Judge Samuel Alito, nominee to the United States’ Supreme Court, champions an “unitary executive” doctrine that gives the President as Commander in Chief unlimited power. President George W. Bush has already claimed “unitary executive” powers to imprison citizens without charges, spy on citizens without warrants, and ignore laws he doesn’t like1. Use of such powers could continue indefinitely – for as long as the President says that the country is in a “war on terror”. Alito’s words and actions show that he would likely rule to uphold these dictatorial powers. Alito said that the “unitary executive” theory was “gospel” that “best captures the meaning of the constitution’s text and structure2“. That indicates Alito would have agreed with Justice Clarence Thomas, when he cited the “unitary executive” in dissent to a Supreme Court ruling that an American citizen held as an “enemy combatant” was entitled to to contest his detention3x4x5“. Alito argued unsuccessfully before the Supreme Court that cabinet officials should have legal immunity for authorizing illegal wiretaps of citizens in the country6. Alito recommended the use of “signing statements” to focus on the “President’s intent7x8“. Instead of the veto, Bush has used the signing statement to ignore provisions of laws he signs, such as the torture ban in the recent defense appropriations law1. During the confirmation hearings, when asked directly whether the President can ignore or disobey laws passed by Congress, Alito did not say “no”. Instead he said that the President must comply with laws “that are consistent with the Constitution” – a statement which leaves the President to decide which laws are “consistent with the Constitution9“. Last year a group of Senators agreed that a filibuster to stop a court nominee should only be used in an “extraordinary circumstance10“. Many writers and leaders say that we have reached that “extraordinary circumstance” – a threat to the democratic republic11x13. With the Senate set to vote on the nomination this week, minority whip, Dick Durbin (D-IL), says that sentiment is strong to reject Alito12.
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2 ‘George Bush’s rough justice’ by Sidney Blumenthal, The Guardian, Thursday January 12, 2006 ‘The “unitary executive” is nothing less than “gospel”, declared the federal judge Samuel Alito in 2000 – it is a theory that “best captures the meaning of the constitution’s text and structure”.’
5 ‘Court: Terror suspects can challenge detentions’ MSNBC, June 28, 2004 ‘Ruling in the Hamdi case, Justice Sandra Day O’Connor said the court has “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.”’
As a lawyer in the Reagan Justice Department, Alito said the attorney general must be free to take steps to protect the country from threats such as terrorism and espionage without fear of personal liability. But in a 1984 memo involving a
case that dated to the Nixon administration, Alito also cautioned his superiors that the time may not be right to make that argument and urged a more incremental approach.
“I do not question that the Attorney General should have this immunity,” Alito wrote. “But for tactical reasons, I would not raise the issue here.”
7 ‘Alito’s Zeal for Presidential Power’ – New York Times, December 24, 2005 ‘Judge Alito made another bald proposal for grabbing power for the president. He said that when the president signed bills into law, he should make a “signing statement” about what the law means. By doing so, Judge Alito hoped the president could shift courts’ focus away from “legislative intent” – a well-established part of interpreting the meaning of a statute – toward what he called “the President’s intent.’
8 ‘Using Presidential Signing Statement to Make Fuller Use of the President’s Constitutionally Assigned Role in the Process of Enacting Law.’ – Memo from Samuel A. Alito, Jr. ‘Our primary objective is to ensure that Presidential signing statements assume their rightful place in the interpretation of legislation.’ … ‘in interpreting statutes, both courts and litigants (including lawyers in the Executive branch) invariably speak of legislative” or “congressional” intent. Rarely if ever do courts or litigants inquire into the President’s intent. Why is this so?’
9 ‘Editorial: Constitutional powers hanging in the balance’, The Sacramento Bee
‘Asked directly this week whether the president can ignore or disobey laws passed by Congress, Alito testified that “the president must take care that the statutes of the United States that are consistent with the Constitution are complied with” (emphasis added). This, of course, is the crux.’
10 ‘Gang of 14′ – Wikipedia ‘Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.’
11 ‘Alito Filibuster: It Only Takes One’ By Robert Parry, January 22, 2006 ‘With the fate of the U.S. Constitution in the balance, it’s hard to believe there’s no senator prepared to filibuster Supreme Court nominee Samuel Alito, whose theories on the “unitary executive” could spell the end of the American democratic Republic.’
‘U.S. Sen. Dick Durbin (D-Ill.) announced Thursday he will vote against Judge Sam Alito for the U.S. Supreme Court. And he said so many other senators intensely oppose Alito that they may have enough votes to sustain a filibuster against the conservative jurist.’
As the No. 2 Democrat in the Senate, it’s Durbin’s job to count votes for and against Alito. He said he won’t know until Tuesday if there are enough strong opponents to filibuster Alito’s nomination.
“A week ago, I would have told you it’s not likely to happen,” Durbin said. “As of [Wednesday], I just can’t rule it out. I was surprised by the intensity of feeling of some of my colleagues. It’s a matter of counting. We have 45 Democrats, counting [Vermont independent] Jim Jeffords, on our side. We could sustain a filibuster if 41 senators … are willing to stand and fight.
“We’re asking senators where they stand. When it reaches a critical moment when five senators have said they oppose a filibuster, it’s off the table. It’s not going to happen. But if it doesn’t reach that moment, then we’ll sit down and have that conversation.”
Sen. Patrick Leahy: “At a time when the president is seizing unprecedented power, the Supreme Court needs to act as a check and to provide balance,” Leahy said. “Based on the hearing and his record, I have no confidence that Judge Alito would provide that check and balance.”
Sen. Richard Durbin: “Based on his record, I’m concerned that Judge Alito will not be willing to stand up to a president who is determined to seize too much power over our personal lives.”
Sen. Edward Kennedy: “[in light of] unprecedented claims by the White House for sweeping expansions of presidential power that are grave threats to the rule of law. A justice must have the courage and the wisdom to speak truth to power — to tell even the president that he has gone too far.”
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