risk your lives then you can make if you are a political leader you can make decisions much less democratically and much less responsibly so let me shift to are there are there practical constraints on a presidential first use of nuclear weapons and and here I think the answer is some but not quite as many as it's a slender read they're obviously as as the first panel discussed this isn't magic it's not that the president wakes up one morning and says nuke China poof and it and it happens that an order to nuke China you have to have created a bureaucratic apparatus that is designed to nuke China you have to have the the right missiles in the right place with the right codes and the right geography programmed them to them and you do go through a chain and in under under any kind of normal circumstances there are lots of other people who are involved in those decisions so in a least in a strictly hypothetical sense when it comes to first use as opposed to oh no mr. president 200 Soviet missiles are already on their way you've got two minutes decide at least when it comes to first use yes lots of people would probably be involved in those decisions and there is a possibility and indeed I think when it comes to the use of nuclear weapons in North Korea a strong likelihood that there would be lots of voices very close to the president saying mr. president this is not a good idea let's talk about this and trying to slow that down I do think it's worth distinguishing in our arguments between the hypotheticals involving the insanity and sane decisions versus simply catastrophic ly reckless and unwise decisions because I'm actually reasonably confident that if Donald Trump or any other American president just wakes up one morning goes haha I'm going to nuke Canada go that there are enough constraints in place enough people would say wait a minute mr. president I can't work the lock on the nuclear football it's kind of broken right now we'd better call the Secretary of Defense get him over here by the way have I mentioned or talking you know the 25th amendment and so on something I'm not actually that worried about the literal insanity you know the president is just drunk out of his mind or he's crazy or says an epileptic fit and order something nuts I think that the bigger thing to worry about is as it has always been the reckless and extraordinarily unwise decision which I don't think it's made in five minutes and unfortunately I don't think that involving more people the Attorney General the Secretary of Defense necessarily stops it groups particularly homogeneous groups particularly in a hierarchical setting where people are habituated to abiding by the decision of the and ER in chief are not necessarily likely to put meaningful brakes on a presidential decision even though they might regard it as unwise and I you know I think about our current Secretary of Defense a very thoughtful guy guy who's made it crystal clear that he personally thinks the use of nuclear weapons in North Korea would be a bad idea I can't imagine him face with the president who said I've heard you you've told me that over and over but I'm gonna do it being willing to say no sir I will throw my body in the way you can't do that because the tradition of civilian obedience military obedience to civilian control I think runs very deeply is very deeply internalized is it impossible that anyone who is part of those discussions all the way down to the launch officers says no I won't do it uh-huh that's crazy that it's possible it's possible it's not likely it's not very likely at all I think I think what we know about human beings in that kind of environment given the context is that very few of them even have the courage that that Soviet nuclear officer had to say this is a false alarm I'm not going to do anything it takes extraordinary courage and it's extraordinarily rare and it's certainly not something that you can count on so that's so a little bit to feel a little better on the completely whacked-out thing I don't think we need to spend that much time worrying about the completely wacky thing in part because as Bruce Blair tells us the attack plans are not people don't come up with them at the last minute you know that they are the product of months and years of planning and programming and creating of these architectures could the president hypothetically say I've changed my mind I'm nuking Canada instead sure he could but the system is not designed to do that it would take a while for everybody kind of go Oh Canada wait we're we're in Canada you know which weapons etc and the operational plans themselves have been vetted by all of the lawyers that doesn't necessarily create a huge amount of comfort but but certainly at least in principle they are gone over to look for things like compliance with principles of military necessity proportionality and distinction and so forth so I'm less worried about the crazy decision than I am just about the sort of run-of-the-mill and unwise decision and here's my final point here's the sort of random thought here I do think it's important for those of us who care deeply about reining in this awesome catastrophic power to disaggregate and to draw careful distinctions when we talk about this we tend to talk about look look at the 800 kiloton or Megaton bomb and it wipes out the world and we go oh god you don't want that to happen here's what happens in Washington when you say that everybody says ho ho ho don't you know that's not what we're talking about we wouldn't nobody would do that nobody would be crazy enough to do that of course not what we're talking about is we're talking about designing little tiny tailored tactical nuclear weapons with just a little