Kennedy, Cornyn Square Off on Alito's 1984 Wiretap Memo

Senators Teddy Kennedy (D.-Mass.) and John Cornyn (R.-Tex.) issued competing press releases Friday about news that Supreme Court nominee Samuel Alito had written a memo in 1984 about shielding the U.S. attorney general from lawsuits over illegal wiretaps.

The issue probably would have received little coverage if it weren’t for the New York Times’ reporting last week about President Bush’s decision to utilize the National Security Agency for surveillance of terrorists’ phone conservations.

Kennedy’s office was in such a rush to get a statement out that it includes two typos, which I’ve noted below. But his point is that anytime something remotely controversial is printed about Alito, he’s going to come out with guns blazing.

“The questions surrounding the Alito nomination get more troublesome everyday (sic). 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 warrentless (sic) wiretaps of Americans should be immune from legal accountability.

“Also, every time we get a new and different answer on Vanguard it generates more questions. Once again we will have to find out what the real reason is why he failed to disqualify himself from Vanguard cases as he promised he would.

“The American people deserve full and credible answers on these serious questions.”

Here’s Cornyn’s retort, which arrived 24 minutes after Kennedy’s release.

“Any connection between Judge Alito’s 1984 memorandum and the current discussion of terrorist surveillance by the NSA is a real stretch.  The 1984 memorandum involved domestic surveillance, which the Supreme Court ruled unconstitutional in 1972, and which Judge Alito did not question in any way.  The question Judge Alito addressed in the 1984 memorandum was whether lawsuits for money damages against government officials were the proper remedy for illegal wiretaps.  The Supreme Court agreed with him 5-2 that they were not.
“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.”

Cornyn’s staff also provided a bulleted list to illustrate some key points about the wiretaps (and his office spelled “warrantless” correctly, so it gets bonus points).

  • The case involved a suit for money damages against the Attorney General for conducting warrantless domestic wiretapping.  The wiretapping took place two years before the Supreme Court held in United States v. United States District Court, 407 U.S. 296 (1972), that such wiretaps were unconstitutional.  Nowhere in the memorandum does Alito express any disagreement whatsoever with the Supreme Court’s 1972 decision.
  • The only question was whether a lawsuit seeking money damages for actions government officials take in their official capacities is the proper remedy for the for such actions.  Other remedies are readily available, such as suits for injunctive relief, criminal liability, and the political process.
  • Judge Alito urged the Solicitor General to appeal a lower court decision and suggested that the Attorney General should have qualified immunity from suits for money damages.  The Supreme Court agreed with Judge Alito 5-2, holding that the Attorney General had immunity.  Justices O’Connor, White, Stevens, and Blackmun were all in the majority.
  • Judge Alito also urged the Solicitor General not to appeal a lower court decision that the Attorney General did not have absolute immunity from suits for money damages.  Other government lawyers had argued that the Attorney General did have absolute immunity.  Judge Alito demurred: "I do not question that the attorney general should have such immunity, but, for tactical reasons, I would not raise the issue here."  Judge Alito did not endorse the argument that the Attorney General had absolute immunity; he did not address it, believing it unlikely to prevail.
  • In any event, even had Judge Alito endorsed the argument, it hardly would have been extraordinary.  Although the Supreme Court rejected the argument 4-2, the dissenting Justices on this point were Chief Justice Burger and Justice Stevens; they believed the Attorney General had absolute immunity.  Justice Stevens wrote: "When the Attorney General, the Secretary of State, and the Secretary of Defense make erroneous decisions on matters of national security and foreign policy, the primary liabilities are political. Intense scrutiny, by the people, by the press, and by Congress, has been the traditional method for deterring violations of the Constitution by these high officers of the Executive Branch."  Even Justice O’Connor refused to join the Court’s decision denying absolute immunity to the Attorney General, choosing not to address the issue.