Chicago Tribune

WASHINGTON – Supreme Court nominee Judge Samuel Alito argued in the mid-1980s that government officials who order illegal domestic wiretaps are immune from lawsuits, according to newly released documents from Alito’s service in the Justice Department.

Nevertheless, Alito urged fellow Justice Department lawyers to avoid testing his expansive view of executive branch immunity because he wasn’t sure it would be a winning argument in court.

Alito’s 20-year-old thoughts on wiretapping have special resonance now because of recent revelations that as part of his anti-terror strategy President Bush has authorized domestic electronic spying without a court order.

Even before Friday’s release of 744 pages of Alito documents from the National Archives, lawmakers, unsettled by the disclosures of warrantless surveillance by the Bush administration, had notified Alito that they intend to question him about his views on the subject during his confirmation hearings slated to begin Jan. 9.

In a June 1984 memo urging the Justice Department to appeal an adverse ruling in a wiretap case to the Supreme Court, Alito noted the Reagan administration’s position that the president and Cabinet officials were immune from personal liability. “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.

Those tactical reasons, according to Alito, included the likelihood that a sympathetic justice would recuse himself from hearing the case and because of the unsympathetic public profile of former Attorney General John Mitchell, who had ordered the eavesdropping. In 1975, Mitchell became the only attorney general imprisoned after he was convicted of obstruction of justice and other charges in the Watergate scandal.

The latest release of records includes a detailed Alito proposal for an incremental attack on the Roe vs. Wade abortion rights case in 1985, similar to a memo from the same year disclosed in an earlier set of archival documents.

In an acknowledgement of how controversial the abortion positions staked out by Alito were, his boss at the time, Solicitor General Charles Fried, wrote in a cover note, “I need hardly say how sensitive this material is, and ask that it have no wider circulation.”

In another memo, Alito advocated making it easier for public officials to sue for libel, a position rejected by his colleagues.

Records made public so far add to a developing portrait of a meticulous, politically canny lawyer and a zealous conservative, at least when he served in the Justice Department during much of the 1980s.

Alito and his supporters have said that his writings reflected the views of the Reagan administration and should not be considered a template for how he would rule as a Supreme Court justice.

Since 1990, the 55-year-old Alito has been a judge on the Philadelphia-based U.S. 3rd Circuit Court of Appeals. Bush nominated him in October to succeed Justice Sandra Day O’Connor, who is retiring.

Alito was an assistant to Fried when he wrote a memo about appealing a court decision that Mitchell could be sued for ordering an illegal wiretap.

The case began in 1970 when Mitchell ordered the wiretaps without getting a court order after the FBI gathered information about a plot by an anti-Vietnam War group, the East Coast Conspiracy to Save Lives, to blow up utility tunnels in Washington and kidnap then-National Security Adviser Henry Kissinger.

The Supreme Court subsequently ruled that such wiretaps were illegal and Keith Forsyth, whose conversations had been overheard by authorities, sued Mitchell and others involved in the eavesdropping.

After years of legal wrangling, the case boiled down to two questions: whether the attorney general, as a Cabinet officer, enjoyed absolute immunity against suits or, if not, whether he might be immune in specific cases.

Although Alito took the position that the attorney general was totally shielded from suits, he advised against pushing that claim in part because then-Justice William Rehnquist’s vote would not be available. Rehnquist had been a Justice Department official at the time of the bugging and did not take part in the case.

In addition, Alito wrote that “our chances … would probably be improved in a case involving a less controversial official (Mitchell) and a less controversial era.”

Alito urged the Justice Department to claim immunity for Mitchell based only on the specifics in Forsyth’s case, but the department argued both that Mitchell had total immunity by virtue of his office and limited immunity based on the specific facts of the case.

Alito’s counsel turned out to be accurate.

In June 1985, the Supreme Court ruled that Mitchell was not entitled to blanket immunity but was shielded in the Forsyth case because the wiretapping he ordered had not been declared illegal until after the snooping had occurred.

Alito’s strong views on such lightning-rod issues as abortion and executive power, as reflected in documents released so far, are likely to increase calls for the Bush administration to release the full file of Alito’s work while in the Solicitor General’s office, from 1981 to 1985. The administration is refusing, arguing that records from that office, which litigates before the Supreme Court on behalf of the government, are protected by attorney-client privilege.

Documents from that office which have come to light have been released by the National Archives and do not constitute anything close to a full collection of Alito’s papers.

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