At 10 a.m, the Court is expected to issue one or more opinions, along with orders from the Justices’ private conference last Thursday. We will provide coverage of both as soon as they are available.

Commentary

The Nation’s first war crimes trial in the post-9/11 era is still set to begin in 17 days — unless the D.C. Circuit Court delays it — but that prosecution and perhaps others will occur under potentially embarrassing conditions. In fact, the entire regme of military commissions set up to try terrorism suspects is under the most significant legal cloud to form in what was already a troubled history.

In a ruling made public over the weekend, a military judge at Guantanamo Bay has barred the Pentagon’s second-in-command over military commission trials from taking any further part in the first case, and has in fact suggested that he perhaps should resign. 

The decision Friday night by a Navy officer serving as the head of a military commission, Captain Keith J. Allred, amounts to a sharply worded rebuke of top Pentagon officers for putting outside pressure on the trial process –to bring cases for their political impact, to get the trials moving faster, and to influence the evidence to be used (including evidence obtained by torture or coercion).   The 13-page ruling can be downloaded here.

The main target of Judge Allred’s findings is Air Force General Thomas W. Hartmann, who is the legal adviser to the top Pentagon official overseeing military commissions.  It is Gen. Hartmann who has been barred by the judge from any further participation in the war crimes case against Salim Ahmed Hamdan — likely to be the first such trial at Guantanamo.  (Note that Hamdan’s attorneys have pending at the D.C. Circuit a motion to delay his Guantanamo trial until after the Supreme Court rules this Term on the legal rights of detainees. That matter has been fully briefed, but the Circuit Court has taken no action on it in Hamdan v. Gates, Circuit docket 07-5042. )

In one of the military judge’s key findings, he wrote that Hartmann’s “intimate involvement in the details of prosecutorial decision-making have led one prosecutor to resign, another to seek ethical guidance from the Navy JAG ethics office, and has led both prosecutors in this case, and their foirmer supervisor, to believe they were being ‘nano-managed’ in both the performance of his duties and the exercise of their discretion.”

Allred also found that “the national attention focused on this dispute has seriously called into question the Legal Advisor’s ability to continue to perform his duties in a neutral and objective manner.  While the public’s view of the matter is not controlling, the fact that a national magazine should have called the public’s attention to General Hartmann’s actions and suggested that he can no longer perform his duties is deeply disturbing.”

The judge disqualified Hartman from any further role in the Hamdan case, required the Pentagon to name a substitute for Hartmann for any future role in that case (and barred from such an assignment anyone on Hartmann’s current staff), ordered top Pentago officials to ensure that no person suffers retaliation or harmful consequences for testimony given in an internal Pentagon review of Hartmann’s actions or in Judge Allred’s review of those actions, and kept control of the challenge. The judge stressed that he would be “alert for evidence of unlawful influence” until the Hamdan case is over, and added that “additional corrective and preventative measures remain within the Commission’s discretion until that time, if necessary.”

The judge’s ruling came in response to a plea by Hamdan’s defense lawyers to throw out all charges against him because of Hartmann’s actions, and those of other top Pentagon officials.  The judge refused to go that far, finding no unlawful influence in bringing the specific charges against Hamdan.  The judge also declined to take any action against Hartmann’s superior, Susan Crawford, who is in overall charge of the  military commission system. (Crawford, a former judge of the Court of Appeals of the Armed Forces, has the title “Convening Authority” for military commissions.)

The defense lawyers’ challenge was based in large part on information from the former chief prosecutor at Guantanamo, Air Force Col. Morris Davis, who resigned his post after a continuing dispute with Hartmann over commission affairs. Davis has gone public with his complaint of improper political and command influence in the war crimes system.  He also testified in Judge Allred’s review of the issue in Hamdan’s case.

Judge Allred’s decision against any continuing role for Hartmann in the Hamdan case presumably could be appealed by the Pentagon to the Court of Military Commission Review.  It is unclear whether there is any review role on this aspect of the commission system for the D.C. Circuit or for the Supreme Court.)

The judge found his authority to rule on Hartmann’s actions in provisions of the Military Commissions Act of 2006 barring any person from coercing or using unauthorized means to influence the exercise of professional actions of war crimes prosecutors and defense lawyers. The judge said that “Congress had the intent to protect military commission participants from unlawful influence, and specifically from political influence” and that its purpose was “to protect the integrity of the proceedings and enhance their reputation in the public view.”

On Monday, the Court is expected to issue one or more opinions, along with orders from the Justices’ private conference last Thursday.

On Thursday, the Justices are scheduled to hold a private conference, orders from which are expected to be released the following Monday. To view our list of petitions to watch at Thursday’s conference, click here.

