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Roberts & the 'Apex of Presidential Power'

By Nat Parry
September 6, 2005

What’s 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 combatant.”

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.

Iran-Contra Secrets

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 privilege.

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 Affair. [Washington 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 Parry’s Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq.]

Backing Bush

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 terror.”

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 international law.

Swing Vote

People for the American Way cited Roberts’s support for this expansive presidential power as a key reason for opposing his nomination.

“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?

Torture Rationale

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 status.

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.

Amnesty International 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 determinations.”

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.

Bush’s Tribunals

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 “process 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 ability.”

No Doubts

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 information.”

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 combatant.

“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 torture.”

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 well.

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 Grimmer Vision.”]

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 anti-torture laws.

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 weapons program.

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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