The limits of U.S. presidential power emerged as a central issue in the Senate confirmation hearings for Samuel A. Alito to become a new associate justice on the Supreme Court – even as President George W. Bush and Vice President Dick Cheney continued to vigorously defend their use of secret electronic surveillance of U.S. citizens.
Alito, currently a federal appeals court judge, told the Senate Judiciary Committee today that he agreed with the principle that, even during wartime, the president does not have "a blank check" to ignore laws passed by Congress.
"The Constitution applies in times of peace and war," the nominee said. "The Bill of Rights applies at all times."
A woman’s right to an abortion was expected to be the central issue at Judge Alito’s hearings, because the woman he would replace on the court if confirmed, Justice Sandra Day O’Connor, has generally concurred with that right – often being the "swing vote" in five-to-four decisions of a closely divided court. Both Alito and O’Connor are considered to be conservatives.
While the abortion issue was discussed by many senators – who learned virtually nothing new about Alito’s position on the issue – presidential power was very much at center stage in this second day of hearings.
The underlying reason is Congress’s zealous protection of its prerogatives. But the more immediate firestorm has been fueled by recent disclosures that President Bush authorized and has been conducting secret wiretaps of U.S. citizens, contrary to legislation enacted by Congress in 1978 to correct the surveillance abuses that took place during the administration of President Richard M. Nixon, who resigned the presidency in disgrace in 1974.
The legislation, known as the Foreign Intelligence Surveillance Act (FISA), stipulated that wiretaps of U.S. citizens could take place only after a warrant has been issued by a special FISA court set up in the legislation.
But the New York Times recently disclosed that Bush has for several years been using the Defense Department’s National Security Agency (NSA) to secretly eavesdrop on telephone calls between U.S. citizens here and alleged al-Qaeda terrorists abroad, and to intercept e-mail traffic between these two sets of targets.
The administration has aggressively defended its actions, claiming that the president has inherent authority to take whatever action may be necessary to protect the country in time of war. Bush, Cheney, Attorney General Alberto Gonzales, and many other administration officials have also claimed that their actions are justified by the resolution allowing the president to use force to invade Iraq.
However, numerous legal scholars have cast doubt on the legality of the administration’s surveillance program, which is being conducted with only limited congressional oversight. Only eight congressional leaders were briefed about the program before it began in 2003, and a number of these have claimed that the program about which they were secretly briefed is not the program actually being carried out.
Since the revelations by the New York Times, there have been numerous other allegations, including that the NSA program has been used to eavesdrop on journalists.
Judge Alito was questioned on the snooping issue by a number of committee members during the second day of his nomination hearings. He said preservation of individual rights is particularly important in wartime because that is when the temptation to abuse liberties in the name of national security is most dangerous.
He declared that the Constitution "protects the rights of Americans in all circumstances."
Alito, who was a lawyer in the administration of President Ronald Reagan two decades ago, is thought to be a strong supporter of far-reaching executive power.
In agreeing that not even in wartime does a president have "a blank check," Alito endorsed the language used by Justice O’Connor in her decision upholding the right of a prisoner held as an "enemy combatant" to use the courts to challenge the basis of his or her confinement.
Most of the deepest probing about presidential power came from Democrats, while Republicans – with a few exceptions – asked "softball" questions or delivered encomiums hailing the nominee. But virtually all members of Congress are concerned about a president who has appeared to usurp the authority of the legislative branch of government.
The two Republican exceptions were Committee Chairman Arlen Specter of Pennsylvania and Lindsey Graham of South Carolina, a former military judge.
Tuesday, these senators queried Alito on the responsibility of the courts to constrain presidential authority. The NSA spying "raises very fundamental questions about how we proceed to gather information, fundamental questions on privacy and the Bill of Rights," Specter said.
Congressional pushback against the president is made all the more surreal because Republicans control not only the White House, but both houses of Congress.
According to Professor Brian J. Foley of Florida Coastal Law School, "Senators are asking Alito about executive power, which is good. But they should take a hard look in the mirror."
He told IPS, "They’ve been lying down while executive power has expanded. Just last month they gave the executive what is essentially absolute, unreviewable power over Guantanamo prisoners. This is a power which could ultimately be used against Americans."
Aside from the NSA issue, many members of Congress are upset by the "signing statement" Bush issued last week as he signed a law made contentious by its inclusion of a provision banning torture and cruel, inhuman, and degrading treatment of "war on terror" prisoners in U.S. custody. The novel signing statement said, in effect, that the president has the right to override the will of Congress if the exigencies of war make that necessary.
Congress also remains concerned about the Bush administration’s earlier "torture memos" – opinions issued by the Justice Department redefining torture and justifying application of the Geneva Conventions to suspected terrorists captured on the battlefield. The issue has been made even more complex by the administration’s claims that, in the "Global War on Terror," the battlefield is defined as the entire world, and its assertion that this war may have no end.
Congressional Democrats have decided that the presidential power issue is so politically potent that they are leaving questions on abortion mainly to Republicans. This tactic runs the risk of offending some of their strongest supporters. More than 50 left-leaning non-governmental advocacy organizations have spent millions of dollars mobilizing opposition to Alito, centered primarily around the abortion issue.
The intense focus on presidential power has upset some women’s rights groups, which have traditionally played a central role in Supreme Court confirmation hearings.
A similar number of conservative "pro-life" organizations have mobilized around the same issue. These groups include those representing the religious right wing of the Republican Party.
A woman’s right to an abortion was established in a Supreme Court decision in 1973 in a case known as Roe v. Wade. While polling shows that some 60 percent of the U.S. public supports the decision, opposition has come from groups and individuals who helped elect Bush in 2000, including many with significant influence with the White House.
The hearings enter their third day Wednesday.