Petitioners’ merits briefs are due Monday in Arizona v. Gant (07-542) and Chrones v. Pulido (07-544). No respondents’ merits briefs are due this week.

(Links above direct to case pages on SCOTUSwiki.)

Today, the Stanford Supreme Court Litigation Clinic filed this opening merits brief in the case of Herring v. US, 07-513, to be argued during OT08.   Jeff Fisher is counsel of record, and with him on the brief are his fellow instructors in the Stanford Clinic: Professor Pam Karlan; Kevin Russell and Amy Howe of the firm Howe & Russell; and Tom Goldstein of Akin Gump; and Ronald Wise of Montgomery, Alabama.  Substantial contributions were made by Stanford students Micah Block, Rachel Lee, and Anna Neill.

We discussed this case in detail in an earlier “Conference Call” column, which can be found here.  The Question Presented is: “Whether the Fourth Amendment requires the suppression of evidence seized incident to a warrantless arrest for which there was no probable cause, conducted in sole reliance on an inaccurate report from other law enforcement personnel regarding the existence of an outstanding warrant.”

The Justice Department notified the Supreme Court on Thursday that the Pentagon plans to conduct a new review of the status of an Afghan national held at Guantanamo Bay, whose lawyers have insisted for months that he was detained by mistake. The individual, Haji Bismullah, is one of eight detainees whose challenges to their captivity led the D.C. Circuit Court to issue a major ruling that expands civilian court review of military detention decisions. The government has challenged that ruling in a case now awaiting action by the Justices — Gates v. Bismullah (07-1054).

The Court apparently is waiting to act on that appeal until it decides other cases, already heard, on the legal rights of detainees (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196) — cases likely to be decided in the next several weeks.

The new military review of Haji Bismullah’s status will not wipe out the government’s appeal in that case, since seven other detainees are still involved in it because their military status reviews are final, U.S. Solicitor General Paul D. Clement told the Court in a letter to the Clerk of Court. (The letter can be found here.)

Meanwhile, Justice Department lawyers notified the D.C. Circuit, also on Thursday, of the Pentagon’s plan to convene a new “Combatant Status Review Tribunal” for Bismullah, based on unspecified new evidence. (The government motion to send his Circuit Court case back to the Pentagon can be downloaded here.)

In the Circuit Court filing, federal lawyers said that Pentagon officials had decided on May 1 to put unspecified “new evidence” before a CSRT for a new review of whether to continue to designate him as an “enemy combatant” — the basis for his continued detention. Under Pentagon rules, a new CSRT cannot be summoned unless the new evidence would have changed the outcome of the combatant designation. The filing did not say when a new CSRT would review Bismullah’s case, but a statement included from a Pentagon official said the new proceeding would be done “expeditiously.”

Bismullah’s lawyers have said in various court filings that he was detained in February 2003 after he went to a U.S. military base in Afghanistan to vouch for a detained Afghan official who was released later. Bismullah was held, his attorneys have said, based on a false accusation made by members of a rival clan. His attorneys have said tht Afghan officials have told the U.S. military that he was mistakenly detained. Even so, he was sent to Guantanamo, and remains there.

The government filing did not say whether the “new evidence” was something submitted by Bismullah’s lawyers, or from some other source.

Separately, in another case awaiting action by the Supreme Court, involving a Syrian national, Abdul Rahim Abdul Razak Al Ginco, the Justice Department on Thursday notified the D.C. Circuit that a new CSRT review of his status has been completed and he has been newly designated as an “enemy combatant.” The “do-over” review was based upon new evidence submitted by Al Ginco’s counsel.

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Oral arguments have concluded for the term. If any orders are issued today in pending cases, we will post them promptly.

The case of the young Canadian facing war crimes charges at Guantanamo Bay has turned into a four-sided, deeply complex dispute that seems at least months away from any clear outcome.  And, beyond the present array of proceedings, it may also wind up in the Supreme Court.

Even as the war crimes case against Omar Ahmed Khadr inches forward before a military judge at Guantanamo, his legal fate rests in part in the hands of the D.C. Circuit Court (in two separate cases, one already advancing, the other slowing down) and in Canada’s Supreme Court.  Some members of Canada’s Parliament also are pressing the government there to intervene.

Even Khadr’s own defense lawyers are now predicting that — unless civilian authorities take a more active role – he is likely to be tried, convicted of war crimes and given a long military prison sentence for his role in an incident in Afghanistan when Khadr was 15 years old that resulted in the death of a U.S. serviceman.  The defense team contends that the commission system is so flawed that convictions are foreordained — a point that Pentagon officials rigorously contest.

