WASHINGTON — Supreme Court nominee Samuel A. Alito Jr. said in a 1984 memo that he believed the president's top lawyer should be shielded from being sued for approving illegal, warrantless wiretaps on the grounds of national security, an issue that has flared anew and could complicate his Senate confirmation next month.
As a Reagan administration lawyer, Alito faced a pending Supreme Court case that tested whether the U.S. attorney general could be held liable for having ordered an illegal wiretap.
His defense of President Nixon's attorney general, John N. Mitchell, came to light in a memo released Friday by the National Archives.
In 1970, Mitchell ordered the FBI to wiretap the telephone of a Haverford College physics professor who was a member of a radical anti-Vietnam War group. The FBI believed the group had plans to blow up tunnels under the nation's capital and possibly to kidnap then-national security advisor Henry A. Kissinger.
The alleged plans and the wiretap apparently came to nothing. But Keith Forsyth, a man whose conversations with the professor were intercepted, learned of the wiretap and later sued Mitchell for violating his constitutional rights.
He relied on a 1972 Supreme Court ruling that rejected Nixon's claim that the president had the power to order warrantless wiretaps to protect national security. In a unanimous decision, the justices said the 4th Amendment forbade wiretaps without a judge's approval, even when there were domestic threats to the nation's security. The court noted it was not ruling on the "president's surveillance power with respect to the activities of foreign powers, within or without the country."
Armed with that ruling, Forsyth sued and won before a federal judge and a U.S. appeals court. However, the Supreme Court agreed to hear Mitchell's appeal in 1984 to decide whether an attorney general had immunity from being sued.
Earlier, the high court had ruled that the president was absolutely immune from being sued for his decisions while in office. But the justices refused to extend that immunity to the president's aides and advisors. So the status of the attorney general, the nation's chief law enforcement officer, was unclear.
"I do not question the attorney general should have this [absolute] immunity," Alito wrote in a memo to the solicitor general. But for "tactical reasons," he urged the administration to try a more moderate approach. He cautioned that the high court is wary of shielding government officials from all liability when they blatantly violate the rights of Americans.
