Moving to speed up action in the Supreme Court on the President’s power to order the military detention of an individual suspected of terrorism and captured inside the U.S., the Justice Department on Friday asked the Court to deny review of the case of Al-Marri v. Pucciarelli (08-368). The new brief in opposition can be found here.

Only eight days ago, the Department had obtained an added 30 days to file this brief — that is, until Nov. 24. Thus, the filing Friday was more than three weeks ahead of that new deadline.  With that filing, the Department made it more likely that the Court could act on the case fairly soon, probably in November, and, if it decides to hear it, to decide it in the current Term.

The case involves Ali Saleh Kahlah al-Marri, a Qatari national who was liviing legally in Peoria, Ill., when he was arrested on criminal charges, but then was turned over to the military under Presidential order and has been held in a Navy brig in South Carolina for more than five years.  He faces no criminal charges, although the Department told the Supreme Court Friday that al-Marri “entered the United States to plan and carry out hostile or war-like acts on behalf of al Qaeda.”

Although the new brief makes a full defense of the President’s domestic detention authority, at least in a case like al-Marri’s, the main thrust of its written argument at this stage is that his appeal is premature, and that the Court should allow time for him – mandated by the Fourth Circuit Court — to test his detention in a new habeas proceeding in District Court in South Carolina.

The brief, filed by Solicitor General Gregory G. Garre, said that the government does not agree with the Circuit Court that al-Marri is entitled to a fuller opportunity to challenge his detention. But it said it was not challenging that aspect of the Circuit Court ruling “at this time.”

The case is in a preliminary stage now, the brief added, and the Justices should allow it “to go forward” in District Court.  Al-Marri “will be given a full opportunity to challenge the government’s evidence. But there is no reason for the Court to short-circuit that process here.”

The case, the brief added, will not affect others, because al-Marri is the only detainee being held inside the U.S.  Thus, it asserted, “this Court should not rush” to rule “unnecessarily” on presidential detention authority in such a case.

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Lawyers for 17 Guantanamo Bay prisoners on Friday filed a new plea for the full ten-judge D.C. Circuit Court to rule on the courts’ power to order release of detainees no longer considered enemies. At the same time, they argued that the President and his aides are seeking to put any remedy for detainees out of reach so as to gain a “blank check” to hold them indefinitely, perhaps for life.

The filings came as briefing moved ahead toward a Nov. 24 hearing before a three-judge panel of the Circuit Court.  At issue is a federal judge’s Oct. 7 ruling that the 17 Chinese Muslim Uighurs, no longer designated “enemy combatants,” must be transferred to the U.S., and given their freedom, at least temporarily, because they cannot be resettled safely in any other country.

The three-judge Circuit panel, however, would not handle the case further if the en banc Court agreed to take it on first.  A week ago, the en banc Court refused to step in, but that only involved the question whether it would review now a temporary order barring the 17 Uighurs from being shipped to the U.S.   Friday’s filing sought en banc review of the merits of the dispute.

Arguing that the Executive Branch is taking legal positions that conflict directly with the Supreme Court’s Boumediene v. Bush decision allowing habeas challenges to Guantanamo detention, counsel for the 17 prisoners contended that the case should go immediately to the full Court on “questions of exceptional importance.”

Noting that this case involved the first appeals court review of a final Guantanamo habeas decision by a judge, in the wake of Boumediene, the new petition said that “a ruling that these [17] have no remedy would eliminate judicial remedy for all Guantanamo prisoners, and make release from [military] prison solely a function of Executive discretion and unreviewable diplomacy with foreign sovereigns” seeking to arrange resettlement.

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Chief Justice John G. Roberts, Jr., has refused a request by the C-SPAN cable and radio network to release on Tuesday the audiotape of the Court’s oral argument that morning in Federal Communications Commission v. Fox Television Stations (07-582).  Thus, the audiotape will not become available until after the current Term is over.  On Tuesday, the Court will release the written transcript of the argument within the hour after the 10 a.m. hearing has concluded at about 11 a.m.

As is customary, the Chief Justice gave no reason for denying early release of the audiotape.

UPDATE 12:31 p.m.   Washington attorney Theodore B. Olson will argue first on Monday afternoon in the case discussed below.  The parties notified the Supreme Court on Friday that they had agreed that Olson would represent the governor, the state and the town of Charlestown.

