Published January 13, 2015
He advocated a step by step approach to strengthening the hand of officials in a 1984 memo to the solicitor general. The strategy is similar to the one that Alito espoused for rolling back abortion rights at the margins.
The release of the memo by the National Archives comes when President Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has promised to question Alito about the administration's program.
The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. "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."
Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether President Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot. The FBI had received information about a conspiracy to destroy utility tunnels in Washington and kidnap Henry Kissinger, then national security adviser.
In its court brief, the government argued for absolute immunity for the attorney general on matters of national security.
"The attorney general's vital responsibilities in connection with intelligence gathering and prevention in the field of national security are at least deserving of absolute immunity as routine prosecutorial actions taken either by the attorney general or by subordinate officials.
"When the attorney general is called upon to take action to protect the security of the nation, he should think only of the national good and not about his pocketbook," the brief said.
Signing the document was Rex E. Lee, then the solicitor general, officials from the Justice Department and Alito, then the assistant to the solicitor general.
That case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.
"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 found.
However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment.
Alito had advised his bosses to appeal the case on narrow procedural grounds but not seek blanket immunity.
"There are also strong reasons to believe that our chances of success will be greater in future cases," he wrote. He noted then-Justice William Rehnquist would be a key vote and had recused himself from the Nixon-era case.
The incremental legal strategy is consistent with the approach Alito advocated on chipping away abortion rights. In memos released Friday and last month, Alito said abortion rights should be overturned but recommended a roadmap of dismantling them piece by piece instead of a "frontal assault on Roe v. Wade."
He said of his plan: "It has most of the advantage of a brief devoted to the overruling of Roe v. Wade; it makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open."
The documents were among 45 released by the National Archives released Friday as the Christmas weekend approached. A total of 744 pages were made public.
Abortion and the president's authority on eavesdropping will be central issues when the Senate Judiciary Committee opens confirmation hearings on Alito's nomination Jan. 9.
Sen. Patrick Leahy of Vermont, the top Democrat on the committee, said the latest documents "fill in more blanks and deepen the impression of activism that colors Judge Alitos career" and raise issues critical to the panel.
"One of the most important, and one of the most timely, is the issue of unchecked presidential authority and the particular issue of warrantless eavesdropping on the American people," Leahy said.
Another committee Democrat, Sen. Charles Schumer of New York, released a letter to Alito in which he questioned whether the nominee believes in absolute immunity for the attorney general and other government officials "from suits based on even willful unconstitutional acts."
Schumer vowed to question Alito on the issue and warned that if he refused to answer questions, it would make it harder for members of the panel to support his confirmation.
Bush picked Alito to take the Supreme Court seat held by Associate Justice Sandra Day O'Connor, who is retiring. The federal appellate court judge has been seeking to assure senators that he would put his private views aside when it came time to rule on abortion as a justice. O'Connor has been a supporter of the landmark 1973 Roe v. Wade ruling affirming a woman's constitutional right to an abortion.
More Impressions on 'Roe'
The June abortion memo contained the same Alito statements as one dated May 30, 1985, which the National Archives released in November — but with a forward note from Reagan administration Solicitor General Charles Fried acknowledging the volatility of the issue and saying it had to be kept quiet.
"I need hardly say how sensitive this material is, and ask that it have no wider circulation," Fried wrote.
In a recommendation to the solicitor general on filing a friend-of-court brief, Alito said the government "should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled."
Abortion has become a wedge issue in connection with Alito's confirmation to take the Supreme Court seat held by Associated Justice Sandra Day O'Connor, who is retiring. The federal appellate court judge has been seeking to assure senators that he would put his private views aside when it came time to rule on the issue as a justice. O'Connor has been a supporter of the landmark 1973 Roe v. Wade ruling affirming a woman's constitutional right to an abortion.
The documents released Friday are the latest involving Alito and abortion.