tiny few kilotons in them and we would only use them in very special circumstances and we would use them for the you know the hardened bunker that we couldn't get it through other means or so on and there's you know you have this idea that nuclear weapons are all the same well they're not but we would only think about using using the little ones that are very tailored and precise and so your notion of global catastrophe immediately occurring is just goofy I think that there is an answer to that and I think there are many in here who have thought much harder about how to articulate the response to that and the answer has something to do with the ways in which even a tactical small-scale precise use of nuclear weapons runs an unbelievably high risk of escalation deliberate or inadvertent and an unbelievably high risk of normalization of the use of nuclear weapons no matter how inadvertent but I think it's really important that we make those arguments and not rest our arguments solely on the but you don't want to blow up the world do you because everybody will say of course not that's silly that's the red herring here's what we're really talking about and you can't just say that they're all the same you have to grapple that night and I think that that's absolutely right so I've got the little time's up thing stuck up here so I'm gonna I'm gonna bring this to a close the only thing I will say coming back to my theme at the beginning about the ways in which we ourselves tend to you live with a threat for so long that it stops seeming real but I think that we need to find ways all of us and to communicate to all of our friends and neighbors and the people who are not our friends as well this sense of urgency it's a little bit like the you know those people who you know say oh I I live with the grizzly bears and I can I can hang out with the Grizzlies or I'm a crocodile tamer the crocodile won't bite me I know it you know that over time they become so habituated to the presence of this dangerous predator that they tend to forget it's a dangerous predator and then they get eaten by their grizzly bear or their crocodile or whatever I think we're in a similar situation and when it comes to these technologies we're so used to living in the shadow of apocalypse that it stops seeming dangerous to us but just like the you know the Grizzly Man or whoever I think we should never forget that we are living with the dangerous predator the only difference being that this time the the predator in many ways is is us I want to say thanks first of all to Alain in Jonathan and also call for inviting me this is one of the most important conferences I've been to in a long time in 2007 the WMD Commission led by Hans Blix said the following government's possessing nuclear weapons may act responsibly or recklessly governments may also change over time as I recall the Canberra Commission said something similar in the mid-1990s and many are most of us here were very well aware that it was not a good thing to go on deathly assuming that there would be stability in rationality in the United States or any other country when it came to nuclear weapons but here we are and we have to deal with the situation we're in so let me start out by underlining that international law is part of the law of the land in the United States under the Constitution and decisions of the Supreme Court the Department of Defense acknowledges that military operations must comply with the international law of armed conflict so the question of how international law applies to first use of nuclear weapons is highly pertinent or at least it should be another introductory and an important point is this the use of force of any kind is permitted under the UN Charter a treaty of the United States in only two circumstances when directed or authorized by the Security Council or in the exercise of individual or collective self-defense in response to an armed attack it is worth stressing that Security Council resolutions regarding the North Korean situation can no hint of an authorization of use of force that's because China and Russia don't want them to have any such hint on the contrary they emphasize the primary of diplomacy backed by sanctions now as to self-defense since the George W Bush administration the United States has had a doctrine permitting pre-emptive attacks in self-defense against serious threats particularly WMD related threats while the term is avoided this is essentially a doctrine permitting preventive war under article 51 of the UN Charter and international law the extent to which pre-emptive attacks are permitted is controversial at the most the prevailing opinion is that there are legal when in response to the early stages of an armed attack by the enemy anything beyond that in my view is clearly an illegal preventive war so let me turn to the question of the legality under international law first use of nuclear weapons begin with broad requirements of necessity and proportionality applying particularly to the initiation of war but also throughout its conduct they are inherent in a rational and lawful approach to war an approach that seeks to avoid conflict and when it occurs to limit its extent and to make the restoration of peace possible the requirement of necessity in a sense speaks for itself military action must involve the application of least amount of force required for purposes of self-defense if a less destructive option is available for responding to an attack it must be chosen this is obvious implications for the choice between nuclear weapons and conventional weapons under the requirement of proportionality the force employed in responding to an attack must not be excessive in relation to the