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Alito and the Limits of Presidential Power
Published on Saturday, January 7, 2006 by CommonDreams.org
Alito and the Limits of Presidential Power
by Jeremy Brecher and Brendan Smith
 

The Supreme Court confirmation hearings for Samuel Alito represent the first major battle in an emerging constitutional war over the authority of the President. Revelations that President Bush authorized the National Security Agency to spy on US citizens without court approval have shifted the focus of the hearings from domestic social issues to what distinguished University of Texas law professor Sanford Levinson describes as "the major issue before the Court, and the nation, both now and in the foreseeable future.... [Namely] the ability to stave off ever more aggressive assertions of executive power uncheckable by either Congress or the judiciary."

Both Senate Judiciary Committee chair Arlen Specter and ranking Democrat Patrick Leahy warned Alito they will question him about executive powers. Leahy recently told the Baltimore Sun that many votes in the Senate will be influenced by "how directly Alito answers questions about the NSA program and presidential powers."

Alito will certainly be asked about a memo he drafted in 1984 as a Justice Department lawyer in which he wrote that an Attorney General who countenanced wiretapping without a warrant should have "absolute immunity" against suits from the victims. His position is even more disturbing because it involved surveillance not of foreign terrorists but of American peace activists.

Time magazine reported that in 2001 Alito acknowledged that he is a strong proponent of the theory of the "unitary executive" under which all executive branch power is vested in the President--and any incursion on it by Congress should be resisted. This theory has been used by the Bush Administration to justify various extralegal activities, including the infamous torture memos. In Hamdi v. Rumsfeld, Justice Clarence Thomas used the "unitary executive" theory to argue that the Supreme Court's restrictions on the President's unilateral power to lock up US citizens constituted "judicial interference"--a view rejected by the Court's majority.

If we are in a war to preserve the Constitution from executive usurpation, the opening salvos will be the questions the Judiciary Committee puts to Alito. Here are questions in eight key subject areas Samuel Alito should be asked as the hearings unfold:

Domestic Spying

President Bush recently admitted to authorizing the National Security Agency to eavesdrop on Americans' phone calls and e-mails without a court order, despite the 1978 FISA law forbidding domestic wiretapping without a warrant. University of Chicago constitutional law professor Geoffrey Stone observes, "Some legal questions are hard. This one is not. The President's authorizing of NSA to spy on Americans is blatantly unlawful and unconstitutional."

But in his 1984 Justice Department memo, Alito argued that the Attorney General was entitled to absolute immunity from claims concerning illegal domestic wiretapping.

Judge Alito, do you still believe that the Attorney General and other executive branch officials retain absolute immunity and therefore are not subject to the rule of law? Do you believe that the President can defy an express statutory mandate by Congress?

Usurping Congressional Power

Article 1 of the Constitution states: "All legislative powers herein granted shall be vested in a Congress of the United States." According to the Washington Post, Alito, ignoring the plain meaning of "all legislative powers," argued in a 1986 memo written for the Reagan Administration that the President should "routinely issue statements about the meaning of statutes when he signs them into law" to grant the President "the last word" in order to "increase the power of the Executive to shape the law." President Bush issued at least 108 of these "interpretive signing statements" in his first term alone, many of which "rejected provisions in bills that the White House regarded as interfering with its powers in national security [and] intelligence policy."

Judge Alito, do you still believe that the President can usurp the legislative authority of Congress? Do you deny that the Constitution entrusts Congress, and not the executive branch, with lawmaking power?

Torture and Accountability

President Bush recently signed into law the "McCain amendment" to a military spending bill outlawing the "cruel, inhuman and degrading treatment" of detainees. But in the process he reserved the right under another one of Alito's "signing statements" to bypass the torture ban under his powers as Commander in Chief. David Golove, a New York University law professor who specializes in executive power issues, told the Boston Globe that the signing statement means that Bush believes he can still authorize harsh interrogation tactics when he sees fit.

Judge Alito, do you believe that the President's powers as Commander in Chief allow him to authorize torture in certain circumstances? Do you believe the Constitution grants the executive the power to defy an express Congressional ban on torture?

Enemy Combatants

In Hamdi v. Rumsfeld, the Supreme Court rejected the President's claim that he has the unchecked authority to lock up anyone he deems an "enemy combatant." Justice Sandra Day O'Connor wrote that the Administration's position "cannot be mandated by any reasonable view of the separation of powers, as this approach only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." At the same time, the Administration held José Padilla, another US citizen declared an enemy combatant, without charges or a hearing for more than three years.

