WASHINGTON – Democrats plan to question Supreme Court nominee John Roberts (search) about a disavowed Justice Department memo that critics say led to torture in foreign prisons, top Senate Judiciary Democrat Patrick Leahy (search) of Vermont said Monday.
Leahy said he gave Roberts a copy of the so-called "Bybee memo" (search) during a meeting Monday in the Senate's Russell office building. It was the second meeting between the two men since July, when President Bush nominated Roberts to replace retiring Justice Sandra Day O'Connor.
Then-Assistant Attorney General Jay Bybee (search) argued in a Jan. 22, 2002, memo that the president has the power to issue orders that violate the Geneva Conventions as well as international and U.S. laws prohibiting torture.
"It will be raised, partly on the question of to what area — if any — can a president be considered above the law," Leahy told reporters.
The meeting came as the National Archives (search) released more documents from Roberts' time as a government lawyer in theReagan (search) and George H.W. Bush (search) administrations. In one document, Roberts suggested that a conservative supporter of President Reagan "go soak his head" after he criticized the White House for avoiding a friend's fight with immigration officials.
In other documents, Roberts pushed the Reagan administration to get its conservative policies enacted so future presidents could not readily overturn them. And he showed displeasure with the federal judiciary, saying the Justice Department needs to get legal solutions "less dependent on the fiat of unelected jurists."
Bybee, who is now a federal judge on the 9th U.S. Circuit Court of Appeals (search), wrote the now disavowed memo soon after the Sept. 11, 2001, terror attacks.
Critics in Congress and many legal experts say the original document set up a legal framework that led to abuses at the Abu Ghraib (search) prison in Iraq, in Afghanistan and at the U.S. prison camp for terror suspects at Guantanamo Bay, Cuba (search).
The White House says the United States has always operated under the spirit of the Geneva Conventions that prohibit violence, torture and humiliating treatment of prisoners of war.
Leahy said he wanted Roberts to have the memo so he would be prepared for questions at his confirmation hearings, which start Sept. 6. "I don't think a Supreme Court hearing is a game of gotcha," he said. "I'd really like to know what he thinks."
Leahy said he would continue to push the White House to release all of Roberts' documents and memos from his time as deputy solicitor general under the first President Bush and as an assistant to the White House counsel and the attorney general under President Reagan.
Reagan-era documents showed that Roberts, then working as an assistant to White House counsel Fred Fielding in 1984, had corresponded with Bob Jones III, the former president of Bob Jones University (search) in Greenville, S.C., about the case of Peter Ng, a fundamentalist minister.
Jones, then president of the Christian fundamentalist university, had complained to the White House that the Immigration and Naturalization Service was harassing Ng.
The White House refused to get involved in the case. In a Jan. 4, 1984, memo, Roberts said it had received another plea from Jones.
"Mr. Jones suggests in his letter that you would have reacted differently to an alleged civil rights violation, and in a thinly veiled threat, asserts that the alleged insensitivity of the administration to fundamentalist Christians will not go unnoticed by that sizable voting block," Roberts said in a memo to Fielding.
Roberts wrote that "the audacity of Jones' reply is truly remarkable," given the "political cost" the Reagan administration paid for unsuccessfully trying to help the university regain its tax-exempt status after it was revoked by the IRS because the school discriminated on the basis of race.
"A restrained reply to his petulant paranoia is attached for your review, telling Jones, in essence, to go soak his head," Roberts wrote.
On Tuesday, the liberal group Alliance for Justice (search) plans to announce its opposition to Roberts, joining other advocacy groups in taking a position on Roberts' nomination before the confirmation hearings begin.