http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/12/24/MNGT9GD2IF1.DTL

Alito endorsed legal shield for wiretaps Attorney general shouldn't be sued, 1984 memo said Jo Becker, Christopher Lee, Washington Post

Saturday, December 24, 2005

Washington -- Supreme Court nominee Samuel Alito once argued that the nation's top law enforcement official deserved blanket protection from lawsuits when acting in the name of national security, even when those actions involve the illegal wiretapping of American citizens, documents released Friday show.

As a Justice Department lawyer during President Ronald Reagan's administration, Alito said the U.S. attorney general must be free to take steps to protect the country from threats such as terrorism and espionage without fear of personal liability. But in a 1984 memo involving a case that dated to President Richard Nixon's administration, Alito also cautioned his superiors that the time might not be right to make that argument and urged a more incremental approach.

"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."

To date, much of the debate about Alito's nomination has centered on his opposition to Roe vs. Wade, the Supreme Court decision that declared constitutional protections for abortion. The latest of Alito's memos to be disclosed opens a window on his thinking about national security, an issue now under considerable scrutiny.

The release of the memo comes as President Bush is under attack for creating a secret National Security Agency program to bypass the courts and eavesdrop on the overseas telephone calls and e-mail of U.S. citizens with suspected ties to terrorists. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has said he will press Alito for his views on the subject when the panel opens confirmation hearings on his nomination Jan. 9.

Democrats were quick to link the issues Friday, saying Alito's memo raised questions about his commitment to protecting civil liberties by checking executive power. The type of absolute immunity that Alito discussed would have shielded attorneys general even when their actions violated constitutional rights.

"At a time when the nation is faced with revelations that the administration has been wiretapping American citizens, we find that we have a nominee who believes that officials who order warrantless wiretaps of Americans should be immune from legal accountability," said Sen. Edward Kennedy, D-Mass.

The memo was among more than 700 pages released by the National Archives on Friday in response to a public records request from the Washington Post.

The 1984 wiretapping memo involved a lawsuit filed against John Mitchell, Nixon's attorney general, who had ordered wiretaps of anti-war activists in 1970. The FBI suspected the activists of plotting to blow up Washington utility tunnels and kidnap Henry Kissinger, then Nixon's national security adviser. The case had been in the courts for years, and it fell to Alito to prepare a memo on whether the government should ask the Supreme Court to review an adverse lower court decision.

The government, Alito said, should stick to a less sweeping defense of Mitchell: that the law was not clear at the time he authorized the wiretaps and therefore he could not be sued, because he did not act in willful disregard of the law. As it turns out, Alito was right.

The Reagan administration pressed ahead with its argument of absolute immunity, with Alito as co-author of the brief. The Supreme Court quashed the lawsuit against Mitchell, but it rejected a blanket shield for illegal conduct.

"The label of 'national security' may cover a multitude of sins," then-Justice Byron White wrote for the majority in 1985. "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."

http://www.indystar.com/apps/pbcs.dll/article?AID=/20051224/NEWS06/512240413/1012

December 24, 2005

In memo, Alito defended warrantless wiretaps

By Donna Cassata Associated Press

WASHINGTON -- Supreme Court nominee Samuel Alito defended the right of government officials to order warrantless domestic wiretaps for national security when he worked at the Reagan Justice Department, an echo of President Bush's rationale for spying on U.S. residents in the war on terror.

Then an assistant to the solicitor general, Alito wrote a 1984 memo that provided insights on his views of government powers and legal recourse, as well as clues to the judge's understanding of how the Supreme Court operates.

The National Archives released the memo and scores of other documents related to Alito on Friday; The Associated Press had requested the material under the Freedom of Information Act. The memo comes as Bush is under fire for secretly ordering domestic spying on suspected terrorists without a warrant.

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said Monday he would ask Alito about the president's authority at confirmation hearings beginning Jan. 9.

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 President Richard 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 information about a conspiracy to destroy utility tunnels in Washington and to kidnap Henry Kissinger, then national security adviser, to protest the Vietnam War. The case led to a 1985 ruling by the Supreme Court that the attorney general and other executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.

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