The case is Defense Department v. ACLU (09-160).  It involves attempts by the civil liberties group to require the public disclosure of at least 44 official photos that are said to show abuse of detainees by the U.S. military in at least seven different locations in Afghanistan and Iraq.  The Second Circuit Court ordered the photos released, over the government’s objection.  Congress has since passed a new law that enables the Pentagon to keep these specific photos from disclosure, and the Pentagon cited that law last week in urging the Court to vacate the Second Circuit ruling.

In its new filing, the ACLU contended that the new law in no way undercuts the ruling of the Second Circuit, so the Justices should simply deny review of the government’s case. Then, the Pentagon can make its case in lower courts for withholding these specific photos, but the Circuit Court’s precedent would remain on the books as an important interpretation of a key section of the Freedom of Information Act, the ACLU said.

The Circuit Court was right, the brief argued, in holding that FOIA Exemption 7(F) — allowing withholding of documents that, if disclosed, would endanger someone — “does not authorize the government to withhold prisoner-abuse photographs based upon a general assertion that release of the phtographs could provoke a violent response.”

All that the new law does, the brief added, is “raise the independent question of whether suppression of the photographs is now proper” under that change in the FOI Act.  If the Second Circuit’s interpretation of the specific exemption is left intact, it would be available “should another controversy arise” as to other documents or photos, it argued.

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).

The six groups and individuals involved in the cases “seek to speak to, for, and in coordination with” two organizations that are on the U.S. list of terrorist organizations.  They are the Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam.   Those two groups, the brief said, “engage in a wide range of lawful, nonviolent activity,” and the groups and individuals in the case “seek to further only such activity.”

Thus, the brief urged the Justices to rule that the ban on “material support” be limited, at most, to “financial or other intangible support to terrorist organizations,” and to “advocating or teahing criminal or violent activity.”   What these six organizations and two individual do, and want to resume doing, they argued, is “pure political speech” that includes “teaching and advocating the use of international law and other nonviolent means to reduce conflict, advance human rights, and promote peace.”

Words or phrases written into the Patriot Act — “training,” “expert advice or assistance,” “service,” or “personnel” — are so vague in their reach, the  brief said, that the government treats them as making it a crime “to submit an amicus brief in federal court, to petition Congress or the United Nations for legal reform, or even to speak to the media, for the benefit of a designated organization, as well as to teach such an organization human rights advocacy or English.”  It added: “The government has made clear that it considers plaintiffs’ intended activities criminally proscribed by the challenged statutory terms.”

The brief noted that the Justice Department, in its petition challenging the parts of the Second Circuit Court ruling that went against the government, had argued that the Patriot Act clauses in dispute do not target speech.  In reality, the brief countered, the government’s own lawyers told lower court judges that it does reach speech activities if they are done to “benefit” a terrorist organization — a concept so broad that almost anything done in relation to a designated organization could be treated as a criminal “service.”

The Court, however, can avoid answering the constitutional questions about the “material support” provisions, the brief said, “by interpreting the statute to require proof of intent to further an organization’s illegal ends where, as here, pure speech and association are at stake.”

While the government has said that the law could be interpreted so as not to apply to “independent advocacy,” the brief said that formulation would not avoid the constitutional problems. “The First Amendment,” it asserted, “protects more than the abstract right to speak ‘independently,’ but also the right, asserted here, to speak to others, in association with others, and at the direction of others.”

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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.

The Slaughterhouse precedent, “and its unavoidable progency, Cruikshank and Presser,” the brief said, “established that the States could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding [the Fourteenth Amendment] Section One’s clear textual command to the contrary.”  Those three rulings, it added, “lack legitmacy.”

“When this Court first passed on the Fourteenth Amendment, it announced a theory of the Privileges or Immunities Clause never apparently considered by anyone during the framing and ratification process, standing diametrically opposed to every statement of intent and understanding related to the Privileges or Immunities Clause,” the document asserted.  “With this decision, civil rights inhering naturally in individuals, and which predate the Constitution, would be left to the States’ protection.”

The phrase “privileges or immunities,” the McDonald counsel said, had long been synonymous with rights in general, but acquired “additional heft” with an 1823 court ruling interpreting that clause to have a sweeping breadth.  That was the decision in Corfield v. Coryell, which Supreme Court Justice Bushrod Washington wrote while “riding circuit” on a lower court in Pennsylvania.

“The Fourteenth Amendment reflected the broad common usage of ‘privileges or immunities,’ including the pre-existent natural rights of the sort identified in Corfield and the personal rights guaranteed by the Bill of Rights,” according to the filing.  And yet, it noted, the privileges clause “was all but erased from the Constitution” in the Slaughterhouse ruling in 1873.

“Slaughterhouse transformed the Framers’ broad protection of individual liberty, commonly understood, into a clause securing only the most obscure rights, rarely exercised by any American and with which the States could not ordinarily interfere even had they the will to do so.”

The brief sought to trace the “privileges or immunities” concept back to James Madison in his original articulation of what would become the Bill of Rights, then followed it through the pre-Civil War period, and then through the drafting and ratifying process after the Civil War had ended and the Union moved to codify its victory over the Confederacy and its social structure.

“In sum,” the brief said, “a straight line of popular understanding of ‘privileges’ and ‘immunities’ runs from Madison through Corfield, leading abolitionists, Dred Scott, and the Fourteenth Amendment’s Framers.”  The clause, it contended, embraces natural, fundamental rights, as well as “the rights codified in the first eight amendments” — including, of course, the Second.

The document’s discussion of the Due Process argument focused on the fact that that provision “has incorporated virtually all other enumerated rights,” and contended that there is no reason to make the Second Amendment an exception.

