Yesterday's quote of the day, where he admits to dodging questions from Senators:
ALITO: “It’s what we call in law school the slippery slope and if you start answering the easy questions you are going to be sliding down the ski run into the hard questions, and that’s what I’m not so happy to do.”
An exchange between Feingold and Alito, in which Alito will not substantively answer questions about the limits of executive authority:
SEN. FEINGOLD: There's already been a lot of discussion of this topic today, but I'd like to be sure I understand your opinion about whether the president as commander in chief can ignore or disobey an express prohibition that Congress has passed. The torture statute is one example, but obviously, I could imagine a variety of others aswell, as I'm sure you could. So here's the question: what are the limits, if any, on the president's power to do what he thinks is necessary to protect national security regardless of what laws Congress passes?And later in yesterday's questioning, where Alito says he didn't actually personally believe what he wrote under his name:
JUDGE ALITO: Well, when you say "regardless of what laws Congress passes," I
think that puts us in that third category that Justice Jackson outlined, the
Twilight Zone, where, according to Justice Jackson, the president has whatever
constitutional powers he has under -- he possesses under Article 2 minus what is
taken away by whatever Congress has done by an implicit expression of opposition
or the enactment of a statute. And to go beyond that point, I think we need to know the specifics of the case. We need to know the constitutional power that the president -- the type of executive power the president is asserting and the situation in which it's being asserted and exactly what Congress has done.
SEN. FEINGOLD: So let's take a more concrete example. Does the president, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?
JUDGE ALITO: That's the issue that's been framed by the developments that have
been in the news over the past few weeks. And as I understand the situation, it can involve statutory questions, the interpretation of FISA and the provision of FISA that says that no wiretapping may be done except as authorized by FISA or otherwise authorized by law, and the meaning of the authorization for the use of military force, and then constitutional questions. And those would be-- those are issues, as I said this morning, that may well result in litigation. They could -- they could come before me on the Court of Appeals for the 3rd Circuit. They certainly could come before the Supreme Court. And before -- those are weighty issues involving two of the most important considerations that can arise in constitutional law -- the protection of the country and the protection of people's fundamental rights. And I would have to know the specifics and the arguments that were made.
SEN. FEINGOLD: They are indeed important questions, and that's why it's so important for me to try to figure out where you would be heading on this kind of an issue.
SEN. FEINGOLD: But when you're at the Solicitor General's office, you wrote this memo about the case, saying, quote, "I do not question that the attorney general should have this immunity, quote, 'for authorizing warrantless wiretap.'" Why did you not question the attorney general's absolute immunity?Stay tuned! Feingold goes live next at www.cspan.org!
JUDGE ALITO: First of all, because it was a position that our client, whom we represented in an individual capacity -- and it was his money that was at stake here -- wanted to make. So we had an obligation that was somewhat akin to the obligation of a private attorney representing a client.
Secondly, it was an argument to which the department was committed. It had been made in Kissinger versus Halperin in the Carter administration. It was repeated in
Harlow versus Fitzgerald in the Reagan administration. In Harlow versus Fitzgerald, the Supreme Court, while rejecting the idea that Cabinet officers in general should have absolute immunity from civil damages, had said something like -- and I'm not going to be able to provide an exact quote -- but something, like, but the situation could well be different for people who are involved in sensitive national security matters and foreign matters.
SEN. FEINGOLD: Okay, Judge. But you said in your memo that, quote, "I do not question the attorney general's absolute immunity."You did not say it is the -- quote, "it is the position of our office," or as you were just saying, this administration has argued this in the past. You, in effect, injected yourself into the statement. Clearly, you were expressing your personal opinion on this legal issue, were you not?
JUDGE ALITO: Senator, I actually don't think I was expressing a personal opinion. I was saying that in my capacity as the writer of this memo who was recommending that the argument not be made -- even though it was one that our client wanted to have made -- I wasn'tdisputing the general argument to which the department was committed. But I thought that we should take a different approach, that we should just argue the issue of appealability. But that was not the approach that was taken.
Call Feingold and show your support for his tough questioning and encourage him to STOP ALITO!