He advocated a step by step approach to strengthening the hand of officials in a 1984 memo to the solicitor general. The strategy is similar to the one that Alito espoused for rolling back abortion rights at the margins.
The release of the memo by the National Archives comes when President Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has promised to question Alito about the administration's program.
The Associated Press had requested documents related to Alito under the Freedom of Information Act.
The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. "I do not question that the attorney general should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."
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 kidnap Henry Kissinger, then national security adviser.
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, then the assistant to the solicitor general.
That case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.
"The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity," the court held.
However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment.