At 10 a.m., and again at 11 a.m., on Monday, the Supreme Court will examine the latest question on the punishment of juveniles who commit crimes — this time, crimes that do not lead to the death of the victim.  Similar but not identical, the cases are Graham v. Florida, being argued at 10, and Sullivan v. Florida, at 11.   Florida’s Solicitor General, Scott D. Makar will argue for the state in both cases.  Representing Terrance Jamar Graham, by Court appointment, will be Bryan S. Gowdy of Mills Creed & Gowdy in Jacksonville; Joe Harris Sullivan will be represented by Bryan A. Stevenson of the Equal Justice Institute in Montgomery, Ala.  The briefs and other filings in the cases can be found on ScotusWiki, here and here.

Argument Preview

Four years after ending the death penalty for any minor who commits murder, the Supreme Court now is ready to analyze the next most severe penalty for a juvenile: life in prison without any chance of release, for a crime in which the victim is not killed.  The issue will be examined in cases involving teenagers who were 13 and 17 at the time of their crimes — the 13-year-old convicted of sexual battery, the other youth convicted at age 17 of probation violation following a felony robbery when he was 16.   Once again, the Court is inquiring into the degree of moral responsibility of minors, as well as into current moral standards, as factors in punishing youthful offenders. Read the rest of this entry »

The Obama Administration asked the Supreme Court on Friday afternoon to end the case of an individual captured and held in the U.S. as a terrorism suspect, but did not tell the Court that it is abandoning the claim that it has power to do so.  Instead, it argued that the planned release of Ali Saleh Kahlah Al-Marri from a military jail, for criminal prosecution in civilian court, means there is no longer any live controversy over his detention.

Simultaneously, the Solicitor General’s office asked the Court to approve Al-Marri’s release into civilian custody, even though it argued that the Court’s permission to do that was not necessary.  These developments followed the public release Friday morning of a two-count criminal indictment of Al-Marri (see this post).

Indicating that it probably will act swiftly on the two requests, the Court asked Al-Marri’s lawyers to respond to both by the end of the day on Tuesday, with any government reply due on Wednesday.  That could mean the Justices could respond as soon as it has those filings, or else  consider it in their private Conference next Friday.

The motion to end the case is here, and the application to approve Al-Marri’s transfer (08A755) is here.

The Administration’s motion suggested two alternatives to the Court: dismiss the case for lack of jurisdiction because the specific legal dispute will end with Al-Marri’s release by the military — a move that apparently would leave the detention power unaltered because it would leave intact a Fourth Circuit Court decision upholding that authority — or vacate the Fourth Circuit’s decision, essentially taking it off the books, and end the case as “moot” or as a matter of “equitable discretion” (a phrase not further explained).

Al-Marri’s lawyers had noted earlier in the day that, despite Al-Marri’s indictment, the Administration had not yet renounced “the asserted authority to imprison legal residents and U.S. citizens without a charge.”  In the government’s new filings in the Court, there was no indication that it would do so.

In response to the filings, Al-Marri’s lead lawyer, Jonathan Hafetz of the American Civil Liberties Union, commented: “The administration has failed to renounce the government’s power to designate legal residents and American citizens as enemy combatants and detain them indefinitely without charge. Its response underscores why the Supreme Court must make clear that the government does not have this power under our laws and Constitution.”

The new document made two points: first, it said that the government had made “a change in policy as to” Al-Marri, and thus there is only a “hypothetical contigency” that he might in the future be detained again by the military, and, second, it said that “different circumstances” would exist in the future and contended that “there is no guarantee that future detention would be implemented in the same manner or based on the same authority.”

The second point did seem to imply that detention policy could change at some point, and that appeared to be related to a statement later in the document saying that there can be no certainty that the issues over detention policy raised in Al-Marri’s case “will arise again in the future,” noting that the President “has ordered a comprehensive review of all military detention policies worldwide.”

The government cautioned the Court against deciding the presidential power questions, calling them “extremely sensitive constitutional issues.”  It added: “Caution is particularly appropriate here because upon [Al-Marri's] release and transfer, there will be no remaining individuals detained as enemy combatants on United States soil.”  Thus, it went on, a ruling in Al-Marri’s case would not provide “guidance to any other” individuals in Al-Marri’s situation.

“Adjudication of the important and sensitive questions surrounding military detention should be addressed only if necessary, in the context of a live case involving concrete circumstances,” the motion concluded.

