The Associated Press breathlessly reports that Judge Sam Alito advocated warrantless wiretaps when he was in the Reagan Justice Department:
Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps for national security when he worked at the Reagan Justice Department, an echo of President Bush’s rationale for spying on U.S. residents in the war on terror.
Then an assistant to the solicitor general, Alito wrote a 1984 memo that provided insights on his views of government powers and legal recourse — seen now through the prism of Bush’s actions — as well as clues to the judge’s understanding of how the Supreme Court operates.
For the AP, this story is a twofer–an opportunity to attack Alito and Bush at the same time. They carry out their attack by misrepresenting both Alito’s memo and the NSA surveillance program.
The first sentence of the AP story is false in two respects. First, the issue Alito addressed in his memo, which you can download here, was not “the right of government officials to order domestic wiretaps for national security.” At the time Alito wrote, the issue of warrantless wiretaps in internal security investigations had already been resolved by the United States Supreme Court in United States v. United States District Court, 407 U.S. 297 (1972). His memo had nothing to do with that issue. It addressed the question whether the Attorney General could be sued, after the fact, by a person who was wiretapped in a manner that a court later held to be improper.
This error by the AP is so amateurish that it was either intentional, or the product of a reporter who lacks the most basic understanding of legal concepts and issues. But the second error in the same sentence is subtler. The reporter seems to have chosen his words carefully to link Alito’s memo to the current NSA controversy, to support his gratuitous claim that Alito’s memo is “an echo of President Bush’s rationale for spying on U.S. residents in the war on terror.” The AP characterizes the issue that gave rise to Alito’s analysis as “the right of government officials to order domestic wiretaps for national security.” Putting aside the fact that Alito’s memo had to do with immunity, not the legality of wiretaps, the AP mischaracterizes United States v. United States District Court. The issue in that case, as framed in the Court’s opinion, was “the delicate question of the President’s power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval.” That’s “internal security,” not “national security.” The difference is important because in the United States case, the Court specifically distinguished the “internal security” issue before it from the question of foreign intelligence gathering that is raised by the NSA intercept program:
[T]he instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.
We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.
So the context of Alito’s memo was not “an echo” of the current controversy. Nor does the NSA program, as far as we can determine from news accounts, involve “domestic spying of suspected terrorists,” as the AP alleges. The NSA intercepts, as far as has been disclosed, are international, not domestic.
If you read far enough in the AP story, you’ll see that Alito’s recommendations to his boss, the Solicitor General, were “prescient.” And if you read his memo, you’ll see that it was an excellent piece of work, fitting for a future Supreme Court justice.
Alito’s memo is also a reminder of the anti-Nixon hysteria of the time. Written ten years after Nixon left office, his former Attorney General was still battling baseless lawsuits. Much later, Mitchell won the case on the basis of qualified immunity, as he certainly deserved to. In his memo, Alito recognized the hysterical environment in which he was working:
[O]ur chances of persuading the Court to accept an absolute immunity argument would probably be improved in a case involving a less controversial official and a less controversial era.
Just as the Democrats yearn to bring back Vietnam, they also long for another Watergate. They want to do to President Bush what they did to Nixon. Whether the American people have any more appetite for another Watergate than they do for another Vietnam, is another question.
HT: Michelle Malkin.