Briefly:

• At this blog, Lyle Denniston analyzes the cert. petition filed in Latif v. Obama, a Guantanamo Bay detainee case that the Justices will consider at their Conference tomorrow.
• Also at this blog, Matt Bush posts our list of “Petitions to watch” for tomorrow’s Conference.
• Following up on Adam Liptak’s Sidebar column for the New York Times (which Nabiha included in yesterday’s round-up), Debra Cassens Weiss at the ABA Journal reports on one of the petitions at next week’s Conference, challenging the use of a Taser by Seattle police on a pregnant woman.
• Duke Law News covers a recent appearance by retired Justice Stevens at Duke Law School.

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For most of the past four years, the volunteer lawyers who are helping Guantanamo Bay detainees use their constitutional right of access to U.S. courts have faced a dilemma: they assumed that, at some point, the Supreme Court would again get interested in those cases, but they had no idea what it would take to get the Justices involved again.  They persuaded the Court just once in those years to grant a case — a highly unusual one – but that case went away without any new guidance on where the Court stands.

Last Term, the lawyers failed every time as they tried repeatedly to fathom what might catch the Justices’ attention; they had what they regarded as solid issues, but no case advanced.  This Term, they are trying again — seven more times, so far.   But, among those seven, they have Latif v. Obama, and that may be their best chance.  Indeed, if that one fails, too, it is hard to imagine the Court taking any Guantanamo captive’s case.

At the Justices’ private Conference on Thursday, they are scheduled, according to the electronic docket, to have a look at all seven of the new Guantanamo cases.   That is not a coincidence.  The lawyers have been urging the Court staff to schedule the cases together, and specifically asked that some of the cases be held up for examination until the Latif case, too, was ready.  Now the filings in the seven cases are all in (including an extra brief in one of the cases pointing out just how important the Latif case is), and presumably the Justices are poised to act.   The earliest an announcement of any action is likely to come is next Monday morning.

It is important to note, though, that the Obama Administration has urged the Court to deny review in every one of the new cases; it says there is no issue in any case that is worth the Court’s time.  Given the historic fact that the Court has a good deal of trust for the government’s judgment, it would appear that the detainees’ lawyers are operating at something of a disadvantage as they try to convince the Court that it needs to provide new guidance on the law of detention.  The military prison at Guantanamo Bay has been open for more than ten years, and the law of detention is still a work in progress.

But one facet of the developing law of detention, and it has added a special urgency to the work of the Guantanamo lawyers, is that the D.C. Circuit Court has not approved a single order by a District judge clearing the way for a detainee to leave Guantanamo.  Several score have gone home, but none as a result of a Circuit Court decision.   The question that detainees’ lawyers keep trying to get the Supreme Court to answer is: did you mean it when you said that the Guantanamo prisoners should have a chance at winning actual release? That is an open question, the lawyers have argued, because the Circuit Court has not allowed that to happen in any case actually appealed to that court by the government.

The last time the Court as a whole said anything of real consequence about Guantanamo (aside from saying that government offers of release for five detainees made it unnecessary to decide the one case that had been granted) was on June 12, 2008.   That day, the Court issued a historic ruling in Boumediene v. Bush, declaring for the first time that prisoners held by the U.S. military outside of the Nation’s borders had a constitutional right to go into a U.S. court, using the ancient writ of habeas corpus, to force the government to justify holding them captive even while declining to pursue criminal terrorism charges against most of them.

Boumediene, actually, had two main parts to it: establishing the habeas right for those at Guantanamo, but explicitly giving District Court judges in Washington a wide degree of discretion to work out the details on how to process those challenges.  The District judges, applying a format worked out in November 2008 by a coordinating judge, began processing the cases, and in the majority of cases, they found that detention was not justified.  The District judges applied a strong dose of skepticism to government evidence of terrorism links, especially evidence submitted in intelligence reports, sometimes assembled under chaotic conditions overseas.

It is likely, though, that neither the Justices themselves nor the District judges in Washington (where all Guantanamo cases are filed) anticipated one development that emerged after Boumediene had been decided.  It actually came out of a second detention case decided by the Justices on that same day in June 2008 – Munaf v. Geren, about two U.S. citizens the U.S. military was holding in Iraq pending criminal trials in that country, and having nothing directly to do with Guantanamo.  But, Munaf v. Geren, as transformed by D.C. Circuit Court, would become a stern mandate to the District judges not to “second-guess” the military’s judgment about the need to detain prisoners at Guantanamo and anywhere else.

