- The Washington Times - Friday, December 23, 2005

Hundreds of new memos and legal briefs written by Supreme Court nominee Samuel A. Alito Jr. were released yesterday by the National Archives, with Democrats immediately pointing to documents they say show that he supports domestic spying on American citizens.

Sen. Patrick J. Leahy, Vermont Democrat and his party’s ranking member on the Judiciary Committee, called the nominee an “activist” judge who, if confirmed, would chip away at civil liberties of Americans.

“These new documents … deepen the impression of activism that colors Judge Alito’s career,” Mr. Leahy said. They “raise further questions about Judge Alito’s views on, and commitment to, this vital role of the judicial branch as a check on executive authority.”

Mr. Leahy referred to Judge Alito’s half-hearted advocacy for increased executive powers in a memo written in 1984 when he was deputy solicitor general for the Justice Department under President Reagan. The revelation that Judge Alito advocated broader executive policing powers comes at a time when President Bush has defended his decision to have the National Security Agency use warrantless searches and phone taps to spy on Americans suspected of terrorist activity.

“The questions surrounding the Alito nomination get more troublesome every day,” said Sen. Edward M. Kennedy, Massachusetts Democrat and a member of the committee. “At a time when the nation is faced with revelations that the administration has been wiretapping American citizens, we find that we have a nominee who believes that officials who order warrantless wiretaps of Americans should be immune from legal accountability.”

In the 1984 memo, Judge Alito said he did “not question that the attorney general should have this immunity,” protecting the office from lawsuits when authorizing domestic wiretaps without seeking a warrant, and he argued that monetary damages should not be a remedy.

He warned the Reagan White House that seeking blanket immunity in the Supreme Court would result in failure, saying “for tactical reasons, I would not raise the issue here.”

Nevertheless the administration did file a lawsuit. In the Mitchell v. Forsyth case, Mr. Alito argued that President Nixon’s attorney general, John Mitchell, could not be sued for granting a warrantless domestic wiretap when trying to uncover a terrorist plot to kidnap Secretary of State Henry Kissinger.

The court ruled against the administration, establishing a precedent that high-ranking officials could be sued for violating the people’s rights even if it was perceived to be in the interest of national security. But the court also ruled that Mr. Mitchell not pay monetary damages because he was unaware that his actions violated the Fourth Amendment and that money was not a good legal remedy in abuse-of-power cases — a fact Republicans said gives Democrats’ arguments against Judge Alito an air of speciousness.

“The fact that Judge Alito’s opponents have embraced this memorandum in their efforts to defeat him prove how little ammunition they have to oppose him,” said Sen. John Cornyn, Texas Republican and member of the judiciary committee. “Any connection between Judge Alito’s 1984 memorandum and the current discussion of terrorist surveillance by the NSA is a real stretch.”

President Bush acknowledged last Saturday that his administration, through the NSA, had engaged in spying on Americans suspected of supporting terrorists. The admission touched off a debate in the Senate with Republicans and Democrats denouncing such actions and holding up renewal of the Patriot Act. The act was extended yesterday for another five weeks.

The debate on domestic spying is likely to heat up again when Congress returns next month.

Sen. Arlen Specter, Pennsylvania Republican and chairman of the Judiciary Committee, has said Judge Alito will be asked about his views on the limits of executive powers during his nomination hearings, set to start Jan. 9.

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