With Alito’s confirmation to fill the swing-vote
seat of Sandra Day O’Connor, George W. Bush could well consolidate a
majority on the high court to endorse his expansive interpretation of
presidential authority, including his insistence that his
commander-in-chief powers are virtually unlimited throughout the
indefinite “war on terror.”
But Alito might face a tougher confirmation battle
than Chief Justice John Roberts did, in part because controversies over
Bush’s claims to unfettered Executive power have deepened over the past
several months, such as the dispute over Bush’s asserted right to
conduct warrantless wiretaps of Americans.
Objections also have been raised over Bush’s use of
“extraordinary rendition” of terrorist suspects kidnapped and shipped to
countries that practice torture, the CIA’s network of secret prisons
where people are jailed without charge, the practice of subjecting U.S.
detainees to abusive and degrading treatment, and privacy concerns
regarding the USA Patriot Act, all of which relate to Bush’s
unprecedented view of presidential power.
“Recent events overlap with some of the beliefs and
behavior of Mr. Alito that are of greatest concern,” Sen. Ted Kennedy,
D-Mass., wrote in an e-mail message to supporters on Jan. 6. “We have a
President who unilaterally orders wiretaps on American citizens without
judicial oversight – and he has given us a Supreme Court nominee whose
record indicates a belief that the Executive Branch operates above the
law, including the power to ignore prohibitions on torture.”
Last year, when Roberts was asked by senators about
his views on Executive power, he skillfully ducked the questions by
saying it would be inappropriate for him to comment on matters that
might come before the court. Roberts also had a limited record of
judicial and legal opinions to ask about. [See Consortiumnews.com’s “Roberts
& the ‘Apex of Presidential Power.’”]
While Alito is certain to try the same strategy of
brushing aside specific questions about his judicial philosophy, his
paper trail of opinions is much more extensive than Roberts’s record
An even bigger difference is that Alito is
replacing O’Connor, the swing vote, while Roberts was replacing staunch
conservative William Rehnquist. So the court’s balance is at stake and
key senators have made clear that they will be expecting specific
answers from Alito.
The chairman of the Senate Judiciary Committee,
Arlen Specter, and the ranking Democrat, Patrick Leahy, have
issued letters to Alito warning him that he will be asked about
Bush’s warrantless domestic surveillance program, which Leahy called
“one of several areas where the court’s role as a check on overreaching
by the Executive may soon prove crucial.”
Specter told Alito that he might ask what
“jurisprudential approach” he would use in deciding whether Bush could
legally order warrantless surveillance by virtue of his constitutional
power as Commander in Chief or under a Sept. 14, 2001, congressional
resolution authorizing “all necessary and appropriate force” against
those responsible for the Sept. 11 attacks.
Also of interest could be Alito’s views on the
“unitary executive,” which holds that Congress lacks constitutional
authority to put law enforcement power in the hands of regulatory
agencies, such as the Securities and Exchange Commission, that are not
directly accountable to the President.
At a Federalist Society symposium in 2001, Judge
Alito recalled that when he was in the Office of Legal Counsel in Ronald
Reagan’s White House, “we were strong proponents of the theory of the
unitary executive, that all federal executive power is vested by the
Constitution in the President.”
In 1986, Alito advanced
this theory by proposing “interpretive signing statements” from
presidents to counter the court’s traditional reliance on congressional
intent in assessing the meaning of federal law. Under Bush, these
“signing statements” have amounted to rejection of legal restrictions
especially as they bear on presidential powers.
In December 2005, for instance, Bush used a signing
statement to blunt the impact of the McCain amendment banning cruel,
inhuman and degrading treatment of detainees in U.S. custody. When Bush
signed the bill, he reserved the right to bypass the law under his
“The Executive Branch shall construe [the torture
ban] in a manner consistent with the constitutional authority of the
President . . . as Commander in Chief,” the signing statement read. In
other words, since Bush considers his commander-in-chief authorities
boundless, he can choose to waive the torture ban whenever he wants.
“The signing statement is saying ‘I will only
comply with this law when I want to, and if something arises in the war
on terrorism where I think it’s important to torture or engage in cruel,
inhuman, and degrading conduct, I have the authority to do so and
nothing in this law is going to stop me,’”
said New York University law professor David Golove.
