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Imbalance of power

As a federal appellate judge and associate White House counsel, John Roberts has indicated that he has an expansive view of presidential authority.

When future historians write of President Bush's legacy, they will certainly focus on the marked expansion of executive authority ushered in during his tenure. From the start, the Bush administration was highly protective of presidential power and privilege. Then came the attacks of 9/11 and the ensuing war on terrorism, giving Bush an excuse to assert extraordinary power.

In court, the Justice Department has claimed that the president's powers as commander in chief are not subject to court review. Top administration officials have suggested that neither Congress nor domestic law may constrain the president's treatment of prisoners. So far, the U.S. Supreme Court has acted as a partial check on thi s arrogation of power. Particularly, the court has granted a modicum of due process to so-called enemy combatants, who have been held indefinitely and without charge under the president's authority.

As the Senate Judiciary Committee begins confirmation hearings Tuesday on the Supreme Court nomination of John Roberts Jr., it should pay careful attention to his views on the separation of powers and executive authority. Reining in the abuses of executive power is an essential job of the high court. Roberts has indicated as a federal appellate court judge and an associate White House counsel in the Reagan administration that he holds an expansive view of presidential power.

On July 15, as Roberts was being interviewed by Bush about the vacancy created by retiring Justice Sandra Day O'Connor, a decision was handed down by the D.C. Circuit Court of Appeals granting the president broad powers in the treatment of terrorist suspects detained at Guantanamo Bay, Cuba. Roberts was part of the panel that voted 3-0 to allow Bush's military tribunals to go forward, despite clear violations of the Geneva Conventions.

In another case, Roberts joined his colleagues in ruling against a group of 17 former POWs from the first Gulf War who had been tortured and abused during captivity. The American soldiers sued Iraq and Saddam Hussein and were awarded nearly $1-billion by a federal trial court. Two weeks after the case had been won, the Bush administration moved to intervene, claiming that the president had voided all such suits against Iraq because the country was controlled by American forces. Roberts and his appellate colleagues allowed the administration to enter the case at that late date and set aside the soldiers' damages. Roberts, however, was alone in adopting the administration's view that the federal courts did not have jurisdiction to hear the case in the first place.

Issues of national security and how far the president can go in subverting civil liberties and human rights while fighting terrorism are going to be among the most consequential cases to come before the court in the near term. O'Connor, while generally solicitous of executive power, also wrote in one enemy combatant case, "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." Whether Roberts subscribes to that reasoning should be front and center in his confirmation hearings.

This is the third in a series of editorials on the Supreme Court nomination of John Roberts.