after abu ghraib in which we thought everybody should do. i believe the president of the united states acting as president duly elected by the people, if in a special set of circumstances if the sovereignty of the state is being threatened by a typical catastrophic wmd event, if he has somebody that knows whether and when, if the intelligence is there, the president should be able to do something about that. to preserve what could possible as a result of that. that's the only exception i want make for that. :

obviously president bush knew it. it was -- it isn't merely that

the counsel defined torture in the memo. it also asserted that the president of the united states has the authority to override the statutes, and that was the feature that impelled jack goldsmith -- john yoo was the head of it -- to withdraw the enemy moment but there can be no doubt that torture was the official policy of the bush administration. and we shouldn't engage in a collective denial here. my concern is not so much -- my concern is what's going to happen after the next terrorist incident in the united states.

is there any reason to think that the extreme reaction, as exemplified by the bush administration, will not be repeated? i do not think there is any reason to think that the next time around will be better. unless we take -- also we think constitutionally about the problem and create new structures. i believe in the period after the attack there's an -- after a terror attack in the united states, there is a good reason to have a new statute which regulates states of emergency, neither a crime nor war, but to create a state of emergency in the united states so we can

have, not torture, but for a 60-day period, arrests are in much less than probable cause, and detention, and questioning of people suspected of engagement in terrorist attacks, because, of course, we won't know next time around, just as we didn't know last time around, whether there were eight cells throughout the united states, each of whom is prepared, or whether this small terrorist group of 300 people with some serious weapons, were just lucky. it's not a problem like war. but it is a problem. and it is justified for a short period of time to try to find out whether -- and disrupt the other seven or eight sources in the country. the problem that i see before us

is, normalization of states of emergency. that things that are justified in the short run -- although i don't -- people can disagree about what special interrogation techniques are and are not. but whatever is justifiable every -- after an attack where you recognize it's going to exist for a very long time. hundreds of years. this loss by the state or its monopoly of coercion, and when something actually happens, that's a very good reason to find out if there are eight or nine other things about to happen a, too, and take preemptive steps in the short run, and every 60 days, in my proposed emergency statute -- the details aren't too important -- congress would have to vote again on whether we should have another 60 days for

emergency. state of emergency. >> absolutely. instead of thinking in terms of war and crime, we should have the three conceptual boxes: war in which we're dealing with -- it's a very different problem if extremists take over pakistan. that really is a very different problem from these little groups moving around, and never going to be eliminated. >> the american state of emergency is very provocative, and we're going to open it up for questions. i want to pick up on something you said and get the view of our military friends and colleagues here. that is that after the next attack, god forbid, the president is going to be radically empowered once again -- i remember when i was covering the white house after 9/11 and i was imagining or projecting, but you walked through the gates, and i almost felt you could sense all the

values, the traditions, the strength, the hopes, the fears, of the country, surging into that office, into that person. and there is a sense where the president is almost -- he could have ordered an invasion of the moon in those days afterward, and probably gotten majority support for it. the question i have, what is the responsibility of the military leadership when the civilian leadership, under the pressure of these emergencies which we are going face, overreaches or does something really stupid? [laughing] >> that happens -- in terms of military and national leadership and then there's always been disagreements. i think what you're going to find from the military is sort

of trying to sharpen the reason at the policymaking level of the rationale go to war barks most people have been exposed to this, are fairly conservative in the use of that instrument. the military is providing advice and placing options in front of the national leader in terms of what risks are and benefits are, and win we -- when we disagree and don't believe we can execute that, then there's plenty of punt to do something about that. >> what do you mean? >> well, resignation, which was done in full public view, which would crystallize that issue a little bit more for the media

and also for the congress of the united states. you can imagine a four-star leader resigning over disagreement over policy with the president and within 24 hours after the resignation where is he? in front hoff the television cameras. >> on "nightline." >> most of my military friends would shy away but they would answer the call to testimony before congress and give a full explanation. without -- the congress would have the benefit of that. it's an important issue. i think sometimes it's overstated in terms of what military impact can have on policy formulation, because at the end of the day, the military executes the poll simple that's

primarily what its function is; but it does not suggest or minimize the importance of what the leaders believe that policy is wrong, and immoral, a problem with the policy, or they have some other execution issue with the policy, and they should speak. most of the ones i know would. clearly some that would not. i would like to think that those are -- coming behind us -- i wrote a book. >> a marvelous book. so what situation in vietnam during the johnson administration, what is the responsibility of military leadership when a president is either getting into or getting out of war in ways that the military judges wrong? >> there's one responsibility, and it's to provide your best military advice, and to not cross the line between advice and advocacy. nobody elects generals generalse policy. to do that would be dangerous to

