The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.

On Friday, the Court is scheduled to release another round of summer orders.

The petitioner’s brief on the merits is due Monday in Knowles v. Mirzayance (07-1315) and Friday in Cone v. Bell (07-1114). The respondent’s brief on the merits is due Tuesday in Melendez-Diaz v. Massachusetts (07-591) and Friday in Jimenez v. Quarterman (07-6984).

Two significant new developments in the continuing courthouse battles over the Guantanamo Bay detainees are discussed in the post that can be found here.

Nearly two decades ago, in Payne v. Tennessee (1991), the Supreme Court held that the Eighth Amendment did not bar the introduction of “victim impact evidence” at the penalty phase of capital trials. The Court held that just as the Constitution gave defendants the right to present evidence designed to avoid imposition of the death penalty, it did not forbid testimony designed to show the victim was a unique human being whose loss left an impact on the survivors and society at large.

At the opening conference at the end of September, the Justices will decide whether to grant review in a case involving whether the Constitution nonetheless places limits on how such evidence may be presented. The petition in Kelly v. California (07-11073) asks whether the presentation of what might be called video scrapbooks – containing photographs and home movie footage of the victim, and, in this case, set to background music – can so prejudice the jury as to deprive the defendant of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment, or create an arbitrary risk of capital punishment in violation of the Eighth Amendment.

The case stems from the capital murder trial of Douglas Oliver Kelly, whom a California jury convicted in the 1993 killing of Sarah Weir, a 19-year-old he had befriended at a local gym. According to an autopsy, the victim — whose body was found naked — had been stabbed twenty-nine times with a pair of scissors. Less than three months later, authorities arrested the defendant as he attempted to re-enter the country through Mexico, finding two of the victim’s personal checks, containing what appeared to be her signature, in his possession.

At trial, four women testified to having been separately raped by the defendant in the decade before the crime – including one woman who testified the defendant raped her less than two weeks before the victim’s murder, at the same apartment where her body was found, and while holding a pair of scissors to her throat. The defendant offered no evidence at the guilt or penalty phase, and the jury imposed a death sentence.

On appeal, among other issues, the defendant challenged the introduction at the penalty phase of a nearly twenty-minute video montage of the victim’s life (available below). Prepared and narrated by the victim’s adoptive mother, the film contained roughly ninety photos of the victim from infancy through high school graduation. Interspersed among the photos were a dozen video clips, some lasting a few minutes, showing the victim engaged in various childhood activities, such as playing with friends in a pool, readying her Halloween costume, and singing in a school choral group.  In the background plays music by Enya – one of the victim’s favorite artists – an Irish musician known for layering recordings of her singing in different languages.

In the final minute, following photographs of the victim’s grave site, the film concludes with video of horsemen riding across the Canadian countryside.  The victim’s mother says, “As time goes by I try very hard not to think of Sarah in terms of this terrible crime that we’ve had to deal with here in the court, but rather think of her in a place like this…This is filmed in Southern Alberta, the land where Sarah’s people lived for so many generations. This is the kind of heaven she seems to belong in.” (The victim, a Blackfoot Indian, was born in Canada.)

(The first half of the video is available below. The second half, along with further information about the case, is available after the jump. To download the full video, click here.)

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The Justice Department, frustrated in its ability to get free of one level of court review of Guantanamo Bay detainee cases, and unable at the other level to keep to is own schedule for turning out reports to justify detention, has taken two significant steps to try to cope.  It has vowed to shut down its part in the D.C. Circuit Court’s review of detainee challenges under the Detainee Treatment Act of 2005, and it has formally asked for more time to file in District Court its answers to challenges pending there under the Supreme Court’s Boumediene v. Bush decision.

These developments emerged as top Justice Department officials, joined by Pentagon and intelligence officials, vowed Friday to continue to try to help the courts process some 250 District Court habeas cases that federal judges have insisted on resolving as soon as possible.  Officials have made it clear that they consider those cases to have the most claim on the government’s time and resources, and equally clear that they will do no more than they are actually compelled to do on the DTA cases in the Circuit Court.

The Supreme Court, in Boumediene, stressed the importance of moving rapidly with the long-pending habeas cases, and said the detainees did not have to attempt first to ge the Circuit Court to act on their DTA appeals.  But the Court also said that the DTA process would remain “intact” and it did not prevent detainees’ lawyers from pursuing that routine, if they chose — as a number have now done.

Justice Department lawyers, in a variety of ways in court and out, have made efforts to put the DTA process on hold so that all government agencies involved could focus on the habeas cases.  After detainees’ lawyers refused to go along, the Department hardened its position, and now will not supply any information demanded by detainees’ counsel for use in the DTA process. (A Department lawyer outlined that view in this document.)  This has set up a tug-of-war in the Circuit Court, and it is not clear when the Circuit Court will try to sort it out.

Meanwhile, on Friday, in a series of filings in District Court, the Justice Department told Senior Judge Thomas F. Hogan that the government was unable to meet a Friday deadline for producing 50 responses to detainees’ habeas challenges.  That was a schedule Department lawyers suggested, and Judge Hogan then embraced.

It is just too much of a chore, the Department’s filings asserted, to get the classified information that will go into those reports cleared by the Central Intelligence Agency in rapid order.  The Department asked for another 30 days to complete the filing of the first 50 — 22 have been filed so far — and said officials hoped then to be able to get back on a schedule of filing 50 such reports each month until some 250 are completed.  The Department’s main fling on this issue can be found here; attachments — including a statement by CIA Director Michael V. Hayden — are here, here and here.

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The Justice Department on Friday urged the Supreme Court to leave intact a federal appeals court ruling on the scope of the government’s authority to protect wetlands from pollution — in this case, discharges from home septic tanks.  Although the Fifth Circuit Court ruling being challenged in the case, Lucas v. U.S. (07-1512), is one of a series of rulngs contributing to confusion over the meaning of the Clean Water Act, the Justice Department prefers to have that issue decided by the Justices in a newly filed government appeal — U.S. v. McWane, Inc. (08-223).  (That appeal is discussed in this post.)

Acting Solicitor General Gregory G. Garre filed this brief in opposition in the Lucas case.

The Lucas case involves three individuals and two corporations convicted of criminal charges of, among other claims, violating the Clean Water Act by causing pollution of wetlands by installing faulty septic tank systems in a private home development in Mississippi.  The appeal urged the Supreme Court to clarify the wetlands-protection issue, but also to decide whether the CWA applies at all to individual home septic systems.  The appeal argues that those are not “point sources” of pollution under the Act.

The Justice Department said the appeal does not pose directly the conflict among lower courts over the wetlands-protection issue, because the convictions would stand under any interpretation of the Act.  The Department also argued that there is no conflict among lower courts on whether septic tanks are covered by the Act, so that issue is not worthy of review.

UPDATE

 Even as the Justice Department makes plans to try to get higher courts to overturn a broad judicial mandate to produce what it knows about Guantanamo Bay detainees (discussed in the post just below, updated Friday), it is now facing the prospect that the obligation may also extend to detainees’ cases in U.S. District Court.  In one of the leading groups of habeas cases, U.S. District Judge Richad J. Leon on Thursday called for new briefs on this controversy.

At the center of this dispute is the D.C. Circuit Court’s two rulings last year in Bismullah v. Gates (Circuit docket 06-1197), laying down a potentially wide-ranging requirement on the government to disclose what it has in perhaps several federal agencies’ files about individual detainees, so that the information can be tested to see if it justifies further detention of those at Guantanamo.

As of now, the Bismullah mandate only involves detention cases being reviewed by the Circuit Court. Even that, however, has upset federal agencies — especially intelligence agencies — because they contend it could interfere with efforts to protect national security secrets and intelligence methods.  Justice Department lawyers were not able to get the Supreme Court to overturn the Bismullah decisions on the first try, but now are contemplating another.

On Wednesday, lawyers for six detainees — the same six that were involved in the Supreme Court’s ruling June 12 on detainees’ habeas rights (Boumediene v. Bush) — asked Judge Leon to use the Bismullah decision as a basis for ordering the government “to search for and produce” all information that might favor the detainees’ challlenge to captivity — and perhaps “all information” about detainees — for review in habeas proceedings. (The document making this request, a “notice of subsequent authority,” can be read here.)

Judge Leon reacted on Thursday, telling each side it could file a new brief on the issue if it wished, with any such brief due next Wednesday.

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UPDATE Friday afternoon

In a move sure to draw government opposition, lawyers for seven Guantanamo Bay detainees asked the D.C. Circuit Court on Friday to order the Justice Department and Pentagon to produce within ten days the complete files, including any secret data, that it has about those individuals.  In a motion to compel, the lawyers relied upon the Circuit Court’s reinstated Bismullah v. Gates decisions of last year.  In fact, the motion was filed in the Bismullah case itself (Circuit docket 06-1197), and six other appeals by detainees, all challenging their captivity under the Detainee Treatment Act of 2005.  The government, the motion argued, has said it was busy compiling these records, and thus should be able to produce them quickly — initially, in classified form, in order to speed access to them for detainees’ lawyers.  The Justice Department is likely to oppose this new request, as it goes forward with efforts to undo the Bismullah ruling (see the following post).

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The Justice Department is discussing a return to the Supreme Court, to ask it to curb the authority of a federal appeals court to engage in a wide-ranging review of military decisions to detain prisoners at Guantanamo Bay.  The plans, reportedly conveyed to attorneys for detainees, remain subject to approval by the U.S. Solicitor General, it is understood.  An initial attempt may be made to get the lower court, the D.C. Circuit Court, to react first.

Under discussion are ways to block, and ultimately to get overturned, the D.C. Circuit order that has revived its broad review mandate.

The Department has made it clear, in prior court filings, that it remains deeply disturbed by the Circuit Court’s ruling — actually, a pair of rulings last year — in the case of Bismullah v. Gates (06-1197).  For example, government lawyers wrote in a Circuit Court brief last month that Bismullah was “wrong when it was issued” and is “incompatible” with the Supreme Court’s June 12 decision in Boumediene v. Bush on the meaning of the Detainee Treatment Act of 2005, which spells out the Circuit Court’s role in examining military detention.  They also said that the Bismullah decision threatens “grave damage to national security.”

Two days ago, however, the Circuit Court reinstated Bismullah, turning aside a Justice Department request not to do so (see this post.)  The Department had appealed Bismullah to the Supreme Court last Term, and, at the end of the Term, the Justices sent the case back — without a definitive ruling on it — to the Circuit Court for a new look in the wake of the Boumediene decision on detainees’ rights.

Since the Court, in returning the case to the appeals court, had vacated the prior ruling, the Department has contended, it sent a message that the decision was wrong on “the nature of review” that the Circuit Court was to undertake in DTA cases.

The Department has also asked the Circuit Court to put on hold all DTA cases, so as not to interfere with government responses to the challenges to captivity that detainees’ lawyers are now pursuing in more than 200 habeas cases in District Court — challenges that the Supreme Court allowed in its Boumediene decision.  So far, the Circuit Court has not ruled on the abeyance request.

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 NOTE: In a hearing Wednesday on procedural issues in detainee cases in his Court, U.S. District Judge Richard J. Leon expressed concern about the need to have most of the hearings in those cases behind closed doors, because of the use of classified evidence. Howard Bashman’s How Appealing blog provides this link to a news account of that hearing.

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A federal judge who is moving ahead rapidly to implement a Supreme Court decision and decide whether the Pentagon may continue to hold detainees at Guantanamo Bay decided on Wednesday to require only the lowest level of proof to justify further captivity.

In a case management order that applies to the 24 habeas cases before him, U.S. District Judge Richard J. Leon ruled that it would be up to the government to prove “the lawfulness of detention” case by case, but need do so only by a “preponderance of the evidence.”

In Boumediene v. Bush (06-1195), the Supreme Court on June 12 ruled that Guantanamo detainees have a constitutional right to challenge their detention in habeas proceedings in District Court. But the Court left it up to District judges to work out the details of such reviews.  Judge Leon was the first to sort out these details; as matters have turned out, the Boumediene case itself is one of those pending before Leon.  He plans to start habeas hearings on Oct. 6, with the Boumediene case set for Oct. 8. Other judges are expected to follow with their own procedural rulngs.

The order’s choice of a standard of proof for detention was something of a compromise: the government wanted to be required only to offer some “credible” evidence, and then require the detainee to offer stronger evidence against captivity; the detainees wanted the government to have the burden, but wanted to require that detention by justified “beyond a reasonable doubt,” or, at least, by “clear and convincing evidence” — both more demanding than the standard the judge chose.

The detainees succeeded on a key procedural point: the order did not assure the government that there would be a “presumption” in favor of all of its evidence.  Instead, the judge said he would decide, for each piece of evidence, whether to presume that it was accurate or authentic.  If any presumption were to be allowed, detainees’ lawyers could contest it, the order said.

