Alito & the Point of No Return

By Nat Parry
January 9, 2006

The U.S. Supreme Court nomination of Samuel Alito may represent a point of no return not only on the issue of abortion and other longtime conservative political targets but on the checks and balances that have been the cornerstone of American democracy.

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 was.

Swing Vote

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 commander-in-chief powers.

“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 Congress.” [Washington 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.

‘International Law?’

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 January.

Legal Judgment

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 Yoo 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.”

Ashcroft’s Rules

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 States.

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 criminal wrongdoing.

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 law.

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 databases.

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 Task Force.”

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 activists.

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 Files

Over the past few years, the FBI also has collected thousands of pages of internal documents on civil rights and antiwar protest groups. “The 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 operations.

“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 Congress.

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 Post, which 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 United States.

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.”

Congressional Lapses

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 Bay.

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.