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.