Scales of justice tipped
PRESIDENT BUSH'S SECRET authorization of wiretapping of US citizens, revealed earlier this month, was shocking enough to derail renewal of the USA Patriot Act, at least temporarily. Could it be enough to deny the appointment of Samuel Alito to the Supreme Court? The limits of presidential power should be at the center of questions for Judge Alito when he appears before Senate confirmation hearings Jan. 9.
Last week, memos surfaced that Alito wrote as an attorney in the Reagan Justice Department, supporting broad executive branch powers to spy on Americans suspected of being criminals or terrorists. Alito argued that, in a case dating back to the Nixon administration, then-Attorney General John Mitchell should be immune from civil lawsuits for ordering wiretaps without a warrant.
Alito correctly predicted, however, that the Supreme Court would reject the claim of blanket immunity, since in 1972 it had ruled that domestic spying violates Fourth Amendment protections against unreasonable searches. Last week, Bush administration officials said Alito's 1984 views were not pertinent to the current controversy over Bush's authorization of warrantless wiretaps, since the Mitchell case did not involve international terrorism.
But this only begs the question: What is Alito's philosophy regarding presidential powers, especially in wartime? The ill-defined and potentially endless war on terror has been invoked by the Bush administration to justify trammeling basic rights of detainees to be charged, to see attorneys, or to challenge their status in court.
Indeed, excessive deference to presidential authority seems to be a unifying feature of all the Bush Supreme Court nominees: Alito, John Roberts, and Harriet Miers.
Just this summer, Roberts -- now chief justice -- ruled from the federal appeals bench that Bush had authority to try detainees at Guantanamo Bay prison without certain rights guaranteed by the Geneva Conventions. Roberts said Congress gave Bush this power with a resolution passed after Sept. 11, which called on the president ''to use all necessary and appropriate force" to prevent terrorism. Bush officials cited this same resolution last week in explaining why they could sidestep the law to conduct electronic surveillance without judicial warrants on American soil.
Given that the Supreme Court is the final arbiter of presidential power, and that it has already found it necessary to curtail overreach by the Bush administration, the American people need independent thinkers on the court who will continue to assert the judicial role of checking presidential power. Only if Alito clearly affirms that role will he earn serious consideration by the Senate for confirmation to serve on the nation's highest court.