The city of Chicago has 30 days, under the Court’s Rules, to file its merits brief. That time can be extended, but the Rules say that such an extension at the merits stage “is not favored.”  UPDATE Tuesday a.m.  The city, in fact, has obtained an extension to file its brief — until Dec. 30, a two-week extension.

The filing came in the case of Rasul, et al., v. Myers, et al. (09-227).  In August, the four Britons filed their second appeal in the Court, challenging a new ruling by the D.C. Circuit Court in April finding that former Defense Secretary Donald Rumsfeld and ten senior military officers had immunity from the claims because the torture and discrimination claims were not based on rights that were “clearly established” at the time.  (An earlier post discussing the petition can be read here; the post includes links to the Britons’ petition amd to the Circuit Court’s opinion.)

The Supreme Court last Dec. 15 ordered the Circuit Court to reconsider an earlier decsion against the Britons’ claims, and to take into account the Justices’ June 2008 decision in Boumediene v. Bush, establishing a constitutional right for Guantanamo detainees to challenge their captivity.  In its prior decision, the Circuit Court had ruled that detainees at the U.S. military prison in Cuba had no constitutional rights at all.

After reviewing the case again, the Circuit Court said it was not necessary to rule on the constitutional claims, because of its finding that they at least did not exist in the 14 or so months when the Britons were at Guantanamo.  In her filing Friday, the Solicitor General contended that the new ruling is correct, and does not conflict with any other lower court ruling.

She did argue, on the detainees’ constitutional claims, that “special factors counsel hesitation” before courts should create a new right to sue for damages “in this military setting.”  The Court, she said, has instructed lower courts “to pay particular attention to any special factors counseling before authorizing a new kind of federal litigation.”

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.

The Pentagon had appealed the case to the Supreme Court, to get a ruling on whether the photos at issue are exempt from mandatory disclosure under the federal Freedom of Information Act.   The government was relying on Exemption 7(F) of the Act, which protects law enforcement records that, if released, could be expected “to endanger the life or physical safety of any individual.”  The Second Circuit Court, however, ruled that this exemption only applies if a government agency identities at least oen specific individual who would be endangered, and it concluded that the Pentagon had not done so.

While the Pentagon petition was pending at the Court, however, Congress passed an amendment to FOIA, explicitly to overrule the Second Circuit ruling so far as it applied to the 44 military photos, some of which have been made public and some of which have been used in criminal prosecutions within the military.  The new law, signed by President Obama on Oct. 28, is written so that it reaches photos taken between the 9/11 attacks in 2001 and last Jan. 22 relating to treatment of individuals captured abroad by the military after 9/11.

The law gives the Pentagon chief the authority to issue a certificate that disclosure would endanger U.S. military service members or U.S. civilian employees serving outside the U.S.   Using that authority on Friday, Gates issued the certificate.  (The document is included as Appendix B to the filing linked above.)  Submitting it to the Court, Solicitor General Elena Kagan urged the Justices to vacate the Second Circuit ruling, and then take into account the new law and Gates’ action.

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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.)

“Kiyemba I” tests whether the federal courts, carrying out the Supreme Court’s 2008 ruling in Boumediene v. Bush giving Guantanamo detainees a constitutional right to challenge their captivity, have the authority to order the release of a prisoner no longer considered to be an enemy — especially, whether release into the U.S. is an option open to the courts.  The D.C. Circuit Court ruled out that option last February.

“Kiyemba II,” decided separately in April by the D.C. Circuit, seeks to test the power of federal judges to require advance notice of any transfer in order to assure that the judge has the opportunity to rule on any legal challenges to transfer before the detainee gets beyond the court’s reach.  Some detainees claim that they are at risk of being tortured or otherwise abused if sent to their home countries, or to some countries where harsh regimes are in power.  Some also fear that they will be illegally detained if sent to other countries.  Again, the Circuit Court barred all such advance notice, saying courts may not intrude on Executive decisions on transfers.  The Circuit Court also noted that the government has a policy against transfers where it knows of the risk of torture or abuse.

The new petition argued: “Here, the D.C. Circuit granted the Executive unreviewable power in transferring detainees without notice out of Guantanamo, a location to which this Court has confirmed the reach of the Great Writ….  A crucial principle is at stake here: whether the judiciary in exercising habeas jurisdiction has any role in checking Executive action concerning individuals who have been detained at Guantanmo since 2002….  The Court has long recognized that notice and judicial inquiry into the legality of a prisoner’s transfer is a fndamental component of habeas review of Executive action.”

The Uighurs claim a right to advance notice of any transfer based on the courts’ “common law habeas powers,” on the federal habeas statute, on the Constitution’s Due Process Clause,  and on the All Writs Act. 

The Uighurs are members of a Muslim sect in a Chinese province, and for years have been the targets of repression by the Chinese government.  China’s government has protested the refusal to return the Uighurs to their homeland.  Four of the Uighurs who were at Guantanamo have been sent to Bermuda to live, and six to the Pacific island of Palau.   Seven remain at Guantanamo.

Jamal Kiyemba, who has given his name to both of the cases, is a former detainee no longer at the Cuba prison but is in the case acting as “next friend” of those still there.  The four detainees in the new case are Hammad Memet, Abdul Sabour, Khalid Ali and Sabir Osman.  They are also involved in Kiyemba I.  Others involved in Kiyemba I are detainees Abdul Razakh, Arkin Mahmud and Bahtiyar Mahnut.  All but Mahmud have been offered resettlement opportunities in other countries, but that has not yet occurred; no country has offered to accept Mahmud.

Now that Kiyemba I is pending before the Court, lawyers said in the new filing Tuesday, the Court’s Rules prevent the transfer of any of those involved in that case, unless advance notice is given and the Court or the Uighurs approve.

The new petition raises two questions: first, the power of the courts to issue 30-day notices of transfers