The American Civil Liberties Union on Wednesday urged the Supreme Court to leave undisturbed a lower court ruling that limits the government’s power to keep secret photos or documents that reveal official wrongdoing. Thus, the ACLU argued in a new brief, the Court should deny a Pentagon request to vacate that lower court opinion.
Posing a major test of the sweeping scope of the government’s most-used legal weapon against “terrorism,” six groups and two individuals urged the Supreme Court on Monday to pare down key provisions of the USA Patriot Act. The government interprets those provisions so broadly, the new merits brief argued, that it would be a crime for anyone linked to a group labeled “terrorist” to teach English, lobby in Congress or the United Nations, or advocate benign help for such a group “on television or in the print press” — all presumably legal activities.
The Court on Sept. 30 agreed to hear two separate cases on the validity of the Patriot Act’s ban of “material support” to a group designated by the government as “terrorist.” While the cases raise separate legal questions, the two sides agreed — with the Court’s permission — to have each side address all of the dispute in each’s brief on the merits. (The joint motion to revise the briefing schedule is here; it was granted Nov. 2.) The Humanitarian Law Project, plus others on its side, filed the opening brief in both cases Monday; the government’s merits brief is due Dec. 22, and all briefing is to be completed by Feb. 12. The cases will be argued together, in late February or in March. (Holder v. Humanitarian Law Project, et al., 08-1498, and Humanitarian Law Project, et al., v. Holder, 09-89).
UPDATE Tuesday a.m. The National Rifle Association on Monday filed a brief supporting the Chicagoans’ challenge. It can be downloaded here. The NRA has been pursuing a similar challenge (pending petition, 08-1497). It is in the McDonald case as a respondent supporting the petitioners. The following post has also been updated, including a change in the date for filing the city of Chicago’s merits brief.
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With a strong plea to revive the Constitution’s ill-fated Privileges or Immunities Clause, lawyers for four Chicagoans told the Supreme Court on Monday that history shows clearly that the Second Amendment’s protection of personal gun rights applies to state and local laws as fully as to those at the federal level. The brief is dominated by a wide-ranging survey of the meaning and origins of the privileges clause of the Fourteenth Amendment, only seven pages of the 73-page brief are devoted to another provision of that Amendment: the Due Process Clause. (The Court presumably is more familiar with the Due Process Clause, repeatedly litigated for decades even as the Privileges or Immunities Clause has lain largely dormant.)
In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886. “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued. Read the rest of this entry »
The Obama Administration on Friday evening urged the Supreme Court to turn aside a test case by four former Guantanamo Bay detainees, and to do so without ruling on their claims of torture and religious discrimination by U.S. agents there. It is clear, Solicitor General Elena Kagan argued in the new filing, that the detainees had no legal basis for their claims at the time they were at Guantanamo — between early 2002 and March 2004. Thus, she contended, the officials sued are immune from the lawsuit.
Defense Secretary Robert M. Gates ruled on Friday that 44 photos that reportedly show abuse of detainees by the U.S. military in Iraq and Afghanistan cannot be released publicly. The Obama Administration notified the Supreme Court on Friday evening of this action by the Pentagon leader, and urged the Court to set aside a lower court ruling directing release of those photos. The new brief was filed in Defense Department v. American Civil Liberties Union (09-160).
UPDATE: The Court may not act on the new filing until after the AC LU responds. A statement by the ACLU reacting to the Pentagon decision is here.
FURTHER UPDATE Friday a.m. “Kiyemba II” has now been docketed as 09-581.
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UPDATE Thursday p.m. A reader notes that the outcome of this case, besides affecting some 150 cases involving advance notice orders, also will affect a number of cases in which federal judges have issued binding orders against transfers from Guantanamo. A ruling on the validity of notice orders presumably would settle the legality of such injunctions, too.
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Urging the Supreme Court to broaden its new review of government policy on transfers of detainees out of Guantanamo Bay, attorneys for four Chinese Muslim Uighurs filed a new case Tuesday evening. If the Court were to grant review, it would focus the Justices’ attention on two layers of dispute between the Executive Branch and the courts, both perhaps affecting President Obama’s plans to close Guantanamo early next year. The issues in the new case and in an earlier one, granted review by the Court on Oct. 20, “are distinct,” Tuesday’s petition said. Moreover, the legal issue at stake in the new case is present in more than 150 pending detainee cases in lower courts.
The Uighurs’ lawyers, though, suggested that the Court, as an alternative, may wish to hold the new case until it decides their first appeal. “If the Court believes that it would benefit from a decision” in the first case, they said, it could defer action on the second one. This first one “broadly relates to judicial authority under habeas jurisdiction and the Due Process Clause,” and the decision there thus may have some bearing on the second one, the petition noted.
