'86 Alito Memo Argues Against Foreigners' Rights

By Jo Becker and Amy Goldstein
Washington Post Staff Writers
Tuesday, November 29, 2005

As a senior lawyer in the Reagan Justice Department, Samuel A. Alito Jr. argued that immigrants who enter the United States illegally and foreigners living outside their countries are not entitled to the constitutional rights afforded to Americans.

In an opinion that offers insight into the Supreme Court nominee's view of an area of law that has gained new significance with the Bush administration's policies to combat terrorism, Alito gave his approval to an FBI effort in the 1980s to collect from Canadian authorities fingerprint cards of Iranian and Afghan refugees living in that country.

The program to collect background information was constitutional, Alito wrote in a January 1986 memo to the FBI director. And because the refugees were nonresident immigrants of a third country, he reasoned, the FBI could disregard court decisions that prohibited it from spreading "stigmatizing" information about citizens.

With the Supreme Court scheduled to hear a major case this term involving the Bush administration's policy of trying "enemy combatants" in military tribunals, Alito's views of the FBI's old anti-terrorism fingerprint program have resonance today, reflecting what legal experts said is a broad and aggressive view of the law.

The memo on the rights of immigrants was among 120 documents from Alito's 16-month tenure as a deputy assistant attorney general in the Office of Legal Counsel that the Justice Department released yesterday in response to a Freedom of Information Act request by The Washington Post and other news organizations. The agency withheld 70 other documents, asserting that they were exempt from disclosure on grounds of privacy, attorney-client privilege or rules relating to classified information. Names and other details were blacked-out on some documents that were released.

Still, the memos, letters and other papers, most of them written by Alito himself, provide the most vivid picture available to date of the future nominee's role and views from December 1985 to March 1987, when he worked on legal matters as a high-ranking political appointee during President Ronald Reagan's second term. He would go on to become U.S. attorney for New Jersey and, later, an appeals court judge.

His writings show Alito in sync with the philosophy of the Republican administration of which he was a part, staking out strong stances on aggressive law enforcement and on states' rights. The views he expresses also could be construed as paralleling those of the Bush administration as it has pursued its campaign against terrorists, legal experts said.

The current administration has contended, for instance, that al Qaeda and Taliban detainees held at the U.S. naval base in Guantanamo Bay, Cuba, had no right to have their case heard by a U.S. judge. That is in part because, like the Afghan and Iranian refugees in Canada about whom Alito wrote, the recent detainees were not on U.S. soil. That view was rejected last year by a divided Supreme Court.

In his 1986 memo, Alito cites a 1950 Supreme Court case to support the contention that nonresident immigrants of other countries have "no due process rights" under the Constitution and a 1970 case that he said suggests illegal immigrants in the United States have limited constitutional rights.

Martin Redish, a constitutional law professor at Northwestern University Law School, said that view could also be used to justify a current administration policy under which the CIA is interrogating suspected terrorists in a covert prison system in Eastern Europe and elsewhere.

Conservative constitutional analyst Bruce Fein, who served in the Reagan administration with Alito, said that by the time Alito wrote the memo the Supreme Court had ruled that school-age illegal immigrants had a right to a public education.

"He seems to be saying that there is no constitutional constraints placed on U.S. officials in their treatment of nonresident aliens or illegal aliens. Could you shoot them? Could you torture them?" Fein asked. "It's a very aggressive reading of cases that addressed much narrower issues."

On other law enforcement issues, Alito also took a pro-government approach. In a January 1986 memo, Alito expressed several concerns about ethics guidelines for prosecutors that had been proposed by the D.C. Bar Association, saying they would impose "unworkable burdens" on lawyers responsible for bringing criminals to justice.

In another memo a few months later, Alito cited a loophole he said would allow IRS attorneys investigating taxpayers to get around an American Bar Association rule that prohibited lawyers from secretly recording conversations.

In late 1986, Alito also suggested that he favored allowing law enforcement agencies to use "message-switching" technology banned by Congress, in which they intercepted computer messages, stored them and relayed them to the unsuspecting intended recipient. He said that it was unconstitutional to allow legislative committees to approve of this technique but went on to say: "We would be happy to assist you in drafting proposed legislation that would authorize message switching."

Alito displayed his concern for states' rights in a memo the following year to John R. Bolton, at the time an assistant attorney general and now U.S. ambassador to the United Nations. In the 1987 memo, Alito cautioned about aspects of an agreement on universal children's rights that the State Department was negotiating with the U.N. Commission on Human Rights.

Alito said that provisions in the U.N. document "will undertake to provide broad protections for children," such as free care of disabled children and free primary education, that are not guaranteed by the federal government. "Unless the federal government actually intends to undertake these responsibilities on a national level (and we would vigorously oppose such an undertaking on federalism grounds) we believe that the Department of State should make clear in negotiations that it is unlikely" the United States would agree to such terms and "their fulfillment will be at the discretion of the states." And he said the U.N. document would conflict with laws in some states by forbidding death sentences for criminals younger than 18 -- a practice recently outlawed by the Supreme Court.

At other points, the writings show Alito protecting the political interests of the Reagan White House. In a March 1987 memo, he disagreed with an earlier opinion from the Office of Legal Counsel, which had concluded that it was improper for people who did work at the White House without a government salary to be paid by national political organizations. Because many White House workers already have an "acknowledged and accepted partisan political bent," he wrote, "it strikes us as counterintuitive to suggest that an objectionable conflict of interest" would arise if they were paid by a political group.

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