I hope so.
Roberts may...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.
What Bazelon and her ilk cannot seem to grasp is that America is at war. Hamdan isn't a jay-walker; he's an enemy; he could have been shot on the spot. As Justice Franfurter wrote 61 years ago:
The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is 'the power to wage war successfully.'... Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as 'an unconstitutional order' is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. 'The war power of the United States, like its other powers ... is subject to applicable constitutional limitations',....To recognize that military orders are 'reasonably expedient military precautions' in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war.Judge Roberts seems to adhere to that principle. Let's hope that he joins the Supreme Court, for America's sake.
Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study) (05/18/04)
More about War and Civil Liberties (06/28/04)
Why Soverignty? (09/14/04)
Why We Fight (12/07/04)
Redeeming the Promise of Liberty (05/06/05)
Where Do You Draw the Line? (05/22/05)
An Agenda for the Supreme Court (06/29/05)