The town’s lawyer, Joseph S. Larisa, Jr., who has been involved with the case for more than a decade, said he agreed to Olson’s selection after William K. Suter, the Court’s clerk, called counsel at 11 a.m. Friday. “He said the Court gave us one hour to decide, or all argument time would be forfeited,” Larisa recounted.  At that point, he said, he agreed to Olson’s selection, in return for being seated as co-counsel with Olson in the courtroom on Monday.

The Court had no comment on this account.

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Refusing to decide for itself who will argue one side of a case to be heard on Monday, the Supreme Court on Friday turned aside new pleas to allow divided argument on that side.  In a brief order in the Indian land rights case of Carcieri v. Kempthorne (07-526), the Court denied motions by both the state of Rhode Island and the town of Charlestown, R.I., to reconsider the Court’s prior denials of split argument. The state, its governor and the town all appealed in the case, but they have been locked in an impasse over who will argue in opposition to the federal government’s counsel.  The Court’s refusal to reopen the issue means, in practice, that it will be up to the three parties to decide on a single attorney to make the argument.  The Court’s order is here

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

No oral arguments are scheduled and no non-capital orders are expected to be released today. Arguments are next scheduled for Monday, November 3.

Unless Chief Justice John G. Roberts, Jr., intervenes, some of the argument in the Supreme Court chamber next Tuesday morning may sound at times like a typical conversation in a seventh grade boys’ restroom — the uninhibited use of four-letter words.

 And, if Roberts allows it, such a display of blue language will be heard on TV and radio — in the middle part of the day — across America, and may be read the next morning in many newspapers.  But, apparently, not in every news outlet.

The case to be heard first on Tuesday is, in fact, about profanity — what two widely used, vulgar words mean, at least in legal terms, and what the government can do about punishing their use, at least on radio and television in daytime and prime time.  The case is Federal Communications Commission v. Fox Television Stations (07-582); the FCC is asking the Court to restore its authority to ban the single, fleeting utterance on the air of two words — “fuck” and “shit.”

Chief Justice Roberts apparently has not yet made up his mind whether to allow the C-SPAN cable network and other broadcasters to replay the audiotape of the oral argument within minutes after Tuesday’s argument is over?  His chambers has not responded to an inquiry about that.  Another choice he may ponder is whether to tell the lawyers, bluntly or subtly, not to use the words at issue.  There is a precedent for that.

It is possible, of course, to treat the profanity issue with such delicacy — in the courtroom, and in news coverage of the argument and the case — as to miss the point.  The words are, after all, the central focus of the FCC policy at issue: the way the FCC interprets the meaning of their utterance is the very reason it now bans their “fleeting” use (except in news broadcasts and when essential to “artistic integrity”).  Their use in public conversation and news accounts, thus, may well be justified — forensically if not otherwise.

If  the issue is left to the lawyer representing broadcasters next Tuesday, Carter G. Phillips of Washington’s Sidley Austin, the words will be part of the hearing. “Unless the Court tells me not to,” Phillips says, “I would not shy away from using those words.  It is hard to argue parts of he case saying ‘F-word’ and ‘S-word.’ “  Because he is arguing second, rather than first, he would not start the argument that way, he said, “but in answering questions it would be quite natural just to use the actual words.  As Judge [Pierre] Leval said in his [Second Circuit Court] dissent, in the context of this case, it is not inappropriate to use those words in open court.  But if the Court would prefer that I not, then I would obviously defer to the Justices.”

Phillips argued the case in the Second Circuit and began his presentation by quoting two of the performers who had used the words, leading to the FCC ban.  Two of two of the three judges on the Circuit panel asked questions that included the words.  And the C-SPAN cable and radio networks broadcast the argument without editing.

Thus, the choices that Chief Justice Roberts makes in advance of the Fox TV asrgument may well determine whether the two words at issue do, or don’t, get widely repeated on audio broadcasts of the argument. But, with or without those words spoken in court and with or without the release of the audiotapes, news organizations of all types will be making the choice for themselves whether to publish the words in their coverage.  Perhaps not surprisingly, there is variation.

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A military commission at Guantanamo Bay refused on Wednesday to reconsider the sentence it imposed on a Yemeni national, Salim Ahmed Hamdan, after his conviction in August.  In an order made public Thursday, the commission simply declined without explanation the military prosecutors’ request to reassemble the military jury and order it to consider a sentence without giving Hamdan credit for part of the time he has been held at Guantanamo.  The order can be found here.  It was issued by the presiding officer at Hamdan’s trial, Navy Captain Keith J. Allred.

