Washington 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 as well as clues to the judge's understanding of how the Supreme Court operates.
The National Archives released the memo and scores of other documents related to Alito on Friday.
Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said Monday he would ask Alito about the president's authority at confirmation hearings beginning Jan. 9. The memo's release Friday prompted committee Democrats to signal that they will press the conservative jurist about executive powers.
The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps.
Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot.
The FBI had received information about a conspiracy to destroy utility tunnels in Washington and to kidnap Henry Kissinger, then national security adviser, to protest the Vietnam War.
In its court brief, the government argued for absolute immunity for the attorney general on matters of national security.
"The attorney general's vital responsibilities in connection with intelligence gathering and prevention in the field of national security are at least deserving of absolute immunity as routine prosecutorial actions taken either by the attorney general or by subordinate officials.
"When the attorney general is called upon to take action to protect the security of the nation, he should think only of the national good and not about his pocketbook," the brief said.
Signing the document was Rex E. Lee, then the solicitor general, officials from the Justice Department and Alito.