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Detainees at Guantanamo Bay apparently no longer have the option of pursuing challenges to their confinement in two separate courts, according to a ruling by the D.C. Circuit Court on Tuesday.  In a significant victory for the government – unexpected in the case – a three-judge panel said the Detainee Treatment Act system of civilian court review of military detention probably has not survived the Supreme Court’s revival, in Boumediene v. Bush, of the detainees’ alternative mode of challenge — federal habeas cases.  The rulng was issued in Basardh v. Gates (Circuit docket 07-1192), and is available here.)

While the Supreme Court had said in the Boumediene ruling that the DTA process remained intact, the Circuit Court on Tuesday said the Justices did not have before them the continuing status of DTA review, and thus could not have intended to decide it.

The ruling came in the case of Yasin Muhammed Basardh, a Guantanamo detainee who has been seeking since June 2007 to challenge in the Circuit Court a Pentagon tribunal’s decision to designate him as an “enemy combatant,” thus justifying his continued imprisonment.  That challenge was based on DTA, passed by Congress in 2005.  Tuesday’s decision leaves Basardh with only one option: continuing to pursue his habeas challenge before U.S. District Judge Ellen S. Huvelle.

The panel reached out to comment on the continuing validity of the DTA process, noting that neither side had asked it to rule on the issue.  It said it was doing so on its own, presumably as an issue of jurisdiction, but also remarked that the Justice Department was seeking to end the entire DTA review process in a pending motion for en banc review of the present status of that process by the full, ten-judge Circuit Court.

The three-judge panel did not issue a final, binding ruling that the DTA scheme of alternative review could not continue.  Rather, it said that “there is serious doubt about our jurisdiction over these petitions — and thus a strong probability that the government will prevail” on its claim that Boumediene left detainees with only one option: habeas review. It described the loss of its jurisdiction over DTA cases as a “distinct possibility,” not only as to Basardh’s appeal but also “every other petition filed” under DTA.

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In a significant rebuff of Pentagon policy on detainees, the D.C. Circuit Court has ruled that individuals cannot be labeled as enemies of the U.S. based on “bare assertions” not supported by “independent sources” that would make the claims reliable.  Explaining a decision that it had reached on June 20, but released Monday only in a heavily edited form to protect secrets, the Circuit Court was sharply critical of the information contained in a handful of intelligence documents used to justify keeping a Chinese national imprisoned at Guantanamo Bay, Cuba.

In deciding — in the first case of its kind — that the detention of Huzaifa Parhat was not supported by that evidence, the Circuit Court declined to rule on broader issues that lurked in the case on the President’s authority to order the detention of foreign nationals during the war-on-terrorism, either under the 9/11 Resolution that Congress passed after the 2001 terrorist attacks, or under the President’s constitutional powers as commander-in-chief.

“Because we conclude that the evidence…is insufficient to categorize Parhat as an enemy combatant under the Department of Defense’s definition, we do not reach the other issues disputed by the parties,” the three-judge panel said.

The decision, in redacted form, can be downloaded here.

While the ruling finds that Parhat is entitled to be released or transferred out of Guantanamo, and does so on the basis of questionable intelligence documents, it is unclear whether the ruling portends similar outcomes for other detainees challenging their imprisonment.  The fate of some 270 prisoners at Guantanamo may depend on the specific evidence, case by case, that the Pentagon assembled to support enemy combatant findings.

At the same time, however, the new decision was a clear demonstration that the civilian courts would analyze closely the claimed bases for enemy designations, and would be skeptical of any evidence that was not backed up with evident support for its reliability.  That may signal trouble in other cases, unless the Pentagon’s investigators went further in those than they did in building their case against Parhat.

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The D.C. Circuit Court rejected a plea by lawyers for a 21-year-old Canadian being held prisoner at Guantanamo Bay, Cuba, to delay the start on Thursday of the first war crimes trial until after the federal civilian courts rule on the power of the U.S. military to try such cases. In a brief order, a three-judge panel of the Circuit Court denied the emergency motion for a stay of military commission proceedings against Omar Ahmed Khadr, finding that he “had not satisfied the stringent standards required for a stay pending court review.” (Khadr v. U.S., Circuit docket 07-1405)

Khadr’s trial is scheduled to start on Thursday, at least for a pre-trial hearing on whether the commission has the authority to go ahead with his trial itself on war crimes charges. Khadr, however, still has a postponement request pending in U.S. District Court, before U.S. District Judge John D. Bates (O.K. v. Bush, District Court docket 04-1136).  That request seeks to block the trial until after the Supreme Court rules on pending cases on the legal rights of Guantanamo detainees. Judge Bates had taken no action on that request by mid-afternoon Tuesday.  The Justice Department opposed that plea, as well as the stay motion in the Circuit Court; on Tuesday, the Department informed Judge Bates of the Circuit Court’s denial of a stay, saying it supported the government’s opposition to any court-ordered delay.

