The Limits of Power: Questions for Alito | The Nation


The Limits of Power: Questions for Alito

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War Powers

If you were a member of the Senate Judiciary Committee, what would you
ask Samuel Alito about his record and judicial philosophy? Send us your questions, and as the hearings
unfold, TheNation.com will publish the best of them.

About the Author

Brendan Smith
Brendan Smith is an journalist, oysterman and labor activist. He is co-founder of Global Labor Strategies, a consulting...
Jeremy Brecher
Jeremy Brecher’s new book Save the Humans? Common Preservation in Action, just published by Paradigm...

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Despite the war powers granted Congress under Article I Section 8 of the Constitution, the Bush Administration has repeatedly asserted the right to initiate further attacks beyond Iraq without Congressional approval. Secretary of State Condoleezza Rice recently testified that the President could attack Syria or Iran without any authorization from Congress. According to James Madison, "In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department."

Judge Alito, do you agree with Madison's assessment? Do you believe that executive powers allow the launching of another war without authorization from either the United Nations or Congress? Which branch of government do you believe has the right to send the country to war?

War Crimes

The War Crimes Act of 1996 makes it a federal crime for any American to commit grave violations of the Geneva Conventions, including the "willful killing, torture or inhumane treatment" of detainees. In a January 25, 2002, memo to President Bush, then-White House Counsel Alberto Gonzales declared provisions of the Geneva Conventions "obsolete" and urged the President to opt out of the Conventions in order to reduce "the likelihood of prosecution under the War Crimes Act." Soon after, President Bush declared that the Geneva Conventions did not apply to "unlawful combatants" captured in Afghanistan.

Judge Alito, if executive branch officials violated the Geneva Conventions, would you agree that they could be prosecuted under the War Crimes Act?

The US Anti-Torture Act makes torture and conspiracy to commit torture a crime. According to a recent report by the House Judiciary Committee Democratic Staff, there is a "prima facie case that the President, Vice President and other members of the Bush Administration violate a number of federal laws, including...international treaties prohibiting torture and cruel, inhuman and degrading treatment." FBI e-mails released under the Freedom of Information Act disclose torture techniques authorized by executive order signed by President Bush and approved by Defense Secretary Donald Rumsfeld.

Judge Alito, if executive branch officials were found guilty of conspiring to commit torture, do you believe the Supreme Court should hold them subject to the Anti-Torture Act?

Presidential Powers and the Rule of Law

Senator Russ Feingold recently asserted that President Bush "believes that he has the power to override the laws that Congress has passed." But Feingold noted that this is not how our democratic system of government works. "The President does not get to pick and choose which laws he wants to follow. He is a President, not a king."

Judge Alito, explain your view of the differences between the Constitutional powers of an American President and those enjoyed by an absolute monarch.

The Alito hearings represent more than just the confirmation of a judge. Like the hearings that led to the rejection of Robert Bork's nomination to the Supreme Court, they embody a struggle over the very definition of constitutional government and the rights of the people. Democrats and Republicans, liberals and conservatives--indeed, all who wish the United States to be a constitutional democracy and not an autocracy, should see it as the opening battle in a larger constitutional war that will escalate with the renewal of the Patriot Act, NSA hearings, prewar intelligence and torture investigations, and calls for censure and impeachment.

This first battle provides believers in the rule of law an opportunity to frame the issues, strengthen their alliances and educate the public for the war to come. To do so, they should insist that any Supreme Court nominee must take an unambiguous stand on what Senator Leahy calls "the Court's role as a check on overreaching by the executive."

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