January 10, 2006

Alito: ‘No one is above the law’

By Thomas Ferraro

WASHINGTON (Reuters) - U.S. Supreme Court nominee Samuel
Alito said on Tuesday that President George W. Bush does not
have a blank check to wage war but offered no opinion on the
legality of his anti-terror domestic spying program now
awaiting U.S. congressional scrutiny.

Alito, who opposed abortion as a Reagan administration
official two decades ago, also testified that the Constitution
protects the right to privacy, a key underpinning of the 1973
Supreme Court decision that legalized abortion. Alito said if
confirmed to the high court, he would treat abortion cases with
an "open mind."

In the first round of questioning at his Senate
confirmation hearing, Bush's 55-year-old conservative nominee
to the Supreme Court said judges must respect legal precedent
and that "no one is above the law."

"When someone becomes a judge, you really have to put aside
the things that you did as a lawyer at prior points in your
legal career and think about legal issues the way a judge
thinks about legal issues," testified Alito, a federal appeals
judge the past 15 years who earlier served as a U.S. prosecutor
and Reagan administration lawyer.

Bush has nominated Alito to replace retiring Justice Sandra
Day O'Connor, a moderate conservative who has often been the
swing vote on the nine-member court on such issues as civil and
abortion rights and presidential powers.

Confirmation of the more conservative Alito, Bush's second
nomination to the high court, could push it to the right for
years to come.


Chairman Arlen Specter, a moderate Pennsylvania Republican,
began what was expected to be at least two days of questioning
of Alito by asking him about abortion and the administration's
recently disclosed program of eavesdropping, without court
warrants, on Americans with suspected terrorist ties.

Specter, who plans to hold a hearing on the domestic spying
program next month, asked Alito if he agreed with a statement
by Justice O'Connor in a separate case that "a state of war is
not a blank check for the president when it comes to the rights
of the nation's citizens."

"Absolutely," Alito responded. "That's a very important
principle. Our Constitution applies in times of peace and in
times of war, and it protects the rights of Americans under all

Sen. Patrick Leahy of Vermont, top Democrat on the
Judiciary Committee, sparred with Alito over the
administration's policies on torturing prisoners and domestic

"If the Congress passed a law prohibiting torture," Leahy
asked, could the president "immunize people from prosecution if
they violated our laws on torture?"

Alito repeated testimony from his opening statement on
Monday that "no person in this country is above the law and
that includes the president and the Supreme Court."

But he added that there are complicating factors involving
the powers of the executive branch and specific issues that
Alito said can create a "twilight zone."

"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," Alito

Leahy complained about U.S. officials "going around the
country photographing and spying on people protesting the war
in Iraq," including Quakers in his state.

Alito responded: "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."

(Additional reporting by Richard Cowan and Joanne Kenen)