To better understand the O’Connor versus Roberts approach to the President’s waging of the war on terror, here’s a little more background as to how it all got to this point.

After September 11th, President Bush claimed the “authority to seize and hold suspected terrorists or their protectors and indefinitely deny them access to courts or lawyers while interrogating them.” In the case of Hamdi v Rumsfeld, the Supreme Court accepted that Congress had authorized President Bush to seize and hold U.S. citizens under the so-called “enemy combatant” title but that Hamdi had the right to challenge his detention. However, the Court did not grant the detainee “the full panoply of rights that are afforded criminal defendants in civilian courts. Only Justices Scalia and Stevens were willing to go that far.”

Similar to the Hamdi case, in Rasul v Bush, the Bush administration argued that “enemy combatants” could be held indefinitely but this time at Guantanamo Bay. The administration’s argument was that Guanatanamo Bay was under Cuban sovereignty and so not under the jurisdiction of the American legal system. However, the Supreme Court again rebuffed the administration and forced it to create “procedures that would provide appropriate legal process” to enemy combatants. However, the Court chose to remain silent on “the substantive legal test the government must meet to hold someone there.”

Now back to Roberts.

Last week, Roberts joined a three-judge panel that overturned an earlier ruling on the case of Hamdan v Rumsfeld. The previous ruling had put “an abrupt halt” to the tribunals by determining that the administration had wrongfully “declared that those captured in Afghanistan were not entitled to prisoner-of-war protections.” The most recent ruling on the case serves as a “significant legal victory for the administration” but comes in direct opposition to “many retired senior officers” who continue to warn that “the way detainees at Guantanamo had been treated imperiled American troops who might themselves be captured on the battlefield.”

Unfortunately, Roberts may have been looking out for his future instead of the long term safety of our soldiers.

Judge John Roberts needs to be asked about his position on the amount of deference that should be given to the President in conducting the war on terror.

Just last Friday, Judge Roberts ruled with two of his colleagues on the D.C. Circuit that the Bush administration’s plan to convene military tribunals to try terrorist detainees at Guantanamo Bay was constitutional. Roberts overruled a lower court’s opinion that the tribunals violated the Geneva Convention. In the opinion, Roberts asserted the position of the Bush administration that the Geneva Convention does not apply to the Guantanamo detainees because they belonged to no government entity.

But the opinion, as Columbia law professor Michael Dorf has noted, simply assumes one of the facts that needs to be determined by a court — that is, whether the detainee is in fact an “unlawful combatant.” That’s the role of a judge — to ensure due process. This is a vital question, particularly given that Roberts would replace Justice Sandra Day O’Connor on the high court. Here’s their key difference on the issue:

Justice Sandra Day O’Connor:

“A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

VERSUS

Judge John Roberts, joining opinion of Hamdan v. Rumsfeld:

“Under the Constitution, the President ‘has a degree of independent authority to act’ in foreign affairs, and for this reason and others, his construction and application of treaty provisions is entitled to ‘great weight.’”