Since signing statements essentially assert the
President’s right to interpret the law as he sees fit, the concept also
challenges the traditional authority of the judiciary to act as final
arbiter of legal disputes, an American check and balance that has served
as a bulwark against Executive tyranny for more than two centuries.
But judging from Alito’s past statements, he’s an
advocate of expanded Executive power. In arguing for the “unitary
executive” and interpretive signing statements, Alito wrote in 1986 that
“since the President’s approval [of a law] is just as important as that
of the House or Senate, it seems to follow that the President’s
understanding of the bill should be just as important as that of
Post, Jan. 2, 2006]
With Alito joining a solid majority of right-wing
justices on the U.S. Supreme Court, Bush’s interpretations of laws could
become not “just as important” as congressional intent but the decisive
interpretation of what a law means, especially on “national security”
issues such as torture of “terrorists,” detention without trial,
executions after military tribunals and the launching of wars.
Bush’s contempt for international law has long been
an open secret. Once when asked by a European reporter about the need
for international law to govern the U.S. occupation of Iraq, Bush
joked, “International law? I better call my lawyer.”
Bush also has asserted his right to make war,
despite the fact that the Founding Fathers so feared an unwise Executive
dragging the nation into an unnecessary conflict that the Constitution
invested the power to declare war in Congress.
Yet before the invasion of Iraq, the administration
insisted that Bush didn’t need authorization from either Congress or the
United Nations Security Council to attack Iraq and commit U.S. troops.
While Bush eventually did get a use-of-force
resolution from Congress – supposedly to strengthen his hand in U.N.
negotiations – he ordered the invasion of Iraq in March 2003 without
U.N. approval. The attack defied the U.N. Charter’s core principle that
“all Members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any state.”
Bush’s insistence about his unfettered
commander-in-chief powers also has spilled over to domestic law,
particularly his defense of electronic spying by the National Security
Agency, which has the capability to scoop up millions of phone calls and
e-mail communications by Americans.
By ordering the NSA to eavesdrop on U.S. citizens
without court-approved warrants, Bush appears to have contravened the
1978 Foreign Intelligence Surveillance Act, which set rules and
established a special court for authorizing domestic spying when there’s
evidence that someone is operating as a foreign agent.
Though the court has rarely denied a warrant and
the law even allows the President to seek authorization retroactively
when speed is of the essence, Bush chose to bypass the court and order
surveillance without warrants.
As for his legal rationale to hold people without
charges as “enemy combatants,” or to order torture of detainees, he
cited his inherent commander-in-chief powers, and the congressional
resolution passed on Sept. 14, 2001 in response to 9/11.
“We’re at war,” Bush
said, “and as commander in chief, I've got to . . . protect the
American people.” White House spokesman Scott McClellan
claimed that “the American people strongly support the efforts that
we're undertaking to save their lives.”
But even some Republican lawmakers questioned the
spying program’s legality. “There is no doubt
that this is inappropriate,”
said Arlen Specter, chairman of the Senate Judiciary Committee,
promising Senate hearings when Congress reconvenes at the end of
Regarding the NSA surveillance, the Congressional
Research Service, a non-partisan advisory arm of Congress, issued a
memorandum on Jan. 5 stating that “to the extent that any of the
electronic surveillance at issue may be outside the sweep of FISA or
Title III, Congress does not appear to have legislated specifically on
the subject, nor, by absence of legislation, to have authorized or
acquiesced in such surveillance.”
The memorandum says “it appears unlikely that a
court would hold that Congress has expressly or impliedly authorized the
NSA electronic surveillance operations” and adds that “no court has held
squarely that the Constitution disables the Congress from endeavoring to
set limits” on presidential power over domestic surveillance.
The memorandum’s arguments could provide senators
ammunition in the Alito confirmation hearings. The determination that
the Constitution does not preclude Congress from setting limits on the
power of the President in this area runs counter to the theory of the
“unitary executive” that Alito has promoted throughout his career.
Yet, while senators of both parties have criticized
the NSA spying as well as Bush’s insistence on his right to override the
congressional torture ban, much of the blame for this behavior can be
traced back to the failure of congressional oversight.
As the Bush administration has noted, it briefed
members of Congress repeatedly on the domestic surveillance program, but
it wasn’t until the New York Times reported on the program in December
2005 that anyone in Congress began raising public objections.
