Judge Alito a man of the people or for the Cops?

[WaTcHeR]

Strip-Search Case a Likely Topic at Alito Hearing

11/28/2005 - WASHINGTON — When Supreme Court nominee Samuel Alito was a member of a three-judge panel of the 3rd U.S. Circuit Court of Appeals, he participated in a 2003 case involving the strip-search of a 10-year-old girl.

The judge's comments in that matter are likely to come up again in Senate confirmation hearings as detractors call it a case that puts him outside the mainstream.

In Doe v. Groody, Alito defended a police search done near Pottsville, Pa. Police had a warrant to search the home of a suspected narcotics dealer. As part of the search, a female officer ordered the man's wife and 10-year-old daughter to partially disrobe. No drugs were found on the female pair, but the man was arrested and pleaded guilty to drug charges.

The family sued the officers, arguing the warrant did not allow the search of the mother and daughter.

"For that reason, when the police went ahead and strip-searched them, it exceeded their authority under the 4th Amendment," said Seth Rosenthal, legal director at the Alliance for Justice.

In an opinion written by then-appeals court judge Michael Chertoff, a divided 3rd Circuit panel agreed, concluding that although police sought permission in an affidavit to search those in the house, the warrant didn't grant it.

"There is no reasonable basis for an officer to exceed the scope of a warrant just because he asked for broader search authority in the affidavit," the majority wrote.

Alito dissented from Chertoff's opinion, concluding that the warrant effectively incorporated the affidavit. Applying what he called a "common sense" approach, Alito then concluded that "the magistrate intended to authorize a search of all occupants of the premises ... Even if the warrant did not confer such authorization, a reasonable officer certainly could have believed that it did."

His supporters find the dissent unremarkable.

"Judge Alito, following Supreme Court precedent, which says search warrants should be construed in a reasonable and common sense fashion, not in an overly technical or legalistic one, said sure, a reasonable police officer would think that searching a drug suspect's wife and daughter who were found ... in his house, was appropriate," said Wendy Long, counsel for the Judicial Confirmation Network.

But others, like Democratic National Committee Chairman Howard Dean, say the dissent proves Alito is an extremist. Others say it justifies serious concern.

"Here is a judge who his exceedingly deferential — too deferential — to executive power, to police power, and not respectful enough of the rights that our Constitution guarantees," Rosenthal said.

Alito's detractors cite the case to say Alito approved the strip-search of a little girl.

Alito's dissent made clear that he "shared the majority's visceral dislike" of what happened to the child, but, he said it is a sad fact that drug dealers sometimes misuse their children. It is this distinction between personal and legal views that is likely to get considerable attention at Alito's confirmation hearings, scheduled for next month.

Meanwhile, the Justice Department on Monday provided about 470 pages of documents from 1985-1987 when Alito served in the Office of Legal Counsel as deputy assistant attorney general. The pages may offer more insight into how much deference Alito gave to his government boss.

[WaTcHeR]

I wanted to ask will Judge Alito be a man of the people or for the Government, but it was too long of a title. Yet the answer will probably be for the government.

I really hate Federal Judges, these guys get appointed to that position for life and it's very hard to have any federal Judge remove. They take away our freedom a little at a time ever so slowly, so that we don't notice til it's too late.

[WaTcHeR]

This guy is nuts he supports executions for kids.

November 29, 2005 - WASHINGTON -- As a young Reagan administration lawyer, the Supreme Court nominee, Samuel A. Alito Jr., took an expansive view of government law-enforcement powers in numerous cases in which he was called upon to balance the prerogatives of police and prosecutors with the rights of individuals, according to 400 pages of documents released yesterday by the Justice Department.

The documents show that Alito once advised against including a ban on capital punishment for minors, in an agreement by the United Nations Convention on the Rights of the Child.

Such matters should be left for individual states to decide, he said.

The draft agreement called for outlawing the death penalty and life sentences without the possibility of parole for those who are younger than 18 when they commit crimes. Alito raised concerns about such a proposal.

