Among the documents released by the National Archives yesterday was this collection of memos (Alito’s is the first, roughly seven pages in length), regarding this case. The issue involved Nixon Administration Attorney General John Mitchell’s immunity in a lawsuit filed regarding warrantless wiretaps he authorized in 1970. You can read the coverage in the major dailies here, here, here, and here.
At least two of the articles outrun the facts they’re reporting. The LAT reporters characterize the wiretaps authorized by Mitchell as simply "illegal," though, as they later note, "Mitchell escaped liability because the justices concluded that the law was not clear in 1970 when he ordered the wiretap." The NYT reporters characterize the argument Alito and the Reagan Administration were making as that "top officials were free to violate the law." This, of course, isn’t quite accurate: freedom from personal financial liability in lawsuits isn’t the same as the kind of carte blanche Mel Brooks claimed as Louis XIV in
History of the World, Part I.
Democrats have of course leapt on this case, trying to link it to the electronic surveillance conducted by the NSA after 9/11.
"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," said Sen. Edward M. Kennedy (D-Mass.).
To which there are several responses, such as this:
But Alito supporters noted that the memo does not defend the practice of warrantless eavesdropping, instead dealing only with the question of whether government officials who often must act quickly can be sued for damages when they err. Nor did the memo deal with the question of whether a warrant was necessary to investigate foreign threats.
"Despite Democrats’ attempts to link this memo to reports of NSA activities, the two have nothing to do with each other," said White House spokesman Steve Schmidt.
And this, from the WaPo article:
[T]he argument that the president and his top aides were entitled to absolute immunity was not a new one.
The Carter administration had taken that position in wiretapping cases stemming from the Watergate scandal, but the issue had not been clearly resolved by the Supreme Court.
And, finally, this dictum, from the majority opinion in Harlow v. Fitzgerald, cited by Alito in his memo:
For aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy, absolute immunity might well be justified to protect the unhesitating performance of functions vital to the national interest.
I guess there will be lots of fun in the new year.