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The Nov. 7 U.S. Supreme Court grant of certiorari in Hamdan v. Rumsfeld could profoundly affect executive power, national security and civil liberty as well as influence the Supreme Court confirmation process for 3d U.S. Circuit Court of Appeals Judge Samuel Alito. A three-judge panel of the U.S. Circuit Court for the District of Columbia, which included then-Judge John G. Roberts Jr., reversed a district court’s judgment to suspend a military tribunal trial partly because Congress had not authorized the tribunal-which President George W. Bush premised on unilateral executive power. The Oct. 31 nomination of Alito, the investiture of Roberts as chief justice and the Nov. 7 high court decision to review Hamdan-which involves executive authority, national security and civil liberty-mean that senators must carefully analyze Alito’s views on executive power, security and liberty when discharging their advice-and-consent responsibilities. A significant case The importance of the Supreme Court’s certiorari grant is difficult to overstate. First, the U.S. government has vigorously litigated Hamdan and other suits that implicate enemy combatants and that are now, or will soon be, on appeal to the high court. In all of the cases, the government argues for a strikingly broad interpretation of executive power that overemphasizes national security at the expense of civil liberty. The Supreme Court, thus, will clearly address issues relating to executive authority, security and liberty when it resolves Hamdan, and should the justices accept any of the other appeals. The Nov. 15 controversial Graham-Levin compromise amendment to the Department of Defense Authorization Act could “moot Hamdan,” by authorizing federal court habeas corpus review only after military tribunal proceedings have concluded, although both houses might not pass the amendment. Second, those phenomena could significantly elevate the stakes in Alito’s confirmation process, especially because Roberts recused himself from the certiorari decision on the Hamdan appeal. For instance, Justice Sandra Day O’Connor, who announced her resignation on July 1, authored the plurality determination in Hamdi v. Rumsfeld, which required that individuals who are designated enemy combatants receive due process. Therefore, Alito’s views on the Hamdan litigation may accord him the swing vote. Third, should Alito join with four justices and subscribe to the government’s contentions, that Supreme Court decision could severely restrict detainees’ ability to challenge incarceration and any charges brought against them in military tribunals. The high court would do so partly by circumscribing the procedural opportunities that detainees receive to show that the individuals were incorrectly designated enemy combatants or improperly charged before tribunals. The justices might even relegate the habeas petitioners to imprisonment until the ongoing conflict ends at some indeterminate future time. Concerns about Judge Alito When senators evaluate Alito, they should keep in mind several factors. Some observers assert that Alito’s nomination exacerbates their concerns about how the justices will strike the delicate balances, which involve separation of powers among the three federal branches as well as between national security and civil liberty. They believe that Alito, perhaps even more than Roberts, who also labored for years in the executive branch, will be overly solicitous of executive prerogatives and national security. For instance, Senator Edward Kennedy, D-Mass., voiced “concerns about whether he would be unduly deferential to the president” at Congress’ expense, while arguing that the extent to which the court “will enforce legal limits on presidential power,” especially in international and military affairs, would be a critical future issue. Professor Cass Sunstein, a University of Chicago constitutional law expert, asserted that Alito shares Justice Antonin Scalia’s view, which “suggests that he has quite a broad understanding of presidential powers.” Others have criticized Alito for being insufficiently solicitous of civil rights in related contexts, such as employment discrimination. As the confirmation process for Alito proceeds, senators must be aware of the critical Hamdan opinion and other significant lower court determinations that implicate executive power, national security and civil liberty that will come before the Supreme Court in the October 2005 term. These cases should prompt senators to scrutinize carefully the nominee’s views on constitutional precedent, executive authority and the tension between security and liberty when they consider his confirmation. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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