Judge Leon left himself some room to second-guess the government, not only on the weight of its evidence to support detention, but also on the core issue of what is a “lawful” detention.  Each government report offering reasons for an individual’s captivity, the judge said, must “set forth the government;s legal basis for detaining” that captive.  If it offers evidence that he is an “enemy combatant,” it “must provide the definition of enemy combatant upon which it relies.”

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Analysis

When the Supreme Court on June 12 found a new constitutional right for Guantanamo Bay detainees, another decision on the same day had little chance of being widely noticed even though it, too, involved detainees’ rights. That ruling, in a pair of consolidated cases, focused on prisoners the U.S. military holds in Iraq, not at the U.S. Navy prison compound on the island of Cuba.

Another factor tended to take away — at the time — from the seeming signifidance of the ruling in Munaf v. Geren (06-1666, along with Geren v. Omar, 07-394): the decision was unanimous, suggesting it was not all that hard to decide and thus may not have decided much — in contrast to the labored efforts a deeply divided Court has put forth in a string of major decisions involving government claims to added ”wartime” powers.

But the Munaf ruling, like the constitutional decision that same day in Boumediene v. Bush (06-1195), is taking on new meaning and raising new questions in the lower federal courts.  And, just as it can be asked just what was decided in Boumediene (see this post), it seems to be an open question just what Munaf resolved.

The point is well illustrated by two legal briefs, both filed last Thursday in the D.C. Circuit Court, in a series of cases (led by Kiyemba, et al., v. Bush, et al., Circuit docket 05-5487).  These cases involve nine Guantanamo detainees — all members of a Chinese Muslim minority (the Uighurs) that has for years suffered persecution in China; these nine were captured elsewhere after they had relocated.  (The brief for the Uighur detainees is here; the government brief is here.)

The government has 167 appeals in the Circuit Court in other cases awaiting the outcome of the Kiyemba litigation, and detainees have three other such appeals now pending.  All of them turn primarily upon a single issue: do federal judges have any authority to issue orders of any kind to limit or delay the Defense and State Departments from sending a detainee to another country, after the Pentagon decides not to keep an individual confined at Guantanamo?  It is a question that could touch on major constitutional issues, as well as on the meaning of federal laws.

The Munaf decision could figure prominently in the Circuit Court’s review of that question.  The detainees’ lawyers, among other arguments, have told the Circuit Court that Munaf in no way disturbs — and even confirms — the power of federal judges to assure detainees that, before they are subjected to detention somewhere beyond Guantanamo or have to face the prospect of torture in another country, they get a chance to object in court, with some chance of protection.  And government lawyers have argued that Munaf makes clear that decisions about transfers of detainees out of Guantanamo are a matter for Executive Branch decision, without any “second-guessing” by the courts.

It seems unlikely, at a minimum, that the Supreme Court, in deciding Munaf, thought it was choosing up sides in that broad argument.  In fact, there were indications that, within the Court, there had been lively discussion over how to keep the ruling within narrow bounds.

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The U.S. government, arguing that the lower courts have fallen into confusion and disagreement over federal power to protect wetlands, has urged the Supreme Court to make clear what it meant in the “highly fractured” ruling two years ago in Rapanos v. U.S. (04-1034) — a significant decision on the scope of the Clean Water Act.

The Justice Department filed an appeal Thursday on that issue in U.S. v. McWane, Inc., et al. (docket 08-223). The petition, together with an appendix with Eleventh Circuit Court opinions, is now available and can be downloaded here.

The Eleventh Circuit, in a post-Rapanos decision last October that created a direct conflict among lower courts, ruled that the federal law’s ban on pollution into “waters of the United States” does not apply to wetlands unless they have a “significant nexus” to traditional streams.  The Circuit Court found that legal formula in a separate opinion in Rapanos by Justice Anthony M. Kennedy, writing only for himself.  That, the Eleventh Circuit said, is the only standard that governs.  (An earlier post discussing this legal dispute can be found here.)

The new appeal contends that the proper way to read the Rapanos decision is to apply the view “endorsed by eight Members of this Court in Rapanos — the four-Justice plurality and the four dissenters.”

The Department contended: “The court of appeals’ analysis misinterprets Rapanos and this Court’s precedents governing how to interpret fractured decisions; creates bizarre outcomes;…will seriously impede enforcement of the CWA; and presents an issue of exceptional importance both to the government and to the regulated community.  That decision should not be permitted to stand.”

The federal appeal is one of two asking the Court to re-visit and clarify its Rapanos decision.  The other is Lucas v. U.S. (07-1512), filed in early June.  The Justice Department is scheduled to respond to that petition by Friday, but, in a footnote in its McWane appeal, the Justice Department said that the federal case “provides a more suitable vehicle” for confronting the Clean Water Act issue.

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Lawyers who won the historic Second Amendment gun rights case in the Supreme Court — District of Columbia v. Heller (07-290) — on Monday asked a federal judge to award them more than $3.5 million for attorneys’ fees, plus $13,215.30 for expenses and court costs.  In a motion and memorandum filed with U.S. District Judge Emmet G. Sullivan, the attorneys said that they had achieved “one of the most profound and important victories available under our system of justice.”

 Their argument also suggested that this was a David vs. Goliath clash, with the attorneys on their far side far outnumbered in lawyers, legal resources and government funding.

Their motion said the lawyers expect that the District of Columbia government will oppose their fee and expenses request, but added that they had not yet received a formal response.

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UPDATE 3:30 p.m.  There have been other developments in detainees’ cases; they are discussed in the continuation of the post below.

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The D.C. Circuit Court, turning aside a Justice Department plea to cut back sharply on its review of military decisions to detain individuals at Guantanamo Bay, has put its tough review regime back into effect.  In a brief order on Friday (found here), the Court without explanation reinstated its pair of decisions in Bismullah v. Gates (Circuit docket 06-1197).  That order thus implied that the Circuit Court did not believe the Supreme Court had undercut the prior Circuit rulings, as the Justice Department had contended.

The Circuit Court’s two Bismullah decisions, on July 20 and Oct. 23 of last year, required the Pentagon and other government agencies to produce a potentially wide array of information about detainees, to make the system of civilian court review work as the panel thought Congress intended in the Detainee Treatment Act of 2005.  It was not enough, the panel declared, to have before it only the information that the Pentagon had actually considered — in proceedings before Combatanta Status Review Tribunals.  This kind of broad review, the Justice Department contended, threatened harm to national security.

The Department appealed the two Bismullah decisions to the Supreme Court (Gates v. Bismullah, 07-1054) after an evenly split Circuit Court denied en banc review in February. The Justices took no action on the appeal until after they decided the case of Boumediene v. Bush (06-1195) on June 12, clarifying some of the legal rights of Guantanamo detainees.  Then, on June 23, the Justices vacated the Circuit Court rulings in Bismullah and told the lower court to look at the case again “in light of Boumediene v. Bush.”

After the case returned to the Circuit Court, the detainee’s lawyers urged the panel to reinstate its prior rulings, arguing that some detainees wished to go forward with Circuit Court review of the Pentagon’s CSRT detention decisions, even though they also now had the option (under Boumediene) of pursuing direct challenges to detention in habeas cases in District Court.  In response, the Justice Department argued that, by vacating the prior Bismullah rulings, the Supreme Court had indicated that continuing with the Circuit Court role could not be reconciled with the reopening of habeas cases in District Court.  The Court, by vacating Bismullah, signaled that that kind of proceeding should be set aside, the Department had contended.  (This dispute was discussed in an earlier post, found here.)

Instead, in its order on Friday, the Circuit Court panel, splitting 2-1, simply reinstated its prior rulings, thus restoring them as fully binding mandates on how the DTA process would continue to operate.  Circuit Judges Douglas H. Ginsburg and Judith W. Rogers signed the order; Circuit Judge Karen LeCraft Henderson dissented.

The order, however, said nothing about a separate motion the Justice Department has made: that all of the scores of DTA cases be put on hold while the habeas cases proceed in District Court.  Presumably, the panel will act on that question separately.

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The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.

On Friday, the Solicitor General’s response is due in Lucas v. United States, 07-1512, a major test case on the scope of government power to regulate wetlands under the Clean Water Act and, in particular, on the proper way to interpret the Court’s divided opinion in 2006 in Rapanos v. United States.  The Solicitor General last Thursday filed the government’s own appeal on the scope of Rapanos in U.S. v. McWane, Inc., et al. (08-223), an Eleventh Circuit case.

The petitioner’s merits brief is due Thursday in Pacific Bell Telephone Co. v. linkLine Communications (07-512) and Friday in Ashcroft v. Iqbal (07-1015) and Arizona v. Johnson (07-1122). The respondent’s merits brief is due Monday in United States v. Hayes (07-608) and Friday in Van de Kamp v. Goldstein (07-854).

(Links above direct to case pages on SCOTUSwiki.)

