In a move that might head off another major Supreme Court ruling on detention policy, the Justice Department on Friday suggested that the Court consider dismissing the pending case of Kiyemba v. Obama (08-1234) as one that should never have been granted in the first place.  In its merits brief, the Department said that all seven Chinese Muslim (Uighur) detainees remaining in the case have been offered opportunities to re-settle in countries other than China, so the Court should not even consider ordering their transfer to live in the U.S. as an alternative re-settlement.

As an alternative, the Department urged the Court to uphold a D.C. Circuit Court ruling that denied federal judges any authority to order the transfer of Guantanamo prisoners to the U.S. itself.

Read the rest of this entry »

(UPDATE: Further new material added at 1:32 p.m.)

Over the vigorous dissents of two Justices, the Supreme Court refused on Monday to clarify whether individuals in custody by the U.S. government may rely on the protections of the Geneva Convention for prisoners of war — an issue left at least partly unresolved by the Supreme Court’s ruling in 2008 in Boumediene v. Bush and earlier detainee cases. The denial came as the Court appeared to clear the way for the extradition of the former Panamaian dictator, Gen. Manuel Antonio Noriega, to France for a trial on illegal drug charges.

Read the rest of this entry »

Commentary

Just one year ago, on January 22, President Obama issued a White House directive.  A key sentence in it read: ”The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than one year from the date of this order.”  That date has arrived, and, as is now widely understood, the U.S. military prison in Cuba for foreign national captives suspected of terrorism ties may not be closed for many more months, if then.  Some in Congress, in fact, want it to remain open indefinitely.

In the meantime, the fate of the detainees there — now numbering a few less than 200 — is being worked out largely in response to a Supreme Court decision that was issued seven months before the new President made his vow to shutter Guantanamo.   A case-by-case process — with the Executive Branch on one side, detainees’ lawyers on the other, and fifteen federal district court judges in the middle — is the main mechanism for working out who stays at Guantanamo, and who leaves.  The failure to empty the Guantanamo prison, and the process unfolding in the courts (a process that has sometimes frustrated both sides and the judges), has produced a number of policy debates in Washington.  But now, on the anniversary of the President’s promise, one debate topic is rising to prominence: should the whole thing be handed over to Congress. to lay down some rules and guidance?

Read the rest of this entry »

The following is a “plain English” summary of the Court’s and blog’s activities last week by Professor Lisa McElroy of Drexel University’s law school.

Happy New Year!   Although the Court did not get busy with official business until the Conference on January 8, there was plenty going on at 1 First Street, N.E., this week, as well as in some of the courts of appeals.  Most of the cases the Supreme Court hears start in the federal district courts or federal agencies, go to the federal courts of appeals (also known as circuit courts), and then go on from there to the Supreme Court, although some are cases from state courts presenting questions of federal law.

On Monday, the Court published the list of oral arguments for the “March sitting.”  The Supreme Court typically hears oral argument on Mondays, Tuesdays, and Wednesdays for two weeks each month.  Most arguments take place in the mornings between 10:00 and 12:00, and each case is usually allotted an hour (thirty minutes per side).  However, arguments occasionally take place in the afternoon as well and some cases (like this Monday’s original action, Alabama v. North Carolina) are granted extended argument time.

Also on Monday, Lyle wrote about the dismissal of a case addressing whether prosecutors are liable for money damages if they purposefully arrange for false testimony.  Why did the Supreme Court dismiss the case?  Well, even though the parties had already briefed and argued the case, they agreed to settle, which they can do at any time.  Because the Constitution says that federal courts can only hear an actual “case” or “controversy,” as opposed to settled lawsuits, the Supreme Court had to dismiss the case.  Some scholars have been upset that the Court did not get the chance to decide the case because it presented such an important issue.

Read the rest of this entry »

Today, coverage continues of yesterday’s oral arguments in Al-Maqaleh v. Gates, in which the D.C. Circuit will determine whether detainees held at Bagram Air Force Base in Afghanistan have the same habeas corpus rights extended to Guantanamo Bay detainees by the Supreme Court in Boumediene v. Bush.  As Lyle reported yesterday afternoon on this blog, the panel’s questioning addressed the Court’s intention when it ruled in 2008 that at least some suspects in military custody have the right to challenge their detention in federal courts.  The Washington Post covers the proceedings, noting that the judges seemed hesitant to extend Boumediene to the Bagram detainees, and the BLT also discusses the oral arguments, highlighting attorney Tina Foster’s argument that the government should not be allowed to selectively apply habeas corpus rights by moving detainees from prison to prison.  An AP article also provides a detailed recap of the proceedings.  While Al-Maqaleh has yet to be decided at the appellate level, Lyle’s post yesterday confirms that the case is almost certainly bound for the Supreme Court.

