Friday, April 9, 2010
The Peter Jennings Project for Journalists and the Constitution at the National Constitution Center last month hosted a discussion titled "The Constitution and the Long War" between General Jack Keane, retired four-star general and former vice chief of staff of the Army, Professor Bruce Ackerman (Yale), and U.S. Army Brigadier General H.R. McMaster. The audio is here, under podcasts.
The discussion kicks off with the question whether the global struggle against terrorism is a "war"--and the constitutional implications of the answer. Ackerman defends his view throughout that this is not a war--that it is a state of emergency--and gives his proposal (starting around 44.00, and again around 1:09.00 in the audio) that this emergency requires structural changes in the constitutional system to authorize the appropriate use of power to address it. Ackerman argues particularly for a federal statute that would regulate a state of emergency and authorize, e.g., arrests with less than probable cause and detention of individuals engaged in terrorist acts. This is also the thesis of his 2006 book Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism.