From the Senate Judiciary Committee's hearings on Judge Samuel Alito's nomination to the Supreme Court:
LEAHY: [Justice Thomas] argued the government's power could not be balanced away by the court and there is no occasion to balance the competing interests.
Which one is right, Justice O'Connor or Justice Thomas? They're quite a bit different.
ALITO: Justice O'Connor wrote the opinion of the court.
The first question that she addressed in Hamdi was whether it was lawful to detain Hamdi, and it was a statutory question, and it was a question whether it was -- whether he was being detained in violation of what is often referred to as the anti-detention statute, which was passed to prevent a repetition of the Japanese internment that occurred during World War II. And she concluded that the authorization for the use of military force constituted an authorization for detention.
And then she went on to the issue of the constitutional procedures that would have to be followed before someone could be detained. And she looked to standard procedural due process law in this area and identified some of the requirements that would have to be followed before someone could be detained.
And now issues have arisen about the identity of the tribunal that is to make a determination about detaining people who are taken into custody during the war on terrorism.
And that's one of the issues that's working its way through the court system.
LEAHY: Which decision do you personally agree with, hers or the dissent by Justice Thomas?
ALITO: I think that the war powers are divided between the executive branch and the Congress. I think that's a starting point to look at in this area.
The president is the commander in chief, and he has authority in the area of foreign affairs and is recognized in Supreme Court decisions as the sole organ in the country for conducting foreign affairs....
I certainly don't think that the president has a blank check in time of war. He does have the responsibility as the commander in chief, which is an awesome responsibility.
DURBIN: So when Hamdi draws that line and Justice O'Connor makes that statement about no blank check for a president in times of war when it comes to rights of American citizens and there's an dissent from Justice Thomas who argues unitary executive, scope of powers, more power to the president, you are coming down on the majority side and not on the Thomas side of that argument.
DURBIN: Is that fair to say?
ALITO: Well, I'm not coming down -- I don't recall that Justice Thomas uses the term of unitary executive in his dissent. It doesn't stick out in my mind that he did. If he did, he's using it there in a sense that's different from the sense in which I was using the term.
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