TCS Daily


Roberts' Rule of Order

By Michael Rosen - July 25, 2005 12:00 AM

With his selection of Judge John G. Roberts, Jr., as the next Associate Justice of the Supreme Court, it seems that President Bush has hit a home-run. Roberts bears the fine pedigree of a well-groomed conservative legal thoroughbred. In addition to his high honors degrees from Harvard College and Law School, he clerked for two celebrated jurists, Judge Henry Friendly and Justice (now Chief Justice) William Rehnquist, worked in the Reagan White House counsel's office, and served under the elder Bush's Solicitor General before going on to lucrative private practice. All told, he has reportedly argued 39 cases before the Supreme Court. If Roberts weren't human, one might thing he'd been bionically programmed to ascend to the High Court.

Reviews on the right have been almost uniformly rave. Phrases like "how do I love thee", "unassailable", "intellectually impressive", and "extraordinarily polished" adorned the selection.

Reactions among mainstream Democrats, in the Senate and elsewhere, have been uncharacteristically muted; even the normally feisty Senators Schumer, Leahy, and Durbin more or less held their tongues.

Of course, the response from the far-left has been expectedly critical. Within moments of Roberts' announcement as the nominee, the Alliance for Justice, NARAL, and People for the American Way had deployed its troops and pre-packaged rhetoric.

The road toward Roberts' confirmation will be a long, hard slog even if all goes well. The short judicial record he has developed in two years on the bench will most likely help his cause, since it provides little grist for the misrepresentation mill. (Alas, Roberts' record as an advocate is far longer and is already being twisted).

Among the opinions that will receive scrutiny is Hamdan v. Rumsfeld, a case involving the status and rights of detainees captured in the War on Terror. In an opinion issued the day before the president's announcement of the Roberts nomination, a three-judge panel of the District of Columbia Circuit Court of Appeals, including Roberts himself, decided that the Pentagon's military commissions provide an adequate legal forum for Al Qaeda captives.

Roberts' detractors will surely latch onto this ruling (indeed, they already have) as evidence of a slavish deference to the military and a disregard for basic human rights. But in fact, the opinion -- in which Roberts joined but did not author -- reflects careful jurisprudential thinking and the kind of nuanced approach to thorny legal issues that will help us achieve a just victory in the terror war.

Salim Ahmed Hamdan, by his own admission, was Osama bin Laden's personal driver in Afghanistan. He also apparently served as one of bin Laden's bodyguards, personally delivered weapons to Qaeda training camps and safe havens, and trained at one of the camps. He was apprehended by Afghan forces in November 2001 and transported to the Naval Base in Guantanamo.

But unlike the many Gitmo detainees who are languishing indefinitely in military custody, Hamdan was brought up on charges of terrorism and conspiracy by the U.S. government. He appeared, as required by a recent Supreme Court case, before a Combatant Status Review Tribunal which determined that he was indeed an enemy combatant. He was to be tried before a military commission when he filed a habeas corpus petition in federal (civilian) court.

The district court found for Hamdan, namely that he couldn't be tried by a military commission unless a "competent tribunal" first concluded that he was not a prisoner of war under the Geneva Convention.

But the Court of Appeals reversed on several grounds. First, Hamdan argued that the tribunals established by the Bush Administration violated the separation of powers, since only Congress has the authority to set up such tribunals. But the court responded, as others have before it, that Congress conferred exactly such power on the President in its joint resolution in the wake of the 9/11 attacks, which authorized the executive "to use all necessary and appropriate force" against our enemies and "to take action to deter and prevent acts of international terrorism against the U.S." This resolution plainly encompasses trying and punishing enemy combatants, as is clear from older Supreme Court precedent.

Next, Hamdan contended that the Geneva Convention required that he receive certain legal protections that are not available in the courtroom of a military commission. In addition to finding that the Convention does not bestow rights enforceable in American courts upon individuals, the D.C. Circuit held that the Convention itself does not apply to members of Al Qaeda. The terrorist group was not a signatory to the Convention, nor do its members display "a fixed distinctive sign recognizable at a distance", nor do they conduct "their operations in accordance with the laws and customs of war." Thus, Qaeda detainees are not entitled to any of the privileges granted by the Convention, including prisoner of war status or more generous protections for accused combatants.

Finally, the court turned to the composition of the military commissions themselves. Contrary to Hamdan's assertions, these commissions are largely undefined by statute or common law and await further definition by Congress. In Hamdan's case, the tribunal was composed of three commissioned officers; all three were colonels. The court held that this constituted a "competent tribunal" within the meaning of the Geneva Convention, even if it did apply.

As one final footnote, however, the Court found that if Hamdan were convicted by the commission, he would be entitled to contest his conviction in federal court, after having exhausted his military remedies. In other words, Hamdan may ultimately see the inside of a civilian courtroom.

On the whole, the decision is eminently reasonable, although it will almost certainly be appealed to the Supreme Court (where a Justice Roberts would presumably have to recuse himself). It places all necessary power in the hands of the Executive Branch to carry out the war on terror. It refuses to reward terrorist groups the benefits of the international treaties and human rights they abjure. And it declines to interfere significantly with the military's establishment of tribunals designed to thwart and punish enemy combatants. At the same time, it continues to leave open the potential for relief in American civilian courts, reflecting the lengths to which our system travels to ensure justice for the accused, even if such justice would never be reciprocated by our enemies.

By signing onto the ruling, Judge Roberts demonstrated that he can capably confront one of the most critical issues before the Court this decade: balancing the protection of fundamental liberties against the defense of our homeland.

In short, if Roberts' foes are looking to Hamdan to undermine his nomination, they're barking up the wrong tree.

Michael M. Rosen, a TCS contributing writer, is an attorney in San Diego.

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