UPDATE:  Saturday 2:05 p.m.  The government’s new brief is now available and can be read here.

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The Obama administration, urging the Supreme Court to turn aside a new challenge to presidential power to detain individuals suspected of terrorism links, chose not to support a years-long campaign to get the Court to repudiate one of its most heavily criticized opinions from the World War II era.

In a brief filed this week in Hedges v. Obama (docket 13-758), the U.S. Solicitor General’s office said nothing about the 1944 ruling in Korematsu v. United States – a decision that upheld the conviction of a Japanese American for refusing to go to a wartime detention camp.

In January, government lawyers had been urged to use their reply to the Hedges petition to try to persuade the Court either to overrule outright the Korematsu decision, or at least to tell the Court that the government did not regard that precedent as support for any current detention authority.

The brief, filed Wednesday, did neither, focusing its argument mainly on the point that the individuals who filed the challenge — journalists, authors and political activists — did not have a right to sue because they actually were not threatened with detention and thus could not claim legal injury.

The Hedges case, if granted review, would put before the Court a significant controversy over what Congress meant three years ago in spelling out anew the power of the president to order the capture and possible long-term confinement of potential terrorists.  The controversy centers on whether that added new authority, or simply reaffirmed the power Congress had given the president right after the terrorist attacks on the U.S. in 2001.

To compromise a dispute over whether a restatement of detention authority would extend it to U.S. citizens, Congress wrote into a military defense bill a statement that nothing in the bill “shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful residents of the United States, or any other persons who are captured or arrested in the United States.”

A federal judge in New York City temporarily barred enforcement of the law after finding that the challengers had a “realistic fear” that they might be detained.  The judge said the challengers were likely to win the case after a full trial, on the theory that it violated First Amendment free-speech rights.  The judge later issued a permanent order against enforcement “in any manner, as to any person.”

The government then appealed to the U.S. Court of Appeals for the Second Circuit, which overturned the judge’s order.  It did so, however, only on the premise that — as the government claimed — the challengers could not sue because they could not prove that they were genuinely at risk of being detained under the 2011 provision.

In the court of appeals, the children of Fred Korematsu and two other Japanese Americans who were convicted of violating the wartime curfew and imprisonment orders — Gordon Hirabayashi and Minoru Yasui — urged the three-judge panel to rule that no part of detention authority relied upon the Korematsu precedent.  (In 1984, four decades after that ruling, all three of those men had had their convictions overturned in a highly unusual federal court decision.)

The Second Circuit did not react to that plea, instead ruling that the challengers contesting the new detention power lacked “standing” to sue.

When the lawyers for the challengers filed their petition in the Supreme Court last December, they asked the Supreme Court to take the case.  They raised First Amendment issues and “standing” issues, as well as a plea for the Court to overrule the Korematsu decision, if it were found to be any part of the justification for detention.

On the basis of that overruling plea, private lawyers who had succeeded in getting the three men’s wartime convictions overturned wrote to Solicitor General Donald B. Verrilli, Jr., asking him to use the government’s response in the case to support overruling Korematsu.

Although a response to that plea was not a part of the brief filed Wednesday, Verrilli argued at length that the four individual challengers were not at any risk of being detained, that the 2011 provision did not add to presidential authority, and that the Justices should deny review on the basis of a lack of “standing” to make the challenge.

After the challengers’ lawyers have a chance to reply to the government’s brief, the Court will decide whether to grant or deny review.  That action may come sometime in April or May.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, U.S. bypasses Korematsu plea (UPDATED), SCOTUSblog (Mar. 29, 2014, 8:02 AM), http://www.scotusblog.com/2014/03/u-s-bypasses-korematsu-plea/