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Roberts Set Out Doubts On Genocide Treaty

Researcher Ray Wilson at the Ronald Reagan library in Simi Valley, Calif., examines some Reagan-era documents relating to John G. Roberts Jr.
Researcher Ray Wilson at the Ronald Reagan library in Simi Valley, Calif., examines some Reagan-era documents relating to John G. Roberts Jr. (By Nick Ut -- Associated Press)

As a federal appeals court judge, Roberts upheld the use of military tribunals to try detainees suspected of terrorism. The Judiciary Committee's ranking Democrat, Sen. Patrick J. Leahy (Vt.), has said he told Roberts to expect questions on whether President Bush tried to set himself "above the law" in setting torture policy for terrorism suspects.

Leahy has pointed to a controversial memo written by current administration lawyers that gave advice on when torture is appropriate and argued that the president had the right to issue orders violating the Geneva Convention and other international laws. Leahy has said he hopes to get Roberts's opinion on the memo.

The Genocide Convention treaty, which committed nations to preventing and punishing genocide, had been signed by President Harry S. Truman in 1948 but had languished in the Senate without ratification because of conservative opposition.

Roberts noted in his memo that the objections included the argument that the treaty "internationalizes" criminal law, that it could force Americans to stand before an international tribunal, that violent nations would ignore the treaty while hostile ones could use it for "propaganda" purposes, forcing the United States to go before the tribunal because of its actions in Vietnam or other countries.

"These objections are not unfounded," Roberts wrote. But he added that "a consensus has evolved that they are outweighed by the propaganda windfall our failure to ratify the convention has already afforded our international opponents."

The Reagan administration later declared its support for the convention. The debate, though, has resonance today, since Bush has adamantly opposed subjecting U.S. soldiers to international courts.

In April 1985, the head of the White House Fellowship program asked for guidance when the staff writer for the program's alumni newsletter penned a favorable review of a book criticizing the administration's call for reform of the insanity defense.

In a memo to his boss Fred F. Fielding, Roberts gave his own review. "[Author Lincoln] Caplan documents how infrequently the insanity plea is invoked, and how rarely it is successful, but does not note that, even rarely invoked, the plea imposes staggering costs on the judicial system and, since it is often invoked in celebrated cases, has an effect on public confidence in the law far out of proportion to the number of cases in which it figures."

But he advised against making any changes. "The surest way of according prominence to the book and the review would be to attempt to block the review."

In a Jan. 12, 1984, memo, Roberts raised "serious legal questions" about the president's intended radio address announcing the recall of the U.S. ambassador and suspension of all trade with Nicaragua following the mysterious slaying of a U.S. service member there.

Roberts noted that the suspension of trade required an "unusual or extraordinary threat" and a consultation with Congress. A few months earlier, Roberts chafed at the president's planned remarks at a reception for medical students rescued in the Grenada invasion, objecting to the scripted comment that "we didn't invade Grenada, we rescued Grenada."

"Of course we invaded Grenada, as we invaded France on D-Day," Roberts wrote in a Nov. 4, 1983, memo.

Staff writer R. Jeffrey Smith, researcher Bobbye Pratt and news aide Elliott Postell contributed to this report.

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