By Shenna Bellows,Special to the Sun Journal

A bipartisan group of Senate Intelligence Committee members recently called for a joint inquiry by the Senate Judiciary and Intelligence Committees into President Bush’s authorization of domestic electronic surveillance of U.S. citizens.

“Revelations that the U.S. government has conducted domestic electronic surveillance without express legal authority indeed warrants Congressional examination. I believe the Congress – as a coequal branch of government – must immediately and expeditiously review the use of this practice,” said Sen. Olympia Snowe, R-Maine, in explaining the need for a joint investigation.

Snowe and other Republicans deserve praise for putting partisanship aside and calling for an investigation into a secret decision allowing the National Security Agency to monitor the conversations of thousands of American citizens.

Their concerns about domestic surveillance should cause them to take a more critical look at the nomination of Judge Samuel Alito to the U.S. Supreme Court. A proponent of expansive executive power, Alito would likely uphold the Bush administration’s unilateral action to engage in warrantless electronic surveillance of U.S. citizens if these violations of the law were challenged in court.

The administration’s defense of this unprecedented wiretapping rests on a claim that the president has broad constitutional authority, as commander in chief, to authorize such monitoring without any judicial check, despite the law’s requirement that there be a judicial check on gathering people’s phone calls or e-mails in the name of foreign intelligence. There is strong evidence that Alito shares the president’s skewed view.

A study released by People for the American Way highlights two cases that underscore Alito’s philosophy on executive power:

As a senior political appointee in the Department of Justice’s Office of Legal Counsel, and later in remarks at Federalist Society events, Alito repeatedly endorsed giving broad scope to presidential power. At a Federalist Society symposium on administrative law in 2001, Alito endorsed the view – known as the “unitary executive” – that Congress lacks constitutional authority to put law enforcement power in administrative agencies that are not directly accountable to the president.

“When I was in OLC we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President. And I thought then, and I still think, that this theory best captures the meaning of the Constitution’s text and structure [T]he case for a unitary executive seems, if anything, stronger today than it was in the 18th Century.”

As a member of the Solicitor General’s Office, Alito argued that Cabinet officials who authorized illegal wiretaps of Americans to gather intelligence about possible terrorist activities were entitled to absolute immunity from liability. The Supreme Court rejected this claim in Mitchell v. Forsyth, ruling that such officials were entitled to qualified immunity.

Alito’s statements, speeches and judicial record establish that he supports an extremely broad interpretation of the president’s powers under the Constitution and of the powers of executive branch officers. This interpretation falls well outside the mainstream of public opinion and certainly calls into question Alito’s suitability for serving on the Supreme Court.

Americans who are concerned about abuses of presidential power should be deeply troubled by the Alito nomination. Sens. Susan Collins and Olympia Snowe should be deeply troubled by the Alito nomination. They should protect civil liberties and the Constitution and reject the nomination of Samuel Alito.

Shenna Bellows is the executive director of the Maine Civil Liberties Union.

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