The Obama Administration urged the Supreme Court on Friday to turn away the plea by 17 Chinese Muslim Uighurs for release from Guantanamo Bay for settling temporarily inside the U.S.  The U.S. Solicitor General’s brief in opposition in Kiyemba, et al., v. Obama, et al. (08-1234) can be downloaded here.   Although no longer considered enemies, their continued confinement at Guantanamo is constitutionally valid, the brief asserted.

The Uighurs, Solicitor General Elena Kagan wrote, “have already obtained relief.  They are no longer detained as enemy combatants, they are free to leave Guantanamo Bay to any country that is willing to accept them, and in the meantime, they are housed in facilities separate from those for enemy combatants under the least restrictive conditions practicable.”

The brief holds to the position of the Bush Administration that a court’s power to issue a remedy in a habeas case — even in the wake of the Supreme Court’s mandate last year that the detainees have a constitutional right to seek their freedom — is limited to a finding of eligibility for release, without an actual release from captivity while diplomatic negotiations to resettle a prisoner continue.  The brief seeks to draw a clear distinction between “simple release” and “release into the U.S.”

The filing also clearly embraces the Bush Administration view that detainees cleared for release may be held for a “wind-up” period of indefinite duration, while resettlement efforts proceed. The brief does not specify how long such a period could last, saying only that it would be “a reasonable period of time.”  But it cites examples from past history suggesting that it could run for “several years.”

The D.C. Circuit Court ruled in February that no federal court has the authority to order release of a Guantanamo prisoner into the U.S., and the Solicitor General argued that that decision is correct.

“The court of appeals,” the brief said, “properly recognized that whether to admit an alien into the United States presents a question wholly distinct from issues concerning detention abroad — and a question that is reserved to the political Branches.”

The Supreme Court, it added, “has repeatedly stressed that whether to allow an alien into the United States is a sovereign prerogative that requires the consent of the political Branches.”

The Uighurs, the government brief said, “would like the federal courts to order that they be brought to the United States, because they are unwilling to return to their home country. But they have no entitlement to that form of relief.”

It sought to persuade the Court that the Uighurs, no longer considered “enemy combatants,” are not really being detained any longer. Their “continued presence at Guantanamo Bay is not unlawful detention, but rather the consequence of their lawful exclusion from the United States, under the constitutional exercise of authority by the political Branches, coupled with the unavailability of another country willing to accept them.”

The brief went on to say that, because their exclusion from the U.S. “is constitutionally valid, their resulting harborage at Guantanamo Bay is constitutional as well.”

The Uighurs’ lawyer will now have a chance to reply to the government’s opposition, and the Supreme Court will then decide whether to hear and decide the case.  It is possible, though not a certainty, that the Court will make up its mind for or against review before recessing for the summer late next month.

If the Court accepts the government’s view, either by denying review or by granting review and ruling against the detainees’ release, the Uighurs’ fate will depend entirely upon efforts by the State Department to find another country willing to accept them — a prospect that appears to be diminishing, especially in foreign governments’ negative reaction to heavy political resistance in Congress to resettlement of any Guantanamo prisoner inside the U.S.

There are 240 detainees remaining at Guantanamo, and the Obama Administration is reviewing their status, one at a time. It is making plans to close Guantanamo entirely by next January, but the complications in resettling at least some of those who will be found eligible for release might make that deadline difficult to meet.

Attorney General Eric Holder is now traveling in Europe, where, according to news accounts, he is being confronted by arguments of foreign leaders that, unless the U.S. is willing to have some detainees transferred to the U.S., other nations cannot be expected to accept them.

But, whatever the desires of the Obama Administration, there is a strong movement in Congress to prevent transfers of the Uighurs, or anyone else at Guantanamo, to live in the U.S. even temporarily.  Some in Congress, in fact, are questioning whether the solution to the dilemma of finding other countries for resettlement would be to keep Guantanamo open.

The Solicitor General’s brief mentions the actions in Congress, but does not express agreement or disagreement with them. It suggests, though, that such activity in the political departments is another reason the Supreme Court should refuse to get involved.

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In opinions so spare that the Supreme Court did not labor long to produce them, the Justices on Monday unanimously expanded the control that police can exercise at the scene of roadside traffic stops, and, again without dissent, pushed up the chain-of-command in prosecutors’ offices the protection of total immunity to liability for decisions made in preparing criminal cases for trial.  The first ruling was an enlargement of “stop and frisk” authority, the second was a reinterpretation of when prosecutors’ supervisors do administrative tasks.

The Court has returned often to the constitutional environment that prevails along the nation’s streets and highways when police officers see a traffic violation in progress, and decide to pull over the offending vehicle.  In a series of rulings, dating back nearly four decades, it has slowly built up a complex array of Fourth Amendment concepts, most of which have added to the officers’ authority “to control the scene,” as the Court put it again on Monday in further expanding that power.

