As part of the Hugh Hewitt effort to review the papers of John Roberts from the Reagan Library, Radioblogger assigned me Box 31 - Laws of War. Hugh and Duane sent me the PDF file for this set of records containing the thoughts and opinions of John Roberts on this topic during the Reagan administration, looking for potential issues that might come up in Roberts' confirmation.

At first glance, the file appeared to have little substance in it at all. Most of the records consisted of lists of meeting attendees and cover sheets. Only one memo contained anything of note -- but considering the current war on terror, I predict that this one file may well wind up getting twisted into an argument against Roberts.

On May 8, 1985, John Roberts prepared a memo for Richard Hauser for a response to a NATO request about US intentions for proposed changes to the Geneva Conventions. The proposal, called the 1977 Protocols, had not yet been ratified by any of the major powers, and NATO was due to meet to discuss what action should be taken. Not surprisingly, most NATO members wanted to see what the US would do, especially since the Reagan administration had failed thus far to complete a nuclear-arms agreement with the Soviets. The memo from Roberts points out that the Joint Chiefs had objected to Paragraph 4 of the 1977 Protocols:

The main objection is found in paragraph four: the Protocols would treat many terrorist organizations as if they were countries engaged in war, legitimizing their activities and offering them protections and courtesies that should not be extended to common criminals.

I have no objections.

A subsequent memo, dated July 22, 1985 to Fred Fielding, reviewed the May 1985 memo on the subject and Roberts' lack of objection to the Joint Chiefs' opposition to the Protocols. Roberts told Fielding that the State Dept. wanted the Protocols ratified to show that the Reagan administration took a less unilateral approach to foreign policy.

Does that sound familiar at all?

This represented an important stance for the United States, although its impact would not come into play for another sixteen years. The Joint Chiefs wanted to ensure that terrorist groups didn't get treated as "nations at war", a ruling that undoubtedly would get applied to groups such as Hamas and Hezbollah, if not al-Qaeda itself. At the time, however, the Reagan administration came under fire for its intransigence in rejecting the protocols. Most of the criticism came from those who never read the Protocols and just bought into the hype that the new proposals actually fought terrorism. However, the language in Article I, paragraph 4, makes it clear that the entire meaning of "lawful combatant" would have disappeared for all practical purposes:

The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

This distinction has come into play in the current debate over the Global War on Terror, especially regarding American detention facilities at Gitmo and elsewhere. The Senate Democrats will not fail to seize upon Roberts' memo as proof of his conservatism, both in supporting a unilateral approach to international law and the legal structure that allows the US to detain terrorists outside the Geneva Convention. That has already arisen in the days after the nomination, when Democrats pointed out that Roberts supported the Gitmo detentions as part of a unanimous DC appellate court decision on the Hamdan case.

Of course, they will not succeed with these memos. The May 1985 memo only stated that Roberts had no legal objections to declining the ratification. Roberts just pointed out that Defense would apparently prevail over State once their decision became final. The second memo, which outlines the objections of Defense to ratification in more detail, just recaps the May memo and notes that a decision had been made. The information got leaked to the New York Times, and Roberts expected that to mean that Defense had finally reached its decision. Neither memo really expressed any personal agreement or disagreement with Defense on their rejection of the Protocols.

Expect the Democrats to avoid such fine distinctions. They will not miss this opportunity to criticize both Roberts and the Gitmo detentions.

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Tracked on August 20, 2005 7:02 AM