Hamdan was convicted of providing support to terrorists; he has often been described as a driver for Osama bin Ladin.  He was sentenced to 66 months in military prison, but that was reduced to four months and 22 days because the commission jury gave him credit for 61 months and eight days for part of the time he has been detained by the U.S. military.  He is now due to finish his sentence by Dec. 31.  What happens to him after that may depend on how his habeas challenge to continuing detention — on hold in District Court while his commission trial went forward — is ultimately decided.

Under the Military Commissions Act of 2006, which governs trials such as Hamdan’s, it does not appear that the prosecution may appeal the sentence, including the credit for time in detention.  The Act specifies that, after the trial is over, a sentence may not be found to be in error unless the error “materially prejudices the substantial rights of the accused.”

Hamdan’s lawyers have argued that his rights were not harmed by cutting time off of his sentence for past detention.

A post discussing the controversy over Hamdan’s sentence can be read here. The prosecutor sought a new sentence that, it said, would be no longer than the 66 months the jury originally imposed. That would mean that Hamdan would have to remain in military prison for the remaining 61 months that the credit represented.

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on November 14. As always, the list contains 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 October 31 and November 7, visit our archives on SCOTUSwiki.

Conference of November 14, 2008

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Docket: 08-40; 08-58; 08-67
Title: Hirko v. United States; Shelby v. United States; Yeager v. United States
Issue: Whether, under the Double Jeopardy Clause, the government may retry defendants acquitted of some charges on factually related counts on which the jury failed to reach a verdict.

• Opinion below (5th Circuit) (all cases)
• Petition for certiorari (08-40)
• Petition for certiorari (08-58)
• Petition for certiorari (08-67)
• Brief in opposition (all cases)
• Petitioner’s reply (08-40)
• Petitioner’s reply (08-58)
• Petitioner’s reply (08-67)
• Brief amici curiae of National Association of Criminal Defense Lawyers and Criminal Law Professors filed (all cases) (in support of petitioners)

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Docket: 08-71
Title: Saintha v. Mukasey
Issue: Whether the provision of the Immigration and Nationality Act permitting judicial review of “questions of law” is limited to pure legal question or also includes the application of law to fact.

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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Docket: 08-192
Title: Abuelhawa v. United States
Issue: Whether a person who uses a cell phone to buy drugs solely for personal use (a misdemeanor) can be charged with the separate crime of using a phone to facilitate the sale of drugs (a felony).

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of National Association of Criminal Defense Lawyers (in support of petitioner)
• Brief amicus curiae of Center on the Administration of Criminal Law (in support of petitioner)

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Docket: 08-195
Title: Orange County v. Pierce, et al.
Issue: Whether jails in a California county violated the 14th Amendment by providing certain prisoners only 90 minutes of exercise per week or the Americans with Disabilities Act by limiting access to facilities by disabled inmates.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

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Docket: 08-205
Title: Citizens United v. Federal Election Commission
Issue: Whether federal campaign finance laws apply to a critical film about Senator Hillary Clinton intended to be shown in theaters on on-demand to cable subscribers.

• Opinion below (District Court for the District of Columbia)
• Statement as to jurisdiction
• Motion to dismiss or affirm
• Reply of appellant
• Brief amicus curiae of American Civil Rights Union (in support of petitioner)

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Docket: 08-399 (capital case)
Title: Campbell v. Louisiana
Issue: Whether, under Wainwright v. Witt (1985), the trial judge improperly removed a juror despite a willingness to consider the death penalty in some circumstances while permitting a juror who reportedly had difficultly not imposing the death penalty.

• Opinion below (Supreme Court of Louisiana)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Brief amicus curiae of academics (in support of petitioner)

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No oral arguments are scheduled and no non-capital orders are expected to be released today from the Court. Arguments are next scheduled for November 3.

At 1 p.m. next Monday, an attorney will step to the Supreme Court’s podium to open the argument in a case pitting the rights of states against the rights of Indian tribes and the power of the federal government.  But, with that argument edging ever closer, the identity of that advocate is still not settled.

The Supreme Court finds itself in the midst of what one lawyer involved calls “this impasse” over who gets to speak first, or at all, in the first half of the argument in Carcieri v. Kempthorne (07-526).  Court aides have tried repeatedly to get the three parties lined up on that side of the case to settle on one attorney, but so far that effort has failed.

Three parties joined a year ago in asking the Supreme Court to hear the case, testing the power of the U.S. Interior Secretary to approve the Narragansett Indian Tribe’s request to have a 31-acre parcel of land it owns in the town of Charlestown, R.I., placed in trust for the tribe. All three petitioners — Rhode Island’s Governor Donald L. Carcieri,  the state itself, and the town of Charlestown — were united in the claim that the federal government has no authority to do that for the Narragansetts.  The Court granted review Feb. 25.

