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Date: January 10, 2006

Senator: Leahy

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 SPECTER: Senator Leahy?

LEAHY: Hello, Judge, and good morning.

ALITO: Good morning, Senator.

LEAHY: So glad you survived yesterday listening to us. Now we have a chance to listen to you.

I'll have further questions on the memo that Senator Specter spoke of, but it gets beyond theoretical.

LEAHY: I mean, the last few weeks, we've seen it well played out in the press, where the president and Senator John McCain negotiated rather publicly in a memo, which passed overwhelmingly in the House and the Senate, outlawing the use of torture by United States officers, yet the president, in his signing statement, implies that it will not apply to him or to those under his command as commander in chief.

Doesn't that get well beyond the theoretical issue there?

ALITO: It is. And I think I said, in answering the chairman that there are theoretical issues, but they have considerable practical importance.

But the theoretical issues really have to be explored and resolved. I don't believe the Supreme Court has done that up to this point.

I have not had occasion in my 15-plus years on the 3rd Circuit to come to grips with the question of what is the significance of a presidential signing statement in interpreting a statute.

LEAHY: Well, let me follow on sort of a related thing. The Supreme Court -- I feel one of the most important functions of the court is to stop our government from intruding into Americans' privacy or our freedom or our personal decisions.

In my state of Vermont, we value our privacy very, very much. I think most Americans do, automatically. And many times they have to go to the courts to make sure that a government doesn't -- whatever the government is, whatever administration it might be, that they don't overreach in going into that privacy.

LEAHY: Now, 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 it 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 people from any prosecution if they violated our laws on torture.

And that stated as what was the legal basis in this administration until somebody, apparently at the Justice Department, leaked it to the press. It became public.

Once it became public -- 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.

LEAHY: What is your view now? 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?

ALITO: Well, I think the first thing that has to be said 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.

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 and immunize people under his command from prosecutions that they violate, these laws passed by Congress?

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.

ALITO: 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 there 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.

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 am speaking to specifically. We pass a law outlawing certain conduct. The president, this Bybee memo -- which has now been withdrawn -- was 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?

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 am 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.

LEAHY: But is that saying that there could be instances where the president could not only ignore the law but authorize others to ignore the law?

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.

LEAHY: Let's assume there's not a question of the constitutionality of an enactment. Let's make it 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?

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.

LEAHY: But why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture?

ALITO: And Congress has done that, and it is certainly -- it is certainly an expression of the very deep value of our country.

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?

ALITO: Well, Senator, I think that the important points are that the president has to follow 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 what was done and why it was done and hear the arguments of the issue.

LEAHY: Let's go to some specifics. Senator Specter mentioned FISA. And you're well aware of 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 '60s and '70s. We had had the President Nixon's enemies list, with breaking into doctors' offices and wiretapping of innocent Americans and so on. And after that, the Congress, in a strong bipartisan effort, passed the FISA legislation. We had that court that they can handle applications in secret for wiretaps or surveillance if necessary for national security.

LEAHY: Now, we 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?

ALITO: The president has to comply with the Fourth Amendment and the president has to comply with the statutes that are passed.

This is an issue I was speaking about with Chairman Specter that I think is very likely to result in litigation in the federal courts. It could be in my court. It certainly could get to the Supreme Court. And there may be statutory issues involved: the meaning of the provision of FISA that you mentioned; the meaning, certainly, of the authorization for the use of military force. And those would have to be resolved.

And in order to resolve them, I would have to know the arguments that are made by the contending parties. On what basis is it claimed that there's a violation? On what basis would the president claim that what occurred fell within the authorization for the use of military force?

And then, if you got beyond that, there could be constitutional questions about the Fourth Amendment, whether it was a violation of the Fourth Amendment, whether it was a valid exercise of executive power.

LEAHY: But wouldn't the burden be on the government to prove that it wasn't a violation of Fourth Amendment if you're spying on Americans without a warrant? Especially when you have courts set up -- in this case, the FISA Court, which sets up a very easy procedure to get the warrant -- wouldn't the burden be on the government in that case?

