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In Alito Battle, Issues of Presidential Power Thrust to Forefront

January 08, 2006|David G. Savage | Times Staff Writer

WASHINGTON — Twenty years ago, a Reagan administration lawyer proposed that when the president signed a bill passed by Congress, he should use the occasion to declare how he interpreted it.

"The president's understanding of the bill should be just as important as that of Congress," wrote Samuel A. Alito Jr. in a 1986 memo. Spelling out those thoughts "would increase the power of the executive to shape the law," he added.

President Bush put that idea to work two weeks ago in a little-noticed statement that followed his signing of the muchcelebrated McCain amendment, which forbids cruel, inhumane or degrading treatment of prisoners here and abroad.

His words appeared to turn a legislative defeat into a White House victory. Bush said he would back the torture ban so long as it didn't conflict with his "constitutional authority" as commander in chief and his need to "protect the American people from further terrorist attacks."

For The Record
Los Angeles Times Friday January 27, 2006 Home Edition Main News Part A Page 2 National Desk 1 inches; 54 words Type of Material: Correction
Presidential power -- A Jan. 8 Section A article about presidential power said President Bush's lawyers did not explain why the National Security Agency did not seek warrants before eavesdropping on people in the U.S. in suspected terrorism cases. Administration officials have given several reasons, including a need to act with "speed and agility."

Moreover, Bush asserted that the measure would preclude federal courts from hearing all claims of mistreatment from prisoners abroad, a point disputed by some Senate Democrats.

This week, as Alito goes before the Senate Judiciary Committee, it will be seen whether Bush's boldness in asserting powers of the presidency has complicated the confirmation prospects for his nominee to the Supreme Court. Along with abortion rights, executive power has moved to the forefront in the battle over Alito's confirmation.

Democrats are questioning whether the prospective justice could be trusted to enforce the rule of law when the president says he is not bound by it. Bush's lawyers assert the commander in chief has an "inherent authority" to act despite the law when he is seeking to defend the nation's security during wartime.

"Does he believe in any checks on presidential power?" asked Sen. Charles E. Schumer (D-N.Y.) in previewing his questions. "Does he believe that warrantless wiretapping of Americans is constitutional?"

This surveillance issue was thrust onto the agenda last month when Bush acknowledged that he had authorized the National Security Agency, without seeking court permission, to intercept international phone calls or computer messages of people in the United States who had "known links" to terrorists abroad.

In 1978, Congress made it illegal for the government to conduct electronic surveillance in the U.S. without a judicial warrant. Bush's lawyers did not explain why the NSA did not seek warrants from the special court created to weigh such requests.

Some computer experts familiar with the NSA operations say they believe the agency is regularly scanning thousands of calls and messages. In that event, it would be impractical, perhaps impossible, for officials to obtain individual warrants.

The secret NSA wiretapping order is not the only time Bush has said he stands above Congress and the courts.

In 2002, Bush said he could order the military to arrest and indefinitely detain Americans who were "enemy combatants" without charging them with a crime or giving them a chance to assert their innocence.

That same year, his lawyers said that as commander in chief, the president was free to order harsh treatment, even torture, to obtain crucial information from prisoners. This was so, they said, despite federal laws and U.S. treaties that prohibited the use of torture in all circumstances.

That White House position, along with widespread reports of abuse of terrorism suspects in U.S. military prisons, gave rise to the McCain amendment banning torture. Initially, the measure was strongly opposed by Bush, who decided to sign it after meeting with McCain and in the face of overwhelming support by Congress.

Sen. Edward M. Kennedy (D-Mass.) said Alito would be quizzed about Bush's apparent willingness to defy Congress even as he signed the McCain amendment into law.

"The president goes ahead and signs it, and then says he retains the inherent power to go out and torture just like before," Kennedy said. "It reflects an arrogance of power and a contemptuous attitude toward Congress."

For his part, McCain issued a terse statement saying the new law did not include "a presidential waiver on the restrictions" against torture and inhumane treatment. "We believe the president understands Congress' intent," said McCain and Sen. John W. Warner (R-Va.), chairman of the Armed Services Committee. "Our committee intends through strict oversight to monitor the administration's implementation of the law."

Though Alito will be caught up in the dispute over the NSA wiretapping and the McCain amendment, it is not clear whether he shares the view that the president has a nearly unchecked power to protect national security.

For the last 15 years, Alito has been a judge on the U.S. 3rd Circuit Court of Appeals in Philadelphia. That court does not get many cases that test the limits of the president's power.

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