Yet the Bush administration changed venues from military to civilian in several cases. And there were hundreds of civilian prosecutions for terrorism.
Sure, I'm not saying every suspected terrorist belongs in a military commission. I'm just opposed to the automatic decision that all terrorists are civilian criminals. That's a mistake.
What about the legal actions against you by a court in Spain and the DOJs ongoing ethics investigation?
I can't comment in any specifics on either of those cases. I was asked these questions as a professional and had to give the best answer I could at the time. It's part of my responsibility to explain in public why I thought that those answers were correct. One thing that disappoints me is to see other people with which I served not doing that, hiding away rather than explaining these very important decision that they had to make.
Fair enough. On to your new book about the power of the presidency. What makes a great president?
We've had great presidents because we've had presidents in times of emergency and war. But some presidents became our most successful chief executives by reacting to these situations by reading their powers broadly and using the full powers of their office to bring the country through. The best example is to compare James Buchanan, one of our worst presidents, and Abraham Lincoln, one of our best. Buchanan, who was president just before Lincoln, thought that the Constitution gave the president no powers to stop secession. Lincoln, one of our three great presidents along with FDR and Washington, thought that secession was unconstitutional and also thought that the president had the power to stop the division.
We've had good presidents who used their powers broadly, and we've had presidents who've used their powers broadly who have not been good. It does depend on the circumstances. Presidents can use their powers inappropriately because it's the wrong time. Richard Nixon is the prime example, who took the powers of his office for national security and turned them against his political enemies.
Is presidential inaction just as dangerous?
Sure. James Madison was one of our great political thinkers, but he was a troubled president because he didn't stop the Congress from drawing us into the War of 1812. Congress wanted to take over Canada, and Madison didn't do anything to stop them. In the war, the British invaded and burned our capitol. We barely escaped British plans to split the country up.
Once military force is authorized, does Congress have checks on presidential power?
Even in these periods of war and emergency where you see a supersized executive, Congress still has the power of the purse, which can be used to adjust the size of the Army. They have used that power, for instance, in the end of the Vietnam War. The Mexican-American War ended similarly, because President [James] Polk was contemplating annexing more of Mexico but Congress voted to end funding for war operations and halt those goals. Now we're in a period where Congress still has the power to check the actions of the president; they just don't want to use it. I worry that often in talking about these issues we mistake a lack of congressional will for a defect in the Constitution.
Isn't legislation also a check to the executive? Congress shouldn't have to defund the Army to stop the abuse of prisoners if they have already passed laws against doing so.
In general, you're right. One of the roles of Congress is to pass legislation to regulate private citizens and the government. But it can't go so far as to take away presidential power completely. I don't think Congress could have passed a law during World War II banning the invasion of Normandy and insisting on an invasion of Italy instead. Those are legitimate decisions for the president as commander in chief. But the Congress can affect those decisions by choosing to build more landing craft. When it comes to the military treatment of prisoners, the president should be able to decide where the detention facility is going to be and how the prisoners are going to be treated. But if the Congress doesn't appropriate funds for Guantánamo Bay, then it doesn't matter what the president thinks.