Read the rest of this entry »

Analysis

Two federal appeals court judges went searching on Thursday for a possible way to salvage some right for terrorism suspects to challenge  detention when they are held overseas by the U.S. military, with the judges focusing on how to keep such a right within bounds.  The effort drew unstinting resistance from a federal government lawyer, and only a little help (treated by the judges as unsatisfying) from a lawyer for three detainees now being held in Afghanistan.  The hour-long D.C. Circuit Court hearing (running 20 minutes beyond the scheduled time) provided a thorough parsing of what the Supreme Court meant when it ruled in 2008, in Boumediene v. Bush, that the constitutional right of a prisoner to challenge detention applies to at least some terrorism suspects in U.S. military custody.

Read the rest of this entry »

American Needle v. NFL, in which the Court will consider whether the National Football League and its teams are one entity for purposes of federal antitrust law, is getting a lot of attention prior to its oral argument next Wednesday. The January edition of the ABA Journal asserts that a ruling in favor of the league would give it – as well as Major League Baseball, the National Basketball Association, and the National Hockey League – “almost total control over nearly every aspect of operations on and off the field, including repeated disputes over franchise location, players union relations, individual player contracts and televised delivery of games.”  On the other hand, Tom Van Riper at Forbes argues that such a ruling is unlikely to cause major ripples in sports, especially for the players’ unions; Van Riper notes that the Major League Baseball Association has enjoyed an antitrust exemption for years without significant loss to its players. The New York Times also previews the case.

Read the rest of this entry »

Analysis

Two days after the federal government won court approval for wide power to detain terrorism suspects, a new test of whether that power extends around the globe comes up for review Thursday in a federal appeals court in Washington — the D.C. Circuit Court.  The rapidly changing military situation almost 7,000 miles away in Afghanistan hangs over the hearing, and could affect how or even whether this controversy becomes an issue for the Supreme Court later.

Read the rest of this entry »

UPDATE Wednesday p.m.  A federal judge on Wednesday gave the Obama Administration its first opportunity in District Court to exploit its victory in this case, calling for new briefing on its impact on a pending habeas case.  The order by District Judge Gladys Kessler is here, applying to detainee Suleiman Awadh Bin Agil Al-Nadhi.

————-

The D.C. Circuit Court, filling in some of the legal blanks left by the Supreme Court on the president’s power to detain terrorist suspects, on Tuesday upheld the broadest view the government has taken of that authority, and ruled that the power is not limited in any way by international law, including the law of war.  Only domestic law controls whom the president may detain, and those home-grown legal concepts sweep widely, the appeals court ruled.  Its decision — very likely to be challenged in further appeals – can be read here.

The ruling in Al-Bihani v. Obama (Circuit docket 09-5051) was the first by the Circuit Court to directly apply the Supreme Court’s 2008 decision in Boumediene v. Bush creating a constitutional right for Guantanamo Bay detainees to challenge their captivity.  Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington.

The Circuit Court panel embraced the definition of detention power first spelled out by the Bush Administration (somewhat wider than the Obama Administration has advocated) and adopted by U.S. District Judge Richard J. Leon.  Leon has been prepared to allow a wider scope for detention than most of his District Court colleagues; their views on the issue must now yield.  Conceivably, the practical result may be that fewer detainees can now win court orders for their release.  While the government has not appealed to the Circuit Court all of the prior release orders, it presumably has a free hand now to contest almost any such order.

Moreover, the government’s chances of defending detentions in court appeared to be enhanced by the new ruling, since the panel concluded that detainees captured on overseas battlefields do not have the full array of procedural rights that, say, a domestic criminal would have in a habeas case.  “Requiring highly protective procedures at the tail end of the detention process for detainees like Al-Bihani would have systemic effects on the military’s entire approach to war,” the panel said.

Read the rest of this entry »

The following post is our first by Professor Lisa McElroy, of Drexel University’s law school.  Lisa has agreed to write Plain English posts for us on occasion that will recap the blog’s recent activity in terms understandable by non-lawyers.

It has been quiet at the Supreme Court this and last week, because the Court is on its Winter break.  Nothing official will be happening at the Court until January 8, when the Justices will meet for their private “Conference” to discuss pending petitions.  When we next hear from the Court will depend on its plans for those petitions.  If they intend to hear argument in those cases this Term, they may issue an Orders List that afternoon listing the granted cases.  Otherwise, they will announce the Orders on Monday the 11th.

One interesting detail about Conference:  The most junior justice sits nearest the exit and is responsible for answering the door, sending messages out, and so on.  Justice Breyer held this unenvied post for longer than almost any other Justice in history – over eleven years.  (He missed setting the record by only twenty-nine days but was saved by Justice Alito’s appointment).

Read the rest of this entry »

Commentary

Eighteen months ago, the Supreme Court decided Boumediene v. Bush, assigning federal trial judges in Washington, D.C., a major new role in crafting the rules that would govern the government’s power to detain individuals suspected of terrorism.  In recent months, those judges have been making considerable progress in filling the gaps that the Justices left.  But the judge who has had the key leadership role is clearly frustrated.  The unanswered question is whether his colleagues on the District bench feel the same way.

