Roberts & the 'Apex of
September 6, 2005
at stake with the Supreme Court confirmation of John Roberts, especially
with George W. Bush poised to name a second justice, is not only how the
United States deals with abortion and other social issues but whether
the President will be granted broad authoritarian powers over the
nation’s future and the civil liberties of people worldwide.
While much of the focus on Bush’s choice of Judge
Roberts has centered on his life-long conservative ideology, including
his hostility toward women’s rights, a sleeper issue has been
Roberts’s support for giving the Executive nearly unlimited authority,
at least when the White House is held by a Republican.
That past support for an Imperial Presidency is
even more significant now that Bush has picked Roberts, 50, to replace
the late William Rehnquist as Chief Justice, creating the prospect of a
Roberts Court that may extend for decades. Bush next plans to fill the
vacancy from Sandra Day O’Connor’s retirement with another nominee, who
is expected to consolidate right-wing control of the high court.
Roberts’s deference to presidential power is a
strand that has run through his entire career as special assistant to
Ronald Reagan’s attorney general, a legal strategist for Reagan’s White
House counsel, a top deputy to George H.W. Bush’s solicitor general
Kenneth W. Starr, and a federal appeals court judge accepting George W.
Bush’s right to deny due-process rights to anyone deemed an “enemy
Roberts has sided with executive power on both
foreign policy issues and on bureaucratic disputes. For instance, during
the Reagan administration in 1983, he said it was time to “reconsider
the existence” of independent regulatory agencies, such as the Federal
Communications Commission and the Federal Trade Commission, and to “take
action to bring them back within the Executive Branch.”
Roberts called these agencies a “constitutional
anomaly,” which should be rectified by putting them under direct
presidential control. That, however, could let an unscrupulous President
have a White House-run FTC look the other way when accusations of unfair
business practices are lodged against a corporate contributor.
Putting the FCC under tighter White House control
would let the President pull the strings of communication policy to
reward his media allies and punish anyone using the broadcast media to
criticize him, much as Richard Nixon tried to do during the Watergate
scandal of the 1970s.
In the 1980s, Roberts also provided legal advice to
the Reagan administration on how to pick its way around the legal
obstacles erected by Congress to limit military and other assistance to
the Nicaraguan contra rebels who were fighting to overthrow Nicaragua’s
leftist Sandinista government.
Reagan’s evasion of those legal restrictions gave
rise to the Iran-Contra scandal in 1986, but it’s still not clear the
scope of Roberts’s advice. Though some documents show that Roberts
opposed White House sponsorship of private contra fund-raising events in
1985, other recommendations that Roberts offered on Iran-Contra issues
have been withheld under claims of national security or executive
One of these still-secret documents was a draft
memo that Roberts prepared for his superiors under the heading “re:
establishment of NHAO,” the acronym for the Nicaraguan Humanitarian
Assistance Office, which became a controversial part of the Iran-Contra
Post, Aug. 25, 2005]
In the mid-1980s, NHAO was set up under the State Department to
funnel non-lethal, “humanitarian” aid to the contras, but much of the
money instead disappeared into shadowy contra accounts which may have
been used to buy weapons. Other money went to hire pilots and planes
used by drug trafficking operations with close ties to the contras.
In 1989, a Senate investigation reported that through NHAO, Reagan’s
State Department hired “four companies owned and operated by narcotics
traffickers to supply humanitarian assistance to the contras.
“The companies were: SETCO Air, a company established by Honduran
drug trafficker Ramon Matta Ballesteros; DIACSA, a Miami-based air
company operated as the headquarters of a drug trafficker enterprise for
convicted drug traffickers Floyd Carlton and Alfredo Caballero;
Frigorificos de Puntaremas, a firm owned and operated by Cuban-American
drug traffickers; Vortex, an air service and supply company partly owned
by admitted drug trafficker Michael Palmer.
“In each case, prior to the time that the State Department entered
into contracts with the company, federal law enforcement had received
information that the individuals controlling these companies were
involved in narcotics.” [“Drugs, Law Enforcement and Foreign Policy,”
Senate Foreign Relations Committee, dated December 1988.]
[For more on this contra-cocaine topic, see Robert Parry’s
Lost History: Contras, Cocaine, the Press & Project Truth.]