That expansion has been based, in large part, on the Court’s concern that there is a considerable risk that any traffic stop could quickly escalate into “a violent encounter,” because more crime may actually be afoot than merely a violation of traffic laws, and driver or passengers may want to prevent its detection.  That was the rationale the Court used again in deciding Arizona v. Johnson (07-1122).

With fewer than four full pages of analysis in a nine-page opinion, the Court decided that police may order a passenger out of a stopped vehicle, and then conduct a “pat-down search” (a frisk) if they have reason to believe that the rider may be armed and dangerous.  (In this particular case, it was assumed that the officer involved had such a reason, but that could be tested when the case returns to Arizona state courts.)

The case involved a gang patrol by officers who were checking out a suspect neighborhood in Tucson.  When a car passed, one officer ran a check on the license plate, and discovedred that the insurance on that vehicle had been suspended.  So, while there was no suspicion of any other crime, the officers stopped the vehicle.  Officer Maria Trevizo engaged the back-seat passenger, Lemon Montrea Johnson, in conversation, and began talking with him after noticing he was wearing what she considered to be something of a gang emblem, a blue bandanna.

She learned he was from the town of Eloy, the site of prominent gang activity, and that he had done time on a burglary conviction.  She ordered him out of the car, and frisked him, finding a gun located near his waist.  She then handcuffed him.  He was charged with illegal gun posesssion (among other offenses), and was convicted on that charge.  An Arizona appeals court threw out the conviction, finding that Officer Trevizo had no right to pat-down passenger Johnson, since she had no reason to believe he had committed any crime.

Justice Ruth Bader Ginsburg ran over the Court’s past precedents dating back to Terry v. Ohio in 1968, and concluded that the “combined thrust” of the past rulings was that officers who conduct routine traffic stops may perform a frisk of a driver and any passenger if they had “reasonable suspicion that they may be armed and dangerous.”   The opinion then went on to conclude that the principle would now be made clearcut Fourth Amendment law.

If the traffic stop is not unduly prolonged by search activity following the initial stop, the opinion said, it has not been concluded for Fourth Amendment purposes until the police have completed exercising control of the scene — including a frisk when they believe someone in the vehicle may be armed and dangerous.

The Court’s new ruling on prosecutorial immunity to damage lawsuits that challenge actions they take in preparing cases for trial continued a process that began in 1976, in Imbler v. Pachtman.  In that decision, the Court said that, just as judges, jurors and legislators need absolute immunity to damages liability in order to perform their duties without harassing litigation against them, so do prosecutors.

Still, the Court said in Imbler that total immunity would not be available if a prosecutor was not engaged in duties directly related to prosecution of crimes in court, but rather was carrying on some kind of “administrative” task.   It was to this realm of prosecutorial duties that the Court on Monday extended new immunity.

The case of Van de Kamp v. Goldstein (07-854) involved a plea to the Court by a former chief prosecutor in Los Angeles, John Van de Kamp, and his chief deputy, Curt Livesay.  They were seeking to head off a civil rights damages lawsuit by a man who had been prosecuted and convicted of murder in 1980.   That conviction had been based in part upon the testimony of a jailhouse informant alleging a confession to the murder by Thomas Lee Goldstein.

After Goldstein served 24 years in prison, he was released based upon a court finding that the jailhouse informant had been given favorable treatment for his information, but that fact was never shared — as it should have been — with Goldstein’s defense lawyer.  Goldstein then brought his civil rights lawsuit, claiming that some prosecutors knew about the informant’s favorable treatment, but the word did not get passed to defense counsel, mainly because the leaders of the office failed to train line prosecutors to share such information, failed to supervise the line attorneys, and failed to create a system for retaining and sharing information about informants.

The two top prosecutors lost their bid for immunity in the Ninth Circuit Court, which concluded that the duties involved in Goldstein’s challenge were administrative, not prosecutorial as such.

Overturning that result Monday, the Court, in an opinion by Justice Stephen G. Breyer, spent only about half of a 12-page opinion analyzing the immunity issue, but in the course of doing so brought under legal protection all of the tasks that Van de Kamp and Livesay allegedly failed to perform adequately as supervisors.  The Court thus concluded that training, supervision and information-sharing are not “administrative,” in the sense of lacking legal immunity, when they are found to be “directly connected with the conduct of a trial.”

While conceding that training, supervision or information-management tasks for supervisors might sometimes be lacking in immunity from damages liability, the Court interpreted the claimed lapses in Goldstein’s case to be shielded because they were keyed to an error by the line prosecutor.  “The types of activities on which Goldstein’s claims focus necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in the training or the supervision or the information-system management.”

Summing up, Breyer wrote that, when a civil rights lawsuit claims “that a prosecutor’s management of a trial-related information system is responsible for a constitutional error at [a] particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself.”

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