Order List only. The remaining scheduled dates for issuance of opinions are May 16th, 23d and 31st, and each of the four Mondays in June. (If needed, the Court might add further dates between June 21st and June 30th.)

By my rough count, 35 argued cases remain pending without decision.

Tony Mauro of Legal Times has this article on the Court’s hottest ticket this Term.

Newsday has this AP article on the aftermath of the Court’s decision in City of Sherrill v. Oneida Indian Nation.

The Bryan-College Station Eagle has this report on an upcoming lecture by Justice Scalia at Texas A&M University.

There may be a great deal of acrimony and debate on Capitol Hill about some of the President’s nominations–but the nomination of Acting SG Paul Clement to be Solicitor General isn’t one of them. Clement’s hearing before the Senate Committee on the Judiciary yesterday morning came and went with virtually no press coverage, and no tumult: I’m told that it lasted all of 26 minutes. As this article in GovExec.com indicates, at age 38, Clement would be the youngest SG since William Howard Taft (who was 32). “Asked about this comparison with the last president to have facial hair and the only one to ever get stuck in the White House while bathing, the svelte Clement replied, ‘So far, I have managed to make it out of the bathtub.’” As the article’s quotation from former Acting SG Walter Dellinger indicates, Clement’s service in the SG’s Office, and his nomination, have been lauded by a diverse range of observers, advocates, and fellow DOJ employees (myself included).

Senator Leahy’s prepared statement on the Clement nomination can be found here.

The Acting Solicitor General has filed the Government’s opening appellate brief in the U.S. Court of Appeals for the District of Columbia Circuit in Al Odah v. United States (Nos. 05-5064, 05-5095 through 05-5116), which is in essence the Rasul case on remand — a habeas challenge brought by numerous alien detainees at Guantanamo. The appeal is from a January 31st decision of District Court Judge Joyce Hens Green, in which she ruled in favor of the habeas petitioners on a series of very significant threshhold merits issues.

The important issues the brief addresses include the following:

1. Most significantly, Judge Green read footnote 15 of Rasul (and other aspects of that decision) to hold that the Due Process Clause provides some protection to aliens being detained at Guantanamo because GTMO is subject to long-term, exclusive U.S. jurisdiction and control.

DOJ argues at pages 15-29 of its brief that this holding is foreclosed by binding precedent to the contrary, including Eisentrager, Verdugo-Urquidez, and a dictum in Zadvydas, as well as courts of appeals cases.

This question — of the application of the Due Process Clause to aliens detained outside the U.S. — is of enormous importance, not only for purposes of identifying the constitutional protections, if any, that govern the process for determining “enemy combatant” status, but also for purposes of assessing the legality of the terms and conditions of detention, such as whether the Administration may continue to subject detainees to “cruel, inhuman and degrading” treatment in interrogations conducted abroad.

2. Judge Green also significantly ruled that the Administration’s definition of who may be detained as an “enemy combatant” is far too broad and not authorized by the congressional authorization statute (which, per Hamdi, incorporates the laws of war), because that definition includes persons with peripheral alleged connections to Al Qaeda and the Taliban. Thus, for example, in response to the court’s hypotheticals, DOJ counsel argued that the Executive has the authority to detain until the conclusion of the war on terrorism: “[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities”; a person who teaches English to the son of an al Qaeda member; and a journalist who knows the location of Osama Bin Laden but refuses to disclose it to protect her source. More particularly, Judge Green offered the example of detainee Murat Kurnaz, as to whom there was no unclassified evidence that he “took any action or provided any direct support for terrorist actions against the U.S. or its allies,” or “even had knowledge of his associate’s planned suicide bombing, let alone [to] establish that the detainee assisted in the bombing in any way.” Thus, “[i]t would appear that the government is indefinitely holding the detainee–possibly for life–solely because of his contacts with individuals or organizations tied to terrorism and not because of any terrorist activities that the detainee aided, abetted, or undertook himself.”

