Dec. 23 (Bloomberg) -- Supreme Court nominee Samuel A. Alito wrote in a 1984 memo that U.S. attorneys general should be immune from being sued for ordering illegal wiretaps.

Even so, Alito, then a Justice Department lawyer, recommended against pressing the claim in a case involving 1970s wiretaps ordered by former Attorney General John Mitchell to investigate a suspected plot to kidnap National Security Adviser Henry Kissinger and blow up utility tunnels in Washington.

"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 in the June 12, 1984, memo to then-U.S. Solicitor General Rex Lee. "I start from the premise that absolute immunity arguments are difficult to advance successfully."

Instead, Alito, then an assistant to the solicitor general, recommended the government ask the Supreme Court to allow the Justice Department to appeal a lower court's ruling that Mitchell could be sued over the wiretapping.

A Philadelphia-based appeals court, where Alito became a judge in 1990, rejected the government's claim that Mitchell had absolute immunity from the damage lawsuit filed by someone whose phone conversation was overhead by government agents. The 3rd U.S. Circuit Court of appeals said Mitchell had only partial immunity from the lawsuit.

This so-called "qualified immunity" meant that Mitchell couldn't be sued if he ordered the wiretapping in his role as a federal prosecutor. Instead, the court said Mitchell could be sued because he was acting as an investigator.

The memo was among 740 pages of Justice Department documents from the period of Alito's service as a government lawyer released today by the National Archives and Records Administration.

Alito is likely to be questioned about the memo when the Senate Judiciary Committee holds hearings on his confirmation starting Jan. 9. Revelations that President George W. Bush ordered eavesdropping without a court warrant on Americans' international phone calls after the Sept. 11 terrorist attacks have spurred questions about Alito's views on presidential power.

Pennsylvania Senator Arlen Specter, the panel's chairman, notified Alito in a Dec. 19 letter to expect to be asked about the scope of presidential power during wartime.

To contact the reporter on this story:
James Rowley in Washington at  jarowley@bloomberg.net.

Last Updated: December 23, 2005 10:12 EST

Commentary:
The GOP mind is easy to understand. They claim to be the "law and order" party, then set about breaking every law on the books. On top of that their corrupt lawyers (Alito) say we can't sue them even when the violate our constitutional rights. Why do we have the judicial branch if the executive branch is immune from prosecution (ie: above the law)?