Anthony Lewis calls himself a “process man.” And these days, Lewis, the author of the bestselling Gideon's Trumpet and former Times columnist, is keenly interested in the process of presidential decision-making and what happens when presidents overstep the boundaries of their office. On a recent Tuesday, Lewis thumbs through a speech he's written on a typewriter (“I'm the last typist!” he says) in an NYU adjunct-faculty lounge and talks about “Presidential Powers,” which was the theme of last month's day-long symposium sponsored by New York University School of Law's Center on Law and Security.
What role do you think Congress has played in the increase in presidential power?
The fact that it's an all-Republican government is very influential. I think today it's not a function of the usual desire for power, which all people -- especially politicians -- have. With this administration, it has become a matter of philosophy. They seem to want power for power's sake. They have a whole theory about it. You know, Rumsfeld and Cheney are doing exactly what John Dean said they were: They're getting back at Watergate. That was when Congress enacted a number of laws, which ended up being the greatest challenges to executive power in modern times. Cheney, Rumsfeld, and Nixon didn't like that.
You've said John Yoo [a former Justice Department official] seems to base his legal arguments for executive power on the model of King George III.
John Yoo didn't say so, but that's what I thought he was doing. Yoo made himself the philosopher of presidential power, and he painted a picture of a president with unilateral power to do just about anything. If Congress passed a criminal statue against the torturing of prisoners, for example, the President could ignore it. If there were a treaty against torture, the President could ignore it. This view of presidential powers seemed to be like the view of George III. But I've since been told I was unfair to George III. In fact, he had to depend on Parliament. I might better have said Henry VIII .
What do you think about the eavesdropping program?
Congress passed the Foreign Intelligence Surveillance Act in 1978 that laid out a system. It made it a criminal statute. That's the very lowest ebb of presidential power -- when Congress acts in a way contrary to what the president wants to do and, furthermore, says, “This is the only way.” So I thought [the eavesdropping program] was just utterly wrong. People say, “Don't we really want to listen in on al-Qaeda?” Well, maybe. But, first, it would have been simple as pie to get Congress to authorize whatever we wanted to do. My God, all you had to do was whisper in some congressman's ear. And, second, obeying the law is far more important than listening in on al-Qaeda.
In May 2004, you called for Rumsfeld's resignation. Since then, a lot of people have joined you.
Some of them a little more important than me -- to whit, six or seven former generals. Bush has said, I'm the decider, and I've decided he's going to stay. Which he's entitled to do. And, in a sense, Rumsfeld is Bush. What's he going to be fired for? He is only the operative arm of what Bush wanted and ordered. Presidents don't very often get rid of people for doing what they've asked them to do. Still, I think Rumsfeld's fate may turn on something that hasn't come out yet. There's some reason to think there's going to be stuff that ties him more closely to the torture of prisoners at Guantanamo. At least one source said he was frequently on the phone with Gen. [Geoffrey] Miller [at Guantanamo]. If Rumsfeld can be shown as having said, in effect, “Hit him harder,” or, ‘Give him the water cure,” I think it would be impossible for Rumsfeld to stay.
You've said Bush has no feeling for the law.
Yes, I've used as an example the death sentences imposed on Texas prisoners. At the time, Alberto Gonzales wrote memos about the death sentences. You can read his memoranda, and you can see they don't really give fair play to the arguments that were made by counsel to the condemned. Bush had very brief meetings with Gonzales -- five minutes, 10 minutes. Then Bush made a statement like, “They've had their day in court.” But the point was that in many of the cases the condemned had had incompetent lawyers, drunk lawyers, or lawyers who fell asleep during the trial. Bush could only presume they had their day in court if he didn't care or hadn't read the material. The general impression was he didn't care.
What does it mean to have a president who doesn't seem interested in the law?
In fairness, I don't think most presidents care a lot about the law. Do you know about the Quirin case? There was a group of eight Nazi saboteurs on a submarine who landed in Long Island from a submarine during World War II. They were caught and tried by a military commission and sentenced to death, and the case went to the Supreme Court. President Franklin Roosevelt got word to the Supreme Court through [Secretary of War] Henry Stimson, who was a friend of [Justice] Felix Frankfurter, that if the court didn't uphold the death sentence, he'd have them executed, anyway. Presidents don't care about the law. Clinton was a lawyer, and he taught constitutional law. He was also terrible at civil liberties. A lawyer miscast.
You have a feeling for both language and the law -- a rare combination. How did it happen?
You're very nice to say it. I've never had a formal class in journalism. But I had a wonderful fifth-grade teacher named May Lewis at the Horace Mann School in New York. She taught me to care about writing. As for the law, I got hired by Scotty Reston of The New York Times to cover the Supreme Court. He asked whether I would be willing to learn something about the law before writing about it. It seemed like a fair question. So I spent a year at the Harvard Law School on a Nieman fellowship. It gave me a very intense feeling for the law, and it changed my life.
Tara McKelvey is a Prospect senior editor.