The Bush administration also has withheld documents
pertaining to advice Roberts gave to Solicitor General Starr during
George H.W. Bush’s administration. At that time, other Iran-Contra
topics were under review, including how to limit the investigation of
Iran-Contra special prosecutor Lawrence Walsh and whether to pardon
Iran-Contra defendants as a way to finally shut down Walsh’s probe. [See
Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq.]
Even more troubling to civil libertarians has been
Roberts’s readiness to cede almost total power to the President at a
time of conflict, even a vaguely defined one like the indefinite “war on
In Roberts’s current job as a U.S. Appeals Court
judge, he endorsed an extreme view of executive power claimed by the
Bush administration, the right to designate anyone in the world an
“enemy combatant” and thus deny these people basic legal protections
under international or U.S. law.
On July 15, 2005, just four days before George W.
Bush nominated him to the U.S. Supreme Court, Roberts ruled as part of a
three-judge appeals court panel against judicial review for Salim Ahmed
Hamdan, a detainee in the prison camp at Guantanamo Bay.
Hamdan was labeled an “enemy combatant” because he
allegedly was the personal driver of al-Qaeda leader Osama bin Laden.
While not accused of a specific crime against U.S. citizens, Hamdan,
like all Guantanamo detainees, was denied access to U.S. courts and
stripped of rights guaranteed to prisoners of war under the Geneva
Convention of 1949.
Joining two other judges – A. Raymond Randolph,
appointed by George H.W. Bush in 1990, and Stephen F. Williams,
appointed by Ronald Reagan in 1986 – Roberts sided with George W. Bush’s
administration in ruling that the Geneva Convention “does not confer
upon Hamdan a right to enforce its provisions in court.”
The panel ruled that the Geneva Convention would
not apply to Hamdan because it covers only nation-states and not
terrorist organizations like al-Qaeda. But the court went even further,
asserting that presidential action cannot be constrained by “judicially
enforceable rights” in treaties approved by the U.S. government.
The court also endorsed Bush’s proposed military
commissions for trying and possibly executing those designated “enemy
combatants.” In endorsing this procedure – which even some military
lawyers have protested as unjust – Roberts and his colleagues cited
precedents from World War II.
The judges acknowledged that no declared state of
war now exists, but cited a congressional war powers resolution passed
after the Sept. 11, 2001, terror attacks as a legal basis for Bush
asserting unfettered powers as commander in chief.
Essentially, the court endorsed all of the Bush
administration’s legal rationales and accepted at face value its factual
assertions about Hamdan and the other Guantanamo detainees, particularly
the White House claim that they are members of al-Qaeda.
The court agreed with Bush’s argument, too, that
since al-Qaeda is not a state and doesn’t comply with the rules of war,
its “members” don’t qualify for any protections under domestic or
People for the American Way cited Roberts’s support
for this expansive presidential power as a key reason for opposing his
“A critical issue facing the Court, particularly
given the war on terror, is the extent of executive authority, and
whether the President will exercise untrammeled unilateral power,
unchecked by the Court,” PFAW said in a report on the nomination.
PFAW said Roberts’s belief in a supreme executive
threatens both the U.S. system of checks and balances and individual
rights and liberties.
For instance, under Bush’s theory of presidential
authority, his designation of even U.S. citizens as “enemy combatants”
is beyond legal challenge. Under this interpretation, a designated
person can’t contest any of the facts, including whether he actually is
an al-Qaeda “member” or whether it might be a case of mistaken identity.
In other words, George W. Bush simply gets to
decide who’s a “member” of al-Qaeda and have that person locked up
indefinitely. Since the Bush position, as endorsed by Roberts, holds
that no judicial review is allowed, the U.S. government doesn’t need to
present any objective evidence to show that a person really is in al-Qaeda,
an organization that doesn’t issue membership cards and is considered by
many experts to be an amorphous group of like-minded individuals.
Jason Burke, author of Al-Qaeda: The True Story
of Radical Islam,
argues that al-Qaeda is “an idea, not an organization,” with bin
Laden and other leaders having no “need to organize attacks directly.”
Instead, al-Qaeda leaders “merely need to wait for
the message they have spread around the world to inspire others.” Rather
than following orders from above, autonomous cells launch attacks on
targets independently at times of their own choosing, actions which are
then applauded by al-Qaeda leaders.
This analysis of al-Qaeda’s diffuse structure
raises more troubling questions about granting Bush the sole authority
to decide who belongs to al-Qaeda.
