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)