scale of that attack it must also be rationally related to the purposes of self-defense when it comes to nuclear weapons it is especially important that the risk of escalation is part of the proportionality calculus as the International Court of Justice held in its 1996 advisory opinion the implications are clear for first use of nuclear weapons against a nuclear-armed enemy as would be the case in the North Korea scenario now let's turn to particular military operations there was a 2020 13 report on nuclear nuclear employment strategy submitted to Congress by the Secretary of Defense I'm gonna quote it at some length the new guidance makes clear that all plans these are nuke plants or use of nuclear weapons all plans must also be consistent with the fundamental principles of the law of armed conflict accordingly plans will for example apply the distinct the principles of distinction and proportionality and seek to minimize collateral damage to civilian populations and civilian objects the United States will not intentionally target civilian populations or civilian objects its end of the quote now it's certainly to the good that the United States accepts that under the principle of civilian of distinction civilians and civilian infrastructure may not be attacked what is missing in this paragraph however is an acceptance of the prohibition of indiscriminate attacks the essentials of that prohibition are well stated very well stated in a 2007 Joint Chiefs of Staff publication I quote attackers are required to only use those means and methods of attack that are discriminant in effect and can be controlled so the omission of the prohibition of indiscriminate attacks and the 2013 guidance probably reflects the fact that it is extremely difficult if not impossible for nuclear weapons to be used in a way that is discriminant in effect and controlled that consideration played a key role in the advisory opinion the International Court of Justice stated that under the fundamental principle of distinction states must never use I'm quoting never use weapons that are incapable of distinguishing between civilian and military targets and the court went on to say that in view of the unique characteristics of nuclear weapons there you seems scarcely reconcilable with respect for that requirement now in addition to distinction the 2013 Defense Department guidance also accepts the requirement of proportionality this should be understood a little bit confusing but it should be understood is the requirement of proportionality in attack as opposed to the general requirement of proportionality in the exercise of self-defense I discussed earlier and you will have heard what I'm going to say in various discussions of US military operations over the years there carmit of proportionality and attack essentially requires that the collateral injury and damage caused being it by an attack not be disproportionate to the expected military advantage now because it involves a balancing of costs and benefits the requirement of proportionality in attack as such may not be understood to rule out all possible uses of nuclear weapons imagine a situation when an enemy is believed to be on the verge of launching nuclear forces and it is believed that only a pre-emptive nuclear attack can prevent or limit such a launch well this scenario I think demonstrates first of all why nuclear-armed States must avoid going to war from a legal standpoint it remains the case that even if a proportionality calculus is believed to justify use of nuclear weapons if it is unlawful under the prohibition of indiscriminate attacks now let me just mention in view of the time other rules significant in this context they are included in a preamble to the treaty on the prohibition of nuclear opens just adopted at a UN conference in July the preamble states that the states parties to the treaty based themselves on rules of international humanitarian law which is at the core of the law of armed conflict in addition to the ones I've discussed they include the rule on precautions in attack the prohibition on the use of weapons of a nature to cause superfluous injury or unnecessary suffering and the rules for the protection of the natural environment the preamble also does the following and these are phrases which have been very usefully used very effectively used by the International Campaign from the abolish of nuclear weapons which has really been quite masterful in their advocacy that preamble reaffirms that any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience I won't go into the details but those are factors with legal value in international law just an aside on the prohibition treaty it will enter into legal force when 50 states have ratified it probably in the next year or two you will gain increasing Authority as a statement of international law binding all states including non parties which the United States is likely to remain as it's number of parties grows over the years so let me conclude regarding use of nuclear weapons the first use of nuclear weapons is at least generally contrary to international law I say generally to acknowledge that skeptics love to trot out marginal scenarios where use arguably could be justified as against a rogue nuclear-armed submarine first use is also irrational regardless of the particularity 's of a given situation because over years or decades it would open the door to further uses in other situations and promote proliferation the rules I have discussed also apply to the second use of nuclear weapons and so most of this discussion also applies to the second or third or fourth use of nuclear weapons sometimes it is assumed that the doctrine of reprisal justifies the second use of