Alito and the Slippery Slope to Totalitarianism
For the past five years, the current Administration has been stretching the concept of Executive Privilege to the limit. They assert the power of the President and his advisors to do what they want, free from Congressional, judicial or public oversight, so long as they (no one else) believe it is necessary to do so. The last President to rely so heavily on assertions of Executive Privilege was Richard Nixon, who used it in efforts to keep the Pentagon Papers (revealing the misrepresentations that led to the Vietnam War) and the Watergate Tapes (disclosing his administration’s complicity in Watergate) from being given to the public or to prosecutors. Back then, the Supreme Court properly put limits on Executive Privilege and allowed both the Pentagon Papers and the Watergate Tapes to be released.
Bush and Cheney have claimed Executive Privilege to deny Freedom of Information Act requests by citizens and Congress. They have used it to conceal the agenda of, and even the identities of the participants in, Cheney’s Energy Task Force (although we do know, from a leak, that those energy company executives were looking at a map of Iraq’s oilfields as part of planning America’s energy strategy – before 9/11!). Various officials have cited Executive Privilege to stymie prosecutors’ and Congress’ efforts to unravel the Administration's leak of the name of Valerie Plame, a formerly-covert CIA operative – a crime that not only stopped Ms. Plame from doing her important work (she broke up international WMD-smuggling rings), but also revealed the true identities of dozens of other American agents and foreign spies who were working with her, making them useless as well (and making America less safe).
Most recently, the President has admitted authorizing espionage on American citizens located here in the U.S. without a warrant, which is a crime under the Foreign Intelligence Surveillance Act (“FISA”). He claims it was his privilege to do so.
The question is not whether such spying sometimes needs to be done, or done quickly. FISA already gave law enforcement and intelligence agencies remarkable power. It set up a special court solely to review requests for search warrants in spy cases. Its judges’ identities are kept secret, and its offices are located literally down the hall from the Attorney General. When intelligence agencies need a search warrant to spy on a possible terrorist, all they need to do is walk down the hall and ask for it. The warrant can be issued in minutes. In 2004, the government asked the FISA judges for secret surveillance search warrants 1758 times; none were denied. Since FISA went into effect in 1979, over 19,000 requests for search warrants have been made; only five of those requests were denied.
So: the government is constitutionally and legally obligated to obtain a search warrant before conducting surveillance inside the U.S., it can obtain such a warrant merely by walking down the hall and asking for it, and the warrant will be issued, no questions asked, 99.97% of the time. In fact, in emergencies where there isn’t even time to walk down the hall, FISA even allows the government to do domestic surveillance without a warrant, as long as it asks for the warrant within a reasonable time after the surveillance starts. So even the “Jack Bauer”-type scenario – where a federal agent sees the bad guy’s car and has thirty seconds to slip a handy bug inside before it drives away or else Los Angeles will be blown up – is permitted by FISA.
Yet the President now admits that, over thirty times, he has authorized U.S. intelligence agencies to ignore FISA and do domestic surveillance without getting a warrant either beforehand or afterward. Under FISA, that is a crime, and a serious crime, because the Constitution bars government surveillance of citizens without a warrant. Period. It’s beyond partisan; it implicates fundamental American values – specifically, the right of Americans to be free in their persons and property from unreasonable governmental searches and surveillance under the Fourth Amendment.
Bear with me; I promise I’m getting to the Alito connection.
The President’s supporters are claiming that the President gained the power to order warrantless surveillance on September 14, 2001, when the Senate passed a resolution authorizing the President to go to war against the people responsible for 9/11. That resolution permitted the President "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided" the Sept. 11 attack.
The President is claiming that “all necessary and appropriate force” includes the authority to spy on American citizens inside our own borders. Undercutting that argument is a new revelation by former Senate Majority Leader Tom Daschle, who has disclosed that minutes before the Senate voted, the White House tried to add new language allowing domestic operations. That language would have given the President authority to use "all necessary and appropriate force in the United States and against those nations, organizations and persons" responsible for the attacks.
With the requested language, the President arguably would have had authority to use military and intelligence forces against people both inside and outside the United States, without warrants or due process of law. But the Senate rejected the effort to add “in the United States and” to the resolution, and as passed, the resolution only gave the President authority to wage war overseas. Domestically, the President remained obligated to abide by the laws and Constitution of the United States. Which wasn’t exactly onerous, because, again, to do domestic surveillance, all his lawyers need to do is walk down the hall and ask a secret judge, who will rubber-stamp a warrant within minutes.
The Presidentially-authorized domestic wiretaps will eventually be brought before the Supreme Court, which will be asked to interpret both FISA and the September 14 resolution in deciding whether the President acted illegally. Normally, in interpreting statutes, courts look both at the precise words of the statute and also try to decipher what Congress’ intent was when it passed the statute. Congress’ intent here was clear: it intended to authorize the President to exercise “necessary and appropriate force” overseas, but to comply with the (still-easy) requirements of FISA here at home, to protect our citizens’ rights. To any first-year law student, it’s a no-brainer: the President did wrong. The legal issue is so clear under current law that one of the FISA secret judges -- a man who has worked "undercover" and authorized thousands of surveillance search warrants and may have denied none -- has resigned in protest of the President's actions.
