Alito remarks backed strong presidential powers

WASHINGTON -- In 1989, Supreme Court nominee Samuel A. Alito Jr. denounced the high court's decision that year upholding a Watergate-era law that allowed independent counsels to investigate wrongdoing in the White House, arguing that the decision amounted to a ''congressional pilfering" of presidential power.

Alito's remarks, made when he was US attorney for New Jersey, shed new light on his view of presidential power. Executive authority is an increasingly important area of the law in the era of the war on terrorism. President Bush has asserted the power to hold prisoners without trial, shield documents, and authorize aggressive interrogations without congressional approval.

Speaking at a convention marking an anniversary of the Bill of Rights, Alito endorsed the strong view of presidential power described by Justice Antonin Scalia, the only member of the court to vote against the independent counsel law, calling Scalia's opinion ''a brilliant but very lonely dissent." Scalia argued that no president should be subject to a prosecutor who is not also answerable to that president under the Constitution.

''The Supreme Court hit the doctrine of separation of powers about as hard as heavyweight champ Mike Tyson usually hits his opponents," Alito said of the court's decision upholding the independent counsel law, which was enacted in 1978 after the Watergate scandal. Congress allowed the law to expire in 1999.

With Alito's confirmation hearings set to begin in January, Senate leaders, including Judiciary Committee chairman Arlen Specter, Republican of Pennsylvania, have expressed concern about whether Bush's nominees to the high court -- including Alito and newly confirmed Chief Justice John G. Roberts Jr. -- will use the position to grant more power to the Oval Office over Congress. The issue is likely to come up during what is expected to be a contentious Senate confirmation process for Alito, who was nominated this week to replace retiring Justice Sandra Day O'Connor.

Republicans as well as Democrats have become increasingly skeptical about the limits of Bush's presidential power. Yesterday, the Senate voted for the second time in recent weeks to ban mistreatment of terrorism suspects in US custody, despite the White House's insistence that the president alone should set detainee policy.

Senator Edward M. Kennedy, Democrat of Massachusetts, said Alito's speech ''raises concerns about whether he would be unduly deferential to the president" at the expense of Congress. ''One of the most important issues facing the court in the future will be the extent to which it will enforce legal limits on presidential power, particularly in the setting of foreign and military affairs."

As a federal judge, Alito heard no major cases on executive authority during his 15 years on the US Court of Appeals for the Third Circuit, so legal analysts reviewing his record are looking at his earlier writings for clues to his views on a range of issues, including presidential power.

The Judiciary Committee is focusing in particular on Alito's work during his three-year tenure as a deputy assistant attorney general in the Reagan administration. From 1985 to 1988, Alito was one of a small, elite group of lawyers in the Justice Department's Office of Legal Counsel, charged with providing the White House with opinions on all constitutional questions.

Some of the files the Judiciary Committee plans to request pertain to the Reagan administration's legal analysis of the Iran-Contra scandal. During Alito's tenure, top-level White House aides were accused of violating a 1982 law prohibiting US military support to rebels trying to overthrow Nicaragua's Marxist government.

Many conservatives believed the law was unconstitutional because it interfered with the president's authority to conduct foreign policy. But a specially appointed independent counsel investigated the affair and brought charges against several members of the administration.

So far, Alito has not been connected to any Iran-Contra-related legal opinions sent to the White House, but another lawyer in his office signed a 1985 memo stating that Congress ''must not be permitted to negate the President's constitutional responsibility for managing and controlling affairs" delegated to the government's executive branch.

But the Judiciary Committee staff is seeking the files to determine whether Alito lobbied his colleagues to take particular legal positions about Iran-Contra issues. Former officials in the office say it had a collaborative approach to reviewing one another's work, so Alito may have written private memos giving his opinion.

David Golove, a New York University law professor who specializes in executive power issues, said any documents disclosing Alito's views on Iran-Contra-related executive power issues ''would tell us a good deal" about how he might rule as a Supreme Court justice on cases involving challenges to the Bush administration's asserted counterterrorism powers.

''It will be revealing of Alito's basic views on the scope of executive power if it turns out he expressed views about the [Iran-Contra] issues," Golove said. ''It would have wide and important implications on issues concerning Guantanamo Bay, civil liberties issues concerning US citizens and all the cases involving the war on terrorism."

But at least one Office of Legal Counsel opinion Alito signed argued that the president's power was more limited than some in the Reagan administration believed. The opinion concerned a 1986 law enacted by Congress that required the government to help Haiti recover assets that had been allegedly stolen by its former president, Jean Claude Duvalier.

The Treasury Department argued that despite the law, President Reagan couldn't be forced to freeze some disputed bank accounts, but Alito concluded that the administration had no choice.

''A fair reading of [the law] as a whole . . . suggests that Congress has not left the nature of this assistance to unfettered Presidential discretion," Alito wrote. ''Given the text of the statute and its legislative history, we therefore cannot agree with Treasury's position" that the President could refuse to freeze Duvalier's assets.

In the 1989 speech, Alito said the Supreme Court's decision on independent counsels was ''stunning" and praised Scalia's dissent. At the time, many legal analysts considered Scalia's view on presidential power as extreme, Golove said. But after independent counsel investigations stung the Clinton administration as well as Reagan's, Democrats and Republicans in Congress decided to let the law lapse in 1999.