Judge Alito, what do you believe are the limits on the President's power to interfere with the rights of the nation's citizens in wartime? Are there executive powers that should remain unchecked by the courts?

Habeas Corpus

In Rasul v. Bush, the Supreme Court rejected the President's assertion that US courts lack the jurisdiction to hear the claims of Guantánamo prisoners that they are being held illegally. These claims are brought by means of a writ of habeas corpus--a legal procedure that has limited the powers of kings and Presidents alike for hundreds of years and was the first act passed by the first US Congress in 1789. The Supreme Court has described the writ as "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

Judge Alito, does the executive have the power to annul habeas corpus? Does the President have the right to lock people up without having to defend the action before a court of law?

War Powers

Despite the war powers granted Congress under Article I Section 8 of the Constitution, the Bush Administration has repeatedly asserted the right to initiate further attacks beyond Iraq without Congressional approval. Secretary of State Condoleezza Rice recently testified that the President could attack Syria or Iran without any authorization from Congress. According to James Madison, "In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department."

Judge Alito, do you agree with Madison's assessment? Do you believe that executive powers allow the launching of another war without authorization from either the United Nations or Congress? Which branch of government do you believe has the right to send the country to war?

War Crimes

The War Crimes Act of 1996 makes it a federal crime for any American to commit grave violations of the Geneva Conventions, including the "willful killing, torture or inhumane treatment" of detainees. In a January 25, 2002, memo to President Bush, then-White House Counsel Alberto Gonzales declared provisions of the Geneva Conventions "obsolete" and urged the President to opt out of the Conventions in order to reduce "the likelihood of prosecution under the War Crimes Act." Soon after, President Bush declared that the Geneva Conventions did not apply to "unlawful combatants" captured in Afghanistan.

Judge Alito, if executive branch officials violated the Geneva Conventions, would you agree that they could be prosecuted under the War Crimes Act?

The US Anti-Torture Act makes torture and conspiracy to commit torture a crime. According to a recent report by the House Judiciary Committee Democratic Staff, there is a "prima facie case that the President, Vice President and other members of the Bush Administration violate a number of federal laws, including...international treaties prohibiting torture and cruel, inhuman and degrading treatment." FBI e-mails released under the Freedom of Information Act disclose torture techniques authorized by executive order signed by President Bush and approved by Defense Secretary Donald Rumsfeld.

Judge Alito, if executive branch officials were found guilty of conspiring to commit torture, do you believe the Supreme Court should hold them subject to the Anti-Torture Act?

Presidential Powers and the Rule of Law

Senator Russ Feingold recently asserted that President Bush "believes that he has the power to override the laws that Congress has passed." But Feingold noted that this is not how our democratic system of government works. "The President does not get to pick and choose which laws he wants to follow. He is a President, not a king."

Judge Alito, explain your view of the differences between the Constitutional powers of an American President and those enjoyed by an absolute monarch.

The Alito hearings represent more than just the confirmation of a judge. Like the hearings that led to the rejection of Robert Bork's nomination to the Supreme Court, they embody a struggle over the very definition of constitutional government and the rights of the people. Democrats and Republicans, liberals and conservatives--indeed, all who wish the United States to be a constitutional democracy and not an autocracy, should see it as the opening battle in a larger constitutional war that will escalate with the renewal of the Patriot Act, NSA hearings, prewar intelligence and torture investigations, and calls for censure and impeachment.

This first battle provides believers in the rule of law an opportunity to frame the issues, strengthen their alliances and educate the public for the war to come. To do so, they should insist that any Supreme Court nominee must take an unambiguous stand on "the Court's role as a check on overreaching by the executive."

Brendan Smith and Jeremy Brecher are the editors, with Jill Cutler, of In the Name of Democracy, American War Crimes in Iraq and Beyond (Metropolitan, 2005). Brecher, a historian who has authored more than a dozen books including Strike!, writes for the Nation magazine among other publications. For his documentary film work he has received five regional Emmy Awards. Legal scholar Brendan Smith (blsmith28@gmail.com), a former senior congressional aide specializing in defense and human rights policy, is coauthor of Globalization from Below, and has written for the Los Angeles Times, The Nation, and the Baltimore Sun.

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