Can Anyone Stop a President From Starting a War? (#318)

0:00Every crisis comes with the same demand. Do something. But what if acting too quickly can be just as dangerous as waiting? The Constitution was designed to slow down decisions about war. Today's world rewards speed. So how do you protect a country without giving one person too much power? Hi everyone, I'm Lynn Tomman and Mrs. Three Takeaways. On Three Takeaways I talk with some of the world's best thinkers, business leaders, writers, politicians, newsmakers, and scientists. Each episode ends with three key takeaways to help us understand the world and maybe even ourselves a little better. Today I'm delighted to be with Jay Johnson. He spent years in rooms most of us will never see. As Secretary of Homeland Security and previously General Counsel of the Department of Defense,

1:02he's advised presidents on war, terrorism, and protecting the country. Few people have had a closer view of how America's hardest national security decisions are made. Secretary Johnson welcomed a Three Takeaways. Thank you Lynn. I look forward to our discussion. Me too. Every crisis seems to come with the same pressure. Mr. President, do something. You've been in that room. Why can those three words be the most dangerous advice a president receives? Because presidents and very often they're appointees are politicians, accustomed to responding to public urgency, public cries for action. In my experience as the lawyer for the Department of Defense, as the Secretary of DHS, it really does pay to have advisors with a range of philosophies and attitudes about how to respond to a crisis. Some can be aggressive, some are more thoughtful,

2:06more methodical, and if you have that collection of advisors, there is very often brilliance somewhere in the middle and healthy decision making. How does one get to that brilliance in the middle? By consciously and deliberately selecting a group of advisors, not necessarily your cabinet, but a group of advisors who you know represent a range of viewpoints. And I don't necessarily mean political viewpoints. I mean a range of risk tolerance. Some people are action oriented, proactive. Some people are more cautious. And you really do have to have all of them in the room together. I know that from personal experience. Can you talk about that personal experience? Can you give an example? Of course, that's not classified. Yes, I'll talk about my own time as the head of an agency of 250,000 people. Very often I'd read something or see something in the morning that really

3:08set me off at 6am in the morning on my way to work, for example. Like a leaked IG report or a congressional hearing about something that's going to make DHS look bad. I'd get to work and want to do something. So I'd type out on my own a statement, a public statement. That is wrong. And here's why. But before I told my comms people, hit send, I'd wait for five key advisors to get the work. I'd hit the print button five times. I'd show them each a copy, say without asking a leading question, what do you think? And the usual weight of the room was, come on, boss. You know, you can't do that. You know, you can't say that. You're going to offend so-and-so. And next week you need so-and-so for this. And one or two others might say, yep, go ahead and do it. You're absolutely right. You deserve to be angry. Go ahead. And most of the time I'd find consensus

4:08in the middle and go with that. Sometimes I'd say the hell with it, I'm going to do this anyway. I hear you. And sometimes I'd blow off steam and by 11am I was on to something else. So I think the same dynamic can exist in national security at the highest levels of our government. It's key for the decision maker to be able to listen more than you talk. Here's something that surprised me. The presidents rarely have all the information that they would like before making life and death decisions. How often do they have to act knowing they'll never have all the facts that they want? I'm a lawyer and lawyers want all the facts they can possibly get before they make a decision. What I learned in national security is you rarely have all the facts before you have to make a decision. We did not have perfect information that Osama bin Laden was in that compound in a bada bada. It was a highly, highly but very persuasive

5:14circumstantial case. The president determined that we should conduct the operation that led to his killing on May 1, 2011. You had to make a judgment based on what you know and what you didn't know and it was not going to get any better anytime soon. I don't think the most people appreciate the uncertainty. And of course when decisions get judged we look back with 2020 hindsight. Of course, yes. 2020 hindsight is brilliant. If I had it, I'd be a billionaire in the stock market. One statistic stopped me in my tracks that Congress has declared war only five times in all of American history and not one since World War II. Yet America has fought in Korea, Vietnam, Iraq, Afghanistan, and many other conflicts. How is that possible? The norm has become for presidents to act alone because their lawyers tell them you had the legal authority to do this

