Alito Memo in '84 Favored Immunity for Top Officials





The attorney general should be immune from lawsuits for ordering wiretaps of Americans without permission from a court, Samuel A. Alito Jr., President Bush's Supreme Court nominee, wrote in a memorandum in 1984 as a government lawyer in the Reagan administration.

The memorandum, released yesterday by the National Archives, made recommendations concerning a lawsuit against former Attorney General John N. Mitchell over a wiretap he had authorized without a court's permission in 1970. The government was investigating a plot to destroy underground utility tunnels in Washington and to kidnap Henry A. Kissinger, the national security adviser.

The White House said yesterday that the issues discussed in that memorandum were not the same as those posed by President Bush's orders to the National Security Agency to eavesdrop on international communications without warrants.

"Judge Alito's memo regarding a purely domestic threat is completely different from N.S.A.'s efforts to thwart threats from foreign terrorist organizations," said Steve Schmidt, a White House spokesman.

Judge Alito's relatively positive assessment of the 1978 law [Foreign Surveillance Intelligence Act] as useful clarification of the procedures to be followed in the context of national security surveillance, was a faint echo of his earlier strong advocacy, as a student at Princeton in 1972, for the establishment of a court to hear such warrant applications.

Judge Alito wrote on the subject as the chairman of a conference on privacy. The existence of the report he submitted for the conference, which included a discussion of gay rights, was first reported by The Boston Globe two months ago. But the report's extended discussion of wiretapping and other surveillance has not received much attention.

"We are convinced," Judge Alito wrote in 1972,"that in recent years government has often used improper means to gather information about individuals who posed no threat either to their government or their fellow citizens."

The solution, he wrote, was the creation of a"federal court of warrants." Six years later, the 1978 law established the intelligence court.




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