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Thank You, Mr. President
Last week, John Roberts wrote Bush a blank check.
By Emily Bazelon
07/19/05 "Slate"
- - Since Sandra Day O'Connor resigned almost three weeks ago,
John Roberts has been the Washington, D.C., establishment choice
to take her seat on the Supreme Court—among some Democrats as
well as Republicans. As a deputy solicitor general for George H.W.
Bush, Roberts wrote a brief arguing that doctors in clinics
receiving federal funds shouldn't be able to talk to their
patients about abortion (the Supreme Court agreed) and in passing
called for the reversal of Roe v. Wade. But some liberals
are quick to argue that on the Supreme Court, Roberts would be
open to rethinking such right-wing positions. They take comfort in
his reputation for being likable and fair-minded.
Roberts may indeed turn out to be a wise, thoughtful, and
appealing justice. Tonight when Bush announced his nomination,
Roberts talked about feeling humbled, which won him points on TV.
But an opinion that the 50-year-old judge joined just last week in
the case Hamdan
v. Rumsfeld should be seriously troubling to anyone who
values civil liberties. As a member of a three-judge panel on the
D.C. federal court of appeals, Roberts signed on to a blank-check
grant of power to the Bush administration to try suspected
terrorists without basic due-process protections.
According to the government, Salim Ahmed Hamdan is the former
driver and bodyguard of Osama Bin Laden. He was captured by an
Afghan militia in November 2001, during the U.S. invasion, and
shipped off to Guantanamo Bay. In July 2003, the Bush
administration brought charges against Hamdan, as it has done
against only three others among the hundreds of suspected
terrorists being held at Guantanamo. Hamdan was accused of
conspiring to commit attacks on civilians, murder, and terrorism,
and the Bush administration moved to try him before a special
military tribunal.
This tribunal isn't like the courts-martial that are used for
prisoners of war. It goes by rules that cut back the rights of
defendants even more drastically than the tribunal that the United
States has helped establish in Iraq to try Saddam Hussein has.
Hamdan has no right to be present at his trial. Unsworn
statements, rather than live testimony, can be presented as
evidence against him. The presumption of innocence can be taken
away from him at any time; so can his right not to testify to
avoid self-incrimination. If Hamdan is convicted, he can be
sentenced to death.
The opinion Roberts joined, written by Judge A. Raymond
Randolph for a unanimous panel (though the third judge, Stephen
Williams, expressed a reservation in a concurrence), swallows all
of that and then some. The opinion says that Congress authorized
the president to set up whatever military tribunal he deems
appropriate when it authorized him to use "all necessary and
appropriate force" to fight terrorism in response to 9/11.
While the president has claimed the authority only to try foreign
suspects before the tribunals, there's nothing in the Hamdan
opinion that stops him from extending their reach to any other
suspected terrorist, American citizens included. This amounts to a
free hand—and one Bush is not shy about extending. The
administration has already devised its own tribunals to review its
claims that the Guantanamo detainees are all enemy combatants who
are not entitled to the international protections accorded to
prisoners of war. As of February, 558 hearings had resulted in
freedom for only three prisoners. The Supreme Court has yet to
rule on the legality of these tribunals—a question that Roberts
may now help decide.
Hamdan also says that the defendant, and by extension
the other Guantanamo detainees, has no right to petition for
release under the Geneva Conventions. Hamdan's lawyers argued
that, since the president is prosecuting their client in the name
of the laws of war, the president has to be bound by those laws.
Their claim is a fairly limited one—not that Geneva gives the
detainees a ticket to challenge the conditions of confinement or
to sue for money damages, but that it sets the parameters for
their trials. Since 1804, it's been a basic principle of statutory
interpretation—called, of all things, the
Charming Betsy principle—that federal laws authorizing the
government to do something have to be read so that they're
consistent with international law. Here that international law is
Geneva. Yet the panel ignores Charming Betsy and reads
congressional authorization to allow the president to utterly
disregard Geneva's definition of how war crimes are to be tried.
According to the panel, Geneva protections can't be enforced in
federal court by the people who say they have been deprived of
them. If the United States is a laggard in honoring one of the
cornerstones of international law, the court asserts, it's up to
other countries to use diplomacy to make us shape up.
The panel's reasoning on this score is particularly weak. It is
also at odds with a stance that Justice O'Connor took this spring.
Writing for four of the justices, O'Connor said that "it is
axiomatic that while treaties are compacts between nations, a
treaty may also contain provisions which confer certain rights ...
capable of enforcement as between private parties" in court.
O'Connor wasn't writing about Geneva, and she wasn't writing about
Guantanamo—the case was Medellin
v. Dretke, in which a majority of the court declined to
rule on the claim of a Mexican death-row inmate that he was being
held in violation of the Vienna Convention. Because O'Connor
didn't speak for a majority of the Supreme Court, she wasn't
making law. But it's close to impossible to square her stance with
the panel's opinion in Hamdan—not that her view will
matter much once she's gone and Roberts is sitting in her chair.
At oral argument, Roberts appeared to recognize some of the
weaknesses in the government's stance. In particular, he quizzed
Hamdan's lawyers about the Charming Betsy principle of respecting
international law. But none of the reservations he appeared to
harbor then are reflected in the opinion he joined. So, what does
that say about John Roberts? Did he decide that Judge Randolph had
it right down the line in Hamdan, or did he sign on to a
flawed and sweeping opinion because he was auditioning for the job
Bush has now picked him for? Neither prospect is reassuring.
Emily Bazelon is a Slate senior
editor.
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