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IF President George W. Bush, buffeted by criticism over domestic spying, needs allies on wielding executive authority, he might have to look no further than his two choices to be Supreme Court justices.
Chief Justice John Roberts and court nominee Samuel Alito often sided with the government on cases that dealt with upholding its powers. Roberts backed the president's wartime authority to use a military commission to try terror suspects; Alito supported the FBI's reliance on a warrantless video surveillance.
The decisions of Roberts and Alito during their time on the federal appeals courts were hardly surprising to legal experts, who cited the government-heavy resumes of the two that included years in the Justice Department of Republican administrations.
"One thing generally you can say about Judge Alito and Justice Roberts is they are sympathetic to the executive branch argument. They served in the executive branch," said John McGinnis, a professor at Northwestern University Law School who served as deputy attorney general in the Reagan Justice Department. "That doesn't predict how they come out in a case."
Under the U.S. Constitution, the government is divided into three branches, the executive, the judicial and the legislative.
The recent revelation that Bush secretly authorised domestic surveillance of people with suspected terrorist ties raises questions about how Roberts and Alito, assuming he wins Senate confirmation, would rule on the president's authority.
Legal experts who specialise in national security differ on whether the appeals court decisions of Roberts and Alito forecast that they would be deferential to the president or whether the opinions are a mere snapshot.
Faced with the constitutional question of separation of powers, Roberts and Alito, like so many justices before them, may prove unpredictable.
"It is dangerous to project on the basis of such a slim record how Judge Alito would be likely to approach issues of executive authority," said Susan N. Herman, a professor at Brooklyn Law School in New York City. "Justice (Antonin) Scalia's opinion in the Hamdi case, arguing that the president did not have the power to order the detention of 'enemy combatants,' came as a surprise to many."
In June 2004, the Supreme Court ruled Yaser Esam Hamdi, a U.S. citizen seized on the Afghanistan battlefield in 2001, had the right to use U.S. courts to challenge his detention and status as an "enemy combatant."
Scalia, considered among the nine-member court's most conservative members, and liberal Justice John Paul Stevens wrote that if the government had a case against Hamdi it should have charged him as a criminal, perhaps even as a traitor. The two wrote that citizens cannot be held as enemy combatants so long as the usual protections of the Constitution are in force.
Legal experts said it is highly unlikely the Supreme Court would deal with a case raising the question of whether Bush acted within his authority in ordering the domestic spying.
"How would someone know they've been monitored?" asked Neil S.
Siegel, a professor at Duke Law School.
"The president can't be sued for money damages," said Siegel's Duke colleague, Erwin Chemerinsky. "This is one of these things, it may be completely illegal, but it may never get to the courts."
Several cases, however, will test the president's wartime powers.
The Supreme Court will decide if Bush overstepped his authority with plans for a military trial for Osama bin Laden's former driver, Salim Ahmed Hamdan. Roberts took himself out of the case because as a judge on the U.S. Court of Appeals for the District of Columbia he backed the Bush administration. If confirmed, Alito could be a pivotal vote next year when the case comes up.
The Supreme Court also will review the extent of the president's power to hold enemy combatants without charges after a federal appeals court denied the administration's request to transfer terrorism suspect Jose Padilla, a U.S. citizen, from military to civilian law enforcement custody.
Roberts and Alito would decide on that case.
Alito, a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals since 1990, ruled last year that the FBI did not need a warrant for video surveillance in a bribery case involving boxing promoters because it had the consent of a participant.
In cases involving search and seizure, Alito typically has sided with the government and law enforcers.
Although Roberts and Alito are considered conservatives, the extent of granting executive authority on wiretaps and eavesdropping often doesn't fit the traditional political lines in the United States.
"This isn't a clear-cut liberal-conservative issue," said Michael Greenberger, a Justice Department attorney in the Clinton administration and law professor at the University of Maryland. "Libertarians, gun owners are worried about the government looking over their shoulder."
Presidential appointment is no guarantee either.
In June 1972, the Supreme Court ruled 8-0 that it was unconstitutional for the government to conduct wiretaps without court approval despite the Nixon administration's argument that domestic anti-war groups and other radicals were a threat to national security.
"Fourth amendment freedoms cannot properly be guaranteed if domestic surveillances may be conducted solely within the discretion of the executive branch," the court said.
President Nixon had appointed four of the eight justices. Without offering a reason, the other Nixon appointee, William Rehnquist, did not participate.
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