Talk:John G. Roberts, Jr.
the probability is quite high that this individual, candidate, nominee, and SourceWatch article, will be "current in the news" for several months or years hence.
my biased view of the Roberts Nomination
The S/W article, as well as mainstream media fails to address what I believe to be a major problem with the Roberts nomination. Chris Floyd's Counterpuch article, "Judge Dread John Roberts and Enemy Combatants", is very close to the bullseye.
My personal objections to the Roberts nomination is entwined too closely to many of my intensely held beliefs to immediately work it into the article without bias. Possibly, after reflection, I can do a proper markup, but if anyone wishes to incorporate parts of this into the article, help yourself. (reference: a section of my personal S/W space User:Hugh_Manatee#Constitutional_Grounds)
Why I believe Roberts is Unfit to be a SCOTUS Associate Justice
"He that would make his own liberty secure|
must guard even his enemy from oppression;
for if he violates this duty
he establishes a precedent
that will reach to himself."
Bush nominated Roberts four days after a case he had been one of the three judges on was published:
- Salim Ahmed Hamdan, Appellee v. Donald H. Rumsfeld, United States Secretary of Defense, et al., Appellants
- Appeal from the United States District Court for the District of Columbia (04cv01519)
- United States Court of Appeals for the District of Columbia Circuit
- Argued April 7, 2005 Decided July 15, 2005
- Reissued July 18, 2005
- No. 04-5393 - (pdf file direct from the black-robed equivocators of liberty)
In November, 2004, DC District Judge James Robertson ruled that Hamdan could not lawfully be tried by the tribunal system setup just for the Bush defined "criminal combatants":
- A U.S. District Court judge in Washington halted the trial of Salim Ahmed Hamdan, 34, of Yemen, in a lawsuit filed by his lawyers.
- "Unless and until a competent tribunal determines that petitioner is not entitled to protections afforded prisoners of war under Article 4 of the Geneva Convention ... of Aug. 12, 1949, he may not be tried by military commission for the offenses with which he is charged," U.S. District Judge James Robertson said in his ruling.
- The court also ruled that unless the military commission guidelines are changed to conform to the Uniform Code of Military Justice, Hamdan cannot be tried by the commissions and must be moved from the pre-commission wing at the Camp Delta prison camp to the general population.
- Associated Press, U.S. court halts proceedings in case of Osama bin Laden's driver, published in "The Atlanta Journal-Constitution", November 18, 2004
- a longer version of the article: Associated Press, Bin Laden's driver outmanoeuvres Guantanamo trials, published in the The Sydney Morning Herald, November 9, 2004
- Associated Press, U.S. court halts proceedings in case of Osama bin Laden's driver, published in "The Atlanta Journal-Constitution", November 18, 2004
(links not checked, may no longer be active)
- Robertson ruled that the Bush administration had not followed a lawful procedure in declaring Hamdan an "enemy combatant" who was not entitled to protections and privileges under the Geneva Convention. The "combatant status review tribunals" -- used by the Pentagon to decide whether to hold detainees -- are not a "competent" court to make such a determination, Robertson said. And the military commission process, which prosecutes detainees using secret evidence and unnamed witnesses, "could not be countenanced in any American court," the judge ruled.
- "The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts, one that can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad," wrote Robertson, who served as a lieutenant in the Navy between 1959 and 1964 and was appointed a judge in 1994 by President Clinton.
- To correct the system, Robertson said, the government must recognize the detainees as prisoners of war under the Geneva Convention until it has a legally valid way to declare they are not POWs.
- In order to comply with Robertson's ruling, the government would have to grant Hamdan access to all commission sessions, witnesses and evidence against him. The judge said one option would be to move the detainees' trials to standard court-martial proceedings, used for all crimes involving the military and those held under military control.
- [. . .]
- "The president," Robertson wrote in his opinion, "is not a 'tribunal,' however."
- Defense lawyers have complained that the military commission trials allow the use of hearsay evidence not permitted in other courts, and allow the use of secret evidence against defendants.
- John Hendren, Government Suffers Setback in Guantanamo Trials, Los Angeles Times, November 8, 2004 (link not checked, original url, probably inactive and article in archives)
There is nothing either Constitutional or traditionally American in a trial process that uses secret evidence, secret witnesses, considers wide ranging hearsay evidence to be admissible, and allows confessions or testimony secured by physical or emotional torture, yet these are are allowable under the Guantanamo Tribunal system.
- The White House will appeal, but Robertson has forced the question: Can the chief executive of a nation simply declare detainees ineligible for POW status, hold them indefinitely, and try them according to justice-lite standards in which key evidence is kept secret?
- In a banana republic, the answer might be yes. In a great democracy, the answer should obviously be no.
- To Americans who assume the detainees all were on the team that slaughtered 3,000 innocents in New York and Washington, and thus don't deserve any consideration, a reality check: Guantánamo certainly is home to some men with al-Qaeda links - but also to Taliban fighters and men guilty of nothing more than being caught up in the turmoil of a war zone. The courts' wise directive is to establish procedures that fairly separate one from the other.
- But the official reaction to the courts' oversight is deeply troubling.
