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.

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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.

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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.”

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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.

• Nos. 08-240 and 08-372: Mac’s Shell Serv., Inc. v. Shell Oil Prods. Co. LLC (supporting petitioners in 08-372 and respondents in 08-240)
• No. 08-538: Schwab v. Reilly (supporting petitioner)
• No. 08-651: Padilla v. Kentucky (supporting affirmance of the decision below)
• No. 08-678: Mohawk Indus., Inc. v. Carpenter (supporting respondent)
• No. 08-1065: Pottawattamie County, Iowa v. McGhee (supporting petitioners)
• No. 08-1134: United Student Aid Funds, Inc. v. Espinosa (supporting petitioners)
• No. 08-1175: Florida v. Powell (supporting petitioner)
• No. 08-645: Abbott v. Abbott (supporting petitioner) [Note: Howe & Russell represents the petitioner]

The Supreme Court, at its first Conference after the summer recess, will consider the case of nine Chinese Muslim Uighurs who are seeking their release from the U.S. military prison at Guantanamo Bay, Cuba, according to the Court’s electronic docket.   The Conference is scheduled for Sept. 29, in advance of the formal opening of the new Term on Oct. 5.  If any cases are granted for review, that probably will be announced before the Term opens.

The Uighurs’ case (Kiyemba, et al., v. Obama, et al., 08-1234) has been pending at the Court since early April; as yet, the Justices have taken no action on it, without explanation.  Speculation has suggested that the Justices might be waiting to see if the 13 men were resettled away from Guantanamo.  All 13 are seeking release to live in the U.S., but that has been blocked both by the D.C. Circuit Court and by new legislation enacted by Congress.  The Circuit Court ruled that courts have no authority to orders transfers out of Guantanamo.

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The Justice Department told a federal court Wednesday that it expects to decide in the next 60 days whether to try in civilian court or military court those accused of taking part in the terrorist attacks of Sept. 11, 2001.  It did so as it moved to head off a sweeping challenge to the entire system of terrorism trials in specialized military tribunals, created by Congress three years ago.  Filed in D.C. Circuit Court in the case of Bin Al-Shibh v. U.S. (docket 09-1238), the government brief is here; the caption page is separate.

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The Obama Administration argued strenuously on Monday that the Supreme Court’s 2008 decision providing a right for imprisoned terrorism suspects to challenge their captivity does not apply to “approximately 600 long-term detainees” now being held by the U.S. military in Afghanistan.  “Habeas rights under the United States Constitution,” government lawyers argued in a 64-page legal brief,  “do not extend to anemy aliens detained in the active war zone at Bagram Airfield in Afghanistan.”

The new brief can be downloaded here.  It was filed in the D.C. Circuit Court, in Maqaleh, et al., v. Gates, et al. (lead case docket 09-5265), seeking to overturn a federal judge’s ruling that the Justices’ ruling in Boumediene v. Bush does apply to at least three prisoners at Bagram.  The three are Fadi Al Magaleh and Amin Al Bakri, both Yemenis, and Redha al-Najar, a Tunisian.

The arguments rely primarily upon the government’s interpretation of Boumediene itself, as well as a post-World War II precedent — Johnson v. Eisentrager (1950).  The legal contentions are summarized beginning at numbered page 18 of the main document that is linked above.  In an Addendum, the Administration provides documents spelling out new procedural arrangements at Bagram for reviewing the continuing detention of the individuals held there.

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NOTE: From time to time, the blog will examine significant new cases filed at the Supreme Court.  This post is one in that series.  Some of these cases very likely will appear later in the blog’s Petitions to Watch feature when the Court is ready to consider them.

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Without trying to unravel all of the deal that saved automaker Chrysler, three trust funds from Indiana have asked the Supreme Court to rule that the arrangement violated federal bankrupty law.  As a remedy, the funds argued in a new petition that the United Auto Workers and the retired UAW members’ benefit plan should have to surrender their stock in the surviving company and hand over $4.6 billion in another asset they received in the package. Those assets should then be distribited to holders of debt owed by the “old Chrysler,” the funds argued in Indiana State Police Pension Trust, et al., v. Chrysler LLC, et al. (docket 09-285, filed on Sept. 4).

