Wednesday, July 20, 2005

Why Does John G. Roberts Hate Our Soldiers?

What do we know about Bush's shiny new Supreme Court nominee? We know he's Bush's top pick to replace the swing votes of Sandra Day O'Connor, who proved to be a wild card over her tenure.

Aside from that, apparently not much. We do know he was a previously unsuccessful elder Bush nominee and has only been a judge for the two years since Junior appointed him.

Aside from subordinate positions in the White House for five years, Roberts clerked for William H. Rehnquist in 1980 and was tobacco-interest pitbull Kenneth Starr's principal deputy from 1989 to 1993, helping formulate White House Supreme Court strategy.

We also know he's certainly conservative, having "unhappily" upheld the arrest and detention of a 12-year-old girl for the heinous crime of eating french fries on a Metro train, and that he has actively solicited overturning Roe vs. Wade. And in Rust v. Sullivan, he convinced the Supreme Court that the government could force doctors and clinics receiving federal funds to remain silent about abortion options for patients.

In Lee v. Weisman (1992), Roberts argued (unsuccessfully) on behalf of the federal government that forcing students to be present during prayers at graduation was not coercion, because the students could always choose not to attend their own graduation ceremonies.

But it's a safe bet he's much better known to Gulf War veterans.

In Acree v. Republic of Iraq (2004), 17 American soldiers who had been tortured as POWs during the Gulf War filed suit against the Republic of Iraq, the Iraqi Intelligence Service, and Saddam Hussein.

Generally, under the Foreign Sovereign Immunities Act (FSIA), other countries are immune to lawsuits seeking money for injuries, but there is an exception when personal injury or death have been caused by torture or "...other acts of terrorism".

When the defendants failed to appear in court, the D.C. district court judged against them by default and awarded damages of more than $959 million to the 17 soldiers. But the federal government contested the jurisdiction of the district court and argued that the Emergency Wartime Supplemental Appropriations Act (EWSAA) “made the terrorism exception of the FSIA inapplicable to Iraq".

The EWSAA, while generously sprinkled with pet porkbarrel projects, in the main allocates tax revenue to various activities, mostly military.

Two sections in the Act address Gulf War veterans: Sec. 1701 limits the total amount of FEDERAL US temporary assistance to U.S. citizens harmed or impoverished from the war "or similar crises" to less than $1 million a year, and Chapter 8 grants additional money to the Department of Veterans Affairs for processing Persian Gulf veterans claims. Thus it was tangentially related to the case.

The DC court denied the US government's motion based on timing, but the government appealed and in the DC Circuit Appellate Court the three-member panel unanimously decided the district court erred in using the technicality to deny the federal government's intervention.

However, Judges Harry Edwards and David Tatel held that the district court did indeed have jurisdiction over the case. Bush's shiny new nominee Judge Roberts disagreed, arguing on behalf of the Feds that the EWSAA “deprived the courts of jurisdiction over suits against Iraq” for damages resulting from torture and other terrorist acts.

Had his (and the Bush Administration's) position carried the day, American soldiers tortured in Iraq would have become permanently unable to seek restitution in federal court.

Judges Edwards and Tatel concluded there was nothing in the EWSAA or its legislative history “to suggest that Congress intended [it] to alter the jurisdiction of the federal courts under the FSIA.”

They further pointed out Judge Roberts' and the federal government's position would grant Iraq immunity from damages “...even for acts that occurred while... still considered a sponsor of terrorism.”

They also found “little sense” in such a "bizarre" interpretation of the EWSAA, considering the sunset provisions of the Act would theoretically deprive the courts of jurisdiction only from May 7, 2003 till September 30, 2004 “based on events that occurred while Iraq was designated as a state sponsor of terrorism.”

More is sure to emerge in the upcoming weeks. Expect a heated battle.

Update: Slate's Emily Bazelon
brings up an even more disturbing issue with serious implications for all Americans.

Washington Post, "Similar Appeal, Different Styles", 07/16/05

Washington Post, "John G. Roberts", 07/01/05

People for the American Way, "The Record of John G. Roberts, Jr.: A Preliminary Report"

Quote of the Day: "It is not a sign of good health to be well adjusted to a sick society." -- J. Krishnamurti (1895-1986)


New American Patriot said...


"Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004)
Seventeen American soldiers who had been held as prisoners
of war and tortured by Iraq during the Gulf War brought suit
under the terrorism exception to the Foreign Sovereign Immunities
Act (FSIA) against the Republic of Iraq, the Iraqi Intelligence
Service, and Saddam Hussein. This statutory exception to the
immunity of foreign states from suit for money damages applies to
claims for such damages for personal injury or death caused by
torture or other acts of terrorism.
The district court entered a default judgment against the
defendants after they failed to appear and awarded compensatory
and punitive damages to the plaintiffs totaling more than $959
million. The United States moved to intervene to contest the
district court’s subject matter jurisdiction, arguing that the
Emergency Wartime Supplemental Appropriations Act (EWSAA) “made
the terrorism exception of the FSIA inapplicable to Iraq and
thereby stripped the District Court of its jurisdiction” over the
suit. 370 F.3d at 43. The district court denied the motion as
untimely and the United States appealed.
All three members of the D.C. Circuit panel agreed that the
district court had erred in denying the motion to intervene. On
the merits of the jurisdictional question, however, Judges Harry
Edwards and David Tatel rejected the government’s argument and
held that the district court did have jurisdiction over the
case.7 In an opinion concurring in the judgment, Judge Roberts
disagreed, and would have adopted the position of the government
that the EWSAA “deprived the courts of jurisdiction over suits
against Iraq” for damages resulting from torture and other
7 The court held, nonetheless, that the plaintiffs’ claims
should be dismissed for failure to state a cause of action.
According to the majority, the terrorism exception to the FSIA is
only a jurisdictional provision and does not provide a cause of
terrorist acts. Id. at 65. The result would have been to
deprive Americans tortured in Iraq of any possible relief in
federal court."

Take it up with the court records, not me.


New American Patriot said...

I'm not sure who tonning is, but aside from his ten-year-old's grasp of syntax, he seems to have called me a liar for no particular reason. I'm not sure, but I think he may have taken issue with my use of the word "frieS" in the plural as opposed to the singular.

Matt said...

You’re leaving out facts about the 12 year old being arrested and the subsequent decision by Judge Sullivan along with two other judges including Judge Roberts constitutes a lie by omission. Judge Roberts and the other two had to uphold the law as it was written. Judge Roberts publicly objected to the stupid way the 12 year old (who was resisting arrest)was treated. They upheld the law. The did not make law from the bench
That is the way common sense people function. Judge Roberts is a conservative and a great Judge. Perhaps when you guys wake up from your deep sleep you will see that too. However, considering the liberal track record we doubt it.

Tonning III

New American Patriot said...


My point exactly. He's overly conservative and lacking in compassion. He could have considered the mitigating circumstances -- particularly the kid's age -- and ordered for leniency or dismissal.

The role of a judge is not to blindly uphold law. It's to evaluate whether a case has merit based on precedent and circumstances. There was no "lie by omission". Those are the facts as reported by the Washington POst and the PFAW. And the fact that the other two judges showed a marked lack of compassion in no way exonerates Roberts.

Your assertion that he's a "great judge" is a little premature, as he's been a judge only two years.

Mindwyrm said...

The omission that I think Tonning was referring to was that ruling by Robert's that the police had followed procedure. His brief said he didn't agree with the police actions, but LEGALLY the cops did their job. Was it ridiculous that the cops arrested a 12 yr old? Absolutely. But guess what? Judges actually have to rule based on LAW. Not on personal preference. Roberts hands were tied on this one. Compassion and mitigating circumstances couldn't be involved in the ruling at all. Roberts did his job and followed the LAW. That is a judge's role. Following precedent and circumstances is only applicable where allowed by LAW. It's amazing to me that so many people just don't understand that basic fact of the judicial process. The judges don't get to decide when/where to apply the law. They don't have that leeway. I don't consider Roberts to be a great pick simply because he has no real judicial history to choose from. His time as a solicitor for the government I pretty much throw out cuz he was working for a client and that doesn't necessarily reflect his views. His time on the bench has been too short to really get any idea as to where he stands.

New American Patriot said...

Interesting assessment, but I still disagree. Judges have the discretionary power to consider the mitigating circumstances and order leniency or dismissal.

Surely subjecting a 12-year-old girl to the doubtless terror of a public arrest and high-profile court proceedings for eating a french fry would fall under the category of cruel and unusual punishment -- and thus be worthy of dismissal from the outset.

But your comments are appreciated nonetheless.

billsucks said...

Judges have the discretionary power

That is exactly Matt and Mindwrym’s point. We need to eliminate Judges that think they can legislate from the bench with that kind of discretion.

Since we can't put that kind of restriction on The Supreme Court, President Bush selected Roberts because Roberts has shown he can read the law and make sound legal decisions regardless of his personal opinion even on something as small as a french fry.

We don’t need anymore judges that legislate from the bench. Some of us like our homes right where they are, even if a new hotel would look better on OUR LAND.