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Wednesday, January 11, 2006

Judge Alito on the Government's Wartime Authority: Day Two

From the Senate Judiciary Committee's hearings on Judge Samuel Alito's nomination to the Supreme Court:

SPECTER: Do you agree with Justice O'Connor's statement quoted frequently yesterday from Hamdi that, quote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," when she was citing the Youngstown case? Do you agree with that?

ALITO: Absolutely. That's a very important principle. Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances.

SPECTER: You made a speech at Pepperdine where you said, in commenting about the decision of the Supreme Court in Ex parte Milligan, that, quote, "the Constitution applies even in an extreme emergency." The government made a, quote, "broad and unwise argument that the Bill of Rights simply don't apply during wartime." Do you stand by that statement?

ALITO: I certainly do, Senator.

The Bill of Rights applies at all times. And it's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that's when there's the greatest temptation to depart from them.

***

ALITO: The Youngstown Steel case [] is certainly an example where President Truman thought that it was necessary to seize the steel mills so as not to interfere with the war effort in Korea, but the Supreme Court said that this was an overstepping of the bounds of executive authority.

There was a reference to United States v. Nixon, where the Supreme Court said that the president of the United States had to comply with a subpoena, with a grand jury subpoena, for documents. And they stood up for what they understood the law to mean, despite the fact that there must have been great pressure against them in another direction.

So when situations like that come up, it is the responsibility of the judiciary to hold fast.

***

FEINGOLD: How does a court decide whether to rely on the facts presented to it by the executive in a national security case?

ALITO: What I was doing in that talk at Pepperdine was framing that question. And it's a lot easier to frame the question and to ask students to think about it and give me their reactions than it is to answer it.

We've had examples of instance in which the judiciary in the past has had to confront this issue of reviewing factual presentations of the executive in times of national crisis. And there have been instances in which the judiciary has accepted -- and I'm thinking of the Japanese internment cases -- has accepted, which were one of the great constitutional tragedies that our country has experienced -- has accepted factual presentations by the political -- by the executive branch that turned out not to be true and from my reading of what went on were not believed to be true by some high-ranking executive officials at the time.

But there is the problem of judicial fact-finding, which I was talking about earlier, and the context of things that may be taking place on the battlefield, for example, or things that are taking place in wartime probably are more difficult for the judiciary to evaluate than other factual questions.

FEINGOLD: I do appreciate your reference in the Koramatsu to a case and the problem there and how this is going to become an even more serious issue.

***

GRAHAM: Who is better able to determine if an enemy combatant properly held has ongoing intelligence value to our country? Is it the military or a judge?

ALITO: On intelligence matters I would think that is an issue -- that is an area where the judiciary doesn't have expertise. But we do get into this issue I was discussing with Senator Feingold about the degree to which the balance between the judiciary's performing its function in cases involving individual rights and its desire not to intrude into areas where it lacks expertise, particularly in times of war and national crisis.

***

ALITO: The courts do not have expertise in foreign affairs or in military affairs. And they certainly should recognize that. And that is one powerful consideration in addressing legal issues that may come up in this context.

But there is the other powerful consideration that it is the responsibility of the courts to protect individual rights in cases that are properly before the court, cases where they have jurisdiction in one way or another, cases that are fit for judicial resolution.

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