His lawyers have made a wide array of challenges to his impeding trial before a military commission, but so far have not succeeded on one of the most significant of those objections: his claim that, as a “child soldier” forced into service when he was too young to object, he cannot be tried by a military commission.

That argument failed most recently when the Army officer who heads the commission preparing to trial Khadr — Col. Peter E. Brownback III — on April 30 rejected the “child soldier” challenge.  The judge ruled that the U.S. law creating military commissions set no age limit, that a U.S. law limiting court trials of juveniles does not apply to military commissions, and that internatiional law and U.S. treaty obligations do not bar his trial.

Judge Brownback’s ruling can be found here. (This is a large file, including the judge’s seven-page opinion plus the defense lawyers’ motion, the government’s response, amici filings, and other exhibits. This entire file, the judge indicated, will be part of the record that goes to the U.S. Court of Military Commission Review in case Khadr pursues an appeal.)

The judge, continuing to hear other pre-trial disputes in Khadr’s case, has said that the young man’s defense lawyers may try to use his youthful age at the time of the incident as a defense at his commission trial.

The D.C. Circuit, meanwhile, has declined to rule quickly on the same “child soldier” challenge, raised as part of the Khadr defense team’s challenge to a Pentagon panel’s rulng that he is an “enemy combatant” — the basis for keeping him at Guantanamo.   His lawyers sought “judgment as a matter of law” on the “child soldier” issue, but the Circuit Court, in an order on April 21, scheduled full briefing on that issue and said it would hold a hearing this fall, in September.  (The Circuit Court order can be found here.)  That schedule could mean that Khadr’s trial could be in progress, and perhaps even concluded, by the time the Circuit Court ruled.  (That case is Khadr v. Gates, Circuit docket 07-1156.)

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The Justices are scheduled to hold a private conference at 10 a.m., orders from which are expected to be released the following Monday. To view our list of petitions to watch at today’s conference, click here.

The latest edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference of May 22. As always, the list reflects the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. To access previous editions of Petitions to Watch, including the lists for the upcoming conferences of May 8 and 15, visit our archives here on SCOTUSwiki.

 

Conference of May 22, 2008

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Docket: 07-976
Case name: T-Mobile USA, Inc., et al. v. Laster, et al.
Issue: Whether, under the Federal Arbitration Act, federal courts may refuse to enforce class-action bans in consumer contract arbitration provisions on grounds they are unconscionable under state law.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of CTIA -The Wireless Association (in support of the petitioner)
• Amicus brief of AT&T Mobility LLC (in support of neither party)

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Docket: 07-977
Case name: Warner v. United States
Issue: Whether, under the Fifth and Sixth Amendments, a trial court may remove jurors during deliberations for misrepresenting their own criminal background during voir dire but where an objective possibility exists their removal was based on their view of the merits.

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition

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Docket: 07-1090
Case name: Republic of Iraq v. Beaty, et al.
Issue: Whether U.S. Courts have jurisdiction over Iraq in claims involving alleged misdeeds that occurred during Saddam Hussein’s regime.

• Opinion below (D.C. Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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Docket: 07-1111
Case name: The Lighthouse Institute for Evangelism, Inc., et al. v. City of Long Branch, New Jersey
Issue: Whether, under the First Amendment or the Religious Land Use and Institutionalized Persons Act, municipalities may exclude religious groups from particular zones while allowing some secular groups.

• Opinion below (3rd Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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Docket: 07-1214
Case name: Rosenruist-Gestao E Servicos LDA v. Virgina Enterprise Limited
Issue: Whether, under 35 U.S.C. 24, a trial judge may subpoena foreign witnesses for deposition in the United States based on their filing of an application with the Patent and Trademark Office.

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition

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Docket: 07-1216
Case name: Philip Morris USA, Inc. v. Williams
Issue: Whether the Supreme Court of Oregon, on remand from the Court’s 2007 decision on the constitutionality of a $79.5 million punitive damages award based on harms done to non-named plaintiffs, improperly asserted a state law procedural bar having the effect of precluding Phillip Morris from asserting a constitutional claim.

• Opinion below (Supreme Court of Oregon)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the Chamber of Commerce (in support of the petitioner)
• Amicus brief of the Washington Legal Foundation and Allied Educational Foundation (in support of the petitioner)
• Amicus brief of Associated Oregon Industries, et al. (in support of the petitioner)
• Amicus brief of the Product Liability Advisory Council, Inc. (in support of the petitioner)

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Oral arguments have concluded for the term. If any orders are issued today in pending cases, we will post them promptly.

UPDATE 7:01 p.m. Tuesday

The Supreme Court, after an informal moratorium that lasted for more than seven months, on Tuesday cleared the way for executions to resume in the U.S.  The first order allowed an execution this evening in Georgia.  In a brief order, the full Court denied a request to postpone the execution of William Earl Lynd by lethal injection.  In the same order, the Court also denied Lynd’s accompanying petition for review of his case on the merits.  The text of the order can be found here.

Following is a post from earlier Tuesday:

The Supreme Court is expected to act shortly on a plea to postpone an execution of a death-row inmate, scheduled for 7 p.m. tonight — the first action the Court will be taking on a scheduled execution since it, in effect, put an end to an informal moratorium.  William Earl Lynd is scheduled to die by lethal injection for the murder of his girlfriend.

In a stay application (07A880), found here, Lynd’s attorneys sought a delay of the execution until the Supreme Court acts on a newly filed appeal challenging the testimony of a medical examiner in his case.  The petition (07-10760) can be downloaded here.  The state’s opposition to delaying the execution and its request for denial of the petition is here. A reply by Lynd’s counsel is here.

Earlier today, the Cato Institute held a book forum entitled “The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.” The event featured the book’s authors, Robert A. Levy, a Senior Fellow in Constitutional Studies at the Cato Institute, and William Mellor, President and General Counsel of the Institute for Justice, and was moderated by Roger Pilon, also of the Cato Institute. Comments were also made by Lyle Denniston of this blog.

Click here to watch the event in streaming video, and here (mp3) to download the podcast.

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. If any orders are issued in pending cases, we will post them promptly.

The state of Virginia, arguing that its lethal injection protocol for executions is “virtually identical” to a method upheld by the Supreme Court last month, has urged a federal appeals court to reject a constitutional challenge to the planned execution of Christopher Scott Emmett.  The state’s brief, filed last Friday in the Circuit Court but just now available, can be downloaded here.  A post on this blog discussing a new brief filed Friday by Emmett’s defense lawyers can be read here.

Emmett’s counsel has urged the Fourth Circuit to send the case back to a federal District Court judge to explore fully a variety of differences that the lawyers said exist between Virginia’s three-drug procedure and the Kentucky protocol the Supreme Court upheld on April 16 in Baze v. Rees.

But the state, in its brief, argued that the federal judge in Emmett’s case anticipated the Supreme Court’s approach in Baze, applied the same constitutional standards, and upheld Virginia’s method.  Thus, the state suggested, the Circuit Court need only affirm the District Court’s ruling as is.

Because the Emmett case appears to be the first one in which both sides in a capital case were instructed to analyze how the Baze ruling would apply in other states, the Fourth Circuit’s reaction may start a pattern toward greater — or lesser — review of other states’ protocols.

The state brief stressed in particular the part of the main opinion by the Justices in the Baze case that indicated how difficult it would be for inmates in other states to get delays of their executions based on new challenges to the lethal injection method.

The main opinion also laid down a standard for judging that protocol in Kentucky and elsewhere: whether the method, as specifically applied in a given set of circumstances, would pose “a substantial risk of serious harm” to the inmate before he died.  In Emmett’s case, the state said, the federal judge used that same standard, and concluded that the evidence “demonstrated that the risk of pain to Emmett was ‘less than 3/100 of one percent (.03%), a risk that is not constitutionally significant.’ ”

Moreover, the state added, the judge found that ” ‘the record fails to demonstrate that the execution team’s experience, training and expertise are less than adequate to address any complications that may arise during the course of the lethal injection procedure.’ ”

Answering a complaint by Emmett’s lawyers that Virginia’s method involves the use of too little a dosage of a drug to produce genuine unconsciousness before lethal drugs are injected, the state said its dosage was more than adequate.

It also suggested that, since there is no real risk that Virginia death-row inmates would suffer any substantial risk of harm, the courts need not explore any alternative to the three-drug method. Emmett’s lawyers have suggested that the courts explore a massive dose of a single drug — the barbiturate used to put the inmate to sleep before lethal drugs are injected — as an alternative.

The District Court, the state countered, has already concluded that there is no need to look at any different technique.

The Circuit Court has scheduled a hearing for May 14 on the impact of the Baze decision on Virginia’s protocol in Emmett’s case.

The following column, featuring a selected petition up for consideration at the Justices’ private conference on May 8, appears in today’s edition of Legal Times (available to subscribers here). To see the full list of “petitions to watch” for Friday’s conference, click here.

