William and Mary Law School

Van Alstyne Joins with Others to Question the Legality of the Domestic Spying Program and Efforts to Suspend the Writ of Habeas Corpus

William & Mary Lee Professor of Law William W. Van Alstyne, one of the nation’s foremost constitutional law scholars, has signed two collaborative briefs written with other legal scholars and former government officials. The first is for a case pending in the Sixth Circuit Court of Appeals and concerns President Bush’s authorization of the domestic spying program. The second is for a case pending in the Fourth Circuit Court of Appeals and addresses joint presidential and congressional efforts to suspend the writ of habeas corpus.

Van Alstyne has signed on to 20 to 25 amicus curiae briefs in the past. “These briefs are not written to favor a particular political party. Constitutional law is a specialized subject, and one does care whether it is being properly applied or not,” he said, noting that the courts and Congress have been responsive to these efforts at times.

Van Alstyne feels he has an obligation to help when issues of constitutional confusion arise, “for the same reason that those whose field is biology should be willing to come forward when there are questions of science at issue. Rather than merely sitting idly in our offices, surely it is useful if those among us who are devoted to their field and who try as best they can to understand it without bias will do their best in helping others to clear the air of public misunderstanding.”

Van Alstyne explained that the legal scholars and former government officials he has collaborated with come together to write these briefs in a number of ways. In some instances, one scholar will contact others and invite them to contribute to a proposed amicus brief. In others, staff members for judges or members of Congress will contact scholars directly and ask them to appear at hearings to provide insight into particular issues. In addition, Van Alstyne sometimes initiates these briefs as “sometimes an issue arises within the courts or Congress that no one else is writing about.”

On Jan. 9, 2006, Van Alstyne co-signed a letter to Congress expressing concern about the National Security Agency’s domestic spying program, a program secretly authorized by the President that allowed the agency to conduct electronic surveillance without warrants of anyone in the United States. Co-signers of the letter included a former director of the FBI, a former acting solicitor general, two lawyers who worked in the executive branch and the deans or former deans of Yale, Stanford and the University of Chicago law schools. The letter stated that the Bush administration should have pursued a legislative amendment to the Foreign Intelligence Surveillance Act (FISA) before moving forward with the spying program.

Shortly afterward, Van Alstyne and the group wrote a second letter to Congress, dated Feb. 2, 2006, in response to a Jan. 19 memoradum issued by the Justice Department.

Van Alstyne joined with the same group that wrote the letters to file a brief in a case currently pending in the Sixth Circuit Court of Appeals. Van Alstyne said he was motivated to collaborate on the brief because he has “a genuine concern as to whether or not the program was permitted under the Constitution and was inconsistent with certain acts of Congress.”

In this Sixth Circuit case, the government is appealing a federal district court decision holding, as the letters to Congress that Van Alstyne co-signed suggested, that the executive order authorizing domestic surveillance without going through the court for a warrant was invalid. The case was argued earlier this year and the parties are awaiting the court’s decision.

In a separate case, Van Alstyne joined in a brief with colleagues from Harvard, Duke, Stanford, and the University of Virginia addressing efforts to suspend the writ of habeas corpus that people who are being held in custody can invoke when they want the courts to determine if there is any legitimate reason for them to be held. The jointly-authored brief was filed with the Fourth Circuit Court of Appeals in early 2007.

In examining the extent to which Congress can make habeas corpus unavailable, Van Alstyne said, “Habeas corpus is a fundamental part of the Constitution. This is a very important issue of American justice and human rights.” The filed brief concludes that Congress has not removed authority of courts to hear these types of cases, as the President has suggested, and that they should be heard.

Van Alstyne joined the William & Mary Law School faculty as the Lee Professor of Law in 2004, following a distinguished career at Duke University Law School. His professional writings have appeared during four decades in the principal law journals in the United States, with frequent republication in foreign journals. In 2000, The Journal of Legal Studies named Van Alstyne among the top 40 most frequently cited legal scholars in the United States of the preceding half-century. Past National President of the American Association of University Professors, and former member of the National Board of Directors of the A.C.L.U., he was elected into the American Academy of Arts and Sciences in 1994.