6:16because there's an important national interest at stake. And so increasingly so, presidents are not bothering Dee when go to Congress for anything. They just act unilaterally. The Constitution was written as you point out in your law reviewed article for a country with no standing army. Today a president can order military action almost instantly. How did that one change completely reshape the balance of power that the founders imagined? Power hates a vacuum. So Congress has retreated from authorizations of military force and the executive branch and its lawyers have filled it. Over the years, we've got to a point where the existing legal understanding in the executive branch of the president's legal authority is that you can deploy the military into hostilities anytime there are, quote, important national interest at stake.

7:17So long as it does not rise to the level of a war in scope, duration, and purpose. I think that's almost a quote. That is a limitless test, frankly, because what's an important national interest? No one's going to second guess a president on that. So with that understanding, lawyers telling the president you can do this without going to Congress. There's a natural reluctance to go to 535 people and ask for permission to do something. We've done this across multiple presidencies. Most obvious example, which in my opinion goes way over the line, is the current war we're in right now with Iran. Can you talk about the founders and what they wrote in the constitution to constrain the president in terms of going to war? The founders said that the Congress has the authority to declare war. And I think that that provision is as relevant today as it was in 1789,

8:20though the circumstances under which we go to war are vastly different. And what I'm sure the founders were responding to was a desire to create a nation with no kings where a king can take the nation into war by himself. So I think it's as important today. It's one of the few principles that existed then that are as relevant today and exist now. But the power of it is changed because when the founders wrote the constitution, there was no standing army. And it would take the president weeks or months to get that army together so there could be a declaration of war first before any action. Right, which is why now because the circumstances have changed so vastly and our ability to go to war is so much more vast and enormous. That provision I think is

9:23all the more important. And instantaneous, the president can now almost instantaneously go to war or strike another country. Yes. One thing that really surprised me is the presidents from both parties often end up wanting more executive power than they thought they would before taking office. Why does the job itself change the way that people think? That's a good question. And I'll give you a very real illustration of what you just said. During the presidential campaign of 2007-2008, I was an active supporter of Barack Obama's campaign. I was part of his campaign. And Charlie Savage of the New York Times asked the candidate certain questions about national security. Does the president have the authority? This is back in 2007 to bomb Iran without congressional authorization. And candidate Barack Obama with my help said no, not unless there's an eminent threat to our nation. And that had been the conventional legal understanding. When he got into office,

10:29the picture became more complex with the press of national security, urgencies, and deploying the military into hostilities in Libya in 2011. Work Adafi was committing genocide on his own people presented a really compelling picture. There was a lot of pressure on the president to do something. And the Department of Justice Office of Legal Counsel wrote an opinion that said, yes, if it's in an important national interest, you can do this. So long as it does not rise to the level of a war. And that was the authority that President Obama acted on. And of course, Charlie Savage and others dug out what he said during the campaign, but faced with a dire national security emergency. And lawyers telling you it's okay to do this. It makes it hard to say no. It makes sense. It sounds like the office changes the person just as much as the person changes the office of the presidency. Yes, the office molds the person

11:31absolutely. But having the ability to listen to a range of advisors with a range of philosophies, I think leads to healthy government decision making. So both President Bush's George H. W. Bush and George W. Bush went to Congress before major military actions in the Middle East. If a president believes he already has the legal authority, why bother? Why does asking Congress still matter? That was exactly the situation Bush 41 was in and they run up to the Gulf War. As Laura said, you can do this. Congress said, you better not. You better come to us. And he made the decision, I think, which was largely a political decision to go to Congress and make the case publicly, which is what the Bush administration did. And I think it led to more popular support for the effort. Certainly had Congress behind him, including a number of Democrats. And that's the way our constitutional dynamics supposed to work. Bush 43 of course went to Congress