nuclear weapons but that is not as true as might might first appear but I don't really have time to go into that so regarding presidential first use I support the approach of requiring congressional approval both who are engaging in war generally and for first use of nuclear weapons and I suggest that the requirement of complying with international law with treaties of the United States be written into the legislation now I was asked to say something as well about the potential for legal cases for presidential authority to use a nuclear weapons clearly Bruce Ackerman right now is in a much better position to undertake that discussion but I I will say a few things about in 2003 lawyers committee and nuclear policy represented congressman Dennis Kucinich and thirty other members of the House of Representatives in a challenge to the George W Bush administration withdrawal from the anti-ballistic missile treaty the claim which was really quite solidly founded in law in history was that Congress must or at least the Senate must approve withdrawal from such a treaty the federal district court in Washington DC dismissed the case on procedural grounds the judge ruled that the House members lacked standing and the case presented political questions to be resolved by other branches of the government is that case and many others demonstrate the barriers indeed are steep to persuading a federal court to adjudicate large questions of national security and foreign policy that is true whether a case is brought by members of Congress or by individual citizens one possible circumstance would be were a majority of Congress as a whole has taken a position on a constitutional matter and the president has rejected the position that path is suggested to some degree by the reasoning in the ABM Treaty case and also a Supreme Court case Goldwater V Carter involving termination of a mutual defense treaty with Taiwan of course lawsuits can have significant educational value regardless of their prospects for ultimate success in the courts so I'll leave the discussion of possible lawsuits there I'd have to be happy to discuss it further on the side or in Q&A thank you so thanks I'm sure for all of us to the panelists for terrific presentations with indulgence I'd like to ask two questions of the panelists before we go to the audience and I'll tell you in advance what their two questions will be and then I would suggest taking them one at a time the first question would be just to get clarification on the different panelists view about legal restraints on presidential first use of nuclear weapons and so if I understand correctly John burrows says there is a prohibition coming from international public international law which is part of the law of the United States Bruce Ackerman says there is a prohibition against presidential first use with respect to North Korea coming from the War Powers Resolution but if I understood him correctly he didn't speak more broadly to the question of whether there are for example constitutional restraints that would apply in every situation and then if I understood correctly Rosa Brooks said that there are no actual legal restraints on the president right now there should be but there aren't right now so I'd like to get clarification on that question and then the second question that I am going to ask is to the extent that the panelists think that there are or should be legal restraints do they think that those legal restraints ought to be judicially enforceable and if so how because there are a variety of ways in which officials can be constrained by their consciences to obey the Constitution as we assume is the case with the justices of the Supreme Court but who aren't subject to enforcement of their duty by any higher panel and as we sometimes see operating in the constitutional regime for example through the mechanism of impeachment so first are there actually operative legal constraints today on you presidential first use of nuclear weapons john burroughs that I get you right basically my argument was based on principles of international law generally necessity proportionality and the other ones I discussed their application by the United States would require that they be taken seriously in a decision-making process it is also true that there are not explicit prohibitions in international law by named all states in the world there is they're just adopted nuclear weapons prohibition treaty but that so far has the signature of about 50 non-nuclear weapon States and at least at the present time it doesn't appear that any of the states that possess nuclear weapons are going to join that treaty now over time the prohibition on use in any circumstance of nuclear weapons contained in that treaty may come to have some legal value or at some point somebody like me might say it's a basis for a universal rule of international law so it is a process in short in terms of u.s. decision making it is a process of application of general principles of international law and obviously there could be lawyers in the Trump administration who would disagree with my views so there's a there's a saying that many first-year law students learn early on in their legal education no remedy no right and the meaning that is essentially it doesn't do any it doesn't do you any good it doesn't mean anything to say that you have a right to such and such if there is no actual way for you to enforce that right and I think that's really the issue here that this is a this is a no remedy no right situation it's not at all difficult and I completely agree with John's interpretation of international legal principles it's not difficult to interpret those to say hey it looks like there really is a