UPDATE Monday a.m.  The case of Rasul v. Myers has now been assigned docket number 08-235.)

In the first move to put claims of torture of Guantanamo detainees before the Supreme Court, lawyers for four Britons formerly held at the Navy prison in Cuba on Friday asked the Justices to overturn a federal appeals court ruling that they had no right to sue Pentagon officials and military officers over the issue.  (The petition in Rasul, et al., v. Myers, et al., can be found here.  The docket number has not yet been assigned.)

The case would give the Justices a chance to rule on whether Guantanamo detainees have any rights under the Constitution beyond the right to challenge their detention in habeas cases, and whether they have any rights under U.S. laws.

The D.C. Circuit Court last Jan. 11 rejected all of the claims of abuse and arbitrary imprisonment, thus scuttling the case.  With no dissents noted, the Circuit Court refused on March 26 to rehear the case en banc.  The petition in the Supreme Court was filed after attorneys obtained an extension to do so by Friday.  (A post on this blog discussing the Circuit Court panel decision can be read here.  The Circuit Court panel’s decision can be found here.)

The new appeal asks the Justices to rule on three issues:

1. Do the former detainees have a right to sue for “religious abuse and humilation” under the Religious Freedom Restoration Act.? (The Circuit Court found the detainees were not “persons” covered by the Act.)

2. Does the Constitution provide U.S. captives with a constitutional right not to be tortured – or, if there is such a right, was it not established at the time of the mistreatment claimed in this case and thus U.S. offiicials have immunity to lawsuit? (The Circuit Court ruled that detainees have no constitutional rights.)

3. Did the Defense Secretary and senior military officers have the authority to order torture, as coming within the range of their official duties? (The Circuit Court said that any such mistreatment was incidental to officials’ duty in ordering that detainees be interrogated.)

The appeal notes that the Circuit Court had found that “Guantanamo detainees lack constitutioinal rights because they are aliens without property or presence in the United States.”  That conclusion, the petition points out, was overturned by the Supreme Court on June 12 in Boumediene v. Bush, recognizing a constitutional right of habeas.

The petition asserts: “The Court of Appeals’ extensive and uncritical reliance on its own decision in Boumediene is all the more remarkable given that the instant case was argued, and the Court of Appeals’ decision was rendered, long after this Court granted the petition for writ of certiorari in Boumediene and after the Court of Appeals withdrew its mandate in Boumediene, signaling the likelihood that the decision would be amended, overturned or withdrawn. Indeed, the Court of Appeals entirely ignored the fact that it had withdrawn its mandate in Boumediene.”

Referring to Boumediene and to earlier Supreme Court rulings allowing detainees to challenge their confinement, the petition argues that “this case presents the opportunity to recognize and enforce rights that are at least as basic and essential to human autonomy — the right to worship and the right not to be tortured….This case presents the question of whether senior officials of the United States Government can be held accoutable pursuant to RFRA, the Constitution and customary international law for ordering the religious humiliation and torture of Guantanamo detainees.” 

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In late 2001, just weeks after the government first started taking prisoners in the “war on terrorism,” Bush Administration officials chose Guantanamo Bay as the place to hold those detainees in order to keep them beyond the reach of U.S. courts and away from any terrorist activity. Now, more than six years and four Supreme Court decisions later, the detainees for the first time will get a hearing in civilian court on claims they are being held unlawfully; the first hearing is set to start Oct. 6.

U.S. District Judge Richard J. Leon, who is working on what he calls a “compressed” timetable, disclosed Thursday that he will hold the first habeas hearings on a day that he said “seems only fitting — the first Monday in October.”  That, of course, is the same day the Supreme Court returns to work after its summer recess, some four months after its ruling in Boumediene v. Bush giving the Guantanamo detainees a constitutional right to pursue habeas challenges to their captivity.

The Boumediene case (it gets its name from Lakhdar Boumediene, an Algerian, and includes five others from that country, all of whom had been living in Bosnia) is back in District Court, before Judge Leon. Mostly by coincidence, the judge said Thursday, that will be the case that comes up first for a week of hearings in October.

While 14 other District Court judges share the more than 200 Guantanamo habeas cases now on file, it appears that the 24 cases in Leon’s court are moving on the fastest track. The judge said, at a four-hour hearing Thursday, that he “remains committed to conducting hearings in these cases — all 24 — between now and Christmas.”  Decisions on whether any detainee wins release could come soon after that.