- Attorney General John D. Ashcroft made this amazing claim: "Intrusive judicial oversight and second-guessing of presidential determinations... can put at risk the very security of our nation in a time of war." And you thought the nation had established the principle right of judicial review, oh, about 201 years ago. Once again, it's clear why Ashcroft needs to leave.
- It's also troubling to know Bush tapped White House counsel Alberto R. Gonzales to replace Ashcroft. For all his legal scholarship, and the inspiration of his personal story, Gonzales was an architect of the administration's corner-cutting legal stance on handling detainees. These reckless policies, incredibly, have helped turn world opinion against the nation that was the victim on 9/11.
- Editorial, Guantánamo Bay Detainees A fair ruling, a troubling reaction, Philadelphia Inquirer, Nov. 17, 2004
The United States Court of Appeals for the District of Columbia Circuit reversed Judge Robertson's decision, Roberts signed on to the decision without comment.
- The United States long ago ceased to be anything like a living, thriving republic. But it retained the legal form of a republic, and that counted for something: as long as the legal form still existed, even as a gutted shell, there was hope it might be filled again one day with substance.
- But now the very legal structures of the Republic are being dismantled. The principle of arbitrary rule by an autocratic leader is being openly established, through a series of unchallenged executive orders, perverse Justice Department rulings and court decisions by sycophantic judges who defer to power - not law - in their determinations. What we are witnessing is the creation of a "Commander-in-Chief State," where the form and pressure of law no longer apply to the president and his designated agents. The rights of individuals are no longer inalienable, nor are their persons inviolable; all depends on the good will of the Commander, the military autocrat. George W. Bush has granted himself the power to declare anyone on earth - including any American citizen - an "enemy combatant," for any reason he sees fit. He can render them up to torture, he can imprison them for life, he can even have them killed, all without charges, with no burden of proof, no standards of evidence, no legislative oversight, no appeal, no judicial process whatsoever except those that he himself deigns to construct, with whatever limitations he cares to impose. Nor can he ever be prosecuted for any order he issues, however criminal; in the new American system laid out by Bush's legal minions, the Commander is sacrosanct, beyond the reach of any law or constitution.
- This is not hyperbole. It is simply the reality of the United States today. The principle of unrestricted presidential power is now being codified into law and incorporated into the institutional structures of the state, as Deep Blade Journal reports in an excellent compendium of recent outrages against liberty. For example, on July 15, a panel of federal appellate court judges upheld Bush's sovereign right to dispose of "enemy combatants" any way he pleases, the Washington Post reports. In a chilling decision, the judges ruled that the Commander's arbitrarily designated "enemies" are non-persons: neither the Geneva Conventions nor American military and domestic law apply to such garbage. Bush is now free to subject anyone he likes to the "military tribunal" system he has concocted - a brutal sham that some top retired military officials have denounced as a "kangaroo court" that will be used by tyrants around the world to "hide their oppression under U.S. precedent."
- One of the kowtowing jurists on the appeals panel was none other than John G. Roberts. Four days after he affirmed Bush's autocratic powers, Roberts was duly awarded with a nomination to the Supreme Court. Now he will be sitting in final judgment on this case - and any other challenges to Bush's peremptory commands. This is what is known, in the tyrant trade, as "a safe pair of hands."
- Chris Floyd, "Judge Dread John Roberts and Enemy Combatants", "Counterpunch, July 20, 2005
The appellate case cited above equivocates on the rights of all humans to a fair trial. It was especially weaslie regarding the Geneva Conventions:
- "Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." U.S. CONST., art. VI, cl. 2.
- Even so, this country has traditionally negotiated treaties with the understanding that they do not create judicially enforceable individual rights. As a general matter, a "treaty is primarily a compact between independent nations," and "depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it." If a treaty is violated, this "becomes the subject of international negotiations and reclamation," not the subject of a lawsuit.
- Hamdan v Rumsfeld, cited above-(citations omitted)'
In other words, it isn't within the purview of old partisan hacks with fetishes for black-satin moo moos to protect and enforce the US Constitution. What the F--K are District Appellate Courts for?
The case also makes the unjustified assertion that GW Bush, of and by himself alone is a competent tribunal. a statement they do not back up with any citations:
- The President found that Hamdan was not a prisoner of war under the Convention. Nothing in the regulations, and nothing Hamdan argues, suggests that the President is not a "competent authority" for these purposes.
|Just what parts of the phrases,|
|"No person shall be held",|
"In all criminal prosecutions",
|are difficult to comprehend?|
If the president by his fiat alone is able to strip the ancient rights of habeas corpus, and the Natural Rights of all Humans enshrined and delineated in the 5th and 6th Amendments to the US Constitution, from anyone he damn well pleases, there is NOT ONE liberty safely held by the people. They are all dependent upon the magnanimity of the sitting president. Outrageous, and unquestionably, NOT a concept that can be properly construed by the constitution. For a Federal Judge to accede to this unlawful act is for the Judge to be derelict, and in serious, impeachable violation to his oath of office.
It is preposterous to allege that Roberts is a strict Constitutional Constructionist, and his nomination by the Bush administration so close on the heels of the previously mentioned court case, emits the foul odor of quid pro quo.