The legal issue at the center of the case is the power of a bankruptcy court to allow a failing company to sell all of its assets while its case is in court, without going through the reorganization process that protects creditors.  That issue arises under a section of Chapter 11 (section 363) that permits a banrkuptcy trustee to make a quick sale of the firm’s property before final arrangements are made to reorganize the firm to keep it alive.   The Indiana trust funds argued that this was used in the Chrysler case to accomplish an “end-around” Chapter 11.  “On its face,” the petition asserted, “this deal smacks of the sort of insider favoritism that the Bankruptcy C ode was designed to prevent.”

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FURTHER UPDATE Thursday p.m.   The state officials’ reply was filed Thursday, completing the briefing on the stay application.  It can be found here.

UPDATE Wednesday p.m.  Lawyers for the inmates involved in the case filed their response on Wednesday, urging denial of the stay of the District Court order. The state’s move, it argued, is premature, because it is not yet under any orders to carry out actual releases.  The opposition brief is here.

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California officials have asked the Supreme Court to put on hold a federal court’s order that will require the release of some 46,000 inmates from state prisons over two years, to relieve “unprecedented overcrowding.”  In a stay application (09A234) filed Friday, Gov. Arnold Schwarzenegger and other state officials argued that the order will “divert state legislative and executive attention from state-initiated prison reform at a time when it is needed the most.”  The application was filed with Justice Anthony M. Kennedy, Circuit Justice for the Ninth Circuit. He can decide the issue on his own, or share it with his colleagues.

“Every day that the [release] order hangs over California, it places enormous strains on the state’s  existing resources and creates intolerable anxiety for both officials and residents of the nation’s most populous State,” the application said.

The case involves the Aug. 4 ruling of a three-judge U.S. District Court, finding serious overcrowding in the state’s prison system that, it said, threatens the health and safety of men and women who work in those facilities as well as the inmates housed in them.  Quoting the governor, the District Court said the conditions pose “extreme peril.”  One of two cases filed by prison inmates has been pending in court for 19 years, the other for eight years. While those cases have proceeded, the District Court said, “the outlook for California’s prisons has only grown dimmer.”  (The opinions and orders of the District Court can be found at this link.)

In asking for a postponement of the release order, state officials said they would file an appeal with the Justices, formally challenging it within 30 days, or earlier if necessary to speed up the Court’s examination of the controversy.  The coming appeal will challenge the District Court’s conclusion that the overcrowding is the direct cause of the prison system’s alleged failure to provide adequate medical care and mental health care for the inmates.  Only a release order can deal with the underlying problem, the District Court concluded.

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NOTE: From time to time, the blog will examine significant new cases filed at the Supreme Court.  This post is one in that series.  Some of these cases very likely will appear later in the blog’s Petitions to Watch feature when the Court is ready to consider them.

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In a case with potentially broad impact on health care provided in federal facilities, five government medical officers who work at various levels in the  U.S. Public Health Service have asked the Supreme Court to revive their immunity to damage lawsuits for medical incidents that lead to injury or death.  Only the federal government itself, not an individual care provider, should be liable, according to the two new appeals — Migliaccio, et al., v. Castaneda, et al. (08-1529) and Henneford v. Castaneda, et al. (08-1547).

The two petitions (found here and here, with appendices) were already strong candidates for Supreme Court review, because of a direct conflict among federal appeals courts on the immunity question. But those chances improved July 10, when the federal government provided firm backing for review.  The U.S. Solicitor General’s amicus brief is here.   (The U.S. seldom joins in urging Court review of a case when it is not a direct party, unless the Court asks for its views.  However, the government was a direct party in this case when it was in lower courts, later turning over legal defense of the five officers to private attorneys. It then opted to file its brief on its own.)

The Ninth Circuit Court, in a decision that conflicts directly with decisions by five other Circuit Courts, ruled that a 1970 law that allows damage lawsuits based on harms allegedly done by Public Health Service officers only against the government itself, and not against individual care-givers, does not bar lawsuits against individuals based on claimed violations of constitutional rights (so-called “Bivens actions,” for the Supreme Court’s 1971 decision in Bivens v. Six Unknown Agents).

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