Khadr is charged with murder of a U.S. serviceman in Afghanistan, attempted murder, and providing support to terrorists.  His trial before a commission has been stalled twice before by legal complications.  On Thursday, a military judge presiding over the commission that is scheduled to try Khadr is to hold a hearing on whether to designate the detainee as an “unlawful enemy combatant.” If the judge does so, that would give the commission jurisdiction to go ahead with the trial.

Khadr’s lawyers had sought delays both in the Circuit Court and in District Court, because they said the proceedings pending in the two are different. The Circuit Court case is a challenge to the authority of the military judge to weigh Khadr’s legal status, and to the authority of the U.S. Court of Military Commission Review to assign the judge that task.  The District Court case is a wider-ranging habeas challenge, both to Khadr’s detention and to the authority of the commission to try him under any circumstances, on the theory that the commission system is constitutionally flawed.

In arguing for a delay in Judge Bates’ Court, the detainee’s lawyers argued that the Supreme Court’s coming decision on whether Guantanamo detainees retain a constitutional right to challenge their detention through habeas petitions (the issue in Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196) would directly affect whether Khadr could proceed with his habeas challenge to the commission system.  The Justice Department countered that the Supreme Court cases do not involve any issue involving the military commission, and further that Congress in 2006 had explicitly taken away federal courts’ authority to rule on any habeas claims against the commission system.

UPDATE 6:50 p.m.

The motion described in this post was one of several that lawyers for Guantanamo Bay detainees have been filing in recent days and weeks, seeking to persuade the D.C. Circuit Court to move more rapidly to compel the government to file the records that counsel wants the Court to review in examining the legality of military detention decisions. The Circuit Court has begun responding to those pleas, issuing several orders that require the government to submit a good deal more information about the basis for detention rulings than the government had felt a duty to supply. In several filings that have just become available, the Justice Department has told the Circuit Court that it is pondering a request for rehearing of the July 20 ruling (Bismullah v. Gates, 06-1197, and Parhat v. Gates, 06-1397) that broadened the government’s information-production obligation. One of these filings told the Court: “The government is currently assessing all of the practical ramifications of the Bismullah decision and considering whether or not to seek rehearing. Compilation and production of the ‘record,’ as defined in Bismullah, will impose significant burdens on multiple agencies of the United States government and raise important issues (which the government is currently evaluating) regarding the protection of national security information.” Under appeals court rules, the government has 45 days — until Sept. 13 — to file for rehearing.

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Protesting what they consider to be government foot-dragging, lawyers for seven Guantanamo Bay detainees on Wednesday urged the D.C. Circuit Court to speed up their cases and order the government to start filing tardy responses. The motion for expedition and for scheduling (download here) was filed in Parhat, et al., v. Gates, et al. (currently docketed at 06-1397, but soon to be split up into seven separate cases).

These seven detainees are among some 130 prisoners being held by the U.S. military who have filed challenges in the Circuit Court to military panel decisions ordering them held at Guantanamo as “enemy combatants.” The panel decisions are those made by “Combatant Status Review Tribunals,” set up by the Pentagon to lay down a basis for continued detention. The only review of the CSRTs’ work is by the D.C. Circuit, under the Detainee Treatment Act of 2005, rather than through traditional habeas challenges. The Circuit Court is moving ahead with the first of the DTA challenges, that of Paracha v. Gates (06-1038).

The new motion in the Parhat group of cases asked for a scheduling order somewhat like the one the court ordered last Friday for the Paracha case. The motion asked that the government file by Sept. 13 an index of the record the Circuit Court is to consider in weighing the validity of the combatant determinations — the same record index filing date in Paracha. But the motion’s suggestion for a briefing schedule was shorter than that laid down for the Paracha case. seeking to have briefing completed in the Parhat cases by Nov. 14 — three weeks earlier than the Dec, 7 completion date for the Paracha briefs.

The more expedited schedule appeared to reflect the frustration of lawyers with the government’s reaction to earlier Circuit Court orders or actions.

The Parhat group of cases have been prominent in the Circuit Court’s early work on DTA challenges, because they were heard and decided along with Bismullah v. Gates (06-1197), with the Circuit Court using those two cases to lay down some ground rules for the scores of other DTA cases that are now pending. The Bismullah/Parhat decision on July 20 significantly broadened the government’s obligation to provide information in an attempt to justify combatant decisions.

