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Alito Memo: President's can break the law
Chicago Tribune
Memo draws Alito into presidential powers debate
By David G. Savage
Tribune Newspapers: Los Angeles Times
Published January 8, 2006

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

"The President's understanding of the bill should be just as important as that of Congress," wrote Samuel Alito 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 much-celebrated McCain amendment, which forbids torture and cruel, inhuman 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 follow the torture ban so long as it did not conflict with his "constitutional authority ... as commander in chief" and his need to "protect the American people from further terrorist attacks."

Moreover, Bush asserted the new law "precludes federal courts" from hearing all claims of mistreatment from prisoners aboard, a point disputed by some Senate Democrats.

This week, as Alito, now a federal appellate judge, goes before the Senate Judiciary Committee, Bush's boldness in asserting the powers of the presidency has complicated the confirmation prospects for his second nominee to the Supreme Court, who would replace Sandra Day O'Connor.

Presidential power

Along with abortion rights, executive power has risen to the forefront in the battle over Alito's confirmation.

Democrats are questioning whether the nominee could be trusted to enforce the rule of law when the president says he is not bound by it.

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

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

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

In 2002, he said he could order the military to arrest and indefinitely detain Americans who were "enemy combatants" without charging them with a crime.

The same year, his lawyers said the president as commander in chief was free to order harsh treatment, even torture, to obtain crucial information from prisoners.

That White House position, and widespread reports of abuse of terrorist suspects in U.S. military prisons, gave rise to the law banning torture. 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.

For his part, McCain issued a terse statement saying the new law does not include "a presidential waiver on the restrictions" against torture and inhuman treatment.

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

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

A revealing statement came in November 2000 when he spoke at a Federalist Society meeting, reflecting on his time in the Reagan administration.

"We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president," Alito said. "And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure."

 `Unitary executive'

In a sense, the "unitary executive" theory states the obvious. There is only one president. But many of its Reagan-era proponents applied this theory to say independent government agencies were unconstitutional because they were not under the direct control of the president.

Since the New Deal of the 1930s, Congress has created these independent agencies to regulate certain industries. They include the Securities and Exchange Commission, the Federal Communications Commission and the Federal Election Commission. The most influential independent body may be the Federal Reserve Board, because it regulates banking and the money supply.

Alito did not say whether he believes such independent agencies violate the Constitution, but senators say they intend to ask him about how he would apply the "unitary executive" theory.

Yet Alito's supporters say it is unfair to link his Reagan-era memos to the current controversies.

"In every administration--Democratic and Republican--the lawyers believe in a robust understanding of the president's powers," said Charles Cooper, who recruited Alito in 1986 to his legal staff under Atty. Gen. Edwin Meese. "That doesn't begin to answer the legal separation-of-powers question he would face as a justice. And his habit of mind is to be careful, neutral and very balanced."

Besides presidential powers, the big issue facing Alito at this week's hearings will likely be abortion.

Sen. Arlen Specter (R-Pa.), the committee chairman, supports abortion rights, and said he was troubled to learn in November that Alito had voiced strong opposition to the 1973 Roe vs. Wade ruling.

In 1985, Alito filed a job application with the Reagan White House in which he said he was "particularly proud" of the role he had played in the administration's effort to persuade the Supreme Court "that the Constitution does not protect a right to abortion."

The statement will make it hard for Alito to avoid discussing his views on abortion.

The GOP has surrounded themselves with lawyers that say it's ok for the to break the law at will. Let's look at a few laws Bush recently broke. Just the other day, he signed into law McCain's anti torture legislation. At the signing-in, he also said he'd break the law if he thought it was necessary. The reason this law was passed in the first place is because Bush broke our previous anti torture laws (laws and Supreme Court ruling are ignored by Bush). Bush also violated the law (and brags about doing so) when he spied on Americans without a court order. Bush also failed to notify congress in writing about his eavesdropping on Americans which violated another law. He also broke the law when he gave former presidents the power to withhold their papers from the public. A violation of the Presidential Papers Act.

When a president breaks the law, there's only one remedy. Impeachment and removal from office.