Because Hamdi held that the purpose of detention can only be to keep combatants off the “battlefield,” Judge Green concluded that the category of persons who can be detained is limited to those who “took any action or provided any direct support for terrorist actions against the U.S. or its allies.” Mere contacts with individuals or organizations tied to terrorism (or membership in such organizations) is not sufficient.

DOJ addresses this “scope” argument at pages 49-52 of its brief. It claims that the laws of war permit detention of members or “supporters” of Al Qaeda and Taliban “forces.” Most strikingly, the brief goes so far as to intimate (page 51) that the Government could indefinitely detain as an “enemy combatant” a U.S. citizen who provides any “material support” to Al Qaeda or the Taliban. (The provision of such material support is a federal crime; but punishment for that offense is, of course, ordinarily effected through conviction and determinate sentencing in the criminal justice system.)

3. Judge Green ruled that aliens at GTMO challenging the legality of their detention are entitled to the same due process procedures to which citizens would be entitled under the governing plurality opinion in Hamdi, and that the new procedures the military is providing at GTMO for assessing “enemy combatant” status do not satisfy Hamdi requirements, largely because many detainees and their attorneys are not confronted with the classified evidence that forms the basis of the military decision to detain them.

DOJ argues at pages 38-48 of its brief that this Due Process holding was wrong.

4. Judge Green held that certain alleged Taliban detainees could sue to enforce their rights to be treated as POWs under the Third Geneva Convention.

DOJ argues (pp. 55-59) that the 1929 version of the Geneva Convention did not create judicially enforceable rights (which was the Court’s holding in footnote 14 of Eisentrager), and that there is no basis for concluding that the nations that ratified the 1955 (current) version of Geneva intended to alter that conclusion.

5. Judge Green held that the President had overstepped his authority in making the categorical determination that all Taliban personnel are automatically not entitled to POW status for purposes of the Third Geneva Convention. She held that such detainees are entitled to individualized hearings on POW status under Article 5 of that treaty.

DOJ argues (pp. 60-64) that once the President made the determination that the Taliban itself did not satisfy the standards for POW status under Article 4 of the Convention, the only remaining factual question in an individual detainee’s case is whether that person was, in fact, a member of the Taliban (or, presumably, a “supporter” of Taliban “forces”) — a question that the military can adequately address in the Combatant Status Review Tribunals that it has established.

By common agreement among those contacted after listening to Wednesday’s oral argument in Arthur Andersen LLP v. U.S. (03-368), the now nearly defunct accounting firm is likely to emerge with a sweeping victory in the challenge to its “witness-tampering” conviction. The firm was convicted of illegal tampering with a witness by “corrruptly persuading” corporate staff to destroy internal documents about the Enron scandal, to thwart a not-yet-started federal investigation. (The issues at stake in the case are discussed in posts linked below.)

The government sent to the Court its best advocate on criminal law issues, Deputy Solicitor General Michael R. Dreeben, but the conclusion that most observers drew was that he had no real case to make in the face of a withering barrage of questions from the bench. Andersen’s counsel, Maureen E. Mahoney, by contrast, was widely viewed as having had on her side most — perhaps all — of the Justices who spoke up.

(Disclosure: the author of this post did not attend the argument, being preoccupied with new decision announcements. The post is based on extensive contact with persons who did attend — press and others.)

Further news on this oral argument:
Pete Yost of the AP in New York Newsday;
Charles Lane of The Washington Post; and
Michael Kirkland of UPI in The Washington Times.

The Court issued opinions this morning in the following two cases, which Lyle describes in further detail below:

No. 03-388, Bates v. Dow AgroSciences, vacated and remanded. The opinion was written by Justice Stevens. Justice Breyer filed a one-paragraph concurrence. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part that Justice Scalia joined.

No. 03-9627, Pace v. DiGuglielmo, affirmed 5-4, in an opinion authored by the Chief Justice. Justice Stevens dissented, joined by Justices Souter, Ginsburg and Breyer.