But what if – what if – some judicial activist decided to change the rules, and look, not at what Congress’ intent in passing legislation was, but at the President’s intent in proposing and/or signing that legislation? In that case, the President could simply state what his subjective intent was: “I intended it to mean such-and-such.” The intent of Congress is reflected in committee reports, conference reports, and interminable floor speeches; there’s lot of contemporaneous information about what various representatives thought. But the President doesn't generate that kind of legislative history. He doesn’t need to discuss his thoughts with anyone, let alone write them down, and if he does discuss them with people, he can keep those discussions secret by invoking Executive Privilege. The only evidence of what the President was thinking is what he says he was thinking – and, as we all know, a politician’s explanation of his actions seldom reflect his true motives.
If the Supreme Court adopted a “Presidential intent” rather than a “Congressional intent” approach in the upcoming domestic surveillance cases, the President could say simply that he intended the September 14 resolution to include the power to do domestic surveillance regardless of what the Congress thought, and the Court, which would have no legally-admissible reason not to take him at his word, would rule such surveillance lawful.
This legal argument -- Alito's legal argument -- eventually cuts Congress out of the picture entirely, and allows the Executive Branch to spy, or even use military forces against, American citizens on American soil without restraint. And that, as all historians know, is how democracies end: a threat arises; a panicked population and parliament or congress cede power to the executive, and the executive never gives it back.
Thanks for being patient. Here, finally, is the Alito connection:
Yesterday, the White House released two memos written by Judge Alito in the 1980s, when he worked for the Justice Department. In one, Judge Alito argued that the attorney general should be immune from lawsuits when he illegally wiretaps Americans. Recognizing that this proposal would be anathema to all right-thinking judges, Alito also advocated an incremental –read "sneaky" – approach to establishing the principle that government actors are immune when they invade Americans’ civil rights. Each case would move only a little way in that direction, he argued, but we'd get there eventually. (Judge Alito has argued for a similar approach to overturning Roe v. Wade, as I’ve noted before; scroll to the bottom of the post under “SUPPLEMENT, NOV. 30, 2005".)
Luckily, the Rehnquist Court flatly rejected Judge Alito's view of the law, holding in 1985 that the immunity Alito advocated would be an invitation to deny people their constitutional rights.
In the second memo released yesterday, Judge Alito proposed incrementally shifting court’s analysis of statutes from “Congress’ intent” to “the President’s intent” by having the President issue a "signing statement" about what the law means whenever he signed a bill into law. Again, he was trying to incrementally – again, read “sneakily” – undercut bedrock principles of American jurisprudence and give increased power to the President.
Alito’s preference for looking at Presidential rather than Congressional intent is especially salient because, as I posted yesterday, it is the agreement between the branches that makes it proper for Presidents to be subject to the laws: Congress writes bills, Presidents sign them into law, and the joint nature of that exercise deprives the President of the right to say that he is immune from having to follow them. If Alito has his way, the President will have grounds to argue – as Bush is arguing now without justification – that he is not obligated to honor any legal restraints placed on him.
Under legal principles that have been in place at least since Blackstone wrote his Commentaries ten years before the American Revolution, the President acted illegally and must stop spying on American citizens without obtaining a FISA warrant (which, again, are available on short notice and are issued 99.97% of the time). But under Alito’s theories, which are new and therefore constitute judicial activism, warrantless searches would be legal as long as the President said they were legal, and even if they weren’t, the President and his men would be legally immune from any consequences. To any student of history, to any true patriot, that’s very, very scary.
Stalin was allowed to spy on Russian citizens without any court or parliament exercising oversight. Hitler was allowed to spy on German citizens without any court or parliament exercising oversight. But we are America, and we are better than that. We believe in checks and balances; that’s the brilliance of the Constitution the Founders were inspired to create, one in which the President cannot become a dictator. But if Samuel Alito is confirmed to the Supreme Court, and if his views are adopted by his ideological colleagues Scalia, Thomas, Kennedy, and Roberts, then the America we knew will be lost.
And, under Alito's "incremental change" strategy, we won't even notice our democracy slipping away until it's too late. Whatever his goal is -- criminalizing abortion, granting immunity to government officials who violate Americans' civil rights, allowing Presidents to exercise whatever powers they feel they need to exercise -- Alito consistenly recommends an "incremental change" strategy to keep people from protesting. It's like the adage about boiling a frog: toss a frog into boiling water and he'll jump right out; put him in cold water and slowly increase the heat, and he won't notice until it's too late. Alito would move our democracy little by little toward the hell of totalitarianism, and we wouldn't recognize we were being nudged that way until, someday in the future, we noticed the flames and wondered how we got there. Every democracy in history has eventually walked, incrementally and willingly, out of fear, from democracy to totalitarianism. This is what it looks like, and true patriots should do what they can to stop it now.
There’s a link on the left to the U.S. Senate’s webpage. There, you can look up your Senators’ phone numbers and addresses. Please, call and beg them not to confirm Judge Alito. Our democracy – no kidding – may be hanging in the balance.