constitution back some day. now, she could have been someone who didn't like president bush or president obama, but it's the word our. the americans own the constitution. this building is full of those quotes telling us that. one from john marshall this afternoon. the american people made their constitution. only they can unmake it. i'd like to start with a big question focusing on one word in our title our topic. the law of war in the constitution. war. war has a constitutional meaning. constitution divide up power of war between the branches. it has a political meaning. nations and people change at war. and, of course, as general keane

and mcmaster know, it has a human meaning at the bottom of it all. so war, is that the right word to use. this is a debate that's out there. to describe the struggle we're in to defend our country against extremist, muslim jihaddism, and to defeat the enemy: is war the right world? general keane what do you think? >> the struggle clearly is a political movement. it's founded in a ideology that has clearly a religious base to it. and we cannot dismiss the seriousness of their belief in that. what truly makes a war in my view is the means which is jihaddism and their use of arms to achieve the political. in some cases they are.

the fact of the matter is they are using armed violence to achieve political objectives which is essentially what war itself is. >> bruce, you don't think so? -- brewster, you don't think so? >> let's make the distinction, one is we are at war. we certainly are at a war with the -- with afghanistan. and we are certainly engaging in an occupation of these two countries at the present time. trying to prompt them up in various ways. so war in that sense is perfectly appropriate. the problem with terrorism is not a problem of war, however. it's a different -- it's a real problem. but it's a very different one. the state is losing its monopoly of force in the 21st century.

that's a problem that would exist even if the middle east became an oasis of peace. what -- you know, -- 9/11 and such events are fundamentally not like pearl harbor. in pearl harbor, you had a state, a war machine, that you knew was going to follow. and could have invaded the united states. terrorist acts will occur intermittingly, they are the consequence of black markets and violence. smaller and smaller number of people whether they be called jihadist or militiamen from montana. smaller and smaller number of

people will with smaller and smaller sums of money be able to buy bigger and bigger weapons. that's the black market. and we have to understand that that's a very different problem from invading countries. [inaudible] >> let's go to general -- well, go. and just jump in. you bet. general keane. >> first of all, the enemy has declared war amongst us. i think that's a fact. secondly, in most administration democratic and republican in dealing with the threat prior to 9/11 treat it as something less than war. they treated it as criminal activity whether it be republican or democrat. post 9/11, i think we woke up to the harsh reality is an act of violence against a nation state, which it is, much from the

israeli have been dealing with their own problem. we know for a fact, those of us who have been around the intelligence community know that the same body of people want to get their hands on two or three wmd capability and do that almost simultaneous in our cities, killing somewhere in the neighborhood 200 people per. now 9/11, the horror of what we witnessed, the means of terrorism and potential wmd strike in america that could collapse our economic system and drive down trust and confidence in the national institution and make the united states move with their objective, that in my judgment is all about war. >> okay. general mcmaster. >> i'd like to make a couple question points. prior to 9/11 we saw the security emerging from the most industrialized nations. when we saw that threat, we saw them mobilize. we could respond to that. i think now what bruce has

mentioned, weapons of mass effect, the ability of terrorist organization to do something fundamentally different, terrorism is not a new phenomenon. what is new is the access to these disproductive weapons and also communications and the ability to take the agree -- grievances and connect them. i think it's for us to remember this is ill religious enemy who uses to motivate largely undereducated or illiterate young people to their cost. they exacerbate weakness and use weakness where there's lawlessness, and rule of law. for us to be effective against this enemy, to deny this enemy

safe havens and support days bases that are still needed to mobilize sources in efforts against us and others, we have to operate in the least industrialized areas and we have a complicated problem of not just a security problem, not just a military problem where you can follow the advance of an army across the map and know when they get to the capitol city, the war is over. we have to achieve the sustainability facilities necessary to remove the safe havens to protect populations and help inoculate them against the cancer, of the enemy who uses, you know, thisser religious ideology for their own purposes. >> there you have an outstanding display. why does it matter? because war has a constitutional meaning. if we call it war, let me pick up on bruce's point, if we call it war, doesn't that stack the