It is possible the Court will issue further decisions on Monday. Four opinions remain outstanding from the “December” sitting, three from the January sitting, and 28 (out of 30) from the final three sittings of the Term.

The Supreme Court on Wednesday created a wide opening for consumers of weed-killing and pest-killing products to sue manufacturers under state law for defectively designing their products, and failing to live up to their promises of what the products will do. The 7-2 decision cleared the way for Texas peanut farmers to proceed with an array of state-law claims based on their contention that a weed-killer named “Strongarm” destroyed their crop without killing the weeds.

The Court, in the decision in Bates v. Dow Agrosciences (docket 03-388), left open the possibility that the Texas farmers may yet be able to pursue other claims against Dow. It said it did not have enough information to decide whether those other claims had been pre-empted by the federal regulatory law on pesticides and insecticides. It sent those back to lower federal courts.

Clearing up a dispute among Circuit Courts on whether the federal regulatory law on crop-treating products left the states with much, if any, authority to regulate those products, the Court came down on the side of retaining significant opportunity to bring state-law claims without running afoul of the federal statute.

In the Bates case, the Court found that the farmers could go ahead in state court with claims of defective design of “Strongarm,” defective manufacture, negligent testing, breach of express warranty and at least some claims under Texas consumer protection law. It left it to lower courts to decide whether federal law barred the farmers’ claims of fraud and negligent failure-to-warn about the limitations of the product when used on peanut crops.

“The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against pre-emption,” the Court said in its first decision on the preemption question in connection with the federal insecticide law. “If Congress had intended to deprive injured parties of a long available form of compensation, it surely would have expressed that intent more clearly.”

The Court, speaking through Justice John Paul Stevens, rejected the claims of the federal government and of the Strongarm manufacturer that a ruling allowing state claims to proceed would produce a “crazy-quilt” of conflicting state regulation, especially on the labels put on pesticide and insecticide products.

The decision vacated a Fifth Circuit ruling finding preemption on all claims. The Fifth Circuit had ruled that federal law bars any state-law claim that would lead the manufacturer to alter its product label. The Court explicitly rejected the Circuit Court’s theory that merely inducing a manufacture to modify a product label would contradict the federal law.

In the Court’s only other decision on Wednesday, the Court ruled 5-4 that a Pennsylvania inmate serving a life sentence filed his federal habeas application too late. A post-conviction claim filed in state court, found by a state court to be out of time, does not stop the running of the time for filing a federal habeas petition under AEDPA, the Court ruled in Pace v. DiGuglielmo (03-9627). Chief Justice William H. Rehnquist wrote the majority opinion.

That decision resolves an issue the Court had left undecided in 2000 in the case of Artuz v. Bennett.

The next decisions from the Court on pending cases may come next Monday.

The lone case to be argued tomorrow is No. 04-368, Arthur Andersen LLP v. United States, in which the accounting firm will challenge its witness tampering conviction. You can read Scott Meisler’s excellent summary of the case, which was posted last week on SCOTUSBlog, here.

As Marty pointed out earlier, this one is worth attending just to hear the advocates: Maureen Mahoney of Latham & Watkins will argue on behalf of Arthur Andersen, while Deputy Solicitor General Michael Dreeben will argue on behalf of the United States.

The Court issued opinions today in the following two cases, which Lyle describes in detail below:

No. 03-750, Small v. United States, reversed and remanded 5-3. Justice Breyer wrote the majority opinion, which Justices Stevens, O’Connor, Souter and Ginsburg joined. Justice Thomas dissented, joined by Justices Scalia and Kennedy. The Chief Justice did not participate.

No. 03-725, Pasquantino v. United States, affirmed 5-4. Justice Thomas wrote the majority opinion, which the Chief Justice and Justices Stevens, O’Connor and Kennedy joined. Justice Ginsburg wrote a dissent that Justices Breyer joined in full and that Justices Scalia and Souter joined as to Parts II and III.

Pasquantino was the only case from the (now-completed) November sitting in which the Chief Justice voted in order to break a tie.

