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 released
Friday as the Christmas weekend approached. A total of 744 pages were
made public.
Abortion and the president’s authority on eavesdropping will be central
issues when the Senate Judiciary Committee opens confirmation hearings
on Alito’s nomination Jan. 9.
Sen. Patrick Leahy of Vermont, the top Democrat on the committee, said
the latest documents “fill in more blanks and deepen the impression of
activism that colors Judge Alitos career” and raise issues critical to
the panel.
“One of the most important, and one of the most timely, is the issue of
unchecked presidential authority and the particular issue of warrantless
eavesdropping on the American people,” Leahy said.
Bush picked Alito to take the Supreme Court seat held by Associate
Justice Sandra Day O’Connor, who is retiring. The federal appellate
court judge has been seeking to assure senators that he would put his
private views aside when it came time to rule on abortion as a justice.
O’Connor has been a supporter of the landmark 1973 Roe v. Wade ruling
affirming a woman’s constitutional right to an abortion.
The June abortion memo contained the same Alito statements as one dated
May 30, 1985, which the National Archives released in November but
with a forward note from Reagan administration Solicitor General Charles
Fried acknowledging the volatility of the issue and saying it had to be
kept quiet.
“I need hardly say how sensitive this material is, and ask that it have
no wider circulation,” Fried wrote.