Both cases bear the title, Kiyemba, et al., v. Obama, et al. The granted case, now known informally as “Kiyemba I,” is docketed as 08-1234. It is probably going to be heard in February or March. The newly filed case — “Kiyemba II” — does not yet have a docket number. (The D.C. Circuit Court ruling at issue in Kiyemba II can be found here.) Read the rest of this entry »
UPDATE Wednesday p.m. The state of Virginia urged the Court Wednesday to permit the Nov. 10 execution to go forward, and argued that Muhammad’s lawyers had made no argument for review of his challenges. The brief in opposition is here. His claim about mental incompetency was not raised in lower courts, the state contended, and his challenge to Virginia’s rapid efforts to move capital cases along does not raise a significant issue. (NOTE: The stay application is docketed as 09A428, not 09A423 as indicated in the earlier post, below.)
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Seeking to slow down the famed “rocket docket” in federal the srial courts in Virginia, at least when a death-row inmate is testing his state conviction and sentence, attorneys for John Allen Muhammad asked the Supreme Court on Tuesday to delay his execution and then hear and decide his challenges. Muhammad faces execution in one week, on Nov. 10, for a Manassas, Va., murder that was one of ten he and a youthful compansion allegedly carried out in a wave of 16 sniper shootings in the Washington area seven years ago.
Besides testing a practice in the Virginia federal district courts of shortening the time to file an initial federal habeas plea, Muhammad’s counsel are challenging lower courts’ rulings that he was not harmed legally by representing himself for part of his trial, even though lawyers advising him knew of evidence that would indicate he was not mentally competent to understand what was happening at the trial.
His stay application (09A423) is here. Along with it, he filed a petition for review (Muhammad v. Kelly, 09-7328). The papers were filed initially with Chief Justice John G. Roberts, Jr., who is the Circuit Justice for emergency orders in the federal Fourth Circuit, which includes Virginia. He has the authority to act alone or share action with his colleages on the stay application. The full Court will consider the certiorari petition. Read the rest of this entry »
Lawyers for a Yemeni national held at Guantanamo Bay, who won a court order for his release more than seven months ago but remains detained, have urged the Supreme Court to take up his case promptly now that a lower appeals court has put it on hold. A letter said that review of his case by the Justices, without waiting for lower courts, is “the appropriate recourse.” The case is Basardh v. Gates et al. (08-10982), now scheduled for Friday’s private Conference of the Justices. Attorneys for Yasin Muhammed Basardh filed the letter Tuesday; it was received and released by the Court Thursday.
U.S. District Judge Ellen Segal Huvelle in March found that Basardh’s detention was no longer justified, after more than seven years, because the government had not shown that he would return to military action with a terrorist network; he had served earlier with terrorist forces. A prospect of return to an active military role is the only basis for detention under current federal law, Huvelle ruled. The government has challenged that ruling in the D.C. Circuit Court, and Basardh has filed his own appeal there, arguing that he was entitled to immediate release. Earlier this month, at the government’s request, the Circuit Court put the cases (now consolidated) on hold, pending a Supreme Court ruling in Kiyemba et al. v. Obama et al. (08-1234). The Justices have since granted review of Kiyemba.
U.S. Solicitor General Elena Kagan notified the Supreme Court on Thursday that the government will be filing a new brief, probably next week, to discuss the impact of new legislation on a pending dispute over the public release of scores of photos showing torture or other abuse of detainees by U.S. military personnel in Iraq and Afghanistan. The letter is here. The Court has been scheduled to consider the government’s appeal — Defense Department v. American Civil Liberties Union (09-160) – at Friday’s private Conference. President Obama on Wednesday signed into law a new funding bill that gives the Pentagon authority to withhold release of those photos.
Chief Justice John G. Roberts, Jr., on Friday cleared the way for the filing in November of a new Guantanamo Bay detainee case, further testing the power of federal judges to weigh or limit transfers of prisoners from that U.S. military prison. The new case is now due to be filed by Nov. 10 in the case of Kiyemba v. Obama — the same title, though with somewhat different issues, as the case the Court on Oct. 20 agreed to hear in docket 08-1234.
Both cases bearing that title are sequels to the Supreme Court’s June 2008 decision in Boumediene v. Bush, esablishing a constitutional right for Guantanamo prisoners to challenge their continued detention. In each, the detainees’ counsel are seeking to curb or control what the Pentagon and U.S. diplomats may do about the release of detainees from Guantanamo. After the Court granted review is what is now known informally as “Kiyemba I,” detainees’ counsel asked for more time to plan their new appeal in “Kiyemba II.” The Court’s docket sheet entry, here, reflects the Chief Justice’s grant of added time to file, until Nov. 10. The petition otherwise would have been due next Monday.
“Kiyemba I,” just granted review, tests whether federal judges may grant release of Guantanamo detainees to live in the U.S. “Kiyemba II,” the next case, will ask whether judges may bar transfer out of the prison in Cuba to countries where they fear torture or abuse. The D.C. Circuit Court found no power in the courts to take either action as a remedy in a habeas case.
The lawyers will use the added time to file Kiyemba II to decide whether to ask the Court to delay any action on it until after Kiyemba I is decided, or to take other action on it.