From the December sitting, four opinions are outstanding: three from important constitutional cases — Ashcroft v. Raich (which was actually argued on November 29th, technically at the beginning of the “December” sitting), Granholm v. Heald, and Veneman v. Livestock Marketing — as well as Miller-El v. Dretke (also important, but not technically a constitutional case). Of those four opinions, Justices Stevens, Kennedy, and Souter are likely writing at least one majority apiece, and Justice O’Connor almost certainly is not writing a majority.

The Supreme Court ruled 5-3 on Tuesday that conviction in a foreign court — in this case, in Japan — is not the kind of conviction which U.S. law treats as a basis for denying an individual a right to possess a gun.

The law at issue in Small v. U.S. (03-750) makes it a crime to possess a gun if that individual has been convicted in “any court.” “We hold that the phrase encompasses only domestic, not foreign, convictions,” Justice Stephen G. Breyer wrote for the Court.

Breyer said it was likely “that Congress, at best, paid no attention to the matter.” Congress, he added, generalLy legislates with domestic concerns in mind. He also said there could be enforcement problems in including foreign court convictions, because foreign convictions are different in significant ways and courts might have to find ways to “weed out inappropriate foreign convictions.”

In addition, Breyer said the Court’s conclusion was reinforced by data showing that, since 1968, “there have probably been no more than 10 to a dozen instances in which a foreign conviction has served as a predicate for a felon-in-possession prosecution.”

The case involved Gary Sherwood Small, a Pennsylvanian who had been convicted in Okinawa, Japan, of violating Japan’s gun control law and its customs law. Later, he bought a handgun in a gun shop in Pennsylvania, and he was pleaded guilty on condition that he could appeal the foreign conviction issue. He lost in the Third Circuit, and thus faced the prospect of eight months in prison.

In the only other decision issued Tuesday, the Court decided by a 5-4 vote that a plot to defraud a foreign government of tax revenue violates the U.S. federal wire fraud law.

“Because the plain terms [of the statute] criminalize such a scheme, and because the construction of the wire fraud statute does not derogate from the common-law revenue rule, we hold that” a conspiracy to defraud a foreign government of taxes is covered, Justice Clarence Thomas wrote for the majority in Pasquantino v. U.S.<(03-725). (The "revenue rule," under common law principles, generally bars courts from enforcing the tax laws of other nations.)

Three men were convicted of wire fraud for their role in large-scale liquor smuggling that evaded stiff Canadian import taxes on U.S. liquor. Their appeal relied heavily upon the "revenue rule."

Justice Thomas said that this prosecution "creates little risk of causing international friction through judicial evaluation of the policies of foreign sovereigns" -- the problem on which the revenue rule was based. The Executive Branch brought this case, according to the opinion, and it thus could be assumed that "the Executive has assessed this prosecution's impact on this nation's relationship with Canada, and concluded that it poses little danger of causing international friction."

Further decisions in pending cases are expected on Wednesday.

The second case to be argued today is No. 04-514, Bell v. Thompson, which presents the question whether the Sixth Circuit abused its discretion when it withdrew its opinion affirming the denial of habeas relief six months after Federal Rule of Appellate Procedure 41(D)(2) made issuance of the mandate mandatory.

Jennifer Smith, an Associate Deputy Attorney General from Tennessee, will argue on behalf of Warden Ricky Bell. Matthew Shors of the D.C. office of O’Melveny & Myers will argue on behalf of Gregory Thompson.

You can read Liz Aloi’s excellent summary of the case, which was posted earlier on SCOTUSBlog, here.

In the consolidated cases of American Trucking Associations, Inc., and USF Holland, Inc. v. Michigan Public Service Commission and Mid-Con Freight Systems, Inc. v. Michigan Public Service Commission, trucking companies have challenged various provisions of the Michigan Motor Carrier Act (MCA) that require them to pay two types of annual fees for their vehicles. One provision mandates a $100 fee for vehicles that are used at least partially for intrastate commerce. A second set of provisions requires a $100 fee for vehicles that are registered in the state and “operat[e] entirely in interstate commerce.”