''There are states that presently impose the death penalty on such individuals," Alito wrote in January 1987 in a memo to John R. Bolton, who was then an assistant attorney general and who now serves as US ambassador to the United Nations.

''Congress may at some point wish to have such penalties on the federal level," Alito told Bolton. ''We therefore question whether the United States should agree with this provision of the Convention."

States were permitted to impose capital punishment on 16- and 17-year-olds until March 2005. Then, a divided Supreme Court cited a ''national consensus" against the practice, and struck down the juvenile death penalty laws of 20 states in a 5-to-4 ruling.

While working in the Office of Legal Counsel from 1985 to 1987, Alito also wrote an opinion allowing the Internal Revenue Service to secretly record conversations with taxpayers who were under investigation.

He backed broader authority for the Drug Enforcement Administration to allow agents to set up shell companies to help them conduct undercover operations.

In January 1986, Alito dismissed concerns raised by the FBI that it might be unconstitutional to add to its files the fingerprints of Iranian and Afghan refugees who had sought asylum in Canada. Alito wrote that those who are not US citizens have no constitutional protections.

''We are inclined to doubt that there is sound legal basis to extend any protections granted to United States citizens or residents concerning the accuracy of information in their files to nonresident or illegal aliens," Alito wrote.

That month, Alito also raised concerns about a proposed ethics rule that would have barred prosecutors from investigating an individual without a ''good-faith" belief that the person had committed a crime.

Alito said that prosecutors need flexibility, particularly in cases in which there are multiple suspects.

''In this situation, there is nothing improper about investigating everyone who might have been involved," Alito wrote in a memo in January 1986.

In September 1986, Alito said the FBI should not be bound by two lower-court decisions that restricted the bureau's power to conduct background checks on government employees whose jobs were not considered critical to national security.

Alito dismissed the opinions as ''wrongly decided," ''without binding precedential effect," and ''narrow." He interpreted them to apply only to the plantiffs directly involved in the cases, and said that the FBI should not alter its background check practices.

''This office . . . recommends that the FBI ignore any possible implications arising from the district court's reasoning," Alito wrote. ''We are not suggesting, of course, that you disobey a court order. The district court's order in this case, however, does not purport to bind the FBI."

After two years as deputy assistant attorney general in the Office of Legal Counsel, Alito became the US attorney for New Jersey. He was confirmed as a federal appeals judge in 1990, a position he continues to hold.

Judicial activist groups on both sides of the Alito nomination are examining the papers for clues about Alito's beliefs and judicial philosophy. His views on police powers may have particular relevance, since Alito would be the only former federal prosecutor on the Supreme Court, if the Senate confirms him.

Alito's backers said the memos reflected the views of the Reagan administration -- and not necessarily his personal views of the time.

Alito's successor as the deputy in the Office of Legal Counsel, Michael Carvin, said yesterday that officials in the office were encouraged to support strong powers for the executive branch.

''We were representing the president, and we were always going to take a muscular view of the president's authority," Carvin said. ''When you're working for the government, you're representing your clients' interests."

Though the memos mostly sided with government power over individual rights, some evidence cut in the other direction.

In January 1987, for example, Alito endorsed a proposal strengthening penalties for government agents who physically abused suspects.

Under the existing law, the agents faced harsh penalties only if their victims died.

Alito criticized this ''odd penalty structure" and lauded a proposal for stronger penalties in cases where victims suffered bodily harm but survived.

''We agree that the current penalty scheme . . . makes little sense, and that it should be corrected," Alito wrote.

Alito also took positions shielding government records from public disclosure, at least in cases in which individuals' privacy would be violated. He wrote that tax information, grand jury records, and information obtained through electronic surveillance should be kept from public view.

''We believe that any doubts should be decided in favor of nondisclosure in the present situation," he wrote in February 1986. ''Once records are opened to the public, privacy interests will be irrevocably sacrificed

Alito also objected to a proposal by the head of the government ethics office to increase the number of federal employees required to submit financial disclosure forms.

In February 1987, Alito chastised the director of the Office of Government Ethics, David H. Martin, for not consulting with the Justice Department before seeking to expand the number of people filing the disclosure forms.

