…that’s my DC Examiner column for this week. Excerpt:
The Second Circuit, Sotomayor’s home for the last 11 years, gets few national security cases. But what we can glean from three key cases she’s participated in suggests she agrees with former Justice Sandra O’Connor that the War on Terror “is not a blank check for the president.”
A Justice Sotomayor is unlikely to move in lockstep with the ACLU in this area. In Cassidy v. Chertoff (2006), she rejected a Fourth Amendment challenge to post-9/11 security searches conducted by a ferry operator acting at the behest of the Bush administration.
But in 2008’s Doe v. Mukasey, she joined two colleagues to strike down provisions of the Patriot Act related to National Security Letters (NSL). NSLs allow the FBI to seize private customer information from ISPs and other businesses, and place the recipient under a “gag order,” preventing disclosure of the demand.
Still before the Second Circuit is the case of Maher Arar, a Canadian citizen sent to Syria under the U.S. government’s extraordinary rendition program and tortured there. At oral argument last December, Sotomayor questioned the administration’s lawyer sharply: “So the minute the executive raises the specter of foreign policy, it is the government’s position that that is a license to torture?”
A thin record, but one more promising on these issues than Roberts’ or Alito’s. Incidentally, Clarence Thomas–who’s otherwise libertarians’ favorite Justice, and for pretty good reasons–is the worst of the worst on executive power issues. His dissent in Hamdi alone puts Scalia ahead of him as “least bad Supreme Court Justice.”