What happens to people who might be considered al-Qaeda
sympathizers or “fellow-travelers”? What about anti-war demonstrators
whose opposition to Bush’s policies are deemed by the President’s
supporters to be “aiding and abetting” al-Qaeda? Where does the line
finally get drawn?
Since January 2002, U.S.
allies have objected to the humiliation of the Guatanamo prisoners and
to Bush’s assertion that these “unlawful combatants” were outside
protection of international law.
Some of the loudest
criticism of Camp X-Ray came from the staunchest U.S. ally, the United
Kingdom, where three cabinet ministers – Robin Cook, Patricia Hewitt and
Jack Straw – expressed concern that the prisoners were not being treated
well and that international agreements on treatment of prisoners of war
were being breached.
Legal experts pointed out
that “unlawful combatant” is not a category recognized by international
law. They also noted that when a detainee’s status is in doubt, he must
be accorded all rights enumerated in the Geneva Convention until a
“competent tribunal” is established to determine the prisoner’s legal
The U.N. High
Commissioner for Human Rights, Mary Robinson, also objected to the
treatment of the detainees and called on the Bush administration to
follow the Geneva Convention. Robinson argued that because the
Afghanistan conflict involved outside forces, “the law of international
armed conflict applies.” [Independent, Jan. 19, 2002]
Human rights groups also
weighed in. On Feb. 8, 2002, the International Committee of the
Red Cross asserted that both the Taliban and al-Qaeda fighters were
prisoners of war fully protected by the Geneva Convention. “They were
captured in combat (and) we consider them prisoners of war,” ICRC
spokesperson Darcy Christen told Reuters.
expressed concern about the tactics being used and the secrecy
surrounding the camp. Human Rights Watch said, “If there is doubt about
anyone’s status as a prisoner of war, the Geneva Conventions require
that he be treated as such until a competent tribunal determines
otherwise. To our knowledge, no tribunals have made any such
British human rights
attorney Stephen Solley said the treatment of the suspects was “so far
removed from human rights norms that it [was] difficult to comprehend.”
Three and a half years later, even after many Guantanamo
prisoners – such as the British “Tipton
Three” – had been cleared of terrorist ties and released, Bush still
asserted the unilateral right to designate “enemy combatants,” stripping
them of access to U.S. courts.
Judge Roberts joined in upholding that presidential
right. As for the application of international law to treatment of
detainees, the Roberts view would seem to free Bush from any requirement
to treat prisoners humanely, too.
Roberts and his appeals court colleagues also
upheld the legality of military commissions that Bush established to try
Hamdan and other “enemy combatants.”
Roberts and the two other judges extrapolated that
congressional approval of military action against the terrorist
organization responsible for the Sept. 11 attacks implied a grant of
authority to Bush for the creation of tribunals that could imprison or
condemn to death anyone dubbed an “enemy combatant.”
Beyond questions about the soundness of that legal
thinking, the rules for the military tribunals have drawn objections
about their due-process fairness.
Two former prosecutors have argued that
the commissions are fraudulent.
One prosecutor, Major
Robert Preston, said he could not continue to work on a process that he
considered morally, ethically and professionally intolerable. Capt. John
Carr said the
appears to be rigged,” before also leaving.
In the book Guantanamo:
What the World Should Know, civil rights attorney Michael Ratner
described the chilling authority that is being put in Bush’s hands.
“Normally the district
attorney investigates and presents evidence to a grand jury, and then
there is a hearing before an impartial court, set up by the legislature,
to determine whether there is enough evidence to bring a person to
trial,” Ratner wrote. “Now, a person can be bound over to a commission
merely because the President designates that person to be arrested,
detained and tried. …
“There is no check on the
President’s power of designation, so he can simply name any alien
anywhere in the world, and have the military go pick up that person.”
Bush has already signed
many such orders. “It is an unprecedented power,” Ratner said, “and it
is very frightening that any single person in the world should have this
But none of these
concerns appeared to bother Judge Roberts. In the July 15 decision,
there was not a word about the fairness of the proposed military
commissions, nor about the conditions the Guantanamo detainees have been
held under for over three years.
The camp has become
notorious for human rights abuses and coercive interrogation practices
that fly in the face of the Geneva Convention. These techniques include
the use of snarling dogs, the practice of water-boarding to make
prisoners think they are drowning, and the exploitation of detainees’
religion, including desecration of the Koran and smearing fake menstrual
blood on their faces.
All of these techniques
violate the letter and spirit of the Geneva Convention, which provides
that “every prisoner of war, when questioned on the subject, is
bound to give only his surname, first names and rank, date of birth, and
army, regimental, personal or serial number, or failing this, equivalent
Prisoners may be questioned, but under no
circumstances are they to undergo “physical or mental torture, nor any
other form of coercion” in order to extract information. “Prisoners of
war who refuse to answer may not be threatened, insulted, or exposed to
any unpleasant or disadvantageous treatment of any kind,” Article 17 of
the 1949 Convention states.
But what the Bush administration has asserted and
what Judge Roberts affirmed in the July 15 decision is that George W.
Bush is exempt from the Geneva Convention – or any other law – in his
prosecution of the war on terror.
Roberts also endorsed legal arguments put forth by
the Bush administration that undermine the separation of powers. Some of
these assertions go back to the weeks after the Sept. 11 attacks,
starting with Bush’s Military Order No. 1.
As commander in chief, Bush issued the order on
Nov. 13, 2001, defining people whom he could detain at will, simply by
designating any non-citizen as an international terrorist or enemy
“The president decided that he was no longer
running the country as a civilian President. He issued a military order
giving himself the power to run the country as a general,” Ratner wrote.
‘Apex of Power’
Then, in August 2002, the Justice Department
asserted that international laws against torture don’t apply to
interrogations of al-Qaeda suspects. In congressional hearings in summer
2004, Attorney General John Ashcroft refused to show the Senate
Judiciary Committee the administration’s memos arguing that Bush has the
inherent authority to order torture whenever he deems it necessary.
The Wall Street Journal, which obtained a draft of
the torture memo, summarized its contents this way: “The president,
despite domestic and international laws constraining the use of torture,
has the authority as commander in chief to approve almost any physical
or psychological actions during interrogation, up to and including
The Journal also reported that “a military lawyer
who helped prepare the report said that political appointees heading the
working group sought to assign to the President virtually unlimited
authority on matters of torture – to assert ‘presidential power at its
absolute apex,’ the lawyer said.” [WSJ, June 7, 2004]
While these arguments pertained to foreign
nationals, it follows logically that U.S. citizens could be swept up as
The Bush administration argued before the federal
courts that the United States is a “battlefield” where even U.S.
citizens can be designated as “enemy combatants” and stripped of their
legal rights, as happened to Jose Padilla, a U.S. citizen arrested in
May 2002 on suspicions of plotting a terrorist attack.
Meanwhile, the Bush administration is laying plans
for deploying the military inside the United States as part of the war
on terror. A recent Department of Defense
document includes plans for pre-emptive efforts within the United
States, reversing a long-standing U.S. policy against using the military
in domestic law enforcement.
The Pentagon plan states that when directed by the
President or the secretary of defense, the U.S. military will “defeat
direct threats within U.S. airspace and on U.S. territory.” The new
strategy promises to “transform U.S. military forces to execute homeland
defense missions in the … U.S. homeland.”
It envisions pre-emptive action to “defeat
potential challengers before they threaten the United States,” which
would entail increased reconnaissance and surveillance conducted by the
military within the United States. [See Consortiumnews.com’s “Bush’s
Considering his deference toward the Executive
Branch, Judge Roberts would presumably be a reliable vote on the U.S.
Supreme Court to grant George W. Bush whatever power he wants as the
President picks and chooses who gets detained without trial and what
means are used to extract information.
Conflict of Interest
Regarding the Hamdan case, Roberts also saw no
impropriety in his simultaneous interviewing with senior administration
officials for a life-time job on the Supreme Court and his judging of a
case in which Bush was a defendant.
On April 1, Roberts was interviewed by Attorney
General Alberto Gonzales, who had formulated many of the arguments for
the “apex of presidential power,” including Bush’s right to override
Other interviews with Roberts were conducted by
Vice President Dick Cheney; White House Chief of Staff Andrew Card;
White House legal counsel Harriet Miers; Bush’s chief political
strategist Karl Rove; and Cheney’s chief of staff Lewis Libby.
Rove and Libby are two figures who have been named
as leakers in connection with the outing of CIA officer Valerie Plame
after her husband, former Ambassador Joseph Wilson, criticized the White
House for misleading the American people about Iraq’s supposed nuclear
If indictments are handed up in the Plame case,
that is another issue that could eventually end up before what might
then be called the Roberts Court.
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