Topic: Executive Total Deference
Senator: Feinstein
Date: SEPTEMBER 14, 2005
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FEINSTEIN: Could I ask you one question? I think I'll have time. In Acree v. the Republic of Iraq -- this was the case where 17 U.S. prisoners; they were our people -- suffered severe beating, starvation, mock executions, dark and unsanitary living conditions, et cetera, during the first Gulf War, and they sued the government of Iraq, the Iraqi intelligence services and Saddam Hussein for their brutal and inhumane treatment. The veterans won their case in district court in July of '03. They were awarded $959 million in damages. After the judgment, the Justice Department intervened in the suit to contest the district court's jurisdiction. The specific issue involved a statutory interpretation of the Emergency Wartime Supplemental Appropriations Act passed in 2003.
FEINSTEIN: Justice argued that the statute gave the president the authority to change Iraq's designation as a state sponsor of terror and thereby relieve it, after the fact, of its responsibilities for prior acts of terror. You wrote a concurring opinion in favor of overturning the district court's judgment. Although you agreed with the other two judges on the panel that the judgment should be reversed, you alone adopted the Department of Justice's argument that the statute granted the president total power to absolve Iraq of liability. You reached this conclusion while acknowledging the question of statutory interpretation is close. Can I ask my question?
SPECTER: Yes, you may finish your question.
FEINSTEIN: Do you believe that when, as in Acree, there is a close question of interpretation of a statute touching upon a foreign policy, that the executive deserves total deference?
ROBERTS: Oh, no. Senator, whether the question is close or not, I don't think there is any situation where a court concludes that the executive deserves total deference. And that was not the basis of my decision. The judges were unanimous that the veterans were not entitled to relief. The panel was chosen from a point -- happened to be appointees of three different presidents. The view was unanimous that they were not entitled to relief. The other two judges concluded there was no cause of action available to them. I concluded that there was no jurisdiction and wrote separately. The recognition that it was a closed question is also reflected in the view of the other two judges in addressing my concern. They acknowledged that it was a close question and I agreed with that. But you did have legislation that said that the president can determine that these laws do not apply if he makes a determination under the criteria set forth in the statute. And he had done that. And my conclusion: that that extended to the provision that otherwise would have allowed suit. The other two judges disagreed. They thought there was jurisdiction disagreed. They thought there was jurisdiction, but then concluded there was not right of action, so the end result of both of our positions was the same. But it was not a question of deference. It was a question of interpreting the legal authority and consequences of an act that this body had passed and the president's finding under that.
ROBERTS: When it comes to interpreting of law, I go back to Marbury v. Madison. That is emphatically the province and duty of the judicial branch. We don't defer to the executive. We don't defer to the legislature in making that final decision about what the law is.
FEINSTEIN: If confirmed, maybe you will defer to the legislative a little bit. Thank you...
ROBERTS: We defer -- just to clarify. We certainly defer in the standards of review that make sure that we are not (inaudible). But the final decision about what's constitutional or not rests with the judicial branch. The policy judgments, we certainly defer to the legislature.
FEINSTEIN: Thank you.
ROBERTS: Thank you.
SPECTER: Thank you, Senator Feinstein.
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