12:35after the 9-11 attack. There's only one person among five of it, 35 who voted no. And he did the same thing in 2002 in the run up there. And a number of people in the wake of 9-11 in the environment of 9-11 in Congress voted yes. And they later came to regret it. But still, Bush 43, like his father, went to Congress to make the case and went to the public to make the case. And that's particularly important when things do not go as planned to have that support. Correct. We often talk about the Constitution laws and institutions, but you're talking about how much ultimately depends on the judgment and character of the president. Yes, exactly. You've spent years and rooms that most of us will never see. Is there a moment from your time in government that you haven't discussed much publicly, but that changed how you think about leadership? Yes, contrary to the movies, I think the best decision-making, which I have personally

13:41observed in the situation room, is when the president comes in, there'll be someone who is a discussion leader, usually the national security advisor, who leads the discussion, calls on people around the table for their views on whether to take action A or action B or wait, do nothing. Choice C. President listens, again, listens more than you talk. And then President Obama, in particular, after he heard from the principles at the table, would then look at the plus ones sitting along the wall in the back, who he knew knew the issue better than the principles at the table. What do you think? Jay, what do you think? What do you think? What do you think? And of course, when I'm the plus one for the Secretary of Defense, like I often was when I was General Counsel, my tendency would be, well, I think what he thinks, but the president was looking for some deeper understanding of the defense department's position. And he'd say, well, that's a good point. And from that, you make

14:45the decision. And I think that's the best way to make a weighty national security decision. After everything you've seen over the course of your career, are you more optimistic or more concerned about America's ability to meet the next crisis? And why? I am very concerned about our ability to meet the next crisis. Given the internet, given social media, given the number of conspiracy theories that are looming in our society, if there was another 9-11 tomorrow, I think we'd quickly, as a nation, fall into an argument about who's responsible, who did it, was it a government cover-up, and the politicians would pander to that, so that it would not be clear that it was al Qaeda. There would be conspiracy theories about who did it. And from that, it would make it very difficult to summon a national response. I used to say it would take a crisis to bring us together. We had a crisis, COVID, and we were not together. There were heated

15:46debates about whether to wear a mask or not, or whether to get a vaccine. So I do worry that if there was another true national emergency on a national scale, our democracy would not be in a position to respond effectively. I worry as well. Looking back, what's something that you believed before serving at the highest level of government that you no longer believe today? Congress. It's hard being a house member. You got to run for re-election every two years. You continually raising money, campaigning, and you only spend like two and a half days a week in Washington. In my years in Washington serving as a political appointee, I was surprised and disappointed at the knowledge and maturity and the capability of a lot of members of Congress that served today. It's kind of frightening. There are notable exceptions, obviously. Jay, what are the three takeaways you would like to leave the audience with today?

16:51Number one, the authority and prerogative of Congress to declare war and take the nation to war. The people's representatives in Congress is as important today as it was in 1789. We need to find a way to put that toothpaste back in the tube. Number two, one of the things that I have come to appreciate now more than ever in current modern-day circumstances is that a president, a member of Congress, a cabinet official, has to not only adhere to the letter of their oath, but also to constitutional and legal norms. If you have a president with all this power who does not respect or understand constitutional and legal norms, we're in real trouble. And when it comes to presidential war powers, ultimately it's up to one person to fix it, the president himself, who has the legal authority, according to lawyers in the executive branch,

17:54to take the nation to war in multiple circumstances. But if a president respects the constitutional norm of Congress declaring war, he goes to Congress any way to seek a declaration of war. So a president himself or herself has the ability to alter the current dynamic. Thank you. Thank you for your service and government and thank you for joining three takeaways today. This has been wonderful. Thank you, Lynn. If you're enjoying the podcast and I really hope you are, please review us on Apple podcasts or Spotify or wherever you get your podcasts. It really helps get the word out. If you're interested, you can also sign up for the three takeaways newsletter at threetakeaways.com where you can also listen to previous episodes. You can also follow us on LinkedIn, X, Instagram, and Facebook. I'm Lynn Toman and this is Three Takeaways. Thanks for

18:55listening.