A Reason for Pessimism about John Roberts


A couple of weeks ago Michelle Malkin aptly noted that

There is one fundamental issue that matters more than any other in choosing the next Supreme Court justice–a wartime Supreme Court justice. More than abortion. More than affirmative action. More than the Ten Commandments in courtrooms.

That's exactly why Judge Roberts' ruling last week in the Hamdan v. Rumsfeld case should be troubling to civil libertarians and folks generally concerned with executive branch abuses of power under the guise of national security.

Back in 2004, the Supreme Court decided the Hamdi v. Rumsfeld case (the similar names are coincidental) in a way that raised as many questions as it answered. As Robert Burt of the Yale Law School put it to me in an interview last week, in Hamdi the court hedged its bets, on the one hand rejecting the government's claim of inherent, unreviewable authority to detain prisoners, but also failing to determine just what an adequately impartial review of a detainee's status would consist of. Specifically, the court did not declare that detainees were entitled to review in an Article III (civilian) court, an omission that has at least for now legitimized the executive branch's preferred venue for review–military tribunals.

Salim Ahmed Hamdan, the petitioner in the case that Roberts ruled on, is the former bodyguard to Osama bin Laden and therefore probably very, very guilty. However, as the Hamdi ruling re-emphasized, he is entitled to a day in court. But when there are no established criteria of impartial review and no guarantees of appeal to an Article III judge, his day in court will look like this:

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.

Roberts approved of that sort of trial on the grounds, in the words of the opinion written by his co-panelist A. Raymond Randolph, that Congress' enabling of the executive branch to use "all necessary and appropriate force" after September 11 was in effect an authorization of review by military tribunals.

Full story on Roberts and Hamdan at Slate. Back in January, Harvey Silverglate unpacked the Supreme Court's rulings on prisoner detention.