''In this case, the need for such consultation was acute, since we made it abundantly clear to your office . . . that we had serious legal objections," Alito wrote.

Alito occasionally received requests from the public to determine whether an action was legal. Invariably, Alito responded that the attorney general's office could only provide legal advice to the president or executive agencies. But in some cases, Alito then went on to offer advice.

On Dec. 20, 1985, Alito responded to a question from a Massachusetts man who wanted to know whether it was legal to use the American flag on the logo of the Basketball Hall of Fame in Springfield.

After providing the disclaimer that his office was authorized ''to give legal opinions only to the president" and agency leaders, Alito said that the nation's flag code ''is not legally enforceable."

But he warned that federal authorities could intervene if a person committed the crime of ''knowingly casting contempt upon a United States flag by publicly mutilating, defacing, defiling, burning or trampling upon it."

Similarly, Alito declined to directly answer the question of whether the Anti-Apartheid Act of 1986 applied to companies doing business with the African nation of Namibia.

But he went on to note that the Treasury Department had issued a regulation stating that Namibia was considered part of South African territory under the act.

Alito also wrote that he hoped that the information ''may be of some value."

Alito showed strong support for the principle of federalism, which preserves a strong role for states to govern according to their own laws. In the memo that touched on capital punishment for juveniles, Alito also objected to provisions that he said could be interpreted as requiring states and the federal government to provide basic health care, child-care services, and family planning on a universal basis.

''The Convention reflects a distinct bias in favor of centralized state control over the upbringing of children," Alito wrote. ''There might be disagreement by many states over whether they ought to be involved in guaranteeing the rights and privileges espoused by the Convention."

[Zzz]

WASHINGTON -- Supreme Court nominee Samuel A. Alito
Jr.'s views on abortion caused a stir this week, but another
memo that surfaced from his years as a Reagan administration
lawyer was notable for its strong support of the police.

Alito wrote that he saw no constitutional problem with a police officer shooting and killing an unarmed teenager who was fleeing after a $10 home burglary.

"I think the shooting [in this case] can be justified as reasonable," Alito wrote in a 1984 memo to Justice Department officials.

Because the officer could not know for sure why a suspect was fleeing, the courts should not set a rule forbidding the use of deadly force, he said.

"I do not think the Constitution provides an answer to the officer's dilemma," Alito advised.

A year later, however, the Supreme Court used the same case to set a firm national rule against the routine use of "deadly force" against fleeing suspects who pose no danger.

"It is not better that all felony suspects die than that they escape," wrote Justice Byron White for a 6-3 majority in Tennessee vs. Garner. "Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so."

The 4th Amendment forbids "unreasonable searches and seizures" by the government, and the high court said that killing an unarmed suspect who was subject to arrest amounted to an "unreasonable seizure."

Said White: "A police officer may not seize an unarmed, nondangerous suspect by shooting him dead."

Alito's 15-page memo was among more than 300 hundred pages of Justice Department files that were released this week by the National Archives.

Another document was a legal analysis in which Alito laid out a strategy for overturning the 1973 Roe vs. Wade decision that legalized abortion.

The Roe memo prompted Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), an abortion rights supporter, to meet again privately with Alito on Friday. Specter said afterward that Alito assured the senator that he would not allow any personal opposition to abortion to affect his judgment as a justice.

Specter said Alito drew a "sharp distinction" between views he expressed 20 years ago as a lawyer in the Reagan administration and the way he had made decisions in his 15 years as a federal judge.

"With respect to his personal views on a woman's right to choose, he says that that is not a matter to be considered in the deliberation on a constitutional issue of a woman's right to choose," said Specter.

The same year he wrote the abortion memo, Alito drafted a legal analysis of the police shooting case that adds to the perception that Alito probably would lean in favor of law enforcement in most areas of criminal law.

After leaving the Reagan administration, Alito served as the U.S. attorney in Newark, N.J. If confirmed to the Supreme Court, he will be the only justice in recent decades other than current Justice David H. Souter to have significant experience as a prosecutor.

