In a 1984 memo, Alito said government officials should be immune from lawsuits that might be spawned by domestic wiretapping, but said the government should not seek to win total legal protection in one case.
Alito was offering advice on a case that the Reagan administration was about to take to the Supreme Court. The case originated in the 1970s when the Nixon White House authorized a warrantless wiretap to gather information on possible terrorist plot to destroy utility tunnels and kidnap then national security adviser Henry Kissinger.
The Reagan administration argued that Nixon Attorney General John Mitchell should be immune from lawsuits stemming from wiretaps connected to the case because he was acting to protect the nation’s security.
The Supreme Court disagreed, eventually ruling that the attorney general and other high-ranking members of the executive branch could be held liable for the violation of citizens’ rights while carrying out their duties.
“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 court ruled, according to the AP.
The court separately held that Mitchell was not liable in the particular case because he did not realize his actions would result in the violation of rights.
As he had done with abortion cases, Alito agreed with the Reagan administration’s general argument but advocated an incremental legal strategy. He said the administration should argue on technical grounds and not seek an immediate general immunity for executive branch officials.
“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.”
Alito further wrote that “there are also strong reasons to believe that our chances of success will be greater in future cases.”
Republican and Democratic senators on the Judiciary Committee vowed to question Alito about the memo in his upcoming confirmation hearings, and noted that Alito’s views might have immediate relevance in light of Bush administration action in the wake of the Sept. 11, 2001 terrorist attacks.
Last week, the New York Times revealed that President Bush authorized the National Security Agency to conduct warrantless wiretaps and communications intercepts aimed at U.S. citizens suspected of connections with terrorists.
Sen. Arlen Specter, the chairman of the Senate Judiciary Committee, which will conduct the Alito hearings, said the committee would investigate the administration’s actions.