deck constitutionally for the present? in the long war, decades, perhaps, pungs waited by threats, doesn't the president's war making power then real a kind of cesarean step that he is always using military force over large scale, small scale in the long war. doesn't the president in this situation we just described become constitutionally unrestrainable? >> through it all, certainly the application that it is war gives him additional powers, that's for sure. because if it is a war, then they can use all of the element of national power to deal with that war. not just treat it as a criminal activity as we had done in the past. and as a result of that, he's

not just using military means, he's using covert means to do that and also using other elements to do it. we cleaned up a lot of the al qaeda finances, the department of treasury did some herald work which isn't in the public domain and should not be, certainly the power that he had to do that was able to achieve those kinds of results. the basic framework of the constitution in terms of the limits of presidential and executive power are still there. certainly. >> still are? >> they definitely are. as i see it being played out in front of our eyes in terms of the congress of the united states. now is there potential for abuse? certainly so. but i think the values of america, the character of america, as it's defined in the constitution itself, are there to limit that power at the same

time give the president the tools to meet the everchanging responsibility of the global country has in the world today. now is this attention there? of course there is. it's been the subject of much debate, as it rightfully should be. >> bruce? >> well, if it's a war, it's extravagant. not to say the wars against afghanistan and iraq, those are classic wars. i have no trouble with that. but the -- let's just step back for a second and ask, at what point if from 1950 to 2010 -- where -- what moment was the least dangerous for america? the answer is today. it's the least risky. when we had the soviet union, that was a big state. we had members of the communism

-- communist parties who were in high positions. there was a conspiracy in the united states by very reputable people who thought that marxism was the way to go. that was much riskier than today. he could have had total nuclear o live ration. did we? no, we tried communist. even at worst of the mccarthy period, in civilian courts. you see once we saw that the situation today is like abraham lincoln tried to do heroic things and it's true national emergency, once we say that this

is -- this situation right now is like the situation that franklin roosevelt encountered when come germans came and were dumped off on long island in a submarine and he sees them and put them before the military commission. giving them no due process, i should say. if our situation is like that, this justifies under the laws or under the presence of the united states very repressive actions. very repressive actions by the president of the united states. so we have to be very careful. the presidency as you were suggesting, terry, you know, we've had many, many wars. the war on crime. the war on drugs. the war on terror. terror is a technique. we don't make work on techniques. this technique can be -- there

are 7 billion people in the world almost. and there will always be be -- always jihadist, people that think the treaty is unjust, which it was by the way, there will always be people, millions of them who will conceive themselves as enemies of the united states. and form conspiracies. as i said, this is a very serious problem. but we should not call it a war. if a state -- actually organizize itself and make wars against the united states or if jihadist or others seize control of pakistan, that's a war. >> there is a constitutional and very pressing legal question in there which congress has yet to address. let me put it to the master. in the field, bruce said terror is a technique. terror is not the enemy.

we aren't making a war on terror. so who the is enemy? and for the purposes of detention, for the purposes of what the president of the united states, what the government of united states can do, who's an enemy that we can em -- inprison. >> we have plenty of them. from the perspective soldier, we are operating against enemy organization that are fighting our soldiers and partners in afghanistan and in iraq every single day. the enemy is hybrid, but it's a network, and with real structure and ability to mobilize sources. you have a hybrid enemy in afghanistan. but it's an enemy that has joined in an alliance of convenience. you know, -- you know, you have the series of taliban groups. it is not a monolittic organization, but you have the head group, the afghan taliban,

