Senate Should Question Roberts on Presidential Power and International Treaty Obligations

As the Senate prepares to consider the nomination of Judge John Roberts to the position of Chief Justice of the United States, Human Rights First urged senators to question the nominee on his views concerning presidential power during the “global war on terror,” judicial deference, and U.S. obligations under the U.S. Constitution, laws and international humanitarian law.

Concerns have arisen due to a recent decision, Hamdan v. Rumsfeld, which upheld military commissions taking place at the U.S. Naval Base at Guantanamo Bay, Cuba. In approving the military commissions, the Court of Appeals panel (on which Roberts sat) sanctioned a system in which the President also may act as judge and legislator, violating key constitutional tenets, requiring a separation of powers. The panel opinion also ruled that rights under the Geneva Conventions are not judicially enforceable, calling into question the U.S. commitment to enforce treaties the United States signed and ratified.

“The Hamdan decision raises a number of concerns. The United States signed, ratified and has honored the Geneva Conventions for over fifty years. The Geneva Conventions were written to protect individuals. The Hamdan decision means that defendants brought before the military commission — an ad hoc tribunal that violates basic principles established in Constitutional, U.S. military and international law — have no remedy in the federal courts,” said Deborah Pearlstein, director of Human Rights First’s U.S. Law & Security Program. “The decision also grants the President an unprecedented amount of power to create commissions, decide the merits of the case and provide his own review, subject only to the President’s discretion. The decision is a fundamental challenge to the rule of law.”

In addition, the decision defers to the President’s determination that minimal protections in Common Article 3 of the Geneva Convention (prohibiting torture and cruel, humiliating, and degrading treatment in non-international armed conflicts) did not apply to the conflict in Afghanistan, found that Congress had authorized the commissions through its Authorization for Use of Military Force, which contained no reference to military commissions, and finally upheld the commission regulations’ ejection of the accused from his own trial.

Military commission proceedings provide markedly fewer fairness safeguards than either U.S. criminal or military court proceedings. The proceedings may be conducted partly or entirely in secret, precluding the accused from being present at portions of the trial, using secret evidence and witnesses (including hearsay evidence from unidentified informants), as well as evidence obtained through coercion and torture.

“The military commissions deprive defendants of the most basic fair trial rights and neglect the first principles of the rule of law,” added Pearlstein. “If the idea of the rule of law includes, at a minimum, a system of publicly known regulations, set in advance, applied without arbitrariness, and enforced by fair and independent courts — the commissions fall short in every respect.”

Human Rights First filed a friend of the court brief in support of Mr. Hamdan seeking Supreme Court review of the court of appeals decision. Human Rights First noted in the brief the commissions’ negative effects on longstanding U.S. efforts to advance democracy and the rule of law overseas, as repressive regimes abroad point to the United States’ establishment of military commissions as a basis on which to avoid their own responsibilities to maintain systems with independent judicial review.




Published on September 9, 2005


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