January 9, 2006

The Samuel Alito 1984 Wiretap Memo

Carroll Andrew Morse

The Projo’s John E. Mulligan refers to a Senator Lincoln Chafee concern about a position taken by Supreme Court nominee Samuel Alito while he was working for the Justice Department…

Chafee said he therefore wants to know Alito's views on the Fourth Amendment to the Constitution, which restricts government searches and seizures....

He cited a 1984 memo in which Alito said that when the attorney general acts to protect national security -- even with illegal wiretapping -- he should be immune from lawsuits. Alito was at the time a Justice Department lawyer in the Reagan administration.

Alito’s expressed opposition to making the AG liable to lawsuits, however, was not an endorsement of an expansive view of executive wiretapping authority. As Senator John Cornyn explains in National Review Online
Mitchell v. Forsyth had nothing to do with whether wiretapping was legal. The only question was whether the attorney general of the United States should be personally liable for money damages, or whether other remedies for wiretapping — such as injunctions, criminal liability, and the political process — were better options for checking the activities of government officials.
In other words, an attorney general would who abused his wiretap authority would face criminal penalties; he just couldn’t be sued for in civil court for monetary damages.

Supreme Court Justices Sandra Day O’Conor and John Paul Stevens agreed with Alito’s position. Ed Whelan has more details here.