In the summer of 2010, three Justices — Ruth Bader Ginsburg, joined by Stephen G. Breyer and Sonia Sotomayor — said publicly that the Court should at some point sort out the impact that Munaf had had on the law of detention, and at that point, lawyers for the Guantanamo prisoners thought they had a clue of how to reopen post-Boumediene issues in the Supreme Court.  But that did not happen, and there was no explanation why it did not happen.  Munaf-related sequels were filed by the Guantanamo lawyers, but none got a hearing.

The D.C. Circuit steadily tightened the limits on the District Court judges, and in the last dozen such cases, the detainees’ challenges have lost in 11.  The only case among those 12 in which a detainee won was the case of Latif v. Obama, involving a Yemeni national, Adnan Farhan Abdul Latif, who was captured in Pakistan within three months after the terrorist attacks on the U.S. on September 11, 2011.  But Latif’s success in the District Court did not last; the D.C. Circuit overturned the judge in that case, too.

There are totally contradictory stories about Latif: his lawyers insist that he went to Afghanistan and then to Pakistan seeking medical treatment for a head injury, but the government insists that he went there along a path followed by terrorist recruits, and that, when he got there, he received military training and joined the Taliban forces and went to war against the Afghan Northern Alliance.  The Circuit Court concluded that he was “part of” the Al-Qaeda terrorist network — the current legal standard for detention.

The primary evidence the government used against Latif was an intelligence report that was based, in part, on interviews that intelligence or military agents had with him and others, overseas and perhaps also at Guantanamo Bay.

On the basis of the conflicting accounts of Latif’s travels and activities in Afghanistan and Pakistan, his case does not stand out as unusual; such factual conflicts exist in all of the cases.   But, as his case developed in the D.C. Circuit and now in the filings in the Supreme Court, here is why it has taken on a status that does not seem to be fully matched by other pending cases:

* It resulted in the creation, not previously found in any prior Guantanamo case, of a “presumption of regularity” and accuracy for government intelligence reports, no matter the conditions under which they were gathered.  It is a legal rule of thumb that makes the government’s reasons for detention significantly weightier, and puts a heavy burden on the detainee’s lawyers to disprove that evidence.   Up to that decision, the District judges had routinely refused to grant the government such a “presumption.”

* A group of intelligence officers and retired federal judges filed amicus briefs with the Supreme Court questioning the reliability of those intelligence reports and the fairness of their use.

* The case produced something that is quite rare in Guantanamo cases in the D.C. Circuit — a vigorous, even angry dissent.  It was filed by Circuit Judge David S. Tatel,  who argued that the D.C. Circuit “has moved the goal posts” and had “called the game in the government’s favor.”

* The main opinion in the D.C. Circuit brought a scathing denunciation of the Supreme Court’s Boumediene decision by Circuit Judge Janice Rogers Brown, who said that the ruling was based upon “airy suppositions” and who suggested that the signal it had sent to the government in the “war on terrorism” was to “take no prisoners.”

* It has drawn the criticism of even outside observers who have generally supported what the D.C. Circuit had been doing in developing the law of detention.

* It appears — at least so far — to be a case in which Justice Elena Kagan can take part; that is not true of all Guantanamo cases, because of her prior role in the Justice Department as U.S. Solicitor General.

* And, to repeat, it is the one case in the last dozen to go through the District Courts to result in a win for a detainee, only to have that, too, set aside in the Circuit Court.

The Latif petition raises three issues.  One has to do with the validity of the “presumption of regularity” for government intelligence reports.  One has to do with whether the D.C. Circuit wrongly took on the role assigned to the District judge to sort out the facts.  (If the Circuit Court had accepted the District judge’s factual findings, all sides agree that Latif’s detention would be invalid.  It was the first Guantanamo case to reach the Circuit Court that had that characteristic about it.)

But the third issue raised is an especially provocative question that, in fact, is also included in a number of the other new Guantanamo cases.  That question reads: “Whether the court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.”