legal bar against a first use of nuclear weapons in virtually every situation except for the really goofy and actually unlikely to occur nor I think is it terribly difficult to look at the text of the War Powers Act to look at the Constitution itself and deduce that there should be a similar bar arising out of both both the Constitution itself and US statutory law however you know as I as I suggested in my remarks the trouble is that at least at the moment there is no mechanism there is no there is no mechanism in which I have the slightest confidence that would turn those arguments into something that would actually and a president the United States categorically say I have no power to do this that that said and I and I this is not quite answering your second question about judicial enforceable 'ti I don't at all want to suggest that I think that those legal arguments and bringing lawsuits and trying to pass legislation such as the marquis lou bill that will be discussed later doesn't matter I think it matters enormous Lee because I think at the end of the day the constraints on a presidential first use of nuclear weapons and in fact constraints on types of response if there was a defensive views have much much more to do with culture than they have to do with law and I think that I do think that and and I own a string is Therese by saying I think it's not that there are no legal bars and part of the reason I say I worry less about the insane order then I worry about the be simply ordinarily catastrophic Allah reckless and unwise order is because when it comes to the law military officers whether they're whether that the chairman of the Joint Chiefs of Staff with four stars in a shoulder or whether it's major so-and-so the launch officer you know they take an oath to the Constitution they take that oath seriously military officers are legally obligated to disobey manifestly unlawful orders I'm not worried about the situation where the you know for that reason the president wakes up and says nuke Canada because I don't like Canadians easy easy case unlawful order genocide no sorry sir no sir the problem is that that's the easy case and that's not the likely case and in fact as we know on many other issues including for instance the use of torture the the problem is not the extreme case where somebody orders you to torture an innocent person or orders you to murder an innocent person the problem is the the slightly harder case where somebody says of course we wouldn't just nuke the entire civilian population but you know in this careful targeted way we're going to do these careful targeted things which are gonna be carefully tart calibrated to minimize to be proportional to be buh-buh-buh-buh-buh to draw as many distinctions as possible in that situation are you gonna find lawyers who will say yeah that's lawful in that situation or are you going to find a military officer willing to say I'm gonna substitute my judgment for the judgment of the elected political branches and the lawyers they have hired who've given me this piece of papers saying oh that's not actually torture or oh this is not actually genocide it gets less and less likely but but returning to the to the main point you know I think that there is enormous value in having these conversations there's enormous value in saying hey international law clearly would prohibit certain kinds of things hey constitutional norms clearly prohibit this not again because there's some magic enforcement mechanism but because it just dramatically increases the likelihood that everyone from the President on down is gonna think a whole lot harder before they say hey that's a good idea and as I said in my remarks I think that that has to include for us really thinking through the arguments against the you know the arguments that we are likely to encounter them in the real world are not going to be in the let's blow up the earth because we have no alternative form they're likely to come in the form of we have this limited tactical use which we're you know we're out of other alternate and I think we have to be able to grapple with that directly and not treat it as oh that silly we know you're all we know you're going to do something crazier than that the crate you know it's it's the it's the hard facts make that law the crazy cases don't help us all that much I think I think we have to think more about how do you respond to the much more realistic likelihood that you that you get these seemingly very rational arguments for these very limited very tailored uses of lower yield weapons that we have to grapple with well the I might have I'm not quite sure misstated something when I was speaking when I told you the story about Harold Cole coming in that had to do with Libya I might have because of the crush of times misspoke and said that had to do with the 2014 decision by President Obama to make war against Isis what happened there was even worse no opinion was written at all either by the White House Council or by the office of legal counsel there was just a bare assertion that the 2001 and 2002 authorizations were sufficient and when I argued this case last week I said and this I think is one of the reasons that the judges were moved that if the court in this case fails to discharge its fundamental function of maintaining the Constitution of the United States and statutes implemented as the War Powers Resolution was in pursuant to that Constitution not only President Trump but every future president of the United States will have had this precedent that the bare assertion of the 2001 and 2002 authorizations without any legal argument whatsoever sufficed to justify the forever war and in response to that argument the the panel