The questions presented in these cases are whether the intrastate fee violates the Commerce Clause, and whether the interstate fee is preempted by 49 U.S.C. 14504, which limits states’ ability to charge certain fees for motor carriers.

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This post is part of continuing coverage of the Moussaoui case following the Supreme Court’s denial of review.

A federal judge in Alexandria, Va., on Monday told attorneys on both sides of the Zacarias Moussaoui terrorism case to come up with a proposed schedule for a death penalty trial. The proposed schedule, along with a joint status report, is due within 11 days, District Judge Leonie M. Brinkema said in a two-page order. Moussaoui pleaded guilty on Friday to six conspiracy counts related to the terrorist attacks of September 11, 2001, and four of those counts carry a potential death sentence.

Counsel were also ordered to confer on the status of all pending motions, and to discuss how much time each would need to prepare for the penalty trial.

There was no indication in the judge’s order whether the penalty phase would be before her alone, or before a jury.

The Supreme Court (see post below) on Monday agreed to hear a death sentencing case involving issues that may have some bearing on the Moussaoui penalty trial. That trial, however, is likely to be concluded well before the Supreme Court holds a hearing on the new case next fall. It thus would be up to counsel to try to exploit or deflect the issues that that Court case entails.

Can be found here.

The Supreme Court on Monday agreed to hear five cases, including one that could have an impact on the coming sentencing hearing of admitted terrorist Zacarias Moussaoui.

The case is Oregon v. Guzek (docket 04-928), involving a convicted individual’s attempt to bring into a death sentencing hearing evidence that would cast doubt on the conviction. The case seeks clarification of the Supreme Court’s 1988 ruling in Franklin v. Lynaugh.

When the sentencing hearing is held for Moussaoui, who pleaded guilty on Friday to six conspiracy counts — including four that could carry the death penalty, he is expected to attempt to offer as mitigating evidence statements by captured Al Qaeda operatives that may suggest he was not directly involved in the September 11, 2001, terrorist attacks. That kind of evidence might also seem to undercut, at least in part, the factual basis for a death sentence because it could affect the degree of his culpability for the nearly 3,000 deaths that occurred in the attacks.

The Court, in another order, asked the Solicitor General for the government’s views on an appeal by the Ministry of Defense of Iran (04-1095, Ministry of Defense v. Elahi). The appeal tests the scope of the Foreign Sovereign Immunities Act, and particularly the so-called “Flatow Amendment” on the potential liability of foreign officers or agents for official acts of terrorism. The specific case involves Cyrus Elahi, killed in Paris in 1990. His brother has sued Iran. Because the government of Iran did not appear in the case, a default judgment was entered against it — $11.7 million in compensatory damages and $300 million in punitive damages.
There is no time limit for the SG to reply.

Even as the Court showed some interest in that terrorism case, it denied review in another — Acree v. Iraq (04-820). That case involved an appeal by 17 current and former U.S. military personnel who were held as prisoners of war during the 1991 who were subject to torture. As usual, the Court gave no reason for its denial of review.

The five newly granted cases will be heard in the new term starting in October.

Following are the other cases granted on Monday:

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Tomorrow in No. 04-6432, Gonzalez v. Crosby, the Court will consider whether and to what extent a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) constitutes a second or successive application for habeas relief and is thus, except in certain narrowly defined circumstances, prohibited by the AEDPA.

Paul Rashkind, an Assistant Federal Public Defender from Miami, will argue on Gonzalez’s behalf, while Florida Solicitor General Christopher Kise will argue on behalf of the State of Florida. Assistant to the Solicitor General Patricia Millett will argue on behalf of the United States as amicus curiae in support of respondent. You can read the parties’ briefs on the merits here. The brief of the United States is available here.