In the new motion, attorneys for Huzaifa Parhat and the six other detainees argued that the Pentagon was actually obliged to file a record of CSRT review in those seven cases last January, but has not yet done so. The lawyers said they had written to government lawyers at the end of July requesting that record and seeking added detailed on the CSRT proceedings. The request was repeated but, still, “no information has been provided in response” and the government has given no indication whether it has begun to compile a record, or if it will do so at all.

It is now time for the Circuit Court to press the government to begin filing what is overdue, the motion contended.

(NOTE: This post originally appeared at 11:36 a.m. Monday. The version below is a substantial revision of the post, with changes throughout, to incorporate the second petition for review, in Al Odah, et al., v. U.S. and a new friend-of-court brief, both filed Monday night.)

Attorneys for 45 detainees at the military prison camp at Guantanamo Bay, Cuba, asked the Supreme Court on Monday to rapidly review their attempt to regain the right to challenge their detention in federal court, urging the Court to hold a hearing on the issue on May 7. In two petitions seeking review of a Feb. 20 D.C. Circuit Court ruling ordering the dismissal of habeas challenges, lawyers for detainees who are nationals of ten nations also asked the Court to decide, if jurisdiction still exists, some basic questions about constitutional rights for captives at Guantanamo. One petition seeks a ruling that the detainees’ challenge is strong enough that they are at least entitled to a hearing on it. The other asks the Court to rule that the detainees have significant constitutionally-based due process rights, and rights under the Geneva Convention,

The petition filed first on Monday was in Boumediene, et al., v. Bush, et al. is here, the appendix is here, and the motion to expedite is here. The petition was docketed as 06-1195. The second petition was in Al Odah, et al., v. U.S.. The Al Odah petition (docket 06-1196) is here, the appendix is here, and the motion to expedite is here. In addition, a group of former federal judges, diplomats, military officers and others filed an amicus brief urging the Court to hear the new appeals. That brief can be found here.

“This case,” lawyers in the Boumediene case argued, “presents questions central to the rule of law….The national importance of these questions would warrant this Court’s review on their own.” But, it added, review “is even more imperative in light of the oppressive conditions [detainees] endure” at Guantanamo. Attorneys in the Al Odah case told the Court: “What ultimate it at stake here is America’s commitment to its core values and the rule of law. That commitment requires that this Court…make clear that our government cannot evade the core constitutional limits on its authority – and the fundamental values of fairness for which our country is known – simply by placing its prisoners in areas beyond our technical sovereignty.”

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(NOTE: The following post brings up to date the developments on Tuesday under the new Detainee Treatment Act of 2005. This post completely replaces one filed Tuesday night, which was based solely on incomplete news accounts. The blog thanks a number of attorneys who have taken the time to supply documents bearing on this dispute.)

The Justice Department on Tuesday opened its expected campaign to clear out all of the pending court challenges to detention of foreign nationals rounded up in the war on terrorism and held at the military prison camp at Guantanamo Bay, Cuba. The effort began in the lower courts, but is expected to reach the Supreme Court, too, by the end of this week.

In a letter to the D.C. Circuit Court and motions filed with judges of the U.S. District Court in Washington, the Department disclosed that it will shortly file papers that apparently will seek to curtail all existing lower court cases filed by detainees at Guantanamo. It notified those courts of President Bush’s signing into law of the new Detainee Treatment Act of 2005, designed to sharply limit any legal challenges to the treatment of Guantanamo captives.

As of Wednesday morning, there was no new filing in the Supreme Court, where detainee Salim Ahmed Hamdan has a case pending (05-184), which the Justices have agreed to hear. Thomas B. Wilner, a Washington attorney for several detainees, said on Wednesday that he will be filing an amicus brief on Friday in the Hamdan case, raising the issue of what Congress intended in the new law’s jurisdictionali provisions. Other amici may do so as well, and the Bush Administration is also likely at some point to notify the Court of its views on the legislation.

Because the entire issue of how to interpet the new Act applies to all levels of the federal courts, it is expected to go to the Supreme Court for ultimate resolution. It is conceivable, though, that the Justice Department may seek to have the D.C. Circuit look first at the jurisdictional issue, even in Hamdan’s case, based on the new law.

In the D.C. Circuit, two sets of cases involving habeas challenges by detainees have been heard, and are awaiting decision (the lead docketed cases are 05-5064 and 05-5062). On Tuesday, in a letter to that Court’s clerk, a Justice Department attorney, Robert M. Loeb, said: “The Government anticipates filing with the Court no later than the week of January 9, 2006, a motion to govern further proceedings in these cases in light of the new legislation.”

