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In 1984 memo, Alito defends domestic wiretaps

WASHINGTON—As a Reagan administration lawyer, Supreme Court nominee Samuel Alito argued that federal officials can't be sued for damages for wiretapping Americans without warrants in national security cases, a document released Friday showed.

Alito's position may complicate his prospects for confirmation because its disclosure comes amid an uproar over a four-year-old Bush administration counterterrorism operation that's been eavesdropping on Americans without court approval.

President Bush's argument that he has the legal and constitutional authority to direct the National Security Agency to conduct the secret domestic surveillance operation is almost certain to end up before the Supreme Court.

The operation, intended to track al-Qaida members and their allies in the United States, has provoked questions about its legality among Democrats and some Republicans, including Sen. Arlen Specter of Pennsylvania, the chairman of the Senate Judiciary Committee.

The judiciary committee is to begin Alito's confirmation hearings on Jan. 9.

Specter was traveling abroad Friday and couldn't be reached for comment on the June 12, 1984, memo that Alito wrote when he worked in the solicitor general's office at the Justice Department during the Reagan administration.

Specter has said he'll question Alito about his views on Bush's power to authorize the warrantless domestic eavesdropping operation.

The moderate Republican also promised to hold hearings on the eavesdropping operation, declaring on CNN on Dec. 19, "There are limits as to what the president can do."

Alito's memo was one of more than 40 documents totaling nearly 750 pages that the National Archives released Friday. The release was in conjunction with the nomination of the conservative Philadelphia appeals court judge to replace Sandra Day O'Connor on the nation's highest court.

The memo dealt with a decision on whether the Reagan administration should argue before the Supreme Court that the attorney general enjoyed total protection from damage suits by Americans who are wiretapped without court warrants in national security cases.

"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."

"There is a need to choose our cases in this area with particular care," he wrote. "In my judgment, this is not the case."

At issue was whether John Mitchell, while attorney general to former President Richard Nixon, could be sued for damages for ordering a wiretap without a warrant after the FBI received a tip that radicals planned to bomb tunnels linking federal buildings in Washington and to kidnap then-national security adviser Henry Kissinger.

Alito urged the government to defend Mitchell on grounds other than the blanket immunity argument.

He pointed out that then-Chief Justice William H. Rehnquist, whom he apparently considered a potential vote in favor of the blanket immunity argument, wouldn't participate in the case because he'd served at the Justice Department under Nixon.

"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," Alito wrote.

He apparently was referring to Mitchell's role in the Watergate scandal.

Alito's bosses overrode his reservations, and the Supreme Court found in 1985 that senior government officials, including the attorney general, could be sued for damages for ordering warrantless wiretaps because the surveillance violated the Fourth Amendment right to protection against unreasonable searches and seizures.

However, it held that Mitchell had limited protection against a damage suit because there was no law barring warrantless surveillance on Americans when he ordered the wiretap in 1970.

The Congress passed such a law, the Foreign Intelligence Surveillance Act, in 1987.

The White House, already concerned about Alito's prospects for confirmation, accused Democrats of playing politics with the memo by trying to link it to the NSA domestic monitoring operation.

"The two have nothing to do with each other," said a White House statement. "Judge Alito's memo regarding a purely domestic threat is completely different from NSA's efforts to thwart threats from foreign terrorist organizations."

The White House was referring to a statement in which the senior Democrat on the Senate judiciary committee, Patrick Leahy of Vermont, said that the memo and other newly released documents "fill in more blanks and deepen the impression of activism that colors Judge Alito's career."

"They also touch on issues that already are of great interest to the committee in the upcoming hearings. One of the most important ... is the issue of unchecked presidential authority and the particular issue of (the Bush administration's) warrantless eavesdropping on the American people."

Leahy said that Alito's 1984 memo "raises further questions about Judge Alito's views on and commitment to (the) vital role of the judicial branch as a check on executive authority."

Sen. Charles Schumer, D-N.Y., released a letter to Alito in which he put the nominee on notice that he'd be asked at his confirmation hearings whether he believed that it was illegal to eavesdrop on Americans without warrants.

He warned that if Alito refused to answer candidly, "it will make it harder for members of the Judiciary Committee to vote for your confirmation."

David Almacy, a White House spokesman, said: "Judge Alito looks forward to answering senators questions before the Senate holds an up-or-down vote on his nomination by Jan. 20."

Among the other documents released Friday was a memorandum that Alito wrote on June 3, 1985, describing the need to curb the landmark Supreme Court decision on abortion rights, Roe v. Wade.

Alito recommended that the Reagan administration "nudge" the court into accepting more involvement from states in "protecting the unborn throughout pregnancy." He said: "I find this approach preferable to a frontal assault on Roe v. Wade."

In a 1985 memo released earlier, Alito also described ways to challenge Roe that would "advance the goals of bringing about the eventual overruling" of the decision.

The documents have prompted advocates and critics of Alito to praise or condemn him for his views on abortion rights.

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(c) 2005, Knight Ridder/Tribune Information Services.

ARCHIVE PHOTOS on KRT Direct (from KRT Photo Service, 202-383-6099): Samuel Alito

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