Alito's conservative view in the case of the fleeing teenager matched that of the justice he has been nominated to replace. Justice Sandra Day O'Connor spoke for the dissenters, saying that shooting a fleeing person is necessary as a "last resort" to prevent an escape. "I cannot accept the majority's creation of a constitutional right to flight for burglary suspects," she said. Then-Chief Justice Warren E. Burger and Justice William H. Rehnquist agreed with her.

In the 20 years since the court's decision, the rule against shooting fleeing suspects who pose no danger has stood largely unchallenged.

The Tennessee case began when two Memphis police officers were called at 10:45 p.m. by a woman who said she heard someone breaking into a house next door.

When one officer entered the house, he heard a door slam.

In the backyard, the officer shined his flashlight on a youth who appeared to be unarmed and who was trying to climb a six-foot-high chain link fence to escape.

"Police! Halt!" the officer called out. When the youth continued to climb, the officer shot him in the head.

Edward Garner, 15, died a few hours later.

Ten dollars and a purse taken from the house were found on his body.

Tennessee law allowed the police to use "all the necessary means" to stop a fleeing suspect. Garner's father sued the city and its Police Department in federal court for violating his son's constitutional rights.

A federal judge threw out the complaint. But the U.S. Court of Appeals revived it, ruling it was unconstitutional for officers to use deadly force to stop a fleeing suspect unless they believed he posed a "threat to the safety of the officers or a danger to the community." When Tennessee appealed to the Supreme Court, the justices agreed to hear the case.

Alito was then a 34-year-old assistant to the U.S. solicitor general, and he reviewed the case to decide whether the Reagan administration should file a friend-of-the-court brief supporting Tennessee.

"In my judgment, the Court of Appeals' decision is wrong and should be reversed," Alito wrote.

Nonetheless, he recommended against U.S. participation in the case because he had learned that -- to his surprise -- the FBI and other federal law enforcement agencies already had firm rules forbidding agents from shooting escaping people who were not dangerous.

"The extremely restrictive policies of the federal agencies militate against participation" in the Supreme Court case by federal lawyers, he said. "The court might wonder why state and local police cannot follow the same rule as federal agencies."

[Administrator]

If Judge Alito gets to the Supreme Court, I really don't think there will be any changes in decisions on future rulings handed down in favor for the American public. It will be pretty much the way it's been for the last 22 years, down hill for the country. More freedoms and rights will be raped from American citizens at gun point, literally! You except it or else....

Hello anyone else awake in this country, anyone care?

Think about it in twenty years you will be telling your grand kids or great grand kids of the freedoms there once was in this country. Of course they will think it's from some fairy tale book.

[AmericansareIgnorant]

Hitler would have loved a Judge like Judge Alito!

You American's are so stupid!!

WASHINGTON - Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps when he worked for the Reagan Justice Department, documents released Friday show.

He advocated a step by step approach to strengthening the hand of officials in a 1984 memo to the solicitor general. The strategy is similar to the one that Alito espoused for rolling back abortion rights at the margins.

The release of the memo by the National Archives comes when President Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has promised to question Alito about the administration's program.

The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. "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."

Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot. The FBI had received information about a conspiracy to destroy utility tunnels in Washington and kidnap Henry Kissinger, then national security adviser.

That case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.

"The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity," the court found.

However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment.

Alito had advised his bosses to appeal the case on narrow procedural grounds but not seek blanket immunity.

"There are also strong reasons to believe that our chances of success will be greater in future cases," he wrote. He noted then-Justice William Rehnquist would be a key vote and had recused himself from the Nixon-era case.

The incremental legal strategy is consistent with the approach Alito advocated on chipping away abortion rights. In memos released Friday and last month, Alito said abortion rights should be overturned but recommended a roadmap of dismantling them piece by piece instead of a "frontal assault on Roe v. Wade."

He said of his plan: "It has most of the advantage of a brief devoted to the overruling of Roe v. Wade; it makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open."

The documents were among 45 released by the National Archives on Friday. A total of 744 pages were made public.