One of those briefed, Rep. Jane Harman of
California, the ranking Democrat on the House Intelligence Committee,
said her chief concern was that the program had been disclosed. “I
believe the program is essential to U.S. national security and that its
disclosure has damaged critical intelligence capabilities,” she said.
Even when a few members of Congress, such as Sen.
Jay Rockefeller, D-West Virginia, did object privately, their protests
were ignored. Since the days after the 9/11 attacks, the Bush
administration has argued that Congress is powerless to set limits
on presidential action to fight terrorism.
“The government may be
justified in taking measures which in less troubled conditions could be
seen as infringements of individual liberties,” White House lawyer John
wrote in a memorandum on Sept. 21, 2001. He added that Congress has
no authority to place “limits on the President's determinations as to
any terrorist threat, the amount of military force to be used in
response, or the method, timing and nature of the response.”
Besides the NSA spying,
other early warning signals of creeping authoritarianism came from
former Attorney General John Ashcroft, who lifted restrictions on the
FBI conducting surveillance operations in May 2002.
Reversing a policy in
place since the COINTELPRO scandal of the 1970s, Ashcroft granted the
FBI powers to carry out domestic spying against political
organizations, religious groups and private citizens in the United
The Ashcroft guidelines let FBI agents monitor
political gatherings, Internet sites, electronic chat rooms and bulletin
boards, libraries and churches without first showing any evidence of
Under the previous guidelines, FBI agents needed to demonstrate
probable cause or provide evidence from an informer that crimes were
being committed in order to begin investigations. Undercover agents were
not permitted to investigate groups that gather at places like mosques
or churches unless investigators could first find probable cause or
evidence that led them to believe someone in the group had broken the
Ashcroft’s 2002 guidelines simply stated that FBI agents could enter
any public place and forum to observe, develop leads and investigate.
Agents were authorized to search Web sites, online chat rooms and public
These new powers
supplemented the already sweeping authority that was granted to
law enforcement under the USA Patriot Act and its broad definition of
“terrorism.” Section 802 of the law defines terrorism as acts that
“appear to be intended ... to influence the policy of a government by
intimidation or coercion,” which could include confrontational protests
and civil disobedience.
Civil libertarians have warned that rather than
improving security or combating terrorism, the new law and guidelines
could be more useful in silencing critics of the Bush administration and
chilling political dissent.
One indication of how the government might use its
expanded powers came in 2003, when the FBI sent
a memorandum to local law enforcement agencies before planned
demonstrations against the war in Iraq. The memo detailed protesters’
tactics and analyzed activities such as the recruitment of protesters
over the Internet.
The FBI instructed local law enforcement agencies
to be on the lookout for “possible indicators of protest activity and
report any potentially illegal acts to the nearest FBI Joint Terrorism
Since then, there have been many stories about the
FBI’s Joint Terrorism Task Force (JTTF) harassing and intimidating
political activists engaged in lawful protests. Before demonstrations at
the 2004 Democratic and Republican national conventions, for instance,
the JTTF visited the homes of activists, while
FBI agents in Missouri, Kansas and Colorado spied on and interrogated
One target of these visits, Sarah Bardwell of
Denver, Colorado, said, “The message I took from it was that they were
trying to intimidate us into not going to any protests and to let us
know that, ‘hey, we’re watching you.’” [NYT,
Aug. 16, 2004]
FBI has in its files 1,173 pages of internal documents on the American
Civil Liberties Union, the leading critic of the Bush administration's
antiterrorism policies, and 2,383 pages on Greenpeace,” the New York
Times reported. [NYT,
July 18, 2005]
Another group singled out by the FBI was United for
Peace and Justice, which has facilitated many of the mass demonstrations
against the war in Iraq over the past three years. Leslie Cagan,
national coordinator for the coalition, said she was concerned that the
FBI’s counterterrorism division was discussing the coalition’s
“We always assumed the FBI was monitoring us, but
to see the counterterrorism people looking at us like this is pretty
jarring,” Cagan said.
