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(DV) Whitney: John Roberts and the National Security State







John Roberts and the National Security State  
by Mike Whitney
July 25, 2005

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John Roberts is the perfect stealth candidate for the Supreme Court. Scrubbed and square-jawed, he should be able to muscle his way through the Senate proceedings without breaking a sweat. The Democratic leadership has already rolled over, so there’s little doubt that the neocons’ favorite Trojan Horse will soon be taking his place next to the Brothers Grimm, Scalia and Thomas, when the court resumes a few months from today.

You have to hand it to the Republicans, they know how to rule with a sledge hammer. They come to Washington with bared teeth and don’t mind breaking glass or overturning the political ox cart if it moves the ball further down the field. The Democrats are simply no match; Lieberman, Dodd, Clinton and the insufferable blowhard Joe Biden, a coterie of puffy-chested backslappers who invariably capitulate on every matter of principle. Bill Frist would be doing us all a great favor if he ran a skip-loader through the Democrats front office and dumped the lot of them in the D.C. landfill.

The abortion red herring is bound to take center stage in the upcoming hearings. Regrettably, the issue has become the cornerstone of liberal politics in America, the litmus test for all progressive political aspirants. It’s a pity, especially now that right-wing ideologues are using it to conceal their larger goal of subverting the Bill of Rights. The abortion issue has been wrapped around the neck of liberals like a millstone for 30 years, alienating working class people and pushing them head first to the welcoming arms of the war party. It will be difficult to win them back.

Does a woman have a right to choose?

Of course. Only now, Bush loyalists are feverishly dismantling everything in their path from supervised elections to the separation of powers while liberal groups focus all their energy on one issue. What good is Roe if the rest of the Constitution is in tatters?

Don’t worry, Republicans get pregnant just as frequently as Democrats. If Jenna Bush got knocked up tomorrow by an underpaid box boy at 7-11, George and Laura would be down at the local clinic faster than you can say RU-40. The entire scam is designed to divert attention from the larger issue of presidential authority, which Roberts believes should be “unlimited”. In fact, that was the quid pro quo that sent him post haste to his new digs at the high court.

The 4th Circuit Court of Appeals decided a critical case last Friday that will change the political dynamic in this country for decades to come. Roberts was one of three judges who unanimously ruled that the president is not constrained by international law. “The court ruled that the Geneva Conventions ‘do not create judicially enforceable rights’ -- that is, accusations of a violation may not be brought in a lawsuit.” (New York Times)

What? “Do not create judicially enforceable rights”? Then they are not really laws or restrictions at all, just altruistic pleasantries dreamed up by international idealists.

To put this in perspective, consider Article VI of the Constitution which makes treaties “the supreme Law of the Land.” The Senate ratified the 1949 Geneva Convention, making its provisions binding rules of law.

Article 5 of the 1949 Geneva Conventions requires that when there is any doubt about captive combatants' status, they are entitled to the Convention's protection “until such time as their status has been determined by a competent tribunal.” The obvious intention of last year’s Supreme Court ruling was to allow detainees to file habeas corpus petitions in federal courts within the US. The 4th Circuit has ignored this injunction by suggesting that the president is a “competent tribunal,” a comical interpretation of the Supremes’ ruling by any standard.

The Court’s decision reflects Attorney General Alberto Gonzales belief that “The president’s authority under the laws of our nation to try enemy combatants is a vital part of the global war on terror.” This is a subtle way of saying that the president is above the law and can do as he pleases. In fact, neither Gonzales nor Roberts believes that the prisoners in American custody have the right to due process. Rather, they tacitly endorse the current regime of endless detention without charges and without any hope of legal recourse.

Neal Katyal, defense attorney in the same case said, “Today’s ruling, places absolute trust in the president, unchecked by the Constitution, statutes of Congress and long-standing treaties ratified by the Senate of the United States.”

Katyal got it right. The court ruling confers absolute authority on the president to decide the most sensitive issues of personal liberty without any legal constraints. This turns the law on its head by allowing the arbitrary willfulness of one man to take precedent over any objective standard of judgment. As far as the inmates of Guantanamo are concerned, the law begins and ends with George Bush.

Roberts and his colleagues on the lower court argue that “Congress authorized the President to use all necessary and appropriate force” against anyone who abetted the Sept 11 attacks and granted Bush the authority to act to prevent international acts of terrorism.”

True, but Congress certainly didn’t intend for the president to overturn established treaty obligations and long held civil liberties statutes according to his own discretion. The Circuit Court’s reading of the law is a slap in the face to Sandra Day O’ Connor, who just months ago said:

We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. Even the war power does not remove constitutional limitations safeguarding essential liberties. The Great Writ of habeas corpus is an important judicial check on the Executive's discretion in the realm of detentions


. . .


It would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge.

In fact, the 4th Circuit’s ruling issues Bush the “blank check” he was looking for, negating the presumption of innocence, depriving prisoners of due process, and sweeping away any responsibility for the president to adhere to international treaties on human rights. It’s no wonder Roberts was so generously rewarded.

Democrats may be chirping about the “civility and intelligence” of Bush’s new candidate, but Roberts is a judicial wolf in sheep’s clothing. He’s already shown his eagerness to rubber-stamp the expanded powers of the Emperor-in-Chief and we can assume that he won’t hesitate to legislate from the bench. His place on the high court will solidify the coup that began in year 2000, shifting the tectonic plates of American political life to a hard-right position. The cabal in Washington is on a fast track for removing the last, feeble protections that safeguard the citizen from the intrusive powers of the government. Roberts is just the latest brick in the wall of the National Security State.

Mike Whitney lives in Washington state, and can be reached at:

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