by Jeremy Brecher and Brendan Smith
published 1/7 on commondreams.org
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.