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Roberts' rules put U.S. at risk

Published July 24, 2005

As the Senate deliberates the qualifications of Judge John Roberts Jr. for elevation to the nation's high court, it should closely consider the implications of one case decided this month that will probably receive short shrift, because it isn't one he authored, but merely joined.

The case of Hamdan vs. Rumsfeld involves a man purported to be Osama bin Laden's personal bodyguard and driver, who was captured in Afghanistan in late 2001 by militia forces and transferred to American custody. Salim Ahmed Hamdan has been a prisoner in Guantanamo Bay, Cuba, since 2002 and is now up on charges of murder and terrorism. He is being tried under a military tribunal system, established by President Bush for the express purpose of sending accused terrorists through a separate legal system.

Hamdan's guilt or innocence was not the question before Roberts and his two colleagues on the D.C. Circuit U.S. Court of Appeals. Rather, the question was whether President Bush had the authority to contravene the Geneva Conventions and establish an unreviewable regime of military tribunals to try detainees.

Together, the three Republican-appointed judges issued a resounding "yes." According to the court, no matter how little due process would be afforded the defendant or how dismissive the process was of the rules spelled out in the Conventions, the proceedings could go forward.

Welcome to Roberts' Rules of Order: Geneva Conventions = Paper Airplane.

This case is instructive on Roberts' deference toward executive power. Roberts appears willing to keep the courts out of Bush's hair while Bush unilaterally alters the rules on the civilized treatment of prisoners that the world has adopted and we have embraced for more than 50 years.

The ruling overturned a decision by Judge James Robertson, a federal district court judge in Washington, who was appointed by President Clinton. He said the Genveva Conventions actually mean something.

Robertson noted that the Conventions grant prisoners a hearing to determine whether they qualify as POWs. This was never done, because Bush declared unilaterally that all prisoners captured in Afghanistan would not be afforded POW status. Without such a hearing, Robertson said, the prisoners are to be treated as POWs in accordance with the Conventions and must be granted the same kind of trial that our soldiers receive during a court martial.

Bush's military tribunals, according to Robertson, don't cut it.

Here are some of the gaping due process problems that will cause the rest of the world to view the tribunals as show trials with preordained verdicts: First, they exist entirely within the executive branch. A detainee's final appeal is to the president or his designee, not to the civilian courts, which means the president is essentially judge, jury and executioner.

Second, the defendant may not hear all the evidence against him. If a witness against Hamdan is considered confidential, then Hamdan will never learn the identity of the witness or what was said.

It is impossible to defend adequately against this type of secret evidence. The witness might have been an old enemy or may be gaining some personal benefit by conjuring up allegations. But this will never be learned.

The administration says the president can write any rules he wants, fair or unfair. And the Conventions don't apply to Hamdan, because as a combatant, he represented a cause, not a country.

It is a breathtakingly short-sighted stance.

When Michael Durant, a U.S. warrant officer, was captured in Somalia in 1993 by a warlord's militia, the United States insisted that the Geneva Conventions be followed. It didn't matter to us that the Somali combatants didn't represent a "state." We claimed the Conventions bound them nonetheless.

Keeping the Conventions broadly applicable to our enemies is so important to the welfare of our own troops that a group of highly distinguished retired military generals and admirals filed an amicus brief on Hamdan's behalf. In the brief, the retired officers noted that the administration's "crimped reading" of the Conventions "bears a disturbing resemblance to the interpretation of predecessor conventions adopted by Nazi Germany. Exploiting "technicalities' and "ambiguities' in the 1929 Conventions, the Nazis refused to afford POW status to soldiers of occupied countries, arguing that those prisoners were no longer soldiers of any existing state."

The brief warned that if the administration is allowed to ignore the Conventions, "tyrants will hide their oppression under U.S. precedent and our servicemen and women will pay with their lives."

Sadly, Roberts didn't seem to care. The green light he and his judicial colleagues gave to the tribunals means they are revving up again. We will undoubtedly come to regret this; and maybe, someday, Justice Roberts will, too.

[Last modified July 22, 2005, 17:56:03]

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