Loeb’s letter relied on a federal appellate court rule permitting the filing, after argument, of citations to “supplemental authorities” (Rule 28j).

The letter did not disclose what the Justice Department will propose, but the Bush Administration has already concluded that the new law takes away court jurisdiction to hear all pending and future cases based on habeas challenges to the capture and detention of foreign nationals during the war on terrorism. President Bush signaled that interpretation in signing the new legislation on Dec. 30. Loeb’s letter told the Circuit Court that “the statute, including its elimination of statutory habeas jurisdiction, is effective immediately.”

The view that existing cases were wiped out by the law will be contested vigorously by attorneys for detainees. Their opposition is expected to take two forms: first, an argument that Congress did not intend to scuttle pending cases, and second, if the law does have that effect, it is unconstitutional. On the second point, the attorneys are expected to rely in part upon a new study by the Congressional Research Service of the Library of Congress, saying that the new legislation “may raise constitutional issues with respect to the Suspension Clause.” That study remarks: “Although the Supreme Court has not specifically addressed the issue of the withdrawal of jurisdiction from all courts to consider challenges to the actions of government officials, it would seem likely that such restrictions would be constitutionally suspect.” The full study can be found here.

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(A constitutional challenge to the military commissions set up by President Bush to conduct war crimes trials of terrorism suspects is pending at the Supreme Court, and appears likely to be acted upon by the Justices in late September or at the opening of the new Term on Oct. 3. Even before the Court reaches the case, however, the status of the commissions remains in doubt because of lingering issues in the D.C. Circuit. This is one of two posts on those developments. The first of these posts is just below.)

Chief Justice nominee John G. Roberts, Jr.’s participation as a federal appeals court judge in the initial constitutional challenge to President Bush’s creation of war crimes commissions to try terrorist suspects has drawn a new challenge — a legal challenge that, if it were to succeed, could at least delay those military proceedings and might seriously complicate them. This new development involves an issue that some critics of Judge Roberts have raised in the Senate Judiciary Committee review of Roberts’ nomination to the Supreme Court. It involves interviews and telephone calls he had about a potential nomination to the Supreme Court, while he was sitting on the D.C. Circuit panel reviewing the constitutionality of the military commissions.

The new maneuver was filed in the Circuit Court on Aug. 26 by Rami bin Saad Al-Oteibi, a Saudi national who is now being held as an “enemy combatant” at the U.S. Navy prison in Guantanamo Bay, Cuba. He does not face any criminal charges, in a military commission or elsewhere, but is being held captive for an indefinite period. Technically, his motion is a request to intervene in the still-pending Circuit Court case of Hamdan v. Rumsfeld – a case that is also now pending in the Supreme Court (see post below).

Al-Oteibi’s lawyers want to join in the Hamdan case at the Circuit Court for one purpose only: to formally ask that Judge Roberts be recused from the case. Judge Roberts joined in the D.C. Circuit ruling July 15 upholding the military commissions. Al-Oteibi’s claim is that a part of that decision — barring Guantanamo Bay detainees from raising issues under the Geneva Convention against their captivity and treatment — will undercut a Geneva Convention claim he has made in his habeas challenge in District Court to his continued detention. “The decision of the Court,” the motion to intervene argues, “will, in all likelihood,dispose of [Al-Oteibi's] contentions…based on the Third Geneva Convention.”

Attached to the intervention motion is a motion to force Roberts’ recusal. That motion has not been accepted for filing in the Circuit Court, and will not be unless Al-Oteibi is allowed to intervene in the case. In the intervention motion, however, his attorneys told the Circuit Court: “The motion attached hereto seeks the recusal of Judge John Roberts on grounds that his repeated, undisclosed job interviews with high government officials while considering a case directly challenging the executive authority asserted by them, inevitably creates the appearance of bias. The motion is based on facts that have become known to Al-Oteibi’s counsel only recently, and thus could not reasonably have been raised earlier.”

Both Hamdan and the Bush Administration have opposed the motion to intervene on a variety of grounds, including suggestions that it came too late in the Circuit Court process. Hamdan’s lawyers also claim that Al-Oteibi’s maneuver will interfere with Hamdan’s own challenge to the military commission trial he faces. The Administration’s attorneys also argue that the maneuver, if it succeeds, “could also delay the government’s ability to restart Hamdan’s commission process.”

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