Alito questioned on Bush’s spy program

A key Republican senator asked Supreme Court nominee Samuel Alito on Monday about President George W. Bush’s domestic spying order and whether war gives the president a blank check when it comes to civil liberties.

In a letter to Alito, Judiciary Committee Chairman Arlen Specter, who will preside at Alito’s Senate confirmation hearing next month, also asked what approach he would use to assess Bush’s authority.

“Historically, the court has shied away from checking executive power while a military conflict was going on,” Specter, a Pennsylvania Republican, wrote the 55-year-old conservative in preparation for the hearing set to begin January 9.

“Pursuant to your jurisprudential framework and understanding of the separation of powers, do you believe the court’s reluctance to decide these issues is justified?” Specter added.

With lawmakers in both parties raising questions, Specter has promised a separate hearing on Bush’s recently disclosed order to permit eavesdropping by the National Security Agency, without court approval, on Americans with suspected terrorist ties.


Specter noted that Supreme Court Justice Sandra Day O’Connor, in a separate matter, recently said, “war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

“Do you agree?” Specter asked Alito, who if confirmed by the full Senate would replace the retiring O’Connor on the high court.

Specter added: “In light of Justice O’Connor’s statement, what jurisprudential theory would you invoke to evaluate the limits on the president’s authority to conduct surveillance on U.S. citizens without going through the court system?”

Bush has maintained the U.S. Constitution provided him the authority to permit the eavesdropping to defend the nation.

The administration also argued Bush obtained such authority in the congressional resolution passed after the September 11, 2001, attacks to respond with “all necessary and appropriate force.”

Specter wrote Alito: “What jurisprudential approach would you use to determine whether this resolution gives the president the power to issue an executive order permitting the National Security Agency to conduct domestic surveillance on international communications without first obtaining a search warrant?”

Specter also asked Alito under what “jurisprudential theory” would he determine Bush’s power to have taken such action as commander in chief.

Sen. Patrick Leahy of Vermont, top Democrat on the Judiciary Committee, also wrote Alito on Monday, saying he planned to ask him about Bush’s eavesdropping order at his confirmation hearing.

© Reuters 2005