The U.S. Supreme Court has stayed far away from the fight regarding same-sex couples and the definition of marriage. But Yi Qiang Yang, a Chinese national seeking asylum in the United States, has recently asked the Court to enter the marriage-definition fray in a different context: Namely, does a spouse in a “traditional marriage”-a common Chinese practice involving a ceremony, but no official marriage license-have the same asylum rights as a legally married spouse? A per curiam opinion of the U.S. Court of Appeals for the 11th Circuit recently affirmed an agency decision that such individuals should not be granted asylum, and the Court will decide whether to grant review of this question when it considers the case of Yang v. Mukasey, No. 07-756, at its private conference on May 8. The following week, the Court will consider taking up a similar appeal in Dong v. Department of Justice.

In Yang’s petition filed by Charles Rothfeld of the firm Mayer Brown, with the assistance of the Yale Law School Supreme Court Clinic, Yang relates a story overflowing with hot-button issues. The ordeal began in 2000 when Yang’s “wife,” Jiang Hui Ling, became pregnant-a violation of China’s family planning laws as the couple was not legally married. (Only men over age 22 and women over 20 can get marriage licenses in China; Yang and Ling were 20 and 17 at the time.)

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No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. If any orders are issued in pending cases, we will post them promptly.

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court this week.

On Thursday, the Justices are scheduled to hold a private conference, orders from which are expected to be released the following Monday.

Petitioners’ merits brief are due Monday in Penn Plaza LLC v. Pyett (07-581), Locke v. Karass (07-610), and Kennedy v. Plan Adm. for Dupont Savings (07-636), and Friday in Herring v. United States (07-513). The respondent’s merits brief is due Friday in Crawford v. Metropolitan Government of Nashville (06-1595).

(Above links direct to case pages on SCOTUSwiki.)

In a case that may provide the first full exploration of how the Supreme Court’s April 16 ruling on the lethal drug execution method could affect other states’ protocols, lawyers for a Virginia inmate on Friday asked a federal appeals court to allow review of a possible one-drug approach in place of the three drugs commonly used now.

The Fourth Circuit Court in Richmond, VA, is exploring the case of Emmett v. Johnson (docket 07-18) in the wake of the Supreme Court’s ruling last month in Baze v. Rees (Supreme Court docket 07-5439) upholding Kentucky’s three-drug lethal injection protocol.  Both sides’ briefs on the impact of the Baze ruling on Virginia were due Friday; Emmett’s brief can be downloaded here; the blog is awaiting the state’s brief from counsel.  The Circuit Court has scheduled a hearing for Wednesday, May 14.

Under the three-drug method, the first drug is designed to anesthetize the inmate, the second to paralyze him, and the final drug to stop the heart and bring on death. That is the general approach used by all but one of the states that still have the death penalty.

In the Baze case, one alternative put before the Supreme Court was the use of only the first drug — thiopental — but in a significantly larger dose. It is suggested that such a massive dose of a barbiturate, if allowed to work for five minutes or longer, will cause death.

The Supreme Court said in Baze that it would not rule on the adequacy of that approach, because it had not been proposed to and reviewed by Kentucky courts. Emmett’s counsel did not ask the Fourth Circuit to approve that alternative, but rather to send that issue, along with the entire case, back to a U.S. District Court to probe more fully all of the facts surrounding the three-drug protocol specifically as used in Virginia.

As they had earlier, Emmett’s lawyers told the Circuit Court that Virginia’s specific method carries a greater risk of causing substantial pain to the death-row inmate than the Kentucky method upheld in Baze.  In addition, the new brief recounted a series of claimed flaws in the specific mode of carrying out death sentences in Virginia.  Unlike Kentucky, which has used its method of lethal drugs in only a single execution. Virginia’s has been used in 70, the brief said, and the history of those executions “reveals evidence of maladministration that the Baze Court…did not have before it.”

The brief argued that the evidence shows that members of the state’s execution team “have performed incompetently,” including a lack of understanding of how the drugs work, mistakes in inserting IV needles to deliver the drugs, team members’ inability to properly observe the inmate during the process, a lack of more dosage of thiopental if IV failure occurs, and a ban on all spoken communications among the team members as the process goes forward.

One day after the Fourth Circuit holds its hearing in the case on May 14, the Supreme Court at a regular Conference will consider a plea by the state of Virginia for the Justices to lift a stay of execution they had issued last October so that Virginia could go ahead and schedule a new execute date for Emmett.

There has not been an execution in the U.S. since last September, when the Court agreed to hear the Baze case.  The Court has yet to clear the way for any execution it had blocked. It appears, though, that the first execution since Baze was decided will occur — unless newly stayed by some court — next Tuesday in Georgia, where Earl Lynd is to be executed by lethal drugs.

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. If any orders are issued in pending cases, we will post them promptly.

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. If any orders are issued in pending cases, we will post them promptly.