Sweet Land of Liberty: The problem with John Roberts
Having read hundreds of pages of John Roberts’ record in his years at the Justice Department and in private practice, I do not question that this amiable, quick-witted nominee to the Supreme Court has extensive experience in the law. But the prospect of Roberts as chief justice of the High Court for the next few decades is very troubling, especially since our worldwide war on terrorism keeps testing the firmness of our constitutional separation of powers.
For the last two years, Roberts, as a judge on the influential District of Columbia Court of Appeals, has spoken for himself — not for the Justice Department or his private clients.
Significantly, in a key decision on the president’s view of his powers as commander in chief, Judge Roberts joined with two of his colleagues in the recent Hamdan v. Rumsfeld; the ruling gave this and succeeding presidents the unreviewable power to bypass civilian courts — and previous due-process protections of our military courts — in the treatment of prisoners suspected of involvement in terrorism.
Salim Ahmed Hamdan has been a prisoner at Guantanamo Bay, Cuba, for three years, some of the time in solitary confinement. He is now being put before a military commission (a process invented by the Bush administration), which prevents Hamdan from being in the room during crucial parts of the hearing (which could put him away for life). In addition, his attorney cannot see secret evidence against Hamdan. Moreover, the presiding officer can admit previous evidence extracted by torture. Most crucially, the final appeal is only to President Bush or his designee.
As Emily Bazelon — a legal issues writer for Slate and contributing editor to Yale’s Legal Affairs magazine — emphasizes: “Roberts signed on to a blank-check grant of power to the Bush administration to try suspected terrorists without basic due-process protections.”
Yet in Rasul et al v. Bush, the Supreme Court, in a 6-to-3 vote (with Sandra Day O’Connor in the majority) ruled on June 28, 2004, that noncitizens detained in Guantanamo Bay are entitled to due process before a neutral official body. However, in addition to the Bush military commissions denying the basic elements of due process, Hamdan’s appeal brief to the Supreme Court by Georgetown University law professor Neil Katyal makes this telling point:
Jonathan Freiman, an expert appellate attorney involved in this case and a senior fellow at Yale Law School, points out that in this part of the ruling, Roberts disregarded “the plain text of the Constitution’s Supremacy clause, which unambiguously states ‘all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.'” Keep in mind, adds Freiman, the Geneva Conventions are a treaty that “binds this nation to the rest of the civilized world.”
It’s not surprising, therefore, that Yale Law School professor Oona Hathaway, a former clerk to Justice O’Connor, whom Roberts would replace, told The New York Times on July 24, 2005, that the elevation of Roberts “could recenter the court” in the direction of unchecked presidential powers.
The Hamdan decision goes far beyond the specific case itself. It also encompasses the abuses of prisoners, such as torture, beyond Guantanamo Bay — ongoing crimes that Congress so far has refused to fully investigate up the chain of command, including Defense Secretary Donald Rumsfeld.
I admire Roberts’ sense of humor, as revealed in many of his papers that have been released, but providing presidents so sizeable a blank check endangers the very Constitution we are fighting to protect.
Neil Katyal warns the effects of this ruling go beyond his client, explaining that the decision, in which Roberts joined, “vests the president with the ability to circumvent the federal courts and time-tested limits on the executive. No decision, by any court, in the wake of the Sept. 11, 2001, attacks has gone this far.”
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights.