Alito faces harder review

Scrutiny likely on executive power, in light of 1984 memo, NSA spying


WASHINGTON -- Supreme Court nominee Samuel A. Alito Jr. is facing tough questions from Congress about his views on executive power, amid an intensifying debate over whether President Bush had the authority to order domestic eavesdropping by the National Security Agency.

Alito's support for letting top officials authorize spying without warrants inside the United States, detailed in documents released last week, has become a focus for critics who warn that he would be overly deferential to the executive branch in cases involving the separation of powers.

The issue is expected to take center stage in Senate hearings next month, when senators in both parties plan to ask Alito to weigh in on the legality of the secret NSA program.

Senators are questioning whether Alito could tip the court's balance on decisions involving the scope of presidential power, a debate that has taken on new urgency with the disclosure of the NSA's domestic spying. Both proponents and critics of the agency's program have cited legal opinions by Justice Sandra Day O'Connor, a swing vote on many cases whom Alito is in line to replace, to bolster their arguments.

Vice President Dick Cheney, in defending the NSA operation, has laid out an expansive view of the president's power, a position that appears to have guided the administration's actions over the past five years. Cheney argues that the president's authority must be asserted aggressively to counteract what he calls an erosion of executive power in recent decades.

"The president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy. That's my view," Cheney said last week.

Republican Sen. Arlen Specter of Pennsylvania, the Judiciary Committee chairman, has put Alito on notice that he will be questioned at his confirmation hearings about his views on the scope of presidential war powers.

The issue has "always been part of the picture," Specter said, but "it comes into sharper focus with the surveillance issue."

Specter's Democratic counterpart, Sen. Patrick J. Leahy of Vermont, also alerted Alito to expect queries on the issue. The hearings are scheduled to begin Jan. 9.

Bush's authorization of the NSA program, which the president said was targeted at the international communications of suspected terrorists, "is but one of several areas where the court's role as a check on overreaching by the executive may soon prove crucial," Leahy wrote in a recent letter to Alito.

In an interview, Leahy said he thought that "a lot of [senators'] votes will be influenced by how directly" Alito answers questions about the NSA program and presidential powers.

Alito's critics point to a 1984 memo he drafted as a Justice Department lawyer, which defended government officials' right to spy domestically without warrants. The case in question involved whether President Richard M. Nixon's attorney general, John Mitchell, could be sued for FBI eavesdropping during a 1970 investigation into an alleged plot to kidnap Henry Kissinger, then the national security adviser. In the memo, Alito advised that the case be appealed only on procedural grounds; but he also wrote that the attorney general should have absolute immunity for the warrantless wiretapping.

Leahy said the memo and other documents from Alito's past "raise further questions about Judge Alito's views on and commitment to this vital role of the judicial branch as a check on executive authority."

Ralph Neas of the liberal group People for the American Way called the memo "more evidence that Judge Alito favors sweeping presidential and executive powers over the people's right to privacy."

In light of the NSA program, Neas said in a statement, Americans "need a justice on the Supreme Court who will protect their rights against abuses of power by their own government. Judge Alito does not meet that test."

Bush says he derives his authority to conduct the NSA program from two sources: the Constitution, which delegates to him the role of commander in chief, and a 2001 congressional resolution authorizing him to "use all necessary and appropriate force" against the perpetrators of the Sept. 11 attacks.

There is considerable debate among lawmakers and legal scholars, however, about how broadly a president's constitutional powers can be interpreted, and about how far Bush can go under the 2001 resolution.

In speaking in 2001 to the Federalist Society, a conservative legal group, Alito described himself as a strong proponent of the theory of the "unitary executive." The concept holds that the Constitution vests sweeping federal executive power in the president.

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