- The Washington Times - Sunday, September 11, 2005

There is much to admire in the extensive legal experience of Judge John Roberts. But the prospect of his being on the Supreme Court for 30 or more years is troubling as there is no discernible end to worldwide terrorism, and Judge Roberts’s proven deference to presidential powers could result in a further weakening of our already embattled separation of powers in the Constitution.

For the last two years, as a judge on the influential District of Columbia Court of Appeals, Judge Roberts 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 vs. 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: “Judge 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, Mr. Hamdan’s appeal brief to the Supreme Court by Georgetown University law Professor Neil Katyal makes this telling point: New York Times reporter Neil Lewis disclosed on Aug. 1, 2005, that some of the military prosecutors involved in Mr. Hamdan’s proceedings were so concerned at its lack of fairness (the very definition of “due process”) that they charged “the chief prosecutor had told his subordinates that the members of the military commission that would try the first four defendants (including Hamdan) would be ‘handpicked’ to ensure that all would be convicted.” In deciding this case, Judge Roberts also accepted “without reservation” the government’s argument that strips U.S. detainees of the Geneva Conventions governing the treatment of prisoners, which this country had ratified.

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, Judge 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 Mr. 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 Judge Roberts would replace, told The New York Times on July 24, 2005, that the elevation of Judge 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.

If the already weakened separation of powers in our Constitution is to be strongly repaired, these violations of both international law and our own statutes will have to come before the Supreme Court. As the nominee for chief justice of the Supreme Court, Judge Roberts has clearly shown how deferential he is to unchecked presidential powers in this and possibly future administrations.

I admire Judge 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. And that is no laughing matter in a struggle against murderous terrorists during a war without any discernable end.

Mr. Katyal warns that the effects of this ruling go beyond his client, explaining that the decision, in which Judge 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.”

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