Implicit in that question are these other questions: Did the Court actually expect in 2008 that a Guantanamo detainee would win release over the government’s objection? What did the Court mean when it said habeas review in Guantanamo cases should be “meaningful”?  How content are the Justices with the handiwork of the D.C. Circuit in defining the law of detention since Boumediene?  Just where would the Justices start if they wanted to examine the Circuit Court’s results? Does the Court see any need to defend itself against the criticism that Circuit judges have aimed, in escalating terms, at Boumediene?

Or, perhaps finally, does the Court have any desire, on any score, to return to a role in monitoring the fate of the 169 foreign nationals who remain at Guantanamo?  What would be lost, to the Court as an institution, if it opted now just to leave Guantanamo to the political branches and the D.C. Circuit?

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Cases involving lawyers from Goldstein & Russell (listed without regard to the likelihood of being granted):

________________________________________________________________

The following petitions have been re-listed for the conference of May 17.  If any other paid petitions are redistributed for this conference, we will add them below as soon as their redistribution is noted on the docket.

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Monday’s order list did not contain any new grants, nor did the Court call for the views of the Solicitor General in any new cases. With no new grants, coverage focused on the cases in which the Court denied review, including cases involving the trademark rights to Cuban rum (Greg Stohr of Bloomberg, as well as Greg Stohr and Clementine Fletcher for the Miami Herald), shipwrecked treasure (Warren Richey of the Christian Science Monitor), Congressional representation of Puerto Rico (the Associated Press), a victim of Whitey Bulger (Boston Globe), and a guilty plea from a sailor suffering from post-traumatic stress disorder (David Nelson of the New York Times). At the New York Times, Adam Liptak looks ahead to the May 24 Conference and a petition challenging the use of a Taser on a pregnant woman.

At the New Yorker, Jeffrey Toobin discusses the impact of Chief Justice John Roberts on the Court’s decision in Citizens United v. FEC.  Several writers praise the behind-the-scenes details in the story: John Hudson of the Atlantic Wire focuses on the news that now-retired Justice David Souter drafted a dissent, “which remains unpublished, [that] accused Roberts of engineering the outcome of” the case; at his Election Law Blog, Rick Hasen similarly describes the unpublished Souter dissent as the “big news” of Toobin’s story.  Meanwhile, at Salon, Joan Walsh argues that “the most important revelation” from Toobin’s story is “the extent to which modern conservatism is trying to restore the Gilded Age.” Joe Palazzolo of the Wall Street Journal Law Blog also has coverage of the story.  Finally, at this blog, Tom Goldstein calls the article a “must-read,” but at the same time argues that although it “is a fascinating and full accounting of the case and the background of the Court’s rapid movement to the right, the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.”

Briefly:

• The University of California-Irvine will host its second annual Term in Review program on July 17.

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The theme of the piece is that Chief Justice Roberts orchestrated the case’s metamorphosis from a narrow ruling about statutory construction to a much broader constitutional decision with sweeping implications for campaign finance.

I should disclose that I am naturally inclined towards that reading of the history.  I think that the Chief Justice is quite conservative and a brilliant tactician, including in undoing significant pieces of the legacy of the Court’s O’Connor era.  I also disagree with the Citizens United decision.

But despite that, while the article is a fascinating and full accounting of the case and the background of the Court’s rapid movement to the right, the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.

By way of brief background for readers who have forgotten it, in Citizens United the Court originally agreed to decide whether a particular “movie” critical of Hillary Clinton was subject to campaign finance regulation.  But the Court subsequently ordered reargument on the question whether the relevant restriction on corporate expenditures in elections violated the First Amendment.  By a vote of five to four, it then invalidated the statute, holding that corporations and unions have a First Amendment right to engage in independent campaign expenditures.

Toobin reports the following behind-the-scenes details as they relate to the Chief Justice:

After the first argument on the statutory question, “Roberts assigned the opinion to himself,” and “did write an opinion roughly along [the] lines” of holding that the movie was not covered by the statute.

By contrast, Justice “Kennedy wrote a concurrence which said the Court should have gone much further” to rule for Citizens United on broad constitutional grounds.

“But after the Roberts and Kennedy drafts circulated, the conservative Justices began rallying to Kennedy’s more expansive resolution of the case,” leading Roberts to “withdr[a]w his opinion and let Kennedy write for the majority.”

After strident protests from the more liberal Justices that the Court was deciding a major constitutional question without briefing or argument, Roberts “agree[d] to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument” on the constitutional issue.

After the second argument, “Roberts assigned the opinion in Citizens United to Anthony Kennedy.”

From those facts, Toobin reasons that, “[e]ven without writing the opinion, Roberts, more than anyone, shaped what the Court did.”  Reargument, he says, was “a strategically ingenious maneuver”; giving Kennedy the opinion after reargument “was another brilliant strategic move.”  Because corporations favor Republican candidates, Toobin concludes:  “So, as the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party.  Roberts’s choice was: a lot.”

That does not seem to follow.  Take the results of the first argument.  The Court’s five conservatives agreed that Citizens United should prevail, but divided on whether to resolve the case on narrow statutory or broad constitutional grounds.  The Chief Justice both voted for the former and assigned the opinion to himself to try and control the reasoning.  That is the opposite of the narrative in which he is attempting to produce the broader result.

But the Chief Justice lost his majority to Kennedy’s broader constitutional opinion.  That happens.  While Toobin calls the draft Kennedy opinion a “majority,” he does not report that the entire majority switched to Kennedy’s opinion.  It appears that Kennedy may have had only a plurality.  The conservatives have repeatedly divided on how quickly to move the law to the right, and the Chief Justice has been one to favor moving more slowly – recall Justice Scalia’s biting criticism of “faux judicial modesty.”

In response to Justice Souter’s criticism that the Court should not be deciding the constitutional question without briefing and argument, the Court set the case for reargument.  While Toobin describes Roberts as having made that decision alone, I don’t believe that is possible:  the Chief Justice does not have that power.  But in any event, even if he did, that decision does not seem like an effort to decide Citizens United as broadly as possible as quickly as possible.

After the reargument, the Chief Justice assigned the majority to Kennedy.  That was not much of a tactical move – given the case’s history, it was the only realistic possibility.  The conservatives had voted to decide the case on the broader constitutional ground.  Kennedy had already written an opinion deciding the case on that basis that had the support of several members of the majority.  It would have been fairly insulting for Roberts to take the assignment away.

The post-Citizens United history also seems to undermine Toobin’s take.  Soon after Citizens United, in a suit by the RNC, a three-judge district court held that Citizens United did not undermine the Supreme Court’s ruling in McConnell that Congress may restrict contributions to political parties.  The court said that only Congress or the Supreme Court could revisit that question.  When appealed to the Supreme Court, six Justices summarily affirmed, refusing to revisit that aspect of the Court’s campaign finance jurisprudence.  The Chief Justice was in the majority, with Justice Alito and the Citizens United dissenters; Justices Scalia, Kennedy, and Thomas would have heard argument.  If the Chief Justice were actually leading the charge for revisiting campaign finance law, he presumably would not have voted to affirm.

It does seem fair to me to criticize the Chief Justice for voting to decide Citizens United on constitutional grounds.  But that is a criticism that is just as applicable to the entire majority, as opposed to an indication of maneuvering by him.  It also ignores that the alternative may have been no clear holding whatsoever – with dueling members of the majority articulating inconsistent rationales that left the law in flux.

It is also a criticism that is deeply rooted in a belief that the Citizens United ruling is wrong on the merits, as opposed to an objective view that the Court should never issue broad constitutional rulings when it can avoid them.  If you instead agree with the ruling, that criticism seems fairly empty.  The majority’s view is that the statute imposed a significant restriction on a basic First Amendment right:  participating in elections.  More broadly, the majority believes that the Court’s prior precedents in this important area are fundamentally flawed.  It is not surprising that they want to correct those perceived errors — on what everyone agrees is a critical question — as quickly as possible.

Imagine if the shoes are reversed in 2018.  Justice Kennedy retires and is replaced by Kamala Harris.  The Court hears a case that it could decide on narrow grounds, or it could go further and overrule Citizens United.  Will progressives really contend that the new and  more liberal majority should leave that decision standing?  I don’t think so.  They will want the Court to get the decision “right.”  And if the senior Justice in the majority votes that way and assigns the opinion accordingly, I don’t think it will be because she is trying to help the Democratic Party as much as possible.

