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.
The 1984 wiretapping memo involved a lawsuit filed against Nixon administration attorney general John N. Mitchell, who in 1970 had ordered wiretaps of antiwar activists. The FBI suspected the activists of plotting to blow up Washington utility tunnels and kidnap Henry A. Kissinger, then President Richard M. 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.
Part of the job of the solicitor general's office, where Alito was an assistant, is to defend the interests of the executive branch, and the argument that the president and his top aides were entitled to absolute immunity was not a new one.
The Carter administration had taken that position in wiretapping cases stemming from the Watergate scandal, but the issue had not been clearly resolved by the Supreme Court.
In the 1984 memo to his boss -- Solicitor General Rex Lee -- Alito wrote that "absolute immunity arguments are difficult to advance successfully" and so "there is a need to choose our cases in this area with particular care."
The Mitchell case had several problems, Alito said. Justice William H. Rehnquist would have to recuse himself because he served in the Nixon administration, "a handicap we can ill afford in this difficult area." Moreover, Alito said, "our chances of persuading the Court to accept an absolute immunity argument would probably be improved in a case involving a less controversial official and a less controversial era."
The government, he said, should stick to a less sweeping defense of Mitchell -- that the law was not clear at the time he authorized the wiretaps and that 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 co-writing the brief. The administration argued that in the abstract it is easy to assert that "public officials who have deliberately flouted clearly established rights should be liable." But, the brief said, that could lead "risk-adverse officials" contemplating "ruinous personal liability" to falter when action was needed to protect the country.
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 R. 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.''
The following year, Alito was asked to help bolster executive power on a different front. In a 1986, after being promoted to the Office of Legal Counsel, he sketched out ways for the president to weigh in on the meaning of a law the way Congress does when it builds a legislative history through hearings, committee reports and debate before it passes a bill.
The administration was concerned that judges were not strictly sticking to the language of statutes, instead relying on what various lawmakers had said their intent was.
While the plan probably "will not be warmly welcomed" on Capitol Hill, Alito said "it may help to curb" abuses.
The documents also show that Alito has experience preparing others for Supreme Court confirmation hearings, helping to troubleshoot Rehnquist's nomination to be chief justice in the summer of 1986.
In a memo dated July 28, one day before the start of the Senate Judiciary Committee hearing on Rehnquist, Alito provided defenses to three potential lines of questioning if Rehnquist were asked about $27,000 he had received for a book about his experiences on the high court.
Alito need not have worried. Rehnquist was confirmed without the money becoming an issue.