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 best argument the White House can come up with is basically a legal technicality.
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.
In a letter to Judge Alito, Senator Charles E. Schumer of New York, a Democrat on the Judiciary Committee, said yesterday that he would question him vigorously about his current views on whether the attorney general and other top officials "have absolute immunity from suits based on even willful unconstitutional acts."
In 1972, the Supreme Court ruled that wiretaps without warrants in the context of domestic intelligence surveillance violated the Fourth Amendment, which prohibits unreasonable searches and seizures. The court did not address international communications.
Given the news this week, combined with the news from last week, that defense is worse than useless. It's damaging.