WASHINGTON - More than 20 years ago, as a young White House lawyer, John G. Roberts Jr. warned against expanding federal law enforcement powers to agencies like the Commerce, Agriculture and Interior departments, declaring that "activities such as arrest and search are the most intrusive a government performs," and seconding a recommendation that such functions be limited to the Justice and Treasury departments.
Roberts' advice came in a May 16, 1984, memo to his boss, White House counsel Fred F. Fielding, at a time when agencies including the Environmental Protection Agency and the Bureau of Land Management were pressing for - and sometimes getting - police powers to handle problems such as toxic waste investigations and armed marijuana growers in the West.
But Roberts' view, a classic conservative articulation of the individual's right to be protected from state power, rings with perhaps renewed relevance today, in light of the government's use of expanded law enforcement authority in pursuit of the war on terrorism. The memo was among the tens of thousands of pages of documents released in recent weeks from the Ronald Reagan Presidential Library and reviewed by The New York Times.
Still other documents from the Reagan Library, the Reagan Justice Department and the White House files of the first President George Bush relating to Roberts were made public yesterday by the National Archives. They include a 1984 memo in which Roberts wrote that Bob Jones III, a conservative Reagan supporter who was then president of the South Carolina university that bears his family's name, should "go soak his head" after he criticized the White House as insufficiently supportive of a friend involved in an immigration dispute.
The latest documents also show that Roberts co-wrote a 1982 memo urging the Reagan Justice Department to get some of its conservative policies - such as opposition to busing and quotas for affirmative action - enshrined in law, so they could not be "instantly reversed when a new administration took office." And in 1981, while helping to shepherd the Supreme Court confirmation of Sandra Day O'Connor, whose seat he would now fill if confirmed, he told her in a memo that "the proposition that the only way senators can ascertain a nominee's views is through questions on specific cases should be rejected."
Roberts offered his views on expanded law enforcement powers as an associate White House counsel, reviewing proposed new administration guidelines that would "represent a general administration commitment not to grant law enforcement authority to agencies other than Justice and Treasury." The guidelines would require an agency that sought such powers to prove that "the need cannot be met by other agencies with such authority."
The guidelines arose in a context in which various agencies were seeking new police powers, sometimes with the support of Congress and liberal groups, which questioned the Reagan administration's commitment to enforce environmental laws.
Roberts acknowledged that the administration's guidelines "will doubtless be viewed as an effort by Justice and Treasury to protect their 'turf,' but it is true that the proliferation of criminal law enforcement authority throughout the government is a dangerous trend that should be halted if not reversed."
Also yesterday, during a meeting on Capitol Hill, Sen. Patrick J. Leahy, the ranking Democrat on the Judiciary Committee, gave Roberts a copy of a Justice Department official's memo that narrowly defined torture and said a president could ignore prohibitions against it in the name of national security.
The Vermont Democrat said he gave Roberts the 2002 memo, which has been disavowed by the Bush administration, because he expected the judge to be asked in "what area, if any," a president can "be considered to be above the law." Leahy said he did not want Roberts to avoid questions about the document by saying he had not read it.