"Equal and exact justice to all men, of whatever state or persuasion, religious or political; peace, commerce, and honest friendship with all nations,-entangling alliances with none; the support of the State governments in all their rights, as the most competent administrations for our domestic concerns, and the surest bulwarks against anti-republican tendencies; the preservation of the general government in its whole constitutional vigour, as the sheet anchor of our peace at home and safety abroad;…freedom of religion; freedom of the press; freedom of person under the protection of the habeas corpus; and trial by juries impartially selected,-these principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation."|
----Thomas Jefferson, March 4, 1801, Inaugural Address
--Hugh Manatee 12:36, 24 Jul 2005 (EDT)
- "When The White House Has Something To Hide," Think Progress, July 25, 2005: Artificial Intelligence 15:15, 25 Jul 2005 (EDT)
In summation, though:
- "The White House can’t blame critics who think they’re hiding something. The Bush administration chose to hide the following information:
- The PDB from the 9/11 Commission
- Documents related to the leak investigation
- Cheney’s influence in Halliburton deal
- Cheney’s Energy Task Force deliberations
- The true cost of the Medicare bill
- John Bolton’s secret intercepts (See John R. Bolton: External Links: Nomination to UN)
- Abu Ghraib prisoner abuse report
"Historical experience dictates the lesson to be learned is that when the White House has something they refuse to disclose, there’s bad news to be found ..."
1982-1986 Roberts was a counsel for Ronald Reagan at the White House:
- "Mr. Roberts’ responsibilities as Associate Counsel to the President included counseling on the President’s constitutional powers and responsibilities, as well as other legal issues affecting the executive branch."
Doesn't the time frame in which Roberts' duties included counseling on constitutional powers and responsibilities ring bells?
- "Independent Counsel's investigation produced a vast record of U.S. Government involvement with the Nicaraguan contras during a prohibition on military aid from October 1984 to October 1986. The Office of Independent Counsel (OIC) focused its inquiry on possible criminal activity -- ranging from violations of the Boland Amendment prohibition on aid to conspiracy to violate the tax laws -- in Administration efforts to assist the military and paramilitary operations of the contras. The investigation also centered on what officials knew about that assistance and what they offered when questioned about it."
- The Walsh Iran/Contra Report- Part 1: The Underlying Facts
And then this, also from the Iran/Contra Report:
- Fundamentally, the Iran/contra affair was the first known criminal assault on the post-Watergate rules governing the activities of national security officials. Reagan Administration officials rendered these rules ineffective by creating private operations, supported with privately generated funds that successfully evaded executive and legislative oversight and control. Congress was defrauded. Its appropriations restrictions having been circumvented, Congress was led to believe that the Administration was following the law. Numerous congressional inquiries were thwarted through false testimony and the destruction and concealment of government records.
- The destruction and concealment of records and information, beginning at the twilight of Iran/contra and continuing throughout subsequent investigations, should be of particular concern. Oliver North's destruction of records in October and November 1986 caused an irretrievable loss of information to the executive agencies responsible for regulating clandestine activities, to Congress, and to Independent Counsel. John Poindexter's efforts to destroy NSC electronic mail nearly resulted in comparable damage. CIA Costa Rican Station Chief Joseph F. Fernandez attempted to hide phone records that would have revealed his contacts with Enterprise activities.
- This sort of obstruction continued even after Independent Counsel's appointment. In the course of his work, Independent Counsel located large caches of handwritten notes and other documents maintained by high officials that were never relinquished to investigators. Major aspects of Iran/contra would never have been uncovered had all of the officials who attempted to destroy or withhold their records of the affair succeeded. Had these contemporaneous records been produced to investigators when they were initially requested, many of the troublesome conflicts between key witnesses would have been resolved, and timely legal steps taken toward those who feigned memory lapses or lied outright.
- Iran/Contra Report - Part XI: Concluding Observations
Just what was Roberts counseling Reagan about regarding his constitutional powers and responsibilities during this time?
--Hugh Manatee 23:25, 21 Aug 2005 (EDT)
Argentine Indymedia Post - references as yet unchecked
- John Roberts helped set up the Contra-funding organization Nicaraguan Humanitarian Assistance Office (NHAO). The actual transfers of arms and training, however, took place in Honduras. I think there is evidence that Mr. Lady was a key link in turning NHAO money into arms and training for Contras in Honduras. Someone had to do it -- actually turn over the guns and do the training. The Bush administration and John Roberts do not want this discussion of Iran-Contra and NHAO
- [. . .]
- 1981-1986: John Roberts worked as a White House lawyer. As part of the current confirmation process, Democratic senators want to see a memo that John Roberts wrote with the heading "re: establishment of NHAO" -- referring to the Nicaraguan Humanitarian Assistance Office. The office was a way the administration could get funds to the Contras for nonmilitary purposes, but once there the money was used for all sorts of things, including of course military purposes.
The rest of the Roberts mentions are references to him whenever NHAO is mentioned. No judgement as to the veracity of this claim though.
--Hugh Manatee 01:50, 6 Sep 2005 (EDT)