On Bush's bench?

Supporters argue John Roberts will be committed to judicial restraint. But in his Guantanamo ruling, he gave Bush virtually unlimited powers in the war on terror. This is restraint?

Published July 29, 2005 12:00AM (EDT)

"The cardinal principle of judicial restraint -- if it is not necessary to decide more, it is necessary not to decide more." So said John Roberts, President Bush's nominee to replace Justice Sandra Day O'Connor, in an opinion for the Court of Appeals for the D.C. Circuit last year. Many of Roberts' supporters, including former Bush Justice Department official John Yoo on the Op-Ed pages of the Washington Post and George Washington University law professor Jeffrey Rosen in the New York Times, have argued that Roberts will be a cautious conservative committed to judicial restraint -- in the mold of former justices John Marshall Harlan or Felix Frankfurter, rather than a radical conservative in the mold of justices Antonin Scalia or Clarence Thomas.

Yet earlier this month, coincidentally on the very day the president was interviewing Roberts at the White House for the Supreme Court post, Roberts joined an opinion issued by the D.C. Circuit that violated that cardinal principle. He did so, moreover, in a case raising fundamental questions about Roberts' views on presidential power and checks and balances in the war on terror. Few of Roberts' actions deserve more scrutiny by members of the Senate than his vote in Hamdan v. Rumsfeld.

The decision upheld the legality of President Bush's controversial military tribunals for enemy combatants held at the U.S. base in Guantánamo Bay, Cuba. In doing so, Roberts and his colleagues reached out to decide a number of issues "not necessary to decide." And they decided every one in President Bush's favor, essentially granting him unchecked power to try, and to execute, enemy combatants.

The military tribunals created by President Bush permit individuals to be convicted -- and sentenced to death -- on the basis of secret evidence that neither the defendant nor his chosen civilian lawyer has any right to see or confront. They permit no appeal outside the military chain of command; President Bush authorizes the indictment, and Secretary of Defense Donald Rumsfeld is the final arbiter of appeals.

One of the first Guantánamo detainees to be selected for trial in the tribunals, Salim Hamdan, allegedly Osama bin Laden's driver and bodyguard, challenged the legality of the tribunal procedures in federal court, before he was actually tried. In November 2004, Judge James Robertson of the U.S. District Court in Washington declared the tribunals unlawful, finding them inconsistent with U.S. military law and the Geneva Conventions, the treaty establishing the laws of war.

In an opinion joined in full by Judge Roberts, the D.C. Circuit decided on July 15 that it did not have the power to rule on much of the case, first, because many of Hamdan's claims could be raised on appeal after he is convicted -- if he is in fact convicted -- and second, because in the court's view the Geneva Conventions do not create rights enforceable in federal courts by individuals. The court also expressed doubt about whether "someone in Hamdan's position" -- that is, a foreign national outside the United States -- could properly raise a separation of powers claim. That should have been the end of the matter. If the claims were not properly presented, the court should have said so and dismissed the case.

But the court -- and Judge Roberts -- did not stop there. Instead, it went on to decide the very legal questions that it had said were not properly before it -- questions that were, in Roberts' earlier words, "not necessary to decide," and therefore "necessary not to decide." Most significantly, after ruling that the Geneva Conventions claims could not be heard, it gratuitously went on to opine that the Geneva Conventions do not apply to Mr. Hamdan or any member of al-Qaida. On this view, much disputed by international law experts, the president is simply not bound by the laws of war in his treatment of detainees in the war on terrorism.

In addition, instead of first deciding the threshold question of whether Hamdan in fact had standing to raise a separation of powers objection to President Bush's unilateral creation of the tribunals, the court simply leapt over the threshold and decided, on the merits, that President Bush had not violated the separation of powers in doing so -- again deciding an issue that was "not necessary to decide," and doing so in a way that eliminated any check on the president's authority.

In Hamdan, in other words, Judge Roberts disregarded his own "cardinal principle" in the name of giving the president broad unfettered powers in the war on terror.

This departure is telling not only for what it reveals about Roberts' fealty to judicial restraint. As the Supreme Court's enemy combatant cases from last summer showed, the court may be the last (and sometimes only) check on the president in the war on terror. Congress took no action whatsoever to check the president's assertion that he could lock up any human being anywhere in the world, citizen or foreign national, without charges, without trial and without access to a lawyer or the outside world.

It took the court to stand up to the president. In the case decided in June 2004 involving Yaser Hamdi, the U.S. citizen captured in Afghanistan, Justice O'Connor famously wrote that "a state of war is not a blank check for the president." Congress should ensure that her replacement does not feel otherwise.

By David Cole

David Cole is a law professor at Georgetown University, and author, with Jules Lobel, of "Less Safe, Less Free: Why America is Losing the War on Terror" (New Press, September 2007).

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