Others may disagree.  And in all events, as I mentioned, you must read the article and buy the book.  The article is a fascinating read, and it promises much more to come.

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Justice Sotomayor wrote the opinion for the Court in Hall v. United States. By a vote of five to four, the Court affirmed the decision of the Ninth Circuit.  It held that the federal income tax liability resulting from petitioners’ post-petition farm sale is not “incurred by the estate” under Section 503(b) of the Bankruptcy Code and thus is neither collectible nor dischargeable in the Chapter 12 plan. Justice Breyer filed a dissenting opinion in which Justices Kennedy, Ginsburg, and Kagan joined.

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Briefly:

• In an op-ed for the Boston Review, Pam Karlan criticizes “a second form of assertiveness” displayed by the Roberts Court:  “the Court is not simply deciding which cases to hear, but is also directing the parties to address issues the justices want to take up.”
• At UPI, Michael Kirkland discusses the impact of the Court’s ruling in Citizens United v. FEC, reporting that “[t]he 2012 elections are awash in secret money, with donors accountable to no one, while the national media sleeps and few voters seem to care.”
• In the Los Angeles Times, David Savage reviews criticism of Solicitor General Donald Verrilli’s performance at oral arguments this Term.
• In an op-ed for the New York Times, Richard Thaler argues that “[g]iven how flimsy slippery-slope arguments can be, it is downright scary that they might play an important role in the Supreme Court decision on the new health care law.”
• In an op-ed for the Daily Progress, Donald Nuechterlein urges the Court to uphold the main provisions of S.B. 1070, the state immigration law at issue in Arizona v. United States, but to reject its “more punitive features,” in the hope that “[t]his outcome might then spur Congress, in its next session, to be serious about compromising around a more comprehensive solution to this vexing immigration dilemma.”

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On Thursday the Court will meet for its May 17 Conference. Our list of “Petitions to watch”  for that Conference is here.

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The dissenters argued that “only the Supreme Court can now fix our wayward course.” An appeal to the Justices seems inevitable.  The dissenters complained in exceedingly strong language that the majority, by allowing the lawsuits to go perhaps many steps further, was permitting the courts to intrude deeply into the U.S. military’s conduct of activities in a war zone.  (The 114-page decision, including a majority opinion, two brief concurring opinions, and two lengthy dissenting opinions, can be read here.)

The cases, if immunity is denied and that denial withstands future appeals, will turn on whether two companies hired by the U.S. military to work in Iraq had engaged in torture and physical assault as they sought to gather intelligence by interrogating Iraqis imprisoned as potential insurgents against American, Iraqi, and allied forces during the war there.  The claims of torture recall the globally publicized photographs showing serious abuses of prisoners at the Abu Ghraib site near Baghdad.

One of the lawsuits, pursued in federal court in Alexandria, Va., is aimed at CACI International, a Virginia company, and was filed by four Iraqis who had been held at the prison.  That lawsuit claims violations of the Alien Tort Statute and Virginia state tort law.  The other lawsuit, filed in federal court in Greenbelt, Md., is aimed at L-3 Services, Inc. (formerly Titan Corp.), also based in Virginia, plus one of its Maryland employees, and was filed by 72 Iraqis who had been held at Abu Ghraib.  That lawsuit makes similar legal claims.  Both seek money damages along with punitive money damages for the alleged injuries they claim they suffered at the prison.  The two companies were hired to provide Arabic language translators, and to take over interrogation of prisoners suspected of insurgency.

The two District judges handling the cases refused to dismiss the lawsuits in response to the two companies’ arguments that they had either complete or qualified immunity, based on various theories, including claims that those who work for the military in a war zone cannot be sued in their own country by foreigners who were nationals of the foreign land — a “battlefield” immunity — and that they have a form of legal immunity derived from the military’s immunity to lawsuits for official war zone actions.   A divided three-judge panel of the Fourth Circuit ruled last September that the companies had legal immunity to the claims, and ordered the lawsuits dismissed.  That is the result the en banc court overturned Friday.

