New Haven Independent

Ackerman is a liberal-leaning constitutional law expert, author of several books, and one of the most accessible and responsive “sources” on the planet. He said in January of this year, he and a conservative law professor from the University of Chicago, Richard Epstein, filed a friend of the court brief together in support of plaintiff Salim Ahmed Hamdan’s argument that the military commissions President Bush created to try the prisoners were unconstitutional.

“He and I hardly ever agree on anything,” Ackerman said in an interview in his office Thursday afternoon, “but we filed this brief together to emphasize that this was not an ordinary case. It really is one of the historic decisions the Supreme Court has handed down over two centuries.”

He said this decision will make a big difference. “The president has already conceded that Guantánamo should be closed in principle. The question of course is how to give the variety of detainees in Guantánamo due process of law. I’m absolutely sure that the president will follow through on this opinion, and what this opinion requires is that he obey the rule of law, that he not create, out of nothing, new forms of justice…you know, these tribunals did not give the detainees a right to be present at the trials at which their fate was going to be determined. So this was very radical stuff.”

Ackerman said the ruling sets the U.S. Code of Military Justice as the baseline in prosecuting the cases, and that if Bush doesn’t want to follow it, he must convince Congress to pass new legislation validating the unilateral action he has taken up to now. Given this president’s penchant for a “unitary executive” branch that is more powerful than the legislative or judicial branches, this decision will be a major test of how far a president can go in redefining the Constitutional balance of powers.

Ackerman said he hoped the Supreme Court decision would provoke a national discussion of the so-called “war on terror” and pick apart its various dimensions. He has argued all along (including in his newest book, Before the Next Attack), that the Bush administration’s actions in the war on terror are unconstitutional. He says that terror is a technique, not an enemy.

“We have to make a distinction between real wars, like those in Afghanistan and Iraq, and a metaphor called the War on Terror. Terror is a technique. It’s the destruction of innocent human beings. You do not declare war on a technique — once you do that, you don’t have to define who the enemy is.”