![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
Alito, again
Jan. 6th, 2006 02:36 pmWith confirmation hearings starting Monday, it seems reasonable to spend a little more time talking about Sammy.
The more I see, the less I like.
Remember Doe v Groody, where he said searing persons not named in the warrant was just fine, since they were on the premises, and might be being used as hiding places for dope? Seems he went one better (though I don't have the case ready to hand, and said the police were perfectly within reason to search a woman and her kids when they were approaching a house they had a warrant for. They weren't named, they were just on their way to have dinner with a relative.
Fact of the matter is, Alito has almost never ruled against the police in a fourth amendment case. The few examples of his doing so are for truly egregious acts, where the cops admitted to acting in bad faith.
Think you have an expectation of privacy? Alito doesn't. In a case in the late 90's (I apologise for doing abstracts of these, but the source I got these details from Knight-Ridder doesn't seem to think I might want to know the actual names) he said a wiretap which went on for 18 months without a warrant was legit because it didn't use anything the informant wouldn't have been allowed to testify to.
Setting aside the prejudicial nature of the words being said by the accused, instead of an informant, the part which bothers me (and I'm not sure, without more facts how I feel about the wiretap... which is to say I don't know if a warrant would have been granted, but that if it had been I think I'd be all right with it), is Alito saying, "A person has no legitimate expectation of privacy in conversation with a person who consents to the recording of the conversations.".
No expectation of privacy if a second party consents, without the knowledge of the first party, to recording the conversation. Now me, if I don't give permission for something to be recorded, I expect it to not be recorded. I'm an opt-in kind of guy on that, not an opt-out. Certainly not one who thinks my rights to privacy are predicate on someone elses idea of what ought to be recorded.
But, then again, he doesn't think FISA really applies anyway, so who cares about expectations of privacy, you don't have any.
The Washington Post reports Supreme Court nominee Samuel A. Alito Jr. once argued that the nation's top law enforcement official deserves blanket protection from lawsuits when acting in the name of national security, even when those actions involve the illegal wiretapping of American citizens, documents released yesterday show.
As a lawyer in the Reagan Justice Department, Alito said the attorney general must be free to take steps to protect the country from threats such as terrorism and espionage without fear of personal liability. But in a 1984 memo involving a case that dated to the Nixon administration, Alito also cautioned his superiors that the time may not be right to make that argument and urged a more incremental approach.
"I do not question that the Attorney General should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."(emphasis added).
He doesn't question that the Att'y General has such immunity. Not a president in time of war (which is specious anyway) but the Att'y General, as a regular thing. Think about that. No need for warrants to tap anyone's phone. Where does he draw the line? Does he think that blanket immunity applies to e-mail, what about surface mail?
What's bothersome about this is that it is an immunity which would only apply in a search for which no warrant could be obtained. FISA has provisons for ex post facto granting of warrants, so for a warrantless wiretap to happen the case was either never brought to the FIS Court's attention (a breach of law) or they denied it. In which case some immunity might be in order, but not blanket. That, in my opinion, is an invitation to abuse.
In two different immigration cases (Dia v Ashcroft and Ki Se Lee v Ashcroft) he went contrary to settled law, drawing rebuke in the first case where his views were said to, "“guts the statutory standard” and “ignores our precedent.” in the latter it was said his opinion were om opposition to"well-recognized rules of statutory construction." Which means I, for one, am less then sanguine about his views on stare decisis
This is a man who decided the free exercise of religion could be curtailed, if a police department wanted to ban beards.
He thinks the president has the power to act as a legislator. Those clever little guides about how the law is to be implemented which Bush attached to the Spending bill, esp. in regards to torture, where he reserved his right to ignore the law... that's from an Alito memo when he was working for Reagan. Never mind that the Constitution doesn't have such a clause (and I, believer in a living document, not an original intent model of interpretatation, though I do think intent ought to color the shape of the interpretation. Things now are not as they were then). Congress makes laws, the president enforces them and the courts interpret them, by ajudicating conflicts. Thats the way it works, unless you're an Alito and think the office of the President isn't strong enough, as the Washington Post reported earlier this week (it might have been lost in the news that the Rose Parade was rained on).
"President Bush has been especially fond of them, issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon. Many of Bush's statements rejected provisions in bills that the White House regarded as interfering with its powers in national security, intelligence policy and law enforcement, Cooper wrote recently in the academic journal Presidential Studies Quarterly.
The Bush administration "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress," Cooper wrote in the September issue. "This tour d' force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all."
Bush may be acting without fanfare for a reason. As Alito noted in his memo, the statements "will not be warmly welcomed" on Capitol Hill.
"The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction," he wrote. "In addition, and perhaps most important, Congress is likely to resent the fact that the president will get in the last word on questions of interpretation.""(emphasis added)
I can see why Bush nominated him.