The majority opinion, written by Circuit Judge Robert B. King, did not settle any issues in the case, other than the question of whether the Circuit Court had jurisdiction at this stage to hear the two companies’ pre-trial appeal based on their immunity claims.  The Circuit Court concluded that the appeals did not come within what it said was a narrow exception to the usual rule that there must be a final decision in a trial court on a decisive issue before an appeal can be pursued ahead of the actual trial.

It was just too early in the proceedings, and too little is known, the majority concluded, for the two District judges to decide the immunity question.  (The two judges had gone only so far as to deny motions to dismiss, but had not resolved the ultimate question of immunity for either firm.  The companies thus still could win on that point   Deciding the immunity issue, Judge King’s opinion said, involves such issues as whether the military contractors were actually integrated into the operations of the military coalition led by U.S. forces, whether they had obeyed their instructions — including a duty to avoid torture, and what level of immunity — if any — they can claim.  The majority insisted that allowing lawyers for the Iraqis to seek further information, through”discovery” orders, would not require the courts to probe into actual military operations, or to summon military officers to testify in court on their relationships with CACI and L-3.

Many of the companies’ legal arguments, the majority said, must be treated as defenses to liability, not as issues of immunity to being sued altogether.  The majority cautioned against playing “word games” with the notion that an entity has a right not to be tried at all for claimed misconduct.  Virtually every right that could be protected by dismissing a case before the trial even begins could be loosely described as a right not to be tried, the majority commented.

The King opinion lacked any of the soaring rhetoric of the dissents; it was, in fact, a workmanlike but dry analysis of the “collateral order” doctrine — the basis for pre-trial appeals in federal courts — and of the history of claims of immunity under various Supreme Court and Fourth Circuit precedents.

The majority opinion was supported in full by eight of the 14 judges taking part on the en banc court, although two members of the majority said in a separate opinion that the District judges handling the cases should proceed with caution and be sensitive to the companies’ claims of immunity, as well as their argument that any dispute over their performance under their contracts was a matter for resolution with the government as the overseer of their contracts.   Those two judges said the immunity arguments were “far from lacking in force,” especially in light of a Supreme Court decision last month (Filarsky v. Delia, upholding legal immunity for a lawyer working for a city government in California).

Circuit Judges J. Harvie Wilkinson III and Paul V. Niemeyer each wrote a dissenting opinion, with each joining the other’s opinion, and with Circuit Judge Dennis W. Shedd joining both opinions.

Judge Wilkinson argued that, “thanks to the majority’s efforts, contractors that were previously subject to the control of the executive branch have new judicial masters.  But when unelected judges render contestable decisions about military policy in the course of applying tort law to contractors, the public will be unable to remove them from their posts. This flies in the face of our constitutional tradition of ensuring some popular control over the prosecution of a war.”

He argued that the U.S. military had hired CACI and L-3 because the forces were seriously short of capable Arabic translators, and needed help from private firms.  From here on, he warned, both the government will be wary of hiring contractors to perform battlefield functions, and private companies will be reluctant to accept such assignments, because no one will know when a lawsuit will arise over the inevitable missteps that occur in the heat of combat.

Judge Niemeyer’s dissent argued that it was already clear, based simply on what the Iraqis’ lawsuits had claimed, that the companies were legally immune to those lawsuits.  He argued that the cases should have been dismissed immediately by the District judges, because the claims at issue involved issues that the Constitution assigns to Congress and to the President as Commander-in-Chief.   He agreed that the Circuit Court had no jurisdiction to hear the appeals, but only because the subject matter of the lawsuits was constitutionally entrusted to the political branches.  So, Niemeyer said, the District Court also lacked any jurisdiction to proceed.

It is unclear how much time is likely to elapse before the two District judges are able again to rule on immunity issues, but Judge Wilkinson predicted that the dispute would go on for years.

Now that the Fourth Circuit has issued its decision through its full membership (with one new judge not participating), the next place for the companies to take the dispute is the Supreme Court.

Although the Executive Branch clearly has an interest in the liability of military contractors, the Obama Administration — invited into the case by the Circuit Court — agreed with the result that emerged Friday: that is, that the Circuit Court lacked jurisdiction at this point to decide the immunity issues.  The government brief in the case said that it was not yet prepared to argue that the contractors had shown that they had a right to appeal immediately.  Presumably, if the case goes to the Supreme Court, the government may wind up having a role there.

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