pakistani taliban that has made up a number of other suborganizations. but these organizations are operating against us, they are -- many of them are operating against the pakistani government. others are linked to transnational terrorist organization that have conducted attacks in india and elsewhere. and so these organizations are who we are fighting. so it is the war -- if you have a proper noun, fill in the blank on any of those groups, and we are at war against them. in iraq, it's insurgent organizations with al qaeda affiliate in iraq. an organization with the tax ideology, anybody that does not adhere to the definition of islam is unbeliefer and so ft.. and we're also at war with shiite islamist militias who are

supported, many, by the islamic republic of iran. in fighting the war against the organization and also a role of the military plays in deterrence and conflict prevention. one the differences between wars against states or the cold war, these group are much more difficult to deter. this is one the reasons why we are fighting them overseas to deny them the safe havens to dispose of the risk to us and our partners in afghanistan and iraq. in terms of the status of detainees these are enemy prisoners from our perspective. what is important is where the enemy blends into the population is to make sure we are continuing to evolve our capability in the army to develop really police work. to be able to gather not just

intelligence but evidence against the individual. one the key ways to defeat is to do so consistent within the rule of law within that particular country. what is important for us as we're fighting this enemy, as we detain this enemy is to develop a transparent review-based security detainee system along with our partners in the region. but there is no way that i can imagine giving the status to these individual that are fighting overseas to the status of our own citizens have. i think that's ridiculous. if we equate the fact that we are capturing the enemy and inprisoning the enemy overseas to any kind of policy in the united states, bruce, i'm not sure what you are talking about. but i think it's two separate issues. >> fire away. do you want to answer -- i mean. >> sure. i just want. well, let's take somalia or yemen. which, of course, you see because what we're talking about

is the failure of state power. and the creation of black markets and small groups. there's every reason to think that if we resolve the problem -- if iraq and afghanistan are stabilized, well, then we have these other places. now, i take it one question -- if it's a war, which i don't think -- we need a new framework, i'll present it sometime perhaps sometime. [inaudible] [laughter] >> but from the constitutional point of view -- from the constitutional point of view, you see, our -- can we invade somalia? can we invade vienna? who declared the war? it's only this notion, war on

terrorism. or war on them. we know that what they are. then of course we find out there are all these little groups who have a very problematic relation with one another. and we have not -- the congress of the united states has or hasn't authorized a global war. the bush administration and the obama administration doctrine is if this is -- there's no battlefield here. that's why it's a problem for domestic. you know, when padilla arrives in the o'hare airport and is seized and put in the naval brig for the next three and a half years as an enemy combatant. so the -- if we admit this notion that we're at war with

all of these smallish groups. with the same thing they have in common, they are not states. they haven't controlled states. then how do we declare war on them? now. the key issue, of course, we have to take proactive measures in a structure which is -- but we have to be problem-oriented in evolving new constitutional concepts. not just call it war. not to encourage extravagant analogies to what franklin roosevelt was up to in a total war for civilization and say, well, that's just like a problem which would be a terrible thing. destroying half of the city of the united states. but that's really -- we were up to much worse in the deck cold war and suck gulf war. so we have to structure and we

have to structure a new framework for -- without extravagant analogies to these heroic moments or terrible moments in the past that's related to the problem. that's why real problem with this war, you know, this aimless war talk. >> well, first of all, i don't think it's aimless. arresting someone at one of our airports that we believe to be a suspected terrorist or danger or threat to the united states is more in the per view of criminal activity and something that a much lesser action than what is taken place overseas where our armies, navy, air force, and marines are operating in the theater of war. i want to go back to something bruce said about the soviet union. this ideology, careerly intent dominating the world.

