For many liberals, the Supreme Court's conservative core trio represented such classic Hollywood monsters as werewolf (Antonin Scalia), mummy (Clarence Thomas), and Dracula (the late William H. Rehnquist). President Bush's nominee to fill Chief Justice Rehnquist's seat, Judge John G. Roberts, does not seem to fit that mold at first glance. Then again, there is little to glance at given the paucity of Roberts' record. Still, one of Roberts' decisions involving American prisoners tortured by Saddam Hussein's Baathist thugs suggests that he might prove as scary to liberals in Madison and elsewhere as Justices Scalia, Thomas and Rehnquist.
On the first day of the 1991 Gulf War, Marine Lt. Col. Clifford Acree was captured after a missile downed his fighter jet over Iraq. He was taken to Abu Ghraib prison and beaten until his skull cracked. In April 2002, Acree and sixteen other U.S. military aviators who had been captured and tortured filed a lawsuit, Acree v. Republic of Iraq, under the authority of the Anti-Terrorism Act of 1996??-which allowed American citizens to collect damages for abuses committed by terrorist regimes otherwise immune as sovereign nations. A U.S. district judge awarded Acree and the sixteen other plaintiffs $959 million dollars in total damages in 2003.
The White House opposed the settlement. Justice Department lawyers appealed, arguing that the recent removal of Saddam and American military occupation of Iraq rendered the Anti-Terrorism Act moot. President Bush, they said, had simply declared on May 7, 2003 that Iraq was no longer liable to lawsuit or sanction.
\No amount of money can truly compensate these brave men and women,"" White House Press Secretary Scott McClellan explained when a reporter asked about Acree. Literally, as the Los Angeles Times noted, that meant no money.
Why would the White House deny tortured American pilots the right to sue Iraq? Aren't the Bush people the same ones, figuratively (if not always literally), who fought for Paula Jones' right to sue former President Clinton? And if Iraq cannot spare money to compensate Acree et al., then why has the administration ignored the disappearance of billions of Iraqi dollars during reconstruction?
More important, why would federal courts defer to the administration's argument? The District of Columbia's Circuit Court of Appeals threw Acree out. The concurring opinion was written by Roberts. He used language similar to that used by former Attorney General John Ashcroft to justify the torture of Muslim detainees in Afghanistan, Guantanamo Bay and Abu Ghraib.
Ashcroft rejected the notion that the Geneva Convention or War Crimes Act applied to detainees held by the American military or the CIA: ""If a President determines that a treaty does not apply, his determination is fully discretionary and will not be reviewed by the federal courts."" Judge Roberts made the same point when holding that Iraq need not recompense the U.S. airmen tortured in 1991: ""The Presidential Determination of May 7, 2003 ... ousted the federal courts of jurisdiction.""
The fixation on ""presidential determination"" means two things. Congress can legally delegate its law-making powers to the president-which begs the question: why have the Constitution' And the courts are irrelevant as the courts deferentially sanctioned this idea that ""a presidential determination"" can make laws applicable or inapplicable at a mere whim.
Just as Ashcroft deferred to power, so too does Judge Roberts. The latter's willingness to defer to presidential fiat-even in a case involving the torture of U.S. servicemen-goes to show that, just as Madison is called an island of liberalism, we should call the Bush administration and its courtiers in the judiciary an island of arrogance and deference. During the Clinton White House, many conservatives rightly favored a no-man-is-above-the-law battle cry. With Bush in the White House, Judge Roberts offered his own battle cry-""there are no courts""-to the one announced by Ashcroft-""there is no law.""
It would be nice if one could simply make a ""determination"" that a man placed for life in the Supreme Court's top seat is not considerably scarier than any Hollywood monster.