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Despite the contrary impression generated by popular depictions—such as Law & Order and CourtTV—it is a well-known fact of criminal justice that over ninety percent of defendants plead guilty without trial. In Halbert v. Michigan, scheduled for oral argument on Monday, the Supreme Court will again consider an issue of utmost importance to, at the very least, criminal defendants in Michigan: the scope of their right to appointed counsel to challenge aspects of their guilty pleas such as their sentences. In Kowalski v. Tesmer, argued earlier this Term, the Court considered the same issue, but decided the case on standing grounds without reaching the merits of the claim.

Antonio Dwayne Halbert pleaded no lo contendere (treated the same as a guilty plea for the purposes relevant to this case) to two charges of criminal sexual conduct with a minor but sought to challenge his sentence through appeal. Under the Michigan constitution, appeals by defendants who plead guilty are by leave of the court of appeals. Halbert’s request for appointed counsel to assist in his petition for appellate review was rejected; his self-prepared petition then was denied “for lack of merit in the grounds presented.” The key issue is whether this was a first appeal as of right, requiring appointment of counsel under Douglas v. California (1963), or a discretionary appeal, for which appointment of counsel is not required under Ross v. Moffitt (1974).

David A. Moran of Detroit, Michigan, a professor at Wayne State University, will argue for Halbert. Assistant Attorney General Bernard E. Restuccia of Lansing, Michigan will argue for the state. He will share his argument time with Gene C. Schaerr of Sidley’s Washington, DC office, who will argue on behalf of Louisiana et al. as amici curiae.

Halbert and Michigan’s briefs are available here. The brief of Louisiana, et al., as amici curiae is only available on paid services.

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Zacarias Moussaoui, the only person charged in the U.S. with a crime for the terrorist attacks on September 11, 2001, on Friday pleaded guilty to all six conspiracy counts alleging he had a role in the plot that resulted in nearly 3,000 deaths that day.

Among other admissions he made in signing a five-page statement of facts, Moussaoui said that after his arrest before September 11, he lied to federal agents in order to help his Al Qaeda “brothers” go forward with the attacks as planned. His statement was later described by Attorney General Alberto R. Gonzales as “a chilling admission of guilt.” Moussaoui also admitted that his own assigned role was to fly a plane into the White House if the U.S. did not negotiate over releasing a sheikh convicted of an earlier attack on the World Trade Center.

Gonzales said at a press conference that the government would continue to seek a death penalty. “The fact that Moussaoui participated in this terrorist plot is no longer in doubt…With today’s guilty plea, we now move to the penalty phase of this case on a schedule to be established by the judge” — U.S. District Judge Leonie M. Brinkema in Alexandria, Va.

Death is a possible sentence on each of four of the six counts to which Moussaoui pleaded guilty..

News reporters in the courtroom at the time he offered the plea said that he told the judge: “I expect no leniency.”

Judge Brinkema accepted the plea, as she had indicated earlier she would, having found Moussaoui mentally competent to plead guilty to the indictment. According to those present in the courtroom, she remarked that Moussaoui understood the case against him, and “has a better understanding of the legal system than some lawyers I have seen in court.”

Moussaoui has been under indictment on terrorist conspiracy charges since December 2001. His case has never gone to trial because of a series of pre-trial legal conflicts, most importantly over his access to captured Al Qaeda operatives who, Judge Brinkema found, could give testimony favorable to his defense.

Moussaoui’s public defender lawyers at one point attempted to take his case to the Supreme Court, over the issue of proceeding with a capital prosecution when the accused had been denied direct access to witnesses who could aid in the defense. The Supreme Court refused on March 21 to hear that appeal.

Following are two documents released Friday: first, the statement of facts signed by Moussaoui, and, second, the text of Attorney General Gonzales’ statement on the guilty plea, as released by the Justice Department.

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The Court will issue opinions in one or more argued cases on both Tuesday and Wednesday of next week (April 26th and 27th). Opinions are also possible the following Monday, May 2d, after which the next possible date for opinions will be May 16th.

News on a discussion last night at the National Archives in which Justice O’Connor, Justice Scalia, and Justice Breyer participated:
Stephen Henderson of Knight Ridder Newspapers;
David Stout of The New York Times;
Nina Totenberg of NPR; and
Hope Yen of the AP.

