Alito, in '80s, had an expansive view of police powers

WASHINGTON -- As a young Reagan administration lawyer, the Supreme Court nominee, Samuel A. Alito Jr., took an expansive view of government law-enforcement powers in numerous cases in which he was called upon to balance the prerogatives of police and prosecutors with the rights of individuals, according to 400 pages of documents released yesterday by the Justice Department.

The documents show that Alito once advised against including a ban on capital punishment for minors, in an agreement by the United Nations Convention on the Rights of the Child.

Such matters should be left for individual states to decide, he said.

The draft agreement called for outlawing the death penalty and life sentences without the possibility of parole for those who are younger than 18 when they commit crimes. Alito raised concerns about such a proposal.

''There are states that presently impose the death penalty on such individuals," Alito wrote in January 1987 in a memo to John R. Bolton, who was then an assistant attorney general and who now serves as US ambassador to the United Nations.

''Congress may at some point wish to have such penalties on the federal level," Alito told Bolton. ''We therefore question whether the United States should agree with this provision of the Convention."

States were permitted to impose capital punishment on 16- and 17-year-olds until March 2005. Then, a divided Supreme Court cited a ''national consensus" against the practice, and struck down the juvenile death penalty laws of 20 states in a 5-to-4 ruling.

While working in the Office of Legal Counsel from 1985 to 1987, Alito also wrote an opinion allowing the Internal Revenue Service to secretly record conversations with taxpayers who were under investigation.

He backed broader authority for the Drug Enforcement Administration to allow agents to set up shell companies to help them conduct undercover operations.

In January 1986, Alito dismissed concerns raised by the FBI that it might be unconstitutional to add to its files the fingerprints of Iranian and Afghan refugees who had sought asylum in Canada. Alito wrote that those who are not US citizens have no constitutional protections.

''We are inclined to doubt that there is sound legal basis to extend any protections granted to United States citizens or residents concerning the accuracy of information in their files to nonresident or illegal aliens," Alito wrote.

That month, Alito also raised concerns about a proposed ethics rule that would have barred prosecutors from investigating an individual without a ''good-faith" belief that the person had committed a crime.

Alito said that prosecutors need flexibility, particularly in cases in which there are multiple suspects.

''In this situation, there is nothing improper about investigating everyone who might have been involved," Alito wrote in a memo in January 1986.

In September 1986, Alito said the FBI should not be bound by two lower-court decisions that restricted the bureau's power to conduct background checks on government employees whose jobs were not considered critical to national security.

Alito dismissed the opinions as ''wrongly decided," ''without binding precedential effect," and ''narrow." He interpreted them to apply only to the plantiffs directly involved in the cases, and said that the FBI should not alter its background check practices.

''This office . . . recommends that the FBI ignore any possible implications arising from the district court's reasoning," Alito wrote. ''We are not suggesting, of course, that you disobey a court order. The district court's order in this case, however, does not purport to bind the FBI."

After two years as deputy assistant attorney general in the Office of Legal Counsel, Alito became the US attorney for New Jersey. He was confirmed as a federal appeals judge in 1990, a position he continues to hold.

Judicial activist groups on both sides of the Alito nomination are examining the papers for clues about Alito's beliefs and judicial philosophy. His views on police powers may have particular relevance, since Alito would be the only former federal prosecutor on the Supreme Court, if the Senate confirms him.

Alito's backers said the memos reflected the views of the Reagan administration -- and not necessarily his personal views of the time.

Alito's successor as the deputy in the Office of Legal Counsel, Michael Carvin, said yesterday that officials in the office were encouraged to support strong powers for the executive branch.

''We were representing the president, and we were always going to take a muscular view of the president's authority," Carvin said. ''When you're working for the government, you're representing your clients' interests."

Though the memos mostly sided with government power over individual rights, some evidence cut in the other direction.

In January 1987, for example, Alito endorsed a proposal strengthening penalties for government agents who physically abused suspects.

Under the existing law, the agents faced harsh penalties only if their victims died.

Alito criticized this ''odd penalty structure" and lauded a proposal for stronger penalties in cases where victims suffered bodily harm but survived.

''We agree that the current penalty scheme . . . makes little sense, and that it should be corrected," Alito wrote.

Alito also took positions shielding government records from public disclosure, at least in cases in which individuals' privacy would be violated. He wrote that tax information, grand jury records, and information obtained through electronic surveillance should be kept from public view.

''We believe that any doubts should be decided in favor of nondisclosure in the present situation," he wrote in February 1986. ''Once records are opened to the public, privacy interests will be irrevocably sacrificed."

Alito also objected to a proposal by the head of the government ethics office to increase the number of federal employees required to submit financial disclosure forms.

In February 1987, Alito chastised the director of the Office of Government Ethics, David H. Martin, for not consulting with the Justice Department before seeking to expand the number of people filing the disclosure forms.

''In this case, the need for such consultation was acute, since we made it abundantly clear to your office . . . that we had serious legal objections," Alito wrote.

Alito occasionally received requests from the public to determine whether an action was legal. Invariably, Alito responded that the attorney general's office could only provide legal advice to the president or executive agencies. But in some cases, Alito then went on to offer advice.

On Dec. 20, 1985, Alito responded to a question from a Massachusetts man who wanted to know whether it was legal to use the American flag on the logo of the Basketball Hall of Fame in Springfield.

After providing the disclaimer that his office was authorized ''to give legal opinions only to the president" and agency leaders, Alito said that the nation's flag code ''is not legally enforceable."

But he warned that federal authorities could intervene if a person committed the crime of ''knowingly casting contempt upon a United States flag by publicly mutilating, defacing, defiling, burning or trampling upon it."

Similarly, Alito declined to directly answer the question of whether the Anti-Apartheid Act of 1986 applied to companies doing business with the African nation of Namibia.

But he went on to note that the Treasury Department had issued a regulation stating that Namibia was considered part of South African territory under the act.

Alito also wrote that he hoped that the information ''may be of some value."

Alito showed strong support for the principle of federalism, which preserves a strong role for states to govern according to their own laws. In the memo that touched on capital punishment for juveniles, Alito also objected to provisions that he said could be interpreted as requiring states and the federal government to provide basic health care, child-care services, and family planning on a universal basis.

''The Convention reflects a distinct bias in favor of centralized state control over the upbringing of children," Alito wrote. ''There might be disagreement by many states over whether they ought to be involved in guaranteeing the rights and privileges espoused by the Convention."

Michael Kranish of the Globe staff contributed to this report.