Each of the three has since filed its own brief.  For oral argument, however, that side gets only 30 minutes.  Each of the three previously asked the Court for a chance to send a lawyer to represent it to the podium, splitting up the 30 minutes.  The governor and the state attorney general wanted to split the time, and a lawyer for Charlestown also wanted to split the time with the state. (The Narragansetts sought to join in, too, as an amicus.)  All pleas for divided argument time have been rejected by the Court, and all three parties on the top side have been told to settle it among themselves.

Among the ideas floating around for a way out of the impasse: flip of a coin, a majority-wins vote among the three parties, a 20-10 split in the top-side argument, a 50-50 split of that time, and, of course, the Court’s possible new insistence on just one advocate.

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No oral arguments are scheduled and no non-capital orders are expected to be released today from the Court. Arguments are next scheduled for November 3.

The Supreme Court on Tuesday ordered lawyers to file new briefs by Nov. 10 on a new issue in a pending case testing a divorced spouse’s right to the other spouse’s pension benefits.  The question was posed in Kennedy v. DuPont Savings Plan Administrator (07-636) — a case heard by the Justices on Oct. 7.  The new question tests the application to the case of a part of federal benefit law that requires benefit plan administrators to operate the plan as dictated by plan documents — an issue that the Court appeared previously to have declined to hear.  (A legal blog’s post discussing some of the Justices’ concerns, at oral argument, about not having granted review earlier of this issue can be read here.)

The Court had agreed on Feb. 19 to hear a single issue in the case — whether the Employment Retirement Income Security Act provided only one way for a waiver of the divorcing spouse’s right to the other’s pension — that is, a waiver would be found only if it had been made in a specific form of domestic relations order.   That in turn posed an underlying question of whether a state divorce decree, in which a spouse had waived a right to the benefits, was a valid form of waiver of those benefits.  The Fifth Circuit Court had ruled in favor of the spouse, Liv Kennedy of Houston, finding that the absence of a qualified domestic relations order meant that she was still entitled to the benefits as the sole beneficiary of the estate of her former husband, William Patrick Kennedy, a former DuPont Co. employee who died in 2001.

Kari Kennedy, administrator of her father’s estate, wrote to DuPont and demanded that the remaining balance in his pension plan be paid to the estate, claiming that Liv Kennedy’s beneficiary status was no longer valid under Texas family law.  DuPont refused, and Liv Kennedy ultimately collected about $402,000.  The estate then sued the administrator of the DuPont plan, claiming the benefits had been wrongly distributed.  A District Court ruled in favor of the estate, but the Fifth Circuit reversed.  Kari Kennedy and the estate then appealed to the Supreme Court, arguing that the Circuit Court was wrong in finding that a domestic relations order under ERISA was the only valid way for a divorcing spouse to waive the other’s pension payments.  A split in the lower courts on that question probably led the Justices to grant review.

The Court granted review only of that specific issue on the proper way to waive benefit entitlement.  The appeal had raised three other questions, one of which tested whether the plan documents of an ERISA pension plan governed distributions.  Even so, both sides discussed the plan documents section of ERISA in their briefs, and the U.S. Solicitor General, joining in the case as an amicus taking a seemingly neutral stance, said that “consideration of the plan documents is critical in evaluating whether the court of appeals reached the correct result in this case.”  The Solicitor General argued further: “ERISA requires a plan administrator to distribute benefits to the beneficiary designated by the participant under the terms of the plan.  A waiver that is not given effect consistent with the provisions of the plan documents cannot trump the terms of the plan.  Thus, the appropriate mechanism for eliminating the beneficiary interest of an ex-spouse is for the participant to change the beneficiary designation in accordance with plan terms.  That process is generally not difficult.  But in all events, the entry of a divorce decree purporting to waive the non-participant spouse’s interest is neither necessary nor sufficient to accomplish that end.”

On Tuesday, the Court posed this new question: “Whether 29 U.S.C. 1104(a)(1)(D), mandating administration of a plan in accordance with plan documents, required that the distribution in question be made to Liv Kennedy, even on the assumption that a waiver of her interest was not otherwise subject to statutory bar.”

The ERISA section at issue reads: ”[A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and…in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter.”

Briefs by both sides are due by 2 p.m. on Nov. 10; amicus briefs are due at the same time.

