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.