Alito Urged Wiretap Immunity

Escorted by former senator Dan Coats (R-Ind.), right, Supreme Court nominee Samuel A. Alito Jr. met with Sen. Lincoln D. Chafee (R-R.I.), left, last month.
Escorted by former senator Dan Coats (R-Ind.), right, Supreme Court nominee Samuel A. Alito Jr. met with Sen. Lincoln D. Chafee (R-R.I.), left, last month. (By Melina Mara -- The Washington Post)
By Jo Becker and Christopher Lee
Washington Post Staff Writers
Saturday, December 24, 2005

Supreme Court nominee Samuel A. Alito Jr. once argued that the nation's top law enforcement official deserves 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 yesterday show.

As a lawyer in the Reagan Justice Department, Alito said the 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 the Nixon administration, Alito also cautioned his superiors that the time may 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 involving Alito's nomination has centered on his views on abortion. The latest of Alito's memos to be disclosed opened a window on his thinking in the area of national security vs. privacy rights, an issue that is currently under considerable scrutiny.

The release of the memo comes as President Bush is under attack for launching 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 that subject when the panel opens confirmation hearings Jan. 9.

Democrats were quick to link the issues yesterday, saying Alito's memo raises 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 M. Kennedy (D-Mass.).

But Alito supporters noted that the memo does not defend the practice of warrantless eavesdropping, instead dealing only with the question of whether government officials who often must act quickly can be sued for damages when they err. Nor did the memo deal with the question of whether a warrant was necessary to investigate foreign threats.

"Despite Democrats' attempts to link this memo to reports of NSA activities, the two have nothing to do with each other," said White House spokesman Steve Schmidt.

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

They portray a strategic legal thinker attuned to the sensitivities and ideological balance of the Supreme Court. Coupled with previously released memos, they paint a picture of a man who often preferred more indirect approaches over headlong charges in advancing the Reagan administration's legal agenda.

In memos released last month, for instance, Alito made it clear to Reagan administration officials that he personally believed there was no constitutional right to abortion. But he recommended against launching a "frontal assault" on Roe v. Wade , instead outlining a strategy to chip away at the landmark 1973 abortion rights case.

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