our democratic value and processes. but it's important for the military to provide the best military advice, and the quality of the advice departments -- depends on who the military leaders are, the degree to which they can provide advice in a way that connects to the policy goals and objectives. it has to be unequal dialogue between civilian leaders and military leaders. it's very important for military leaders to help many crystallize the policy by helping civilian leadership understand the potential costs and consequences, sharpen the objectives. george marshall said, if you get the object advertise right, a lieutenant can write the strategy. a lot of the debate has to be about that. george bundy by contrast, who helped set conditions for the disaster in vietnam, said that the lack of an objective was an

an vandal because that would give the -- an advantage because that would give the president a benefit. the administration can say it wasn't our objective to win the war anyway. and it was that ambiguity that prevented the development of an effective strategy. the problem with -- they foiled to provide their best military advice and instead told the civilian bosses what the bosses wanted to hear. they compromised. they thought if we get a few in the door, over time they can argue for more resolute military action. so sometimes you can cast a false dilemma like we are here, byogy the war total war. it's a false dilemma between resignation and passivity. i mean, really there are lots of examples of very effective civil military relations in the course of our history. i would say it depends less on

law, depends less on bureaucratic structure, and depends on the character of the individuals and the relationships they develop and that's what is most important. >> i think it depends a lot on structure. and in particular, the fundamental change in american military structure brought by the goldwater nichols act of 1986. before that, the chairman of the joint chiefs of staff was -- before that the members of the chief of staff voted, and the chairman -- and it was basically a coalition builder. he couldn't speak out unless anybody agreed. we had a ballot system within the military, and the military members, the joint chiefs, were mostly interested in more

bombers, more of the -- one technique -- more soldiers, more battleships, and that's what they were going around in 1986, with goldwater-nichols. the chairman of the joint chiefs of staff, for the first time in american history, and for the first time certainly within the period where we have had a big army -- began to speak for the military as a sing -- in a single voice. powell -- colin powell was the first chairman of the joint chiefs of staff who exploited -- who saw this opportunity and really took advantage of it in. in 1992 he wrote an op-ed lecturing bill clinton. you shouldn't invade boss --

bosnia, et cetera, et cetera. forget about the don't ask, don't tell business. this is a very bad thing. and we see once begin with mcchrystal, getting up there and starting to publicly tell the president of the united states what the military strategies are. >> general mcchrystal in afghan -- >> i entirely agree with your description -- >> the speech, word for word, because that really isn't what he did in my view. >> it was a q & a, and it was a general question between a rating approach to a complex problem in afghanistan versus a more -- and he answered honestly -- >> not meant to lecture anybody or influence policy, i don't believe. >> we can disagree on that. obviously, bruce. the structural point is --

because i entirely endorse your description of the appropriate role of the military. the question is whether the emerging structure since 1986 actually created an incentive to do what is being proposed peer, and i do not believe that is so. it's preparing the chairman of the joint chiefs of staff into a celebrity position. notice, as soon as bill clinton wins, the chairman's role, appointment, ends ten months after the term begins. bill clinton sees this, you know. he says, gee, i think for the -- i think we're going to appoint a new chairman of the joint chiefs who has not a member of the joint chiefs. i'm going down to the lower command and get -- take john -- he seems like he's going support

my policies. a very competent fellow, but he was selected on political criteria. people notice these things. people notice these things. this is another step in the o'liticizeation of the military. between 1947 and 1980 -- there's also a phenomenon of colonization of formerly civilian positions by military men. so the civilian secretaries of the army, navy and air force, between 1947 and 1980, there were 41 people of this kind confirmed by the senate. rather than have served 15 years in the military, 15% had serveed five years, and in the period since '80 to the present there have been -- don't take these

numbers theirous, i think it's 23 -- and 25% -- something like 23-25 -- 25% of them have served for 15 years in the military, and 40% have five years. so, i could give you numbers in similar important things. the head of the national security council today is a four-star general. >> i want to get the general in on this. the politicization of the military. goldwater-nick koles was basically designed to grow officers so they had more experience with the other services, and we called that joint, the ability to operate with other services. and operating those commands and not be stove-piped for their entire career. but like anything, when you make

some sweeping changes that impact culture and the rest of it, there are some mistakes made, and there's something here i do agree with bruce about. one thing with the joint chiefs is in a sense they politicized the position. because he is the principal military advisor for the president of the united states, quote-unquote. in the past the joint chiefs were the adviser to the president of the united states, and it there was problems with the systems. you may surprised to know that war was being run by commanders in the field. one was mcchrystal and one was -- petraeus responds to no four-star in the military.