ALITO: Well, Senator, I think in the first instance, the government would have to come forward with its theory as to why the actions that were taken were lawful. I think that's correct.

LEAHY: Let me ask you another.

How does anybody even -- you talk about this may come before the 3rd Circuit or come before the Supreme Court, and I'll accept that. But how does somebody even get there? If you're having illegal secret spying on a person, how are they even going to know? Where are they going to get the standing to sue?

ALITO: Certainly if someone is the subject of a search, and they claim that the search violates a statute or it violates the Constitution, then they would have standing to sue. And they could sue in any court -- in the federal court that had jurisdiction.

LEAHY: Well, and I'm not asking these as hypothetical questions, Judge. People are getting very concerned about this.

We just found out -- again, not because the government told us, but because the press found out about it. And thank God that we do have a free press, because so much of the stuff that is supposed to be reported to Congress never is, and we, of course, hear about it when it's in the press.

But we found out that the Department of Defense was going around -- this makes me think of COINTELPRO during the Vietnam War.

LEAHY: They're going around the war, photographing and spying on people who are protesting the war in Iraq. They went, according to the press, and spied on Quakers in Vermont.

Now, I don't know why they spent all that money to do that. If they wanted to find a Vermonter protesting the war, turn on C-SPAN. I do it on the Senate floor all the time.

But I know some of these Quakers. I mean, in the Quaker tradition, they have been protesting war throughout this country's history.

Now, I worry about this culture we're getting. And I just want to make sure the courts -- the Congress is not going to stand up and say no. And the administration certainly is authorizing this. I want to make sure that the courts -- that the courts are going to say, "We'll respect your privacy. We'll respect your Fourth Amendment rights."

You know, if you ask somebody who's been spied on -- more on the spying -- would you agree -- and I think you did, but I want to make sure I am right on this -- do you agree they should have a day in court?

ALITO: Certainly. If someone has been the subject of illegal law enforcement activities, they should have a day in court.

And that's what the courts are there for, to protect the rights of individuals against the government or anyone else who violates their rights.

And they have to be absolutely independent and treat everybody equally.

LEAHY: And those Fourth Amendment rights are pretty significant, are they not?

ALITO: They are very significant.

LEAHY: I think they set us apart from most other countries in the world, to our betterment. And you were a prosecutor. I was a prosecutor. I think we could agree even in our past professions, it protects us.

ALITO: I agree, Senator. I tried to follow what the Fourth Amendment required when I was a prosecutor, and I regarded it as very important.

LEAHY: Well, let me go back to the last time we saw government excesses like this before FISA. When you worked in the Reagan administration, you argued to the Supreme Court that President Nixon's attorney general should have absolute immunity for domestic spying without a warrant given a case of willful misconduct.

In your memo, you said, "I do not question that the attorney general should have the immunity but, for tactical reasons, I would not raise the issue here."

Do you believe today that the attorney general would be absolutely immune from civil liability for authorizing warrantless wiretaps?

ALITO: No, he would not. That was settled in that case. The Supreme Court held that the attorney general does not have...

LEAHY: But you did believe that then?

ALITO: Actually, I recommended that that argument not be made. It was made, and I think it's important to understand the context of that. First of all...

LEAHY: You did say in the memo, "I do not question that the attorney general should have this immunity."

ALITO: That's correct. And the background of that, if I could just explain...

LEAHY: Sure.

ALITO: ... very briefly, is that there we were not just representing the government. We were representing former Attorney General Mitchell in his individual capacity. He was being sued for damages, and we were in a sense acting as his private attorney.

And this was an argument that he wanted to make. This was an argument that had been made several times previously by the Department of Justice, during the Carter administration, and then just a couple of years earlier in Harlow v. Fitzgerald in the Reagan administration.

And I said I didn't think it was a good idea to make the argument in this case, but I didn't dispute that it was an argument that was there.

LEAHY: You don't have any question that the judiciary has a role to play here and there can be judicial checks on such things?