Thomas F. Hogan, a senior District Court judge who more than a year ago took the role of coordinator of more than 200 detainee habeas cases, spoke out earlier this month in his courtroom as he ordered the continued confinement of a Yemeni national who, the judge candidly commented, does not pose “a continued threat to the security of the United States.”  (The 57-page transcript of that session is here; his oral ruling is to be followed by a written opinion next month.)  Hogan had no choice, he said, because the law as it now stands compelled a finding that Musa’ab Al Madhwani must remain in detention.

Read the rest of this entry »

Analysis

The Obama Administration’s decision, announced Tuesday through various public documents and a background briefing, to transfer some of the Guantanamo Bay prisoners to the U.S. mainland for long-term detention without a trial may have a major impact on the Supreme Court’s pending review of Kiyemba, et al., v. Obama, et al. (08-1234).  One possibility is a return of the case to lower courts to weigh new or modified legal issues.

Depending upon how quickly the government moves toward relocating detainees to a newly acquired federal prison in Illinois, and also depending upon whether Congress goes along, the posture of the Kiyemba case conceivably could change even as the Court gets ready to examine it.  The prison facility in Thomson, Ill., is expected to be “fully operational” in three years, but it is doubtful the government would wait that long to begin shifting some prisoners from Guantanamo.

If Congress balks — and administration officials apparently told selected news organizations Tuesday that new legislation would be necessary — the whole process may be slowed enough that the Court case would simply go forward with things as they now are — that is, the seven detainees remain at Guantanamo, and a lower court opinion remains in effect barring their outright release from detentionThe uncertainty gives added importance to the position the Administration will take when it files its full written arguments in response to the appeal of the seven Chinese Muslim (Uighur) detainees eligible for release but still at Guantanamo.  Unless the time to file that brief is extended, it is now due on Jan. 4   There is little doubt that the government brief will lay out the new developments, and it would be no surprise if those changes influenced what it then asked the Court to do.

Read the rest of this entry »

Lawyers for seven Chinese Muslim (Uighur) detainees at Guantanamo Bay urged the Supreme Court on Friday to rule that new laws passed by Congress to bar the transfer to the U.S. of any detainee there do not apply to any prisoner who has won a court order requiring his release.  If the laws are not narrowed in that way, the attorneys contended, they would be unconstitutional.  The arguments were made in the merits brief in Kiyemba, et al., v. Obama, et al. (08-1234), likely to be argued in late March.

An interpretation of the new laws “that would raise constitutional problems must be rejected in favor of an alternative interpretation that is ‘fairly possible,’ and that avoids the constitutional problem,” the brief argued.  One way to do that, it suggested, would be to interpret the law so that it was not actually intended to suspend the constitutional right to make a habeas challenge — a suspension that would be unconstitutional.

Read the rest of this entry »

The Obama Administration on Friday evening urged the Supreme Court to turn aside a test case by four former Guantanamo Bay detainees, and to do so without ruling on their claims of torture and religious discrimination by U.S. agents there.  It is clear, Solicitor General Elena Kagan argued in the new filing, that the detainees had no legal basis for their claims at the time they were at Guantanamo — between early 2002 and March 2004.  Thus, she contended, the officials sued are immune from the lawsuit.

Read the rest of this entry »

FURTHER UPDATE Friday a.m.  “Kiyemba II” has now been docketed as 09-581.

—————

UPDATE Thursday p.m.  A reader notes that the outcome of this case, besides affecting some 150 cases involving advance notice orders, also will affect a number of cases in which federal judges have issued binding orders against transfers from Guantanamo.  A ruling on the validity of notice orders presumably would settle the legality of such injunctions, too.

————

Urging the Supreme Court to broaden its new review of government policy on transfers of detainees out of Guantanamo Bay, attorneys for four Chinese Muslim Uighurs filed a new case Tuesday evening.  If the Court were to grant review, it would focus the Justices’ attention on two layers of dispute between the Executive Branch and the courts, both perhaps affecting President Obama’s plans to close Guantanamo early next year.  The issues in the new case and in an earlier one, granted review by the Court on Oct. 20, “are distinct,” Tuesday’s petition said.  Moreover, the legal issue at stake in the new case is present in more than 150 pending detainee cases in lower courts.

 The Uighurs’ lawyers, though, suggested that the Court, as an alternative, may wish to hold the new case until it decides their first appeal.  “If the Court believes that it would benefit from a decision” in the first case, they said, it could defer action on the second one.  This first one “broadly relates to judicial authority under habeas jurisdiction and the Due Process Clause,” and the decision there thus may have some bearing on the second one, the petition noted.

Both cases bear the title, Kiyemba, et al., v. Obama, et al.  The granted case, now known informally as “Kiyemba I,” is docketed as 08-1234.  It is probably going to be heard in February or March.  The newly filed case — “Kiyemba II” — does not yet have a docket number.  (The D.C. Circuit Court ruling at issue in Kiyemba II can be found here.) Read the rest of this entry »