San Diego Union Tribune: Questions for Alito

UNION-TRIBUNE EDITORIAL

Questions for Alito

Hearings must focus on presidential power

December 21, 2005

(snip)


The president's critics, however, say he has put himself above the law. They cite administration lawyers who more or less argue that during wartime a president has the power to disregard laws and treaties he considers inconvenient – without the usual constitutional checks and balances. Especially given the administration's resistance to congressional and judicial oversight, the critics have a plausible case.

This is why it is so crucial that senators press Alito for his views on the legal questions raised by the president's aggressive attempts to redefine and increase his powers. A good starting point would be the case of Yaser Esam Hamdi, the U.S. citizen of Saudi descent detained for three years as an "enemy combatant" after being caught fighting against U.S. forces in Afghanistan.

On an 8-1 vote last year, the Supreme Court ruled against the Bush administration in holding that as an American citizen, Hamdi should be allowed to go to court to contest his indefinite detention. Justice Sandra Day O'Connor wrote that a "state of war is not a blank check for the president." But her controlling opinion held out the possibility that a court might uphold Hamdi's indefinite detention, accepting administration arguments that as someone "carrying a weapon against American troops on a foreign battlefield," Hamdi was an "enemy combatant" with few legal rights. Rather than let Hamdi challenge his indefinite detention – because it feared what a judge might rule – the administration released him on condition that he renounce his U.S. citizenship and leave the country.

Plainly, there is still much to be resolved here. This is why it is urgent that Alito weigh in on the combatant question. We're particularly interested in his view of the Pentagon's proposal to reject O'Connor's definition in favor of a standard by which anyone anywhere in the world deemed to support Taliban or al-Qaeda or its associates can be called an "enemy combatant" and imprisoned for life – without a court hearing. Frankly, this seems more worthy of Josef Stalin's Soviet Union than the United States of America.

Balancing individual freedoms and national security has always been a daunting task, and now it is tougher than ever. This is why senators shouldn't just try to get Judge Alito to discuss how he would wrestle with this task. They should insist on it.


Find this article at:
http://www.signonsandiego.com/uniontrib/20051221/news_lz1ed21top.html