ALITO: No, absolutely, it is the job of the judiciary to enforce the Constitution.

LEAHY: Let's go on to a couple search cases. And I think we've indicated to you we'd bring these up. Doe v. Groody, Baker v. Monroe Township, those are unauthorized searches.

In Doe, the police officer had a warrant for a man at a certain address. When they arrived, they found his wife and 10-year-old daughter. They were not in the warrant. They posed no threat. But the officers detained them and strip-searched them, wife and the 10- year-old -- the 10-year-old girl.

Baker, a mother and three teenage children were detained and searched when they arrived at the home of the mother's adult son. They didn't live there. They weren't in the home. They were outside. hthey didn't pose a threat to the police, but they were ordered at gun point to lie on the ground, they were handcuffed, they were taken into the house and they were searched.

LEAHY: Doe, the strip search case of a 10-year-old girl, the officers didn't ask for permission to search anybody beyond the man they were looking for. In fact, the magistrate didn't give search warrant for anybody else.

But you went beyond that. You said that they were justified in strip-searching this 10-year-old and the mother. You went beyond the four corners of the search warrant the magistrate gave.

And one of your members of the 3rd Circuit, Judge Chertoff, who is now the head of Homeland Security and a former prosecutor, criticized your reasoning. He said that it would allow it to come dangerously close to displacing the critical role of the independent magistrate.

Do you continue to hold the position you took in your opinion, or do you now agree with the majority? They're right and you're wrong?

ALITO: Well, Senator, I haven't had occasion to think that what I said in that case was correct. But let me just explain what was going on there.

LEAHY: Certainly.

ALITO: The issue there was whether -- the first issue was whether the warrant authorized the search of people who were on the premises, and that was the disagreement between me and the majority. And it was a rather technical issue about whether the affidavit that was submitted by the police officers was properly incorporated into the warrant for the purposes of saying who could be searched.

ALITO: And I thought that it was. And I thought that it was quite clear that the magistrate had authorized a search for people who were on the premises. That was the point of disagreement.

I was not pleased that a young girl was searched in that case, and I said so in my opinion. That was an undesirable thing. But the issue wasn't whether there should be some sort of rule of Fourth Amendment law that a minor can never be searched. And I think if we were to...

LEAHY: But we both agree on that, Judge.

The only reason I bring up these two cases, it seems in both of them you went beyond the four corners of the search warrant, and you settled all issues in a light most favorable -- the majority in the opinion didn't, but you did -- in a light most favorable to law enforcement. In fact, in Baker, the majority said that.

And I worry about this, because I always worry that the courts must be there to protect individuals against an overreaching government. In this case, your position in the minority was that you protected what the majority felt was an overreaching government.

Am I putting too strong analysis on that?

ALITO: I do think you are, Senator.

LEAHY: OK.

ALITO: I think you need to take into account what was going on here.

The police officers prepared an affidavit. And they said, "We have probable cause to believe that this drug dealer hides drugs on people who are on the premises. And therefore, when we search, we want authorization not just to search him but to search everybody who's found on the premises, because we have reason to believe he hides drugs there."

ALITO: And the magistrate who issued the warrant said that the affidavit was incorporated into the warrant for the purpose of establishing probable cause.

And we're supposed to read warrants in a common-sense fashion because they're prepared by police officers for the most part, not by lawyers, and they're often prepared under a lot of time pressure. And it seemed to me that reading this in a common-sense fashion, what the magistrate intended to do was to say, "Yes, you have authorization to do what you asked us to do."

But even beyond that, the issue there was whether these police officers could be sued for damages. And they couldn't be sued for damages if a reasonable officer could have believed that that's what the magistrate intended to authorize. And I thought that surely a reasonable officer could view it that way.

Now, Judge Chertoff looked at it differently. And there are cases where reasonable people disagree. And that's all that was going on.

LEAHY: I know. You look at reasonable things -- I spent eight years in law enforcement. I don't know where any reasonable officer under those circumstances would feel they could strip-search a 10- year-old girl.