None of the detainees, however, is likely to be in court personally for their hearings. The judge said he had tentatively decided against ordering the Pentagon to bring any of the detainees to mainland U.S. for the habeas cases; he cited “very obvious and difficult practical problems.”  That idea, he told detainees’ lawyers, was “an extremely hard sell.”

He and the lawyers for both sides are exploring alternative ways for the captives to take part: for example, by question-and-answer sessions under oath at Guantanamo with videotapes shown in court, or by being linked to the courtroom through television or telephone hookups.

Between now and next Wednesday, when he and the lawyers gather for an update on planning, Judge Leon said he would issue a “case management order” laying out the procedures for the habeas proceedings.

His tentative ruling against detainees’ in-person participation was one of a number of issues on which the judge said he had “pretty much made up my mind.”  He also indicated he will rule that the detainees do not have any constitutional right to face witnesses who have given adverse evidence about them or any right to call witnesses on their own, that he would allow both sides to offer “hearsay” evidence — that is, by individuals not called as witness, and that he would insist on being notified in advance before the Pentagon and State Department move out of Guantanamo any detainee in any of his cases.

The judge also said he would issue an order requiring some higher-level State Department official to file in his court a sworn statement on the efforts being made to get other countries to take detainees so that they could be released from Guantanamo.

And he said he was pressing the Pentagon to take additional steps to allow the detainees’ lawyers to more easily confer with their clients at Guantanamo, but he said he would not go too far to intrude on operations of the Navy facility there: “It’s a military base,” he said, “it’s not Vegas.”

In something of a compromise among his tentative conclusions, the judge said he would allow the cases to go forward under the federal habeas law — a request by the detainees that gives their lawyers some wider options — but that he would not allow procedures to become the equivalent of a full-scale criminal trial — a request that Justice Department lawyers pressed.

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Below, Jonathan Ross previews next term’s Summers v. EII (No. 07-463). Jonathan was an ‘08 summer associate at Akin Gump and is a student at Harvard Law School.  As always, the Summers SCOTUSwiki page, here, will continue to be updated throughout the upcoming term.

36 C.F.R. §§ 215.12(f) and 215.4(a) exclude certain Forest Service projects from statutory provisions that would otherwise require the Forest Service to make available administrative appeals and notice-and-comment procedures. In this case, the Court will consider the justiciability of challenges to the regulations, as well as whether the Ninth Circuit erred in affirming a nationwide injunction prohibiting the Forest Service from applying the regulations.

Background

In 1992, Congress enacted the Appeals Reform Act (ARA), which – among other things – required the U.S. Forest Service to provide both opportunities for notice and comments and an administrative appeals process for all land and resource management plans. In 2003, the Forest Service promulgated new regulations that carved out an exemption for the notice-and-comment and appeals requirements for two types of projects: fire rehabilitation activities on less than 4200 acres and salvage timber sales of 250 acres or less.

This litigation arose from the application of these new 2003 regulations to the Burnt Ridge Project, a project in the Sequoia National Forest that would have resulted in the logging of approximately 238 acres of burned forest for sale as timber. In September 2003, consistent with the exemptions of 36 C.F.R. §§ 215.12(f) and 215.4(a), the Forest Service approved the project without providing either formal notice-and-comment procedures or an appeals process.

In December 2003, respondent Earth Island Institute and several other environmental groups filed a complaint in federal district court against the Forest Service, challenging the legality of the Burnt Ridge Project and – both facially and as applied to the Project – the 2003 Forest Service regulations. After the District Court issued a preliminary injunction against the Burnt Ridge Project, the Forest Service eventually withdrew its decision to implement the Project. The parties entered into a settlement agreement in which the Forest Service agreed not to restart the Burnt Ridge timber sale without first conducting an Environmental Impact Statement and allowing for notice, comment, and administrative appeals; in exchange, the conservation groups agreed to dismiss with prejudice their six claims for relief challenging the legality of the Project.

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UPDATE 5:10 p.m.    Supreme Court Justice David H. Souter, in a brief order Wednesday afternoon, turned down a request that would have given an independent candidate in Maine for the U.S. Senate a place on the Nov. 4 ballot for that office.  Souter acted without referring the stay application to his colleagues.  There was no written opinion, just a simple denial order.  The Justice’s action appears to assure the state’s two major party candidates, incumbent Sen. Susan Collins, a Republican, and her Democratic challenger, Rep. Tom Allen, that they will not have to worry about an independent drawing votes away from them.  Sen. Collins is considered by political analysts to be one of the vulnerable GOP Senators seeking reelection.  Hoffman’s counsel could still go ahead with plans to file a full appeal on the ballot access issue, but Souter’s action probably reduces significantly the chances that such an appeal would succeed, or that a final ruling could come in time. Maine officials say the ballot must be finalized by Aug. 29.

