Dec. 23 (Bloomberg) -- Supreme Court nominee Samuel A. Alito wrote in a 1984 memo that U.S. attorneys general should be immune from being sued for ordering illegal wiretaps.

Even so, Alito, then a Justice Department lawyer, recommended against pressing the claim in a case involving 1970 wiretaps ordered by former Attorney General John Mitchell to investigate a suspected plot to kidnap National Security Adviser Henry Kissinger and blow up utility tunnels in Washington.

``I do not question that the attorney general should have this immunity, but for tactical reasons I would not raise the issue here,'' Alito wrote in the June 12, 1984, memo to his boss, U.S. Solicitor General Rex Lee. ``Absolute immunity arguments are difficult to advance successfully'' so ``there is a need to choose our cases in this area with particular care,'' he advised.

Senate Democrats said Alito's memo prompts new questions about his views on presidential power at Judiciary Committee hearings starting Jan. 9, particularly following revelations that President George W. Bush ordered wiretaps without court warrants of Americans' international telephone calls after the Sept. 11 terrorist attacks.

``The questions surrounding the Alito nomination get more troublesome every day,'' Massachusetts Democrat Edward M. Kennedy said in a statement. ``We find that we have a nominee who believes that officials who order warrantless wiretaps of Americans should be immune from legal accountability.''

In his 1984 memo, Alito recommended the government ask the Supreme Court to allow an appeal of a lower court's ruling that Mitchell could be sued over the wiretapping.

`Clearly Established'

A Philadelphia-based federal appeals court, where Alito became a judge in 1990, had rejected the government's claim that Mitchell had absolute immunity from the damage lawsuit filed by someone whose phone conversation was overheard by government agents.

The 3rd U.S. Circuit Court of appeals said Mitchell, who died in 1988, had only partial immunity from the lawsuit and could be sued because the illegality of the wiretap had been ``clearly established.''

This ``qualified immunity'' would mean that Mitchell couldn't be sued if he ordered the wiretapping in his role as a federal prosecutor. Instead, the appeals court said Mitchell could be sued because he was acting as an investigator.

Alito's memo was among 744 pages of Justice Department documents, from his service as a government lawyer, released today by the National Archives and Records Administration.

`A Real Stretch'

Presidential spokesman David Almacy declined to comment on the memos. Bush nominated Alito, 55, to succeed retiring Justice Sandra Day O'Connor, who has cast decisive votes to uphold abortion rights.

Republican Senator John Cornyn of Texas said in a statement that ``any connection'' between the memo and Bush's anti- terrorist surveillance ``is a real stretch'' because the Mitchell case involved wiretapping of calls made within the U.S.

Alito's memo cautioned there was ``high risk of failure'' to a government claim of absolute immunity for Mitchell, partly because the former attorney general had served 19 months in prison for his involvement in the Watergate scandal that forced President Richard Nixon's 1974 resignation.

``Our 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,'' Alito wrote.

Advice Rejected

The Justice Department rejected the advice from Alito, then an assistant to the solicitor general. The government's brief asked the justices to decide whether the attorney general ``is entitled to absolute immunity when he makes decisions in the area of national security.''

Alito's prediction was vindicated when the Supreme Court rejected this claim. The justices ruled in June 1985 that Mitchell wasn't entitled to absolute immunity from lawsuits for carrying out national-security functions.

The justices said Mitchell was only entitled to ``qualified'' immunity from lawsuit because in 1970, when the wiretap took place, it wasn't ``clearly established'' that such surveillance without a court order was unconstitutional. The Supreme Court didn't rule such wiretaps unconstitutional until 1972, two years after the ones ordered by Mitchell.

Still, the justices said the nation's security wouldn't ``be threatened if its attorney general is given incentives to abide by clearly established law.''

`Further Questions'

In a statement today, Vermont Senator Patrick Leahy, the Judiciary Committee's ranking Democrat, said the documents released today ``raise further questions'' about Alito's ``commitment'' to the ``vital role of the judicial branch as a check on executive authority.''

Leahy said the ``issue of unchecked presidential authority and the particular issue of warrantless eavesdropping on the American people'' would be ``one of the most important'' to be reviewed at Alito's confirmation hearing. Leahy also previously wrote to ask Alito to prepare to answer questions about the issue.

The wiretap memo shows Alito advocates increased presidential power because ``what he is advocating is essentially immunity from any accountability,'' said Elliot Mincberg, legal director of the Washington-based advocacy group People for the American Way, which opposes the nomination. If officials ``have the power to do it with no consequences attached'' then they have ``a lot of power,'' he said.

Enhanced Power

A 1986 memo Alito wrote when he was a deputy assistant attorney general also shows his advocacy of enhanced presidential power, Mincberg said. Alito recommended that President Ronald Reagan issue statements when he signs legislation passed by Congress into law because it would ``increase the power of the executive to shape the law.'' The memo was also among the material released today.

Another Alito memo the Archives released Nov. 30 has already generated questions by senators about his views on abortion, which will also be a focus of the hearings. In that June 3, 1985, memo, Alito said the high court's 1973 decision legalizing abortion was wrongly decided. He recommended a strategy for persuading the court to narrow the decision in Roe v. Wade rather than mounting a ``frontal assault'' on the ruling.

In both the abortion and wiretapping cases, Alito gave ``very lawyerly, strategic and tactical'' advice by advocating ``a kind of incremental approach in cautioning against wholesale'' claims, said Carl Tobias, a University of Richmond law professor.

To contact the reporter on this story: James Rowley in Washington at jarowley@bloomberg.net.

Last Updated: December 23, 2005 15:50 EST