Alito backed immunity in wiretap case

WASHINGTON -- Supreme Court nominee Samuel A. Alito Jr. argued in 1984 that an executive branch official who authorized the illegal wiretapping of US citizens without a warrant should be immune from lawsuits, papers released yesterday indicate.

The 1984 memo surfaced yesterday amid mounting debate over President Bush's once-secret order allowing the National Security Agency to monitor -- without a warrant -- domestic phone calls and e-mails going overseas, an order given just after the 2001 terrorist attacks. Democrats immediately sought to connect Alito's memo to the current controversy, while the White House and Alito's Republican defenders said any comparison distorts the facts.

The memo was among more than 70 pages of files released yesterday by the National Archives, dating from Alito's tenure in the Justice Department during the Reagan administration. Several of the documents indicate that Alito consistently pushed for a broad reading of executive branch power.

The surveillance case began in 1970 when John Mitchell, then attorney general, gave the FBI permission to wiretap a group of Vietnam War protesters suspected of plotting to kidnap Henry Kissinger, the national security adviser, and to bomb utility tunnels near federal buildings. The decision to listen in on the group's phone calls hadn't been approved by a judge.

In 1972, a jury cleared the protesters of any wrongdoing. That same year, however, the Supreme Court ruled in a different case that it is unconstitutional for the government to place domestic wiretaps without a warrant, even in national security matters.

Prompted by that ruling, a man who had talked with one of the antiwar activists on the wiretapped line sued Mitchell personally, seeking financial damages for violation of his rights.

Mitchell's lawyers argued that the suit should be dismissed, in part because top executive branch officials should be immune from civil liability for actions they take in performing their official duties under the constitutional separation of powers.

The case wound through the courts for years. In 1982, in a different case, the Supreme Court ruled that, with rare exceptions, the president's top aides can be held liable in civil lawsuits, but Mitchell pressed on.

In 1984, as his case came before the Supreme Court, President Reagan had to decide whether to support Mitchell's broader reading of executive branch immunity.

In a seven-page memo dated June 12, 1984, Alito agreed with Mitchell that executive branch officials should be immune from civil lawsuits, even when their actions are unconstitutional.

But he also suggested that the Reagan administration should be careful about using Mitchell's case to push its views.

''I do not question that the Attorney General should have this immunity, but for tactical reasons I would not raise the issue here," Alito wrote, noting that the high court would hear the case without then-Supreme Court Justice William Rehnquist -- a White House ally who would have to recuse himself because of close ties to Mitchell.

Before he became a justice, Rehnquist was Mitchell's top lawyer in the Nixon administration.

''There are strong reasons to believe that our chances of success will be greater in future cases," Alito added. ''In addition, 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."

Ultimately, the case against Mitchell was dismissed -- not on the grounds that he had immunity, but because he ordered the wiretaps two years before the Supreme Court ruled that domestic national security wiretaps require warrants.

Alito's comments in the 1984 memo drew immediate fire from Democrats on the Senate Judiciary Committee, which will hold a hearing on Alito's nomination next month.

Senator Charles Schumer, Democrat of New York, sent Alito a letter today asking his views on wiretapping and executive branch immunity.

Senator Edward M. Kennedy, Democrat of Massachusetts, was even more direct.

''The questions surrounding the Alito nomination get more troublesome everyday," Kennedy said. ''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."

Outside liberal groups used the memo to blast both Alito and the president.

''With President Bush under fire for authorizing wiretaps without warrants, the American people understand they need a justice on the Supreme Court who will protect their rights against abuses of power by their own government," said Ralph Neas, president of People for the American Way. ''Judge Alito does not meet that test."

But Alito's supporters rejected any comparison between the 1984 memo to the current NSA controversy.

Steve Schmidt, a White House spokesman, noted that the wiretapping at issue in Mitchell's case was a purely domestic matter -- unlike Bush's order to the NSA, which authorized the agency to listen in on international calls made in the United States.

''Despite Democrats' attempts to link this memo to reports of NSA activities, the two have nothing to do with each other," Schmidt said. ''Judge Alito's memo regarding a purely domestic threat is completely different from NSA's efforts to thwart threats from foreign terrorist organizations."

Senator John Cornyn, a Texas Republican who is also on the Judiciary Committee, emphasized that Alito's memo ''did not question in any way" the Supreme Court's 1972 ruling against warrantless domestic surveillance.

The memo focused only on ''whether lawsuits for monetary damages against government officials were the proper remedy for victims of illegal wiretaps," Cornyn said.

And Ed Whelan, a former Justice Department official in the Bush administration, said that the Carter administration had also argued before the Supreme Court in a different case that top executive branch officials should be immune from civil lawsuits over their official actions.

''This is an extreme stretch by Democrats," Whelan said. ''Essentially, they're telling us that they're to the left of the Carter administration here."

The documents released yesterday also indicate that Alito favored a strong view of executive power in other ways.

The papers released yesterday included agendas for the ''Litigation Strategy Working Group," of which Alito was a member.

The group, consisting of Justice Department political appointees, met periodically to discuss ways to advance the White House's ideological agenda, including strengthening executive power.

The Sept. 2, 1986, agenda, for example, listed ''challenges to executive power," including restrictions on ''military power and related emergency powers" and ''executive privilege."

Also up for discussion that day was ''judicial usurpation of power . . . against the executive branch."

This included court interference in ''military management" and, in an echo of the wiretapping case, rulings against civil lawsuit immunity for executive branch officials.

The documents do not indicate what the working group decided to do about these issues.

But the release also included a six-page memo written by Alito to the working group dated Feb. 6, 1986.

Alito proposed a ''pilot program" to have Reagan issue ''signing statements" laying out the president's interpretation of legislation he signs into law.

When asked to interpret ambiguous laws, judges often look to its history, such as statements by Congress about the legislation.

Alito said that putting the president's interpretation of the law on record would ''increase the power of the executive to shape the law."