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Special Report

All-Star Panel: Limits on president, Congress in fighting ISIS

This is a rush transcript from "Special Report," February 5, 2015. This copy may not be in its final form and may be updated.

BRET BAIER, ANCHOR: As you look at live at the White House, a little bit of an audible here before we talk about the big cyber hack of Anthem insurance company today. I want to finish that discussion about the authorization for the use of military force. We're back with the panel. Judge, you heard what Charles said about the AUMF. It is stalled. The president hasn't done it yet. It should happen soon. But what about this whole process of declaring war against ISIS?

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: We have never declared war against something other than a nation state and other than the government of that nation state. We haven't declared war since December of 1941. Since then, we have enacted statutes and entered into treaties the limit the force circumstances under which we can declare war -- when we have been attacked, when we're just about to be attacked -- we don't have to wait for them to fire the first bullet -- when a friend asks us to help us resist an enemy who has attacked them or when we're obligated by treaty. I don't think any of those pertain in the ISIS case.

The flipside of this is the American public is so outraged at what ISIS did I don't know that it wants to stand on the type of constitutional arguments that I am making as an impediment to getting rid of ISIS.

BAIER: But the AUMF, how can it be limited to where ISIS is? I mean, Syria, Iraq, ISIS is now in Libya. It's probably --

CHARLES LANE, OPINION WRITER, WASHINGTON POST: It's in France.

NAPOLITANO: The present AUMF, authorization to use military force, is clearly inadequate to go after ISIS. ISIS didn't exist at the time it was enacted. As far as we know it didn't exist. So the government needs something new, whether it's a Charles Krauthammer suggested traditional declaration of war, an AUMF, or something that combines the two. We need some legal authority and guidance.

BAIER: As a constitutional defender you're going to say give him a black, open-ended --

NAPOLITANO: No, I'm not saying that. I'm saying that the public is going to say that. I still say follow the law and follow the Constitution.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: I don't want something new. I want something old, and that is a declaration of war. And all the conditions that you mentioned, Judge, for the declaration of war, not one of them is in the Constitution.  Congress declares war. Under our Constitution there are no restrictions.  It decides it has to go to war, it goes to war. It decides if president then wages the war.

The problem with the AUMF is that it restricts you to territory which is absurd when you are dealing with a terror organization. So why not go back to what we used to do, a declaration of war, and why do we have to be restricted by nation states? In fact, Islamic State considers itself a state if you want to argue that. We declare war on Islamic State and then we enjoy the rights of a belligerent, like a blockade and other steps that would not otherwise be available to us.

BAIER: I promised turning to this other big story, the hacking of Anthem. Take a listen to Senator Moran from Kansas today.

(BEGIN VIDEO CLIP)

SEN. JERRY MORAN, R - KS: These high profile breaches are the most severe of what has become common occurrence in our digital society.  As of 2015, the Privacy Rights Clearing House has estimated more than 4,400 breaches involving more than 932 million records that have been made public since 2005.

(END VIDEO CLIP)

BAIER: Anthem, Chuck, the nation's second largest health insurer, breached. As many as 80 million customers could have had their names, birth dates, addresses, Social Security numbers, and private info stolen today. And there is a suspicion, at least, that somehow China may be involved. The FBI is leading that investigation.

LANE: Yeah, that's the scary part that somehow this is part of a larger intelligence operation where the Chinese are trying to explore vulnerabilities in our society that we didn't even know we had.

The problem seems to be that we can't legislate on cyber security. There has been a kind of standoff in Congress on this even though last year the Senate Intelligence Committee voted on bipartisanship basis for a bill, it got hung up because civil liberties groups, the administration are concerned that we don't have enough privacy protection. The whole idea of these bills would be to allow data sharing through the government and these companies. Concern is the NSA will get ahold of that and then the NSA will become a threat to your privacy. It seems to me like we have two choices here. We can have China stealing our private information or we can have protection within our own system. And, you know, at some point they are going to have to compromise on that issue.

BAIER: Isn't this the battle we go through a lot?

NAPOLITANO: This is a battle we go through a lot. This is very, very serious, very, very destabilizing. If you're answering a question from a person you think is your insurance carrier and it's somebody in the Chinese military trying to destabilize American health care, I don't know what the solution, but it is very serious. I don't know if it's China. I don't know why the FBI hinted that it was unless there's something out there that they believe --

BAIER: Actually the company has told people. The FBI is not really talking about the whole thick. But, Charles, I mean --

KRAUTHAMMER: It's serious. And I have got a suggestion. If it is Chinese, as we suspect it is, and the hacking unit is named Deep Panda.  That's not -- I didn't make it up. That's exactly what call them, rather tasteful. If it is the Chinese I would go biblical on them -- a hack for a hack. You don't announce it. You can tell them behind the scenes. You hack us we are going to hack you. He we are going to double hack you so that the Chinese will suffer.

BAIER: Maybe the king of Jordan has computers that he can -- I don't know. That's it for the panel, but stay tuned for a new spin on your typical book club discussion.

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