Roberts’ Rules Of War

In the first few days of Judge John Roberts’ hearing before the Senate Judiciary Committee, most senators focused their questions on his views of privacy, precedent and free speech. So far, only Sen. Russ Feingold has asked Roberts about his views on national security and civil liberties. Because Roberts is the first Supreme Court nomination of the 21st century and the first after 9/11, it is important that this hearing examine Roberts’ views on the balance between national security and civil liberties.

A Chief Justice Roberts will guide the court’s decisions on cases that will test the Bush administration’s determination to emphasize the prevention of terrorism over both the rights of Americans and the rule of law.  If the recent past is any prologue, the Supreme Court could soon rule on the administration’s efforts to wordsmith its definition of torture; the rendition of suspected terrorists to countries that torture; the indefinite detention of American citizens; the Pentagon’s Guantanamo tribunals and various provisions of the Patriot Act.  

Yet neither the Senate nor the pundit class has paid much attention to Judge Roberts’ views on these issues.  This is surprising given that the D.C. Court of Appeals’ recent ruling in Hamdan v. Rumsfeld .  The three-judge panel, which included Roberts, gave the administration a significant legal victory, ruling that a military commission could try a man who once allegedly served as Osama bin Laden’s driver.

Four days after the Court of Appeals’ ruling in Hamdan , President Bush nominated John Roberts for the Supreme Court. Although there is no evidence that Judge Roberts’ thinking on terrorism-related issues tipped the balance in his favor, President Bush and his senior advisors surely must have noted Roberts’ role in handing the administration one of its most significant legal victories in its prosecution of the war on terror.

The deference shown to the administration in Hamdan makes it clear that a Chief Justice Roberts will take a very different approach to security questions than the justice he was initially to replace, Sandra Day O’Connor—who joined the majority in the enemy combatant cases decided over the past year. O’Connor sought to place checks on presidential power in a time of war. If Hamdan is any guide, Roberts will be much more deferential.

This debate over national security and civil liberties is only likely to intensify, both on and off the bench.  The Supreme Court will not only have to balance the relationship between the three branches of U.S. government, but will also have to consider the scope of U.S. obligations under a number of treaties to which it is a party, including the Geneva Conventions and the Convention against Torture.

These are critical issues for the country with real-world consequences. The court’s rulings on the Geneva Conventions, for example, will have an impact not only on those now detained by the U.S. government, but also on American soldiers who someday may be prisoners of war.

The legal debate over the administration’s (and Congress’) response to 9/11 has just begun.  Given its uncertain duration, questions surrounding the war on terror may come to dominate even the decades-long tenure of a Justice Roberts.  In fact, no other issues—not even those surrounding the right to privacy—are as likely to vex the court as much.

And unlike abortion or other contentious issues, there is little or no paper trail to review. Members of the Senate Judiciary Committee would be wise to seek Judge Roberts’ views. Most importantly, perhaps, senators should ask Judge Roberts why he believes that the courts should be so deferential to the president in his role as commander in chief in a time a war.  Judge Roberts’ answers should be central to the Senate’s review of his nomination, and ultimately its decision on his suitability.

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