Let me go into another area. It's one that touched me in your statement yesterday.

You spoke eloquently of your father's experience, when he came to this country. The reason it touched me -- I was thinking, my maternal grandparents emigrated to America to Vermont speaking only Italian, coming from Italy to a new country.

LEAHY: And I know some of the problems they faced, these people speaking their strange language; my mother, as a child, learning English when she went to school -- "Why don't they speak like us? Why are they different than us?" -- and some of the obstacles that they faced.

And my father's case, my paternal grandfather, whom I never knew, named Patrick Leahy, died as a stonecutter in Very (ph), Vermont. My father was a young teen and had to go to work to support his mother, my grandmother, whom I also never knew. And the signs then were "No Irish need apply," or, "No Catholics need apply."

And I think you and I would be in total agreement that we're now in a different world, at least most of our country. And that we're better -- we're better people because we've done away with that.

We both understand, I think, in our core, I would hope, what happens if you have either ethnic prejudice or religious prejudice. In my case, my father, a self-taught historian, but he never was able to finish high school. I was the first Leahy to get a college degree; my sister the next one.

So with that in mind, there was something in your background that I was very troubled with. That's the Concerned Alumni of Princeton University, CAP.

LEAHY: This is a group that received attention because it was put together but it resisted the admission of women and minorities to Princeton. They were hostile to what they felt where people that did not fit Princeton's traditional mold: women and minorities.

Now, two prominent Princetonians -- one, Bill Frist, who is now the majority leader of the United States Senate -- in a committee roundly criticized CAP; Bill Bradley, who had joined it and then found out what it was, left it and roundly criticized it.

And yet you proudly, in 1985, well after -- well after the criticisms of this -- in your job application proudly put that you were a member of it, a member of Concerned Alumni of Princeton University, a conservative alumni group.

Why in heaven's name, Judge, with your background and what your father faced, why in heaven's name were you proud of being part of CAP?

ALITO: Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization.

ALITO: But since I put it down on that statement, then I certainly must have been a member at that time.

But if I had been actively involved in the organization in any way, if I had attended meetings, or been actively involved in any way, I would certainly remember that, and I don't.

And I have tried to think of what might have caused me to sign up for membership. And if I did, it must have been around that time.

And the issue that had rankled me about Princeton for some time was the issue of ROTC. I was in ROTC when I was at Princeton, and the unit was expelled from the campus, and I thought that was very wrong. I had a lot of friends who were against the war in Vietnam, and I respected their opinions, but I didn't think that it was right to oppose the military for that reason.

And the issue -- although the Army unit was eventually brought back, the Navy and the Air Force units did not come back, and the issue kept coming up. And there were people who were strongly opposed to having any unit on campus.

And the attitude seemed to be that the military was the bad institution, and that Princeton was too good for the military, and that Princeton would somehow be sullied if people in uniform were walking around the campus, that the courses didn't merit getting credit, that the instructors shouldn't be viewed as part of the faculty.

And that was the issue that bothered me about that.

LEAHY: But, Judge, with all due respect, CAP was most noted for the fact that they were worried that too many women and too many minorities were going to Princeton.

In 1985, when everybody knew that's what they stood for, when a prominent Republican like Bill Frist and a prominent Democrat like Bill Bradley both had condemned it, you, in your job application, proudly stated this as one of your credentials.

Now, you strike me as a very cautious and careful person. And I say that with admiration, because a judge should be. But I can't believe that at 35, when you're applying for a job, that you're going to be anything less than careful in putting together such a job application.

LEAHY: And, frankly, I don't know why that was a matter of pride for you at that time.

My time is up. We'll come back to this. I have other questions.

ALITO: Well, Senator, as you said, from what I now know about the group, it seemed to be dedicated to the idea of bringing back the Princeton that existed at a prior point in time. And as you said, somebody from my background would not have been comfortable in an institution like that, and that certainly was not any part of my thinking in whatever I did in relation to this group.

LEAHY: Or my background either, Judge -- or my background either.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Leahy.

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