UPDATE 2:55 p.m. Justice Anthony M. Kennedy on Monday afternoon put back into effect, temporarily, a federal judge’s order that protects the privacy of signers of a petition seeking a voter referendum on a gay rights law in Washington State. He did so, however, only until a further order is issued by himself or by the Court; the order is here. Kennedy acted on the basis of the application, before getting a response, due this afternoon, from state officials. FURTHER UPDATE 5:50 p.m. The state officials’ response is now in; it can be found here.
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Supporters of a ballot measure asking Washington State voters to veto a new state law on benefits for gay couples who enter “domestic partnerships” have asked the Supreme Court to protect the privacy of individuals who signed petitions to get the issue on next month’s election ballot. The application, filed with Justice Anthony M. Kennedy, is John Doe, et al. v. Reed, et al. (09A356); it can be found here. Kennedy has sought a response from state officials by this afternoon.
The dispute raises a series of constitutional questions: is signing a petition to get an issue on the ballot a form of political speech protected by the First Amendment; is the petition-signing process a “public forum,” so that signers have forfeited any privacy right; does a state have a valid reason for publicly disclosing who supports a referendum? At this stage, the case does not involve the legality or constitutionality of the domestic partnership law that Washington’s governor signed in May. Sufficient signatures have now been filed to refer that law to the state’s voters at the Nov. 3 election, as Referendum 71.
The Justice Department filled in the Supreme Court anew on Friday on Congress’ move to block the disclosure of scores of photos that are said to show torture and other abuse of detainees held by the U.S. in Iraq and Afghanistan. In a new letter, Solicitor General Elena Kagan reported that the House has passed the new measure, and the Senate is expected to consider it next week.
The legislation, as outlined in the letter, would appear to scuttle the move by the American Civil Liberties Union and other groups to force public release of the photos — a release that they won in the lower courts. A Justice Department petition seeking to protect the photos’ confidentiality (Defense Department v. ACLU, 09-160) is due to be considered by the Justices at their private Conference next Monday, according to the Court’s electronic docket.
UPDATE Friday a.m. The American Civil Liberties Union, challenging the federal government’s plea for delay in the case over detainee abuse photos, urged the Supreme Court Thursday simply to turn aside the government petition and let the case play out in lower courts. The fact that Congress may be about to change the law is “no reason for delay,” the ACLU said in a letter (found here).
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The Obama Administration, noting that it is likely to get from Congress what it was asking the Supreme Court to provide, urged the Justices on Thursday to postpone for now a case on the government’s authority to keep confidential scores of photos of abuse of detainees held by the U.S. military in Iraq and Afghanistan. U.S. Solicitor General Elena Kagan, in a letter, notified the Court of lawmakers’ apparent agreement to write into law the position that President Obama wants to take against forced disclosure of the photos.
If Congress completes action on a provision in a new Homeland Security funding bill, Kagan wrote, “it now appears likely the Secretary of Defense will have legal authority to exempt the photographs at issue in this lawsuit from disclosure under FOIA [the Freedom of Information Act].”
The Second Circuit Court had ordered release of the photos under FOIA. At one point earlier, the President had agreed to allow the photos to be released and not to test the issue in the Supreme Court. However, after getting strong pleas from military leaders, the President changed his mind. The government then appealed the case to the Supreme Court (Defense Department v. American Civil Liberties Union, 09-160). The Court was scheduled to consider the petition at Friday’s private Conference. That is no longer likely.
The federal government has formally notified the Supreme Court of its plans to send some — but not all — of the Chinese Muslim Uighur detainees remaining at Guantanamo Bay to live on the Pacific island of Palau. Solicitor General Elena Kagan, in a letter dated Wednesday and filed Thursday, said the government would continue negotiations to resettle all 13 of the Uighurs still at the U.S. Navy prison on the island of Cuba.
Because the impending transfers do not involve all 13, the developments would not appear to put the pending case of Kiyemba et al. v. Obama (08-1234) beyond the Court’s authority to hear it. The Justices have indicated they will consider the petition at their private Conference next Tuesday.
The letter said that the government of Palau has agreed to accept 12 of the 13. None of the Uighurs wants to return to their native China, because they are members of a long-persecuted Muslim minority there, and fear torture or worse if they are sent home — which the U.S. government has promised not to do. The 13th detainee, although not mentioned by name in Kagan’s letter, is Arkin Mahmud, who has not been offered resettlement by any country. His situation may keep the case alive in the Court. His lawyers told the Court earlier this month: “There is no current expectation of his release from the Guantanamo prison.”
The Solicitor General has recently filed the following merit stage amicus briefs for cases to be argued in the upcoming Term. As we began to do at the end of last Term, we’ll continue to note the SG’s involvement in cert and merit stage cases and post the briefs. These briefs can also be found on our sister site, SCOTUSWiki.com.
Tom
Amy
Pattie
Kevin
Lyle
Erin
Anna
Adam
Adam
Jay
David