Thursday, September 15, 2005

Stealthy John Roberts: So why was Bush's first choice? 

Because he enables torture, naturally!

I saw this by Nat Hentoff in (of all places) the Bucks County Courier Times print edition, but, for some reason, in, oh, the Times or anything:

[A] key decision on the president's view of his powers as commander in chief, Judge Roberts joined with two of his colleagues in the recent Hamdan v. Rumsfeld; the ruling gave this and succeeding presidents the unreviewable power to bypass civilian courts -- and previous due-process protections of our military courts -- in the treatment of prisoners suspected of involvement in terrorism.

Salim Ahmed Hamdan has been a prisoner at Guantanamo Bay, Cuba, for three years. He is now being put before a military commission (a process invented by the Bush administration), which prevents Hamdan from being in the room during crucial parts of the hearing. In addition, his attorney cannot see secret evidence against Hamdan. Moreover, the presiding officer can admit previous evidence extracted by torture. Most crucially, the final appeal is only to President Bush or his designee.

As Emily Bazelon -- a legal issues writer for Slate and contributing editor to Yale's Legal Affairs magazine -- emphasizes: "Roberts signed on to a blank-check grant of power to the Bush administration to try suspected terrorists without basic due-process protections."

Yet in Rasul et al v. Bush, the Supreme Court, in a 6-to-3 vote (with Sandra Day O'Connor in the majority) ruled on June 28, 2004, that noncitizens detained in Guantanamo Bay are entitled to due process before a neutral official body. However, in addition to the Bush military commissions denying the basic elements of due process, Hamdan's appeal brief to the Supreme Court by Georgetown University law professor Neil Katyal makes this telling point:

New York Times reporter Neil Lewis disclosed on Aug. 1, 2005, that some of the military prosecutors involved in Hamdan's proceedings were so concerned at its lack of fairness that they charged "the chief prosecutor had told his subordinates that the members of the military commission that would try the first four defendants (including Hamdan) would be 'handpicked' to ensure that all would be convicted."

In deciding this case, Judge Roberts also accepted "without reservation" the government's argument that strips U.S. detainees of the Geneva Conventions governing the treatment of prisoners, which this country had ratified.

Jonathan Freiman, an expert appellate attorney involved in this case and a senior fellow at Yale Law School, points out that in this part of the ruling, Roberts disregarded "the plain text of the Constitution's Supremacy clause, which unambiguously states 'all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.'"
Keep in mind, adds Freiman, the Geneva Conventions are a treaty that "binds this nation to the rest of the civilized world."

It's not surprising, therefore, that Yale Law School professor Oona Hathaway, a former clerk to Justice O'Connor, whom Roberts would replace, told The New York Times on July 24, 2005, that the elevation of Roberts "could recenter the court" in the direction of unchecked presidential powers.

The Hamdan decision goes far beyond the specific case itself. It also encompasses the abuses of prisoners, such as torture, beyond Guantanamo Bay -- ongoing crimes that Congress so far has refused to fully investigate up the chain of command.
(via Decatur Daily Democrat)

So much for all that crap about deference and humility and precedent and all that.

Roberts is a made man. I don't care how cute his kids are.

Say, wasn't Hamdan v. Rumsfeld that case that Roberts had not yet decided in Bush's favor, at the same time Bush was interviewing him for a job? Of course it was. Why then didn't Roberts recuse himself? The question answers itself, doesn't it?

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