The more I see, the less I like.
Remember Doe v Groody, where he said searing persons not named in the warrant was just fine, since they were on the premises, and might be being used as hiding places for dope? Seems he went one better (though I don't have the case ready to hand, and said the police were perfectly within reason to search a woman and her kids when they were approaching a house they had a warrant for. They weren't named, they were just on their way to have dinner with a relative.
Fact of the matter is, Alito has almost never ruled against the police in a fourth amendment case. The few examples of his doing so are for truly egregious acts, where the cops admitted to acting in bad faith.
Think you have an expectation of privacy? Alito doesn't. In a case in the late 90's (I apologise for doing abstracts of these, but the source I got these details from Knight-Ridder doesn't seem to think I might want to know the actual names) he said a wiretap which went on for 18 months without a warrant was legit because it didn't use anything the informant wouldn't have been allowed to testify to.
Setting aside the prejudicial nature of the words being said by the accused, instead of an informant, the part which bothers me (and I'm not sure, without more facts how I feel about the wiretap... which is to say I don't know if a warrant would have been granted, but that if it had been I think I'd be all right with it), is Alito saying, "A person has no legitimate expectation of privacy in conversation with a person who consents to the recording of the conversations.".
No expectation of privacy if a second party consents, without the knowledge of the first party, to recording the conversation. Now me, if I don't give permission for something to be recorded, I expect it to not be recorded. I'm an opt-in kind of guy on that, not an opt-out. Certainly not one who thinks my rights to privacy are predicate on someone elses idea of what ought to be recorded.
But, then again, he doesn't think FISA really applies anyway, so who cares about expectations of privacy, you don't have any.
The Washington Post reports Supreme Court nominee Samuel A. Alito Jr. once argued that the nation's top law enforcement official deserves blanket protection from lawsuits when acting in the name of national security, even when those actions involve the illegal wiretapping of American citizens, documents released yesterday show.
As a lawyer in the Reagan Justice Department, Alito said the attorney general must be free to take steps to protect the country from threats such as terrorism and espionage without fear of personal liability. But in a 1984 memo involving a case that dated to the Nixon administration, Alito also cautioned his superiors that the time may not be right to make that argument and urged a more incremental approach.
"I do not question that the Attorney General should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."(emphasis added).
He doesn't question that the Att'y General has such immunity. Not a president in time of war (which is specious anyway) but the Att'y General, as a regular thing. Think about that. No need for warrants to tap anyone's phone. Where does he draw the line? Does he think that blanket immunity applies to e-mail, what about surface mail?
What's bothersome about this is that it is an immunity which would only apply in a search for which no warrant could be obtained. FISA has provisons for ex post facto granting of warrants, so for a warrantless wiretap to happen the case was either never brought to the FIS Court's attention (a breach of law) or they denied it. In which case some immunity might be in order, but not blanket. That, in my opinion, is an invitation to abuse.
In two different immigration cases (Dia v Ashcroft and Ki Se Lee v Ashcroft) he went contrary to settled law, drawing rebuke in the first case where his views were said to, "“guts the statutory standard” and “ignores our precedent.” in the latter it was said his opinion were om opposition to"well-recognized rules of statutory construction." Which means I, for one, am less then sanguine about his views on stare decisis
This is a man who decided the free exercise of religion could be curtailed, if a police department wanted to ban beards.
He thinks the president has the power to act as a legislator. Those clever little guides about how the law is to be implemented which Bush attached to the Spending bill, esp. in regards to torture, where he reserved his right to ignore the law... that's from an Alito memo when he was working for Reagan. Never mind that the Constitution doesn't have such a clause (and I, believer in a living document, not an original intent model of interpretatation, though I do think intent ought to color the shape of the interpretation. Things now are not as they were then). Congress makes laws, the president enforces them and the courts interpret them, by ajudicating conflicts. Thats the way it works, unless you're an Alito and think the office of the President isn't strong enough, as the Washington Post reported earlier this week (it might have been lost in the news that the Rose Parade was rained on).
"President Bush has been especially fond of them, issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon. Many of Bush's statements rejected provisions in bills that the White House regarded as interfering with its powers in national security, intelligence policy and law enforcement, Cooper wrote recently in the academic journal Presidential Studies Quarterly.
The Bush administration "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress," Cooper wrote in the September issue. "This tour d' force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all."
Bush may be acting without fanfare for a reason. As Alito noted in his memo, the statements "will not be warmly welcomed" on Capitol Hill.
"The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction," he wrote. "In addition, and perhaps most important, Congress is likely to resent the fact that the president will get in the last word on questions of interpretation.""(emphasis added)
I can see why Bush nominated him.