focused this question on the government's lawyer said is it the case that's the president's position that your I mean is it the case that the justice department's position in this case representing the president was that there was never an occasion upon which courts should impose fundamental restrictions in the name of the Constitution on the exercise of war after a good deal of back and forth the lawyer for the government said yes it is the case you took the most extreme view it is the case that it is never the case that the courts should ever dot-dot-dot I this was something that was deeply troubling and now from the vantage point of American constitutional law the the problem that we're talking about here is not a new problem the first time it was raised was in 1802 in the case of little against bream lagoons bream a captain little was one of the captain of one of the six ships of the Navy at the time and in 1799 Congress in what we were having the first limited war with France the quasi-war with friends Congress passed as the following embargo provision instructing the Secretary of the Navy that his six ships should be used to seize any merchant vessels going from the United States to France President Adams issues an order to the secretary the Navy says not only that you should also sees ships coming from France to the United States and moreover you should if you see a ship that's flying a neutral flag sees that if you think it really is a ship that's owned by the Americans and they're trying to get around captain a little s was a unfortunately embargo and he sees the flying fish which is a date flying a Danish flag oh I forgot to tell you so secretary of Navy says listen to what the president has said he commands his officers to to disobey Congress and follow the orders of the President the captain metal following the orders of the President seizes the ship and takes it into port litigation goes up to the Supreme Court and first John Marshall this is a Marshall Court 1802 is the first year the year before Marbury against Madison 1803 mind you Marshall says we know questions of military discipline we should tell these officers that they should obey the president United States the other members of the panel the other members of the court disagreed and he changed his mind and for a unanimous opinion of the court says no a presidential order cannot render legal what was illegal you had an obligation to follow Congress now the this case we argue before the judges and we'll find out no I mean you know they I think the Rose is asking a fundamental question but we don't know the answer to this I argued and people listened that this a decision is a fundamental part of the general project of Marbury against Madison Marbury against Madison decided one year later says that the civilian officers of government Congress president courts have an obligation to follow the Constitution first what little against Bream holds is that that is also true of the military officers of the United States that they have an obligation to follow the Constitution when the commander-in-chief orders something inconsistent with that then it's a final point on your question of standing you see there are two statutes in the contemporary contemporary statutes one passes 1957 and one passed in 1961 which are directly and only targeted at military officers the statute for enlisted personnel says you have to I hereby swear to support and defend the Constitution United States and to follow of the orders of the President of the United States the statute for officers says does not have this clause it only says we hereby swear to support and defend the Constitution of the United States citing the late great Justice Antonin Scalia I present to the court there is a fundamental maxim of statutory interpretation that when there are these two statutes directed to the same problem and one says X you obey the president United States and the other one does you shall not interpret the officers oath as if it said the same thing that it didn't say that is you shall pay the prayer often orders of the presidents moreover within the context of little burying verses Purim it isn't only that the statutory interpretation requires the conclusion that there is a difference between the officers of the United States with President Trump orders officers of the United States to violate the War Powers Resolution they have an obligation not to listen to him not it isn't as if all those are the same we interpret statutes in the United States there are two of them they say different things and they under the standard categories of statutory interpretation impose an obligation on the officers and that is why the plaintiff in this case captain little has standing captain little is a he's now out of there but he was an officer an intelligence officer coordinating bombing an operation inherent resolve against Isis he had an he read the materials available to him and he said look the 60 days are gone the 98 to the 30 days are gone I have no opinion from the president explaining why this is legal I have an obligation to disobey and the only source of a legal opinion that I have is the courts of the District of Columbia and it is that in order to if I have to go on my own I would have to disobey the orders to coordinate the bombing I believe in the war but I believe in my oath you know I am an obligation under my oath and that's what gives me standard and if this Court finds that an officer who is engaged in a war that on its surface looks illegal under the War Powers Resolution has no standing well that's the end of the constitutional order so far as the War Powers are concerned okay so I will withdraw my second question which the