Wednesday, January 04, 2006

Alito, torture, and "a recipe for tyranny"

A few days ago, I noted that George Bush essentially reserved a line item veto over the torture provisions of the Defense bill, using the Presidential signing statement to express the limits he was placing on Congress's legislative authority.

It turns out that the idea of doing that, using the signing statement to register the President's view on the bill's interpretation, originated with a Reagan era memo drafted by (wait for it) Sam Alito.

"Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

The Reagan administration popularized the use of such statements and subsequent administrations continued the practice. (The courts have yet to give them much weight, though.)


That last part isn't quite true. In 1998, the Supreme Court ruled the Line Item Veto unconstitutional, noting:

there is no constitutional authorization for the President to amend or repeal. Under the Presentment Clause, after a bill has passed both Houses, but "before it become[s] a Law," it must be presented to the Presi dent, who "shall sign it" if he approves it, but "return it," i.e., "veto" it, if he does not. There are important differences between such a "return" and cancellation under the Act: The constitutional return is of the entire bill and takes place before it becomes law, whereas the statutory cancellation occurs after the bill becomes law and affects it only in part.


Surely, if Congress cannot give the President the authority to rewrite a law, he cannot arrogate that power to himself.

Sandy Levinson, at Balkinization, asks the necessary question:

what happens when the Court tells the President that there is indeed something that he/she cannot do, however much the President believes, in entirely good faith, that it is "necessary" (in some sense of that slippery word) to safeguard some important public value, including national survival. I don't know that Judge Alito has ever spoken to this question directly. It should be enough, though, that there is now fairly dispositive evidence that he was, while in the Reagan Administration, a full-scale adherent of what might be termed the "liberated" (and possibly "unfettered") Executive, and it would be astonishing if the Justice-pickers in the Bush Administration did not believe that this represents his view today.


Thus, President Bush seems to be packing the Court with people who would grant him (and other presidents) unfettered power, at least when combined with an endless "state of crisis," a combination which earlier we noted would be "a recipe for tyranny."

The Post has a fascinating survey of Alito's votes on the 3rd Circuit. As they note, it "provides a more nuanced glimpse of his ideology than the portrayal by his supporters and critics." There's something in it to comfort either side. He falls within the statistical mainstream in many areas, which is a finding that supporters will enjoy. But it's also irrelevant. If that's the qualification, find the judge who's in the mainstream most often.

What matters are his differences, and there, I feel like my basic objection stands. The article (which you should read in its entirety) summarizes:

Alito takes consistently restrictive stances on some social issues and criminals' rights but does not differ substantially from the typical judge in other areas. ... he dissents most often in areas where his views are least typical of the average judge: cases in which he has favored religion and largely sided against immigrants and one group of convicted criminals: prisoners facing the death penalty.


Martin H. Redish, a constitutional scholar at Northwestern Law says, Alito is "clearly tough-minded . . . having very little sympathy for those asserting rights against the government."

No joke.

In other spying news, Nancy Pelosi released the declassified version of a letter she sent to the head of the NSA when he revealed to the House Intelligence Committee that he had undertaken broader surveillance of Americans all on his own.

Now, I think we can all agree that the changes were fairly modest. Beyond the law, to be sure (as discussed in the Times' article), but reasonable in a time of crisis. Within weeks, he reported the action to the appropriate oversight body, and received their critique.

Pelosi writes:

I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting. Until I understand better the legal analysis regarding the sufficiency of the authority which underlies your decision on the appropriate way to proceed on this matter, I will continue to be concerned.


What appears to have happened afterward is where things went wrong. Rather than bringing the presidential authorization back to the committee, the President kept it in a close circle of friendly legal advisors.

ScienceBlog highlights a forthcoming paper on Presidential seizures of power, and some lessons learned:

First, "justifications...should pass the 'necessity test' within which the preservation of the constitutional order itself is at stake." Accordingly, "a concern for the public good is insufficient grounds for the executive to exercise discretionary power." This, Kleinerman notes, is because "only political necessity and not popular or congressional approval can legitimate any discretionary action taken by a president."

Second, "discretionary action should only take place in extraordinary circumstances and should be understood as extraordinary." Lincoln himself articulated clear boundaries on his use of discretionary power and repeatedly emphasized that powers assumed in times of crisis must be given up when the crisis subsides. This is important, the author observes, because as in the case of Nixon "Lincoln's precedent can empower presidents to take actions they might not otherwise take, serving as their... justification for taking any action deemed necessary for the public good." Lincoln also expended significant effort to foster public attachment to the Constitution to compel presidents to justify their behavior in terms of their constitutional responsibility. To do so today would require a restoration of "the notion of executive prerogative to the sphere of public discourse."

Third, "a line must separate the executive's personal feeling and his official duty. He should take only those actions that fulfill his official duty, the preservation of the Constitution, even...if the people want him to go further." ... "Because [Lincoln's] overriding concern was the survival of a constitutional Union," states Kleinerman, "any departure from the bounds of the Constitution must also point back to its restoration."


By keeping his actions secret, Bush failed that last point, probably the most essential. Necessitas legem non habet. I appreciate that fact, so I don't blame General Hayden for ditching procedures meant to protect the privacy of Americans after 9/11. It was a crisis.

But then Congress amended FISA and other laws to broaden surveillance powers. That ended the crisis. If more powers were needed, the time to seek them was during the legal debate over the Patriot Act. 9/11 and its aftermath were crises. But the Pentagon has been rebuilt, the Pile at Ground Zero is gone, the dead are buried, Osama bin Laden is forgotten, and the crisis is over. The war isn't, but that's different.