An earlier post on this dispute follows:

Seeking to give the U.S. Supreme Court more time to ponder whether to intervene in an election dispute in Maine, that state’s highest court on Wednesday delayed for a week its ruling that would bar an independent U.S. Senate candidate from the ballot.  By a vote of 3-2, the Maine Supreme Judicial Court said it would not put its July 28 ruling into effect until next Wednesday.  It added that it would not approve any further delay, unless the Supreme Court steps in.  The order, and the dissent, can be found here.

The non-party candidate, Herbert J. Hoffman of Ogunquit, a retired psychologist, is seeking to be on the ballot for the Senate seat now held by Republican Susan Collins. Also vying for the seat is the Democratic nominee, Rep. Tom Allen.  Hoffman was cleared for the ballot by the Maine secretary of state, but a protest by the state Democratic chairman led to a state Supreme Court ruling overturning the secretary.

Hoffman has asked Justice David H. Souter to stay the Maine court’s ruling, until the Supreme Court can act on a planned appeal; the appeal, in a petition for certiorari, has not yet been filed, but the Maine court noted Wednesday that Hoffman’s counsel had said they planned to file an expedited petition. At this point, Justice Souter is considering only the stay application (08A138).

In granting a one-week delay in putting its ruling into effect, the state Supreme Judicial Court majority said it doubted that Hoffman could win in his appeal to the Supreme Court.   But, it said, it opted to “partially accommodate Hoffman’s request for a stay in order to allow him to determine whether the Supreme Court will intervene to stay our mandate.”

By putting off its ruling a week, the state court majority said, it would allow the secretary of state two full business days to act before the deadline for creating a final ballot.

Analysis

In the annals of the ongoing constitutional battle in America’s courts over the “war-on-terrorism,” Shafiq Rasul, Yaser Esam Hamdi, Salim Ahmed Hamdan and Lakhdar Boumediene already have made history — especially in the Supreme Court.  It now appears that Huzaifa Parhat could be the next detainee added to that list.

A member of a long-persecuted Chinese Muslim community, the Uighurs, Parhat is moving rapidly toward a courthouse showdown of major proportions.

 He is attempting to become the first Guantanamo Bay detainee to take the witness stand in a civilian courtroom inside the U.S., to make a personal case for freedom, and, more significantly, he is seeking actual release into the U.S. to live, at least temporarily, with a group of Uighurs in the Washington, D.C., area.

Both of those prospects are unsettling to the Bush Administration: Attorney General Michael B. Mukasey has made it very clear that the government will fight energetically against bringing any detainee into mainland U.S., for any purpose — a view that, among other consequences, has complicated the question of whether to close the Guantanamo prison operation entirely.

But something else of deep constitutional significance is lurking in Parhat’s court case.  The Justice and Defense Departments are using the case to test anew their theory that the U.S. government has very broad constitutional authority — beyond the reach of the courts — to “wind up” (or “wind down”) the process of detention in a way that would mean that individual detainees, even though found not to be enemies (Parhat’s situation), would remain for extended periods at Guantanamo in a kind of legal limbo.

That status also could await any detainees — Hamdan could be the first example – who get convicted of war crimes, but then finish out their sentences and then seek release.  (Pentagon officials already have signaled that they may hold Hamdan at Guantanamo when his sentence is completed early next year, and Hamdan’s lawyers have vowed to contest any such plan.  Hamdan’s fate, though, may not be settled before Parhat’s case has first tested the “wind up” argument.)

In response to the government’s argument that the Executive Branch has the sole constitutional authority to “wind up Parhat’s detention in an orderly fashion” (meaning, among other things, no release into the U.S. and perhaps a prolonged stay at Guantanamo), Parhat’s lawyers have mounted a sweeping constitutional claim of their own. They are arguing (in a filing last Friday, found here) that the government theory amounts to an unconstitutional suspension of the writ of habeas corpus. That is the same argument that led the Supreme Court, in Boumediene v. Bush on June 12, to grant the detainees a constitutional right to challenge in civilian court their captivity.

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