The Defense Department also has been delving into
domestic spying and law enforcement, seemingly in violation of the Posse
Comitatus Act, passed in 1878 to prohibit federal
military personnel from acting in a law enforcement capacity within the
United States, except where expressly authorized by the Constitution or
The Defense Department announced
its new domestic plans in a document called the “Strategy
for Homeland Defense and Civil Support.” The document sets out a
military strategy against terrorism that envisions an “active, layered
defense” both inside and outside U.S. territory. In the document, the
Pentagon pledged to “transform U.S. military forces to execute homeland
defense missions in the … U.S. homeland.”
The Pentagon strategy paper also has a preemptive
element, calling for increased military reconnaissance and surveillance
to “defeat potential challengers before they threaten the United
States.” The plan “maximizes threat awareness and seizes the initiative
from those who would harm us.”
In December 2005, NBC News
revealed that the Pentagon has been conducting surveillance of
antiwar groups such as the Quakers and campus-based counter-recruitment
organizations. A secret 400-page document obtained by NBC listed 1,500
“suspicious incidents” over a 10-month period, including dozens of small
antiwar demonstrations that were classified as a “threat.”
The NBC report followed a story in the Washington
reported in November 2005 that the Defense Department has been
expanding its domestic surveillance activities since 9/11, including
creating new agencies that gather and analyze intelligence within the
The White House also is moving to expand the power
of the Pentagon’s
Counterintelligence Field Activity (CIFA), created three years ago
to consolidate counterintelligence operations. The White House proposal
would transform CIFA into an office that has authority to investigate
crimes such as treason, terrorist sabotage or economic espionage.
The Pentagon has also pushed legislation in
Congress that would create an intelligence exception to the Privacy Act,
allowing the FBI and others to share information about U.S. citizens
with the Pentagon, CIA and other intelligence agencies.
The proposals have drawn criticism from some
members of Congress, such as Sen. Ron Wyden, D-Oregon, who said, “We are
deputizing the military to spy on law-abiding Americans in America. This
is a huge leap without even a [congressional] hearing.”
While Wyden may be justified in his indignation
that these measures are being implemented without congressional
oversight, the reality is that even when Congress is informed, it often
has ceded its authority to the Executive Branch or granted new powers to
the Pentagon, the FBI and local law enforcement.
Since the Sept. 14, 2001, resolution, which granted
broad authority to the President in responding to 9/11, Congress has
time and again surrendered its responsibilities and served to legitimize
Bush’s drive for unprecedented presidential power.
This was seen in many ways large and small,
including the hasty passage of the Patriot Act and the authorization of
military force against Iraq. Most recently, Congress acted to
essentially overturn a Supreme Court ruling that guaranteed access to
U.S. courts for the detainees held in a legal black hole at Guantanamo
In December 2005, the Senate passed an amendment
that barred inmates from having further access to the courts, thus
abrogating a 2004 Supreme Court decision
recognizing the habeas corpus rights of Guantanamo prisoners.
Human rights groups have criticized the measure, noting that it reverses
long-standing habeas and due-process principles.
Citing the Senate
amendment, the Justice Department
filed notice in federal courts that the administration will move
courts to dismiss 186 pending petitions by detainees.
Sen. Carl Levin,
D-Michigan, who helped craft the amendment with Sen. Lindsey Graham, R-S.C.,
protested that the legislation was supposed to apply only to future
cases, not pending petitions. But it seems that the senators have once
again placed an inordinate amount of faith in the Bush administration
that it would recognize limitations on its authority and respect the
will of Congress.
Now, by fulfilling its
constitutional advise-and-consent responsibilities on Supreme Court
nominees, the Senate has a chance to address these issues of
presidential power and the Bush administration’s overreaching.
With Samuel Alito’s
unorthodox views on the separation of powers dovetailing with the
controversy surrounding Bush’s domestic spying and the debate over the
Patriot Act, these issues promise to take center stage over the next
weeks and months.
Senators also could
highlight the extraordinary deference towards police that Alito has
shown as a Reagan administration lawyer and a federal judge. Of
particular interest could be his opinion that it was justified for
police to shoot a fleeing 15-year-old thief and his upholding of the
strip search of a 10-year-old girl. [See
Alliance for Justice report for more details.]
What remains to be seen, however, is whether
senators will actually take the action necessary to halt America’s drift
toward presidential authoritarianism.
Many Americans are shocked at how far the country
has already traveled down this path – and are searching for ways to
change direction. The Alito confirmation process may represent one of
the last opportunities to do so.