panelists have pretty much responded to anyway I would just extract quickly this message from what the panelists said if I heard correctly the response to the answers every one of the panelists believes that there are legal constraints on the president's power under the Cathar t under the Constitution laws of the United States to engage in first use of nuclear weapons to the extent that there is difference it is largely about a second though closely related question about whether that those limits ought to be judicially enforceable or would be judicially enforceable and I think the panelists also agree that the constraints do a not to matter even if the constraints are not judicially enforceable though obviously they would matter a good deal more if they were judicially enforcement so with that I look I see somebody with a microphone well I see somebody with a microphone and there's a hand right there Bruce Blair told us about a protocol which I view as a complex socio technical system embodied in hardware and procedures and rules as a practical matter what is the ability of the Congress to redesign this protocol through statute rosa you've been close to these questions as I think as usual the answer is some but not as much as you might wish I mean sure could Congress pass legislation that that says and I think I think Bruce or maybe someone else referred to this in the first panel that says you know under ordinary circumstances here's how this protocol should work sure they could can they bind the president in a judicially enforceable way to follow that that's a harder legal proposition precisely because the what what the president would probably say is look my inherent commander in chief powers you can play certain kinds of restraints on me but you can't tell me how to organize this you know and bind me if I don't want to be bound I've that's the kind of thing I think it would you know it potentially could get litigated but again as with so much of this what matters is probably in many ways more the the discussion and the sense of self-restraint such legislation might impose then on whether it's judicially enforceable I think that's the only answer I can give and there may be others here who have more thorough answers that they can provide to that yes so my question thank you so much for this fabulous panel my question is really if law constrains what what exactly is it constraining I think the most important point about the seneschal of law as a restraint was Bruce Ackerman's comment about the politicization of the Office of Legal Counsel isn't it the law within the office of legal counsel if it we can call it law that actually is the point where constraint can actually have a purpose if we're talking about constraining military action and that whether it's John's articulation of the limits of international law or Bruce with all due respect your faith in the courts it's doing something that then turns law into a form of essentially official regret not as something that actually has a limit on the use of force absolutely right the my I had planned this talk to be about the my proposal which if you would like to read it is in this book on a road called the decline and fall of the American Republic which is published in 2014 for a supreme executive tribunal appointed as in within the executive branch and that in which Congress let's suppose you know that there were two possibilities Trump wins a second time in which case the Constitution is gone my friends we could have two years or three years of resistance but don't fool yourself or the or the American people repudiate this and if that happened then the question is how could we prevent this from happening again and that's what we should be doing putting things lot of the on the agenda for that and the supreme executive tribunal is my is a thought of mine this would be a nine judge tribunal with eight with each judge serving an 18-year term every two years the president nominates points with the consent of advise and consent of the Senate and this Tribunal would have a jurisdiction to hear a challenges by the relevant congressional committees who assert that the president's creative lawyers have reinterpreted a statute so in a way that is inconsistent with the basic principles of statutory or constitutional interpretation then a reconstituted OLC would have to defend the legality of this before this executive tribunal which would come down with a decision saying yes or no so we would have an office of a Senate counsel's office Oh House counsel's office arguing and an OLC arguing and then the White House counsel's create a creative lawyers as it were and the when the the the nine-member tribunal hands down a decision we could come could come in several flavors I would the one that I would support is a declaratory judgment requiring the president self-consciously to overrule it self-consciously to overrule it and say for the following reasons I disagree with this executive tribunal this would tremendously discipline and make serious the off of the the legal discussion within the a White House etcetera and so forth because all of this extravagant creative and reinterpretation of statutes well beyond their meaning is done against a background of knowing that almost nobody could ever challenge it in the court and while it should be important for on a critical occasions for an article 3 court to redeem little versus marine and more Marbury against Madison in the normal case it would be that much better for the internal institution to be reconstructed and this is my effort to reconstruct the days of 1960 but this is just a throw out an idea of course other people it's an invitation to others to have different ideas of