Alito Said Attorneys General Can't Be Sued
for Illegal Wiretaps
Bloomberg
December 23, 2005
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
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