At the final oral argument of the October 2004 Term, the Supreme Court on Wednesday will consider whether the accounting firm of Arthur Andersen LLP was properly convicted of violating the federal witness tampering statute, 18 U.S.C. 1512(b). Andersen’s indictment and eventual conviction stem from its role as the accounting firm for the Enron Corporation, whose collapse in late 2001 triggered a national scandal, increased public awareness of corporate misconduct, and led to important changes in federal corporate governance laws.

In this criminal case, the government alleged that high-ranking Andersen personnel “corruptly persuaded” company employees “with the intent to cause them to withhold documents from, or alter documents for, an official proceeding”—namely, an investigation by the Securities and Exchange Commission (SEC). The government made these allegations against the backdrop of widely disseminated reports that Andersen had engaged in “an unprecedented campaign of document destruction” in the months before it was served with a formal SEC subpoena for Enron-related documents.

Despite these damaging accusations, Andersen’s trial in the Southern District of Texas was not an open-and-shut affair. The defense team voiced numerous objections to the district judge’s jury instructions, specifically the definitions of the statutory terms “corruptly” and “official proceeding.” After a week of deliberations, the jury declared itself deadlocked, and the trial judge delivered an “Allen charge” instructing it to continue deliberating. Three days later, the jury found Andersen guilty on the single count of the indictment. After its post-trial motions for acquittal were denied, Andersen appealed.

On appeal, the Fifth Circuit affirmed the conviction. In doing so, the panel rejected Andersen’s principal arguments: (1) that the jury instructions rendered the term “corruptly” superfluous by defining it as the equivalent of another intent requirement already in the statute; (2) that defendants cannot violate section 1512(b) unless they have a “particular” official proceeding in mind when acting; and (3) that the government should have to prove that the defendant knew its conduct was wrongful.

As Marty Lederman mentioned in an earlier post, Maureen E. Mahoney of Washington, D.C. will argue the case for Petitioner Arthur Andersen LLP. The United States will be represented by Deputy Solicitor General Michael R. Dreeben.

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One of the petitions to be considered at the Court’s conference tomorrow is No. 04-820, Acree v. Iraq, which presents the questions whether U.S. citizens who have been tortured by a state sponsor of terrorism have causes of action (a) under either federal or state law; and (b) for a violation of universally accepted international norms against torture.

It is difficult to imagine plaintiffs more sympathetic than the Acree petitioners: seventeen current and former U.S. military personnel who were held as prisoners of war during the 1991 Gulf war, along with thirty-seven of their family members. While in captivity, the POW petitioners were subjected to brutal torture that included (but was not limited to) starvation, electric shock treatment, mock executions, threatened castration and dismemberment, burns, and whipping. In 2002, the POWs and their families filed a suit against Iraq, its intelligence service, and Saddam Hussein in the U.S. District Court for the District of Columbia seeking damages for their treatment and the pain and suffering of their families. Their causes of action included common law torts, made applicable to foreign sovereigns through the Foreign Sovereign Immunities Act (FSIA); Section 1605(a)(7) of the FSIA, which abrogates foreign sovereign immunity in cases seeking money damages for personal injury or death caused by torture; and the Flatow Amendment, which provides that “an official . . . of a foreign state designated as a state sponsor of terrorism . . . shall be liable to” U.S. citizens for injuries caused by acts for which U.S. courts may maintain jurisdiction under Section 1605(a)(7).

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Jess Bravin of The Wall Street Journal has this article on the Court’s opinion in Dura Pharmaceuticals v. Broudo.

News on oral arguments, heard yesterday, in Merck v. Integra LifeSciences:
Toby Eckert of Copley New Service;
Tony Mauro of Legal Times;
Hope Yen of the AP on FindLaw; and
this Bloomberg report in The Boston Globe.

Marya Lucas of Legal Times has this article on Acree v. Republic of Iraq and United States of America, which will be considered at Friday’s conference.