reconstructing a serious guardian of legality within the executive branch right so if hands would go up over here I'm going to stick in two sentences if I may I'm also teach constitutional law emphasize something that Bruce said at the beginning of his answer it comes in the form of an opinion but the opinion is that the Constitution isn't in the long run can't be much better than the American people insist that our officials treat it as be in and so bruce says I'm not sure I would go this five four more years of Trump and all is lost but the way that the Constitution will be enforced against Trump if it is enforced against Trump well in the first instance be through Congress and Congress standing up and which is something that Congress is likely to do only when the American people begin to insist that that happened and at the end of eight years we would have a trump dominated judiciary if Trump had been the president for eight years and so in one sense the Constitution is no better than the people who are responsible for the selection of the officials who administer the Constitution can I just add a quick point to two verses I mean I want to emphasize that my skepticism about the the current enforceability of any of the potential legal restraints is not a skepticism about the value of that enterprise at all but but it's precisely because I think that the if the American people the American people how much they care about the Constitution depends on how much we all act like we care right and if we act like oh it doesn't matter it won't matter if we act like it's it's vitally important it will matter more and I think it's to slightly hopeful things in this particular you know one is that and I don't think it's at all a coincidence that this is comes in the age of Trump there's been a resurgence in the military scholarship in military journals of debates about dissent and obedience and duties to dissent I don't think that's accidental I think that's precisely because there have been conferences like these and people raising this kind of issue that that has become a more live issue for military academies and military school houses and so on that people are talking about and the more people talk about that the more likely it is that it at the crucial moment you get someone who has the courage of that Soviet missile officer to say wait a minute even if I get fired for this I hold on this is this strikes me as wrong the other the other hopeful thing is that we can absolutely build in various forms of bureaucratic restraint and pre-commitment and people are creatures of habit I mean even already as I suggested there are some bureaucratic restraints the president the president has the lawful power to order the use of nuclear weapons but that doesn't mean there are no constraints whatsoever it's more like a you go into a restaurant and there's a menu you know and the menu says you can order steak you can order chicken you can order fish you can order the steak with these five sauces you can order the chicken with these five sauces can you go in and say I want a pizza and I want it to be a vegan pizza yeah you could but it's gonna take a little while for the chef to kind of go we'll wait a minute are you sure you want that this is a steak house you know or whatever you know and I've got to go buy the ingredients that I've got to find the recipe we already have that system with our nuclear weapons you know that there's a menu of what they're designed to do and what where they're targeted for and which weapons are targeted towards what and the president can override that menu and say I want a new menu but it takes a little bit longer and the more whether it's through Congress or whether it's through the executive branch binding itself not likely under this administration but we've seen it in action under prior administrations that that those those can be effective I mean here's an example that I I'm not particularly happy with in many ways but the Obama administration when it came to targeted drone strikes opted as a matter of policy to develop a pretty rigorous process for the decision making didn't I think the fundamental rule of law concerns about it but nonetheless it's better than nothing you know a fairly elaborate process involving a lot of steps and a lot of people who are instructed to keep asking questions and second-guessing until the ultimate decision is made and those processes you know the downside of those processes as Trump can come in and change them but the upside is that people will develop habits they develop patterns of behavior and those patterns of behavior can actually be quite significant restraints on on certain kinds of action so I think that it is absolutely worthwhile both through law and through policy to try to develop those institutions that are designed to put on brakes because they can be pretty effective not completely but fairly effective I should say the captain Smith in this case is the equivalent of your Russian officer except that the United States of America at the present time is not the equivalent of the Soviet Union that is to say rather than simply lying what he did was go to court and try and at a great cost to himself in terms of his meet the meaning of his life which was to be an officer of the United States and suddenly he is really sacrificing his military career so the but he's going to court to try to redeem the Constitution rather than simply I mean you know in in in your heart it's a scenario what else could the fellow do not appeal to the courts of the Soviet Union so sadly I time is up I'm sorry there's not more time but great thanks to the panelists [Applause] you

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