SEN. PATRICK LEAHY: Three years ago, the Office of Legal Counsel at the Justice Department -- and you’re familiar with that; you worked there years ago -- they issued a legal opinion, which they kept very secret, in which they concluded that the President of the United States had the power to override domestic and international laws outlawing torture. So the President could override these laws outlawing torture. They tried to redefine torture, and they asserted, I quote, “that the President enjoys complete authority over the conduct of war,” close quote. And they went on further to say that if Congress passed criminal law prohibiting torture, quote, “in a manner that interferes with the President’s direction of such core matters as detention and interrogation of enemy combatants, that would be unconstitutional.”
They seem to say that the President could immunize -- immunize people from any prosecution if they violate our laws on torture. And that state is what was the legal basis in this administration, until somebody, apparently the Justice Department, leaked it to the press. It became public. Once it became public, with the obvious reaction of Republicans, Democrats, everybody saying, ‘This is outrageous. It's beyond the pale.’ The administration withdrew that as its position. The Attorney General even said in his confirmation that this no longer, no longer, represented Bush administration policy.
What is your view? And I ask this, because the memo has been withdrawn. It's not going to come before you. What is your view of the legal contention in that memo, that the President can override the laws and immunize illegal conduct?
JUDGE SAMUEL ALITO: Well, I think the first thing that has to be said is that -- is what I said yesterday. And that is that no person in this country is above the law, and that includes the President, and it includes the Supreme Court. Everybody has to follow the law. And that means the Constitution of the United States, and it means the laws that are enacted under the Constitution of the United States. Now, there can be -- there are questions that arise concerning executive powers. And those specific questions have to be resolved, I think, by looking to that framework that Justice Jackson set out, that I mentioned earlier.  | | Sen. Patrick Leahy (D - VT) |
SEN. PATRICK LEAHY: Well, let's go into one of those specifics. Do you believe the President has the constitutional authority as commander-in-chief to override laws enacted by Congress that immunize people under his command from prosecutions that they violate, these laws passed by Congress?
JUDGE SAMUEL ALITO: Well, if we were in -- if a question came up of that nature, then I think you’d be in -- where the President is exercising executive power in the face of a contrary expression of congressional will, through a statute or even an implicit expression of congressional will, you'd be in what Justice Jackson called the “twilight zone,” where the President's power is at its lowest point. And I think you'd have to look at the specifics of the situation. These are the gravest sort of constitutional questions that come up, and very often they don't make their way to the judiciary, or they're not resolved by the judiciary. They're resolved by the other branches of the government.
SEN. PATRICK LEAHY: But, Judge, I'm a little bit troubled by this, because you said yesterday, and I completely agreed with what you said, that no one's above the law, no one's beneath the law. You’re not above the law, I’m not, the President’s not. But are you saying that there are chances where the President not only could be above the law passed by Congress, but could immunize others, thus putting them above the law? I mean, listen to what I’m speaking to specifically. We passed a law outlawing certain conduct. The President has this Bybee memo, which has now been withdrawn, but saying -- but that won't apply to me or people that I authorize. Doesn't that place not only the President, but anybody he wants, above the law?
JUDGE SAMUEL ALITO: Senator, as I said, the President has to follow the Constitution and the laws. And, in fact, one of the most solemn responsibilities of the President, and it's set out expressly in the Constitution, is that the President is to take care that the laws are faithfully executed, and that means the Constitution, it means statutes, it means treaties, it means all of the laws of the United States. But what I'm saying is that sometimes issues of executive power arise, and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone. And they have to be decided when they come up, based on the specifics of the situation.
SEN. PATRICK LEAHY: Is that saying that there could be instances where the President could not only ignore the law, but authorize others to ignore the law?
JUDGE SAMUEL ALITO: Well, Senator, if you're in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics of --
SEN. PATRICK LEAHY: Let's assume there's not a question of the constitutionality enactment. Let's make an easy one. We pass a law saying it's against the law to murder somebody here in the United States. Could the President authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody, and escape prosecution, or immunize the person from prosecution, absent a presidential pardon?
JUDGE SAMUEL ALITO: Neither the President nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional. And I think you're in this area -- when you're in the third category, under Justice Jackson, that's the issue that you're grappling with.
SEN. PATRICK LEAHY: Why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture?
JUDGE SAMUEL ALITO: And Congress has done that. And it is certainly an expression of a very deep value of our country.
SEN. PATRICK LEAHY: And if the President were to authorize somebody or say they would immunize somebody from doing that, he wouldn't have that power, would he?
JUDGE SAMUEL ALITO: Well, Senator, I think the important points are that the President has to follow the Constitution and the laws. And it is up to Congress to exercise its legislative power. But as to specific issues that might come up, I really need to know the specifics. I need to know --
SEN. PATRICK LEAHY: Okay.
JUDGE SAMUEL ALITO: -- what was done, and why it was done and hear the arguments on the issue.
SEN. PATRICK LEAHY: Let's go to some specifics [inaudible] to mention FISA, in your role, where FISA, the Foreign Intelligence Surveillance Act. Certainly, you had to be involved with it, appropriately so, when you were a U.S. attorney. This came in after the abuses of the 1960s and 1970s. We had had President Nixon's enemies lists with breaking into doctors' offices and wiretapping of innocent Americans, and so on. After that, the Congress, in a strong bipartisan effort, passed the FISA legislation. We have that court that they can handle applications in secret for wiretaps or surveillance, if necessary for national security.
Now, we’ve just learned that the President has chosen to ignore the FISA law and the FISA court. He's issued secret orders. And according to the press and the President's own press conference, time after time after time, secret orders for domestically spying on American citizens without obtaining a warrant. Do you believe the President can circumvent the FISA law and bypass the FISA court to conduct warrant-less spying on Americans?
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Senators Question Alito on Past Statements and Rulings on Abortion, Presidential Power and the Role of the Judiciary
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