David Brooks has this opinion piece in The New York Times on Roe v. Wade.

(Note: The Supreme Court on March 21 refused to hear an appeal in this case.)

The federal judge presiding over the only criminal case brought in the U.S. for the terrorist attacks on September 11, 2001, ruled on Wednesday that Zacarias Moussaoui “is fully competent to plead guilty to the indictment.” She scheduled a “change of plea hearing” for Friday afternoon in Alexandria, Va.

U.S. District Judge Leonie M. Brinkema did not spell out the reasons for her ruling on competency. Her brief order said she had given those reasons during a closed-door hearing on Tuesday, with lawyers for both sides on hand. The docket entry on that hearing implied that Moussaoui had not appeared personally, since it said he had appeared through counsel.(The case is U.S. v. Moussaoui, docket 01-455.)

Earlier in the day, the District Court had announced the change of plea hearing. The announcement said explicitly that the judge would accept a plea of guilty, but gave no further details. Various news organizations have been reporting this week, from unnamed legal sources, that Moussaoui had written to the judge, agreeing to plead guilty.

Because Brinkema’s order found him competent to plead guilty “to the indictment,” that appeared to be an indication that he has told her he will admit guilt on all six conspiracy counts against him. The government seeks the death penalty on four of those charges. There have been no public indications of any plea bargain between prosecutors and Moussaoui, and news stories have suggested that his court-appointed lawyers have indicated they opposed a guilty plea.

So far, the public record in the case does not reflect Moussaoui’s actual motives for changing his not guilty plea and going to trial. One news account, in the Los Angeles Times, suggested that he had done so in the belief that a guilty plea would allow him to appeal to the Supreme Court — perhaps by entering a conditional guilty plea. In the past, however, prosecutors have said they would resist any conditional plea.

When Moussaoui in July 2002 offered a guilty plea, later withdrawn, he told the judge in open court: “I want the people to hear what I have to say, what are my responsibility, what I came to the United States for, what I did in the United States…” He said then he would plead guilty on the first four counts — the ones containing a death penalty. But he also said that he was pleading guilty as the best chance to save his life. His explanation then was that he would not admit to all of the facts alleged in the indictment — thus perhaps undermining the basis for a death sentence. The judge advised him that, if she accepted his guilty plea, there would be a sentencing hearing before a jury, on the death penalty question.

A 3-3 split in the D.C. Circuit on Wednesday, denying rehearing en banc on a key remedies issue in the government’s massive and long-running lawsuit against the tobacco industry, probably will be the signal for the Bush Administration to move on to the Supreme Court. Indeed, it would be astonishing if the government were now to abandon its attempt to recoup $280 billion of profits made by six tobacco companies – a goal it has pursued relentlessly for nearly six years.

The tobacco case, now rivaling the fabled Jarndyce v. Jarndyce in Charles Dickens’ “Bleak House,” has just gone through its 95th trial day this week. District Judge Gladys Kessler in Washington has issued 927 orders, and there have been 5,261 docket entries. No entry in that case was more controversial than Kessler’s Order No. 550, issued on April 24 last year, refusing to throw out the government’s plea that the companies “disgorge” corporate earnings made on sales of nicotine-containing tobacco products. That claim has been a part of the case since it was first filed, on September 22, 1999, under the anti-racketeering RICO Act of 1970.

That order was overturned by the D.C. Circuit, in a 2-1 ruling on February 4 this year (Philip Morris USA, et al., v. U.S., docket 04-5252). Judge Kessler has since described the decision as “a body blow to the government’s case.” The Justice Department sought rehearing en banc, arguing that the panel ruling threatened to cripple the “remedial force” of RICO. That was the request turned down on Wednesday. Three judges on the D.C. Circuit did not take part, without saying why, and the remaining six divided evenly; under Circuit rules, five votes were necessary to grant en banc review. Kessler has said she expected the government to take the case on to the Supreme Court if it lost in the Circuit Court. Nothing in the government’s actions up to this point suggests it would surrender now.

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