he responds to the secretary of defense. and that's appropriate. civilian control of the military. what you may be surprised to know is the joint chiefs and the chairman have no operational oversight whatsoever of the theater. i think we have gone too far to remove them because -- for the reason that you stated, they're concerned about their service primarily by statute, but there is no statute that gives them some operational accountability for what is being done in terms of the war. and the chiefs themselves, as a result of goldwater-nichols have even less influence out of their service because the principal military advisor to the president. most of us look at this, at some point we have to readjust this and bring this back into a more appropriate role for all of the joint chiefs, make the role of the chairman of the joint chiefs less of a political role which,

by definition, it becomes today. >> so we're going to do one more question and then we're going open it up for questions. we will do two questions for the everyone in the general public. let me turn, since we have some journalists here, on the media, and the first amendment in this situation, both on the battlefield and back home. "the new york times," in 2005 and 2006, wrote a series of articles which disclosed previously secret counterterrorism programs, which included a surveillance program of communications coming into and out of the united states, and some financial programs having to do with banks in europe. these were top secret programs that the bush administration believed were very, very effective in fighting this long

war, and "the new york times," after listening to pleas from the highest levels of the bush administration, published those stories, and we all learned about what is short-handedly called the domestic surveillance program and the like. and "new york times" won a pulitzer prize. is that a good thing? and on the -- i've been imbedded a few times in the war in iraq and afghanistan. there's a big debate about the role of the report on the battlefield. do we have to rethink both the role of the media and even perhaps the first amendment when we're talking about this struggle. do you want to take a crack at that? >> if i could just place the question a little broader context in terms of the degree of transparency that now exists in any war that we're fighting. now, you mentioned a negative

sort of consequence of that, which was compromising techniques to fight our enemies in war. rather than talk about that specifically, i'd rather talk about -- which may not be appropriate for know do in uniform. want it to talk about transparency in general being very good. it's really important for us to give access to the media for all of our operations. in fact, i never complained -- i would never complain -- i think many soldiers anywhere would complain about bias in the media. you may hear the wars are underreported. and there's so much that happens that the american public doesn't see. so, of course you're going to see a lot of the negative things, the breakdowns and disappointments. what you don't see is how every day soldiers are taking additional risks to protect civilians. what you don't see every day is the relationships we are building with populations who are so grateful to have this pall of fear and intimidation

and life comes back to normal after these brutal enemies are defeated. that's the store we want to get out. the enemy is very effective in propaganda and disinformation. the best way to counter that is through the u.s. media and international media. so i'm all for more reporters, more transparency. there's a downside, could be breaches of security, but my experience has been with journalist i have had the privilege to work with or to host temporarily in iraq, that that's not really much of a risk. >> that's been me experience doing it as well. although as i say there a lot of questions in the media community about, are you compromising your independence by being imbedded? i always found, while it is the ancient right of every soldier to gripe, that no one holds back -- there's no secretary of

defense sitting out there. but the general and the specific. the sense -- the transparency is part of our military and the specific sense that there are things we do and must do in this war that maybe should or should not change the dynamic between government and the media. >> well, my own view of -- certainly i'm in the media on the battlefield with our troopes is a huge plus for the american people. they have every right to see, even through that narrow prism, what is truly happening to the youngsters on the battlefield. you have at the right to see and touch as much as possible, and the only way to do that is through the media. so thank galled we have journalists who with accept that risk, and a number of them have given up their lives and others

have been seriously maimed like our soldiers have. so thank god for them. most all of us who are leaders in the military welcome the immediate a, welcome them being imbedded in the organizations, not just parachuting in and out, and they can understand the human dynamics taking place, and most of the journalists experienced -- are capable of doing that without biasing or prejudicing the situation. i don't think that's really the issue. i think that is done better than any country on the planet in terms of relationships of our journalists and the soldiers who are fighting. rarely, if ever, is a journalist going to put anything in print or say anything in a broadcast

interview that would put those soldiers at risk. i not think of a single incident myself, and i assume there's probably some, given human events. >> got kicked out of iraq but he is welcome back. based on his reporting, if i were the enemy, i'm not sure -- >> wait a minute. >> my own belief is, we have a a -- the amount of information they can provide to the american people is extremely modest. one of the great failures in american journalism they cannot quote languages, and both in iraq and afghanistan, especially afghanistan, didn't, they can't get around. can't get around. so, those are the more -- do or

does their thoughtful or not so thoughtful leader of the american press actually have a sense of what's going on in afghanistan politics? i don't think the answer is yes. the other feature i want to -- and of course -- i mean, i'm all for the imbedded journalism but there's only so much you can learn from a particular perspective in a particular place on the field, and it's good drama, good television, but i don't really think it's key. what is key, for example, is the remarkable fact that -- we are presently fighting in iraq under something called the status of forces agreement negotiated by the bush administration with the

iraq administration. it was negotiated entirely secret from congress. congressmen and senators -- one of the reasons we found out what the negotiations were evolving, this agreement, which commits american troops, was never approved by the congress of the united states, actually, i should emphasize. it was -- we found out about what the resolving negotiations were because the the iraq government leaked texts of the agreement, and the christian science monitor translated the arabic text in a