Alito Sided With Federal Authorities

As a lawyer in the Reagan administration, Samuel A. Alito Jr. advised the FBI that it had broad power to investigate government employees as security threats, even if they had no involvement in national security matters.

In a second memo, he told the Internal Revenue Service that its lawyers could secretly record conversations with taxpayers, despite an American Bar Assn. opinion forbidding lawyers from secretly recording any conversation.

In both instances, Alito -- now an appellate court judge and a Supreme Court nominee -- interpreted the law in a way that gave more leeway to federal authorities.

The memos were among 470 pages of files released Monday from Alito’s service as a deputy attorney general at the Justice Department in 1986 and 1987. In that post, at the Office of Legal Counsel, he provided legal advice to the attorney general’s office, the White House and other federal agencies.

An FBI lawyer sought Alito’s advice after lower courts had ruled in two cases that the government had violated the free-speech rights of workers by investigating them. The first case involved two lawyers at the Education Department, the second a librarian who had joined the Young Socialist Alliance.

Alito discounted both lower court decisions. “We do not believe that the FBI is required to alter its practices based on what we regard as ... the erroneous interpretation of the applicable legal authorities,” he wrote in a 29-page memo on Sept. 9, 1986.

He cited a 1947 order issued by President Truman that gave the government broad power to check on the loyalty of its employees and to root out communists and subversives. “The plain language of that order clearly states that all federal employees fall within its ambit,” Alito wrote.

Although Truman’s order focused on threats to national security, officials could get around that limitation by focusing on the “critically sensitive” duties of federal employees, Alito noted.

“We conclude, therefore, that under the executive order ... a position may be related to the ‘national security’ even if it does not involve the protection of the United States from internal subversion or foreign aggression,” he wrote.

The government may deem an employee’s position as “critical-sensitive,” he said. Moreover, “this broad interpretation of ... ‘critical-sensitive’ is entitled to great deference” by the courts and would justify nearly all investigations, he said.

Although Alito agreed that the librarian could be investigated, he stressed that there were no grounds to punish an employee for belonging to a group such as the Young Socialist Alliance. Only organizations that “advocate violent overthrow of the government” are suspect as threats to national security, he said, and the alliance was not such a group.

Also in 1986, a lawyer for the IRS asked whether the government’s tax lawyers had to comply with a formal opinion issued by the American Bar Assn. that prohibited a lawyer from secretly recording a face-to-face conversation. Formal opinions are seen as ethical rules for the legal profession and must be followed.

Alito advised the IRS that it need not abide by “this broad ban on electronic surveillance.” He noted the American Bar Assn. had said there “may be extraordinary circumstances” when the U.S. attorney general or a chief prosecutor would authorize a secret recording.

According to Alito, this exception gave the IRS all the leeway it needed. “We believe that this exception clearly encompasses a surreptitious recording” by the IRS, he wrote, so long as the tax agency sought the approval of the Justice Department. Read this way, it is “our conclusion that the [ABA’s formal opinion] allows IRS lawyers secretly to record non-telephonic conversations to which they are a party,” Alito concluded in a five-page memo.