In taking the case to the Supreme Court, the Kennedy estate had cited the very provision that the Court’s order on Tuesday listed, and argued that the Circuit Court was wrong in failing to consider the overall effect of Section 1104 of ERISA.  The “prime directive” of ERISA, the petition contended, is “to protect the interests of participants and beneficiaries.”  Enhancement of the convenience of plan administrators, the petition said, has always been only a secondary objective of the law.  The appeal argued that courts should follow a common law approach, to ensure that plan funds are distributed for the benefit of family members who are actually entitled to them, and have not volutarily surrendered them.

No oral arguments are scheduled and no non-capital orders are expected to be released today from the Court. Arguments are next scheduled for November 3.

According to sources in the Justice Department, Solicitor General Greg Garre has named Darryl Joseffer as his Principal Deputy. Joseffer argued three cases last term — on the merits in Logan v. United States (06-6911), and as amicus supporting petitioners in Warner-Lambert v. Kent (06-1498) and Meacham v. Knolls Atomic Power Laboratory (06-1505). Earler this month, he argued as amicus in support of the respondent in Bartlett v. Strickland (07-689).

Prior to joining the Solicitor General’s office, Joseffer was a partner at the law firm Kirkland & Ellis. Garre was Principal Deputy to former Solicitor General Paul Clement before Clement resigned in June.

The following column by Akin Gump associate Troy D. Cahill, featuring a selected petition up for consideration at the Justices’ conference on October 31, 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.

Elections may have once been solely about a candidate’s ideas. But over the past few decades, they have also been increasingly about money. Whether in search of the mayor’s office or White House, candidates with bigger war chests often seem to prevail at the ballot box.

Judicial campaigns are no different. Once tame, they now often resemble campaigns for legislative and executive positions, complete with television advertising and “Robo-calls,” often thanks to infusions of cash from outside advocacy groups.

At its private conference on Oct. 31, the Supreme Court will consider whether to enter an area that has caught the concern of no less than retired Justice Sandra Day O’Connor, now one of the nation’s leading advocates for reform of judicial elections.

Among the hundreds of petitions up for consideration is a case asking whether, in seeking to level the playing field between disproportionately funded candidates, North Carolina stepped over the First Amendment line. (The case is No. 08-120, Duke, et al. v. Leake, et al. The justices could announce their decision as soon as Nov. 3.)

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UPDATE 7:35 p.m.

On Monday afternoon, Judge Leon put his order in memorandum form, and it was published.  It can be found here.  It closely tracks the substance and form of what the judge said in open court, as reported below.

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 Deferring to the Pentagon and to Congress, U.S. District Judge Richard J. Leon on Monday reached back four years for a definition of wartime enemy status that will guide his rulings on whether some 20 Guantanamo Bay detainees must continue to be confined, or should be released. In an eight-minute hearing, the judge said he had settled on this definition:

“ ‘Enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces.”

That is the formulation the Pentagon put into effect on July 7, 2004, to guide the detention decisions to be made by “Combatant Status Review Tribunals.” More than 550 CSRT panels applied that definition, and fewer than 50 of them found that the prisoner involved was not an “enemy combatant.” Judge Leon said that Congress had later embraced something close to that definition.

The Monday ruling marked the first time that a federal court had given a fixed definition of “enemy combatant,” even though four judges on the Fourth Circuit Court had tried their hands at defining the phrase in another combatant case. Judge Leon was mildly disapproving of that effort on Monday, saying that “I do not believe it is the province of the Judiciary to draft definitions.”

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No oral arguments are scheduled and no non-capital orders are expected to be released today from the Court. Arguments are next scheduled for November 3.

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

On Monday at 10:30 a.m., U.S. District Judge Richard J. Leon is expected to announce his decision on how to define “enemy combatant” for purposes of the Guantanamo Bay habeas cases pending in his Court.  The Judge held a hearing on the issue last Thursday (discussed here).

On Friday, 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 Friday’s conference, click here.

Also on Friday, lawyers for 17 Chinese Muslim Uighurs who are detained at Guantanamo Bay are to file a brief in the D.C. Circuit Court on the question of their plea to be released and allowed to live, at least temporarily, in the United States.  The Justice Department filed its opening brief on that issue on Friday; the lead case is Kiyemba v. Bush, 08-5424.

No merits briefs for petitioners are due this week. Merits briefs for respondents are due Monday in Ashcroft v. Iqbal (07-1015) and Friday in Cone v. Bell (07-1114).