not trying to force it on others isn't the sense that nazism is doing. but believe in the ideology, the world would come to them because of the model state they have established. in doing so, they became a super military power. and they had clearly ideology opposition to what the united states stood for. and therefore, we would geopolitically opposed with them during the time frame. what kept that becoming the potential holocaust it could have been is because they were a nation state that wanted to preserve that nation state. and the policy of mutual destruction worked for both nations. that's the reality of it. i believe this period that we're in dealing with these transnational actors is a more dangerous period for us. because of what their intend is. and the means to achieve that intent. and even though they are not sitting there with a government and a head of state and police

force that's self-evident and an army that's even more evident for us to deal with, they are danger and threat to us is significant. and it's not something that we should ever attempt to minimize in my way shape or form or even suggest that it was less -- it's considerably less right now than any period since world war ii. >> let me shift gears from a big question to an intimate question. interrogation which is a question of our values. in the world that we've been discussing, where whatever label you give it, the danger can at any moment be very extreme. the government has taken steps in interrogations that many people believe cross the line into torture. i want to ask the open-ended question, are there times in

interrogators in uniform or civilian interrogators must in in long war we're talking about cross those lines of our values and traditions? and is there a constitutional way you can do it? who'd like to take a crack at that? >> i'll answer from the inside of army perspective, in terms of army operations. the answer is no. there's never a time to cross the line. i don't think you can justify it from any kind of philosophical point of view of treating man as an ends or john stuart mil from military perspective on this. first of it, it's not right to do. it undermines our value as a force. if we behavior that way it can have the unit discipline and professionalism. and it's obviously inconsistent with the army values, we draw on the nation's values as well. it wouldn't work.

there's no reason to do it from a military operations perspective. now the largest percentage of the people who we capture in iraq or afghanistan, you know, many of them have been essentially brainwashed, okay? they have been brought into these organizations through effective propaganda, disinform, some of them joined for mercenary reasons, money and so forth. you have a very tiny corp of committed aid logs. most of them are using it or brainwashing them to join the organization. i'm talking about people with third and fourth grade education. they kill the mosque head. they tells the family give us your son or we'll kill your whole family. these are the people we are interrogating. once they see we are not part after conspiracy or not there to

subgait them, you get all kinds of cooperation. there's no reason to use physical or mental abuse in our experience. it happened though. >> oh, of course it happened. i think it was a breakdown in standards and discipline. >> head on in terms -- >> do you think in the early years after 9/11 that what you just described was weakened in uniform and with civilian. abu ghraib wasn't just an aberration. there was a shift in the way men and women in uniform looked at that. what do you think? >> i don't think so myself. we went to redo all of these events, we don't have enough time. i spent a lot of time on abu ghraib we have a breakdown in

leadership that led to outrageous hooliganism and not a function of policy. in the event of the details of that ineffective company and headquarters, how we tolerated that was beyond belief, not having the proper oversight, et cetera. no excuses for that horrific behavior, and even worse for the moral high ground that we lost and the damage that continues to resonate around the world in terms of america saying this and doing something else. we grew up as officers in the military, h.r. and i, and torture is about as foreign to us as any subject could be. i mean it's just -- it it just isn't in our values. it's not anyone in our policy. there's no training about it. it's not something we would do. at the emotional tension level

of war and particularly when you are dealing with an enemy that's living with the people within doesn't wear a uniform, and there's tension, levels of frustration, are there at times abuses? yes. when we find them, we deal with them. we hold people accountable. they go to jail if necessary. dismissed from the military if necessary. lose their ranking status if necessary. the abuse of enemy combatants at war by the united states military has occurred in every war we've ever been in. that's the reality of it. the reality is it's not policy. and war is an event that's full of tension and emotion and huge psychological pressure. when h.r. says it's a breakdown, it's exactly what it is. we take these beautiful young people in america and we train them to do something that's very

difficult. not just to protect lives, but to take human life. that is a sobering responsibility that we draw from our commissions adds officer to the constitution of the united states. we get somebody to do that, you have to have discipline, organization, because we never want to take more life than necessary. that's american values operating in war time and environment. we will do what we need to do to compel an enemy in terms of taking life. then when we have a prisoner or detainee, we want to treat them that another human being deserves. that's policy. torture is about as foreign to us as officer or noncommission officers in the united states military. it has happen. when it does happen, we're going to hold people accountable and if necessary, put in corrective mechanisms in terms of