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July 26, 2005

The Key Issue in the Debate Over Roberts' Nomination

So far in the news coverage of the President's nomination of Judge John Roberts to the Supreme Court, there has been much discussion about the issue of abortion, Judge Roberts' Catholic faith, and the White House assertion of executive privilege as Democrats have sought memos that Judge Roberts wrote when he was White House Counsel. But as Michael Rosen points out in his column today at Tech Central Station, the key issues in this debate are the legal questions decided in Hamdan v. Rumsfeld (which I previously reported on here).

In summary, a unanimous three judge panel (including Judge Roberts) issued the following ruling:

1. Persons judged to be enemy combatants can be tried under military tribunals.

2. The President did not violate the separation of powers provision of the Constitution nor did he violate Article II of the Constitution when he ordered the establishment of military tribunals to deal with captured terrorists.

3. The Geneva Convention does not apply to enemy combatants such as those imprisoned at Guantanamo Bay as they do not qualify as "prisoners of war".

4. Even if a combatant is convicted under a military tribunal, they are still entitled to file an appeal in a civilian court.

Hamdan v. Rumsfeld sets an important precedent not because it affirms the President's policies towards terrorists but because it clearly establishes the rules for the disposition of the cases against prisoners at Guantanamo as well as others being held as enemy combatants.

As Rosen concludes in his column:

By signing onto the ruling, Judge Roberts demonstrated that he can capably confront one of the most critical issues before the Court this decade: balancing the protection of fundamental liberties against the defense of our homeland.

Which only goes to show why Judge Roberts should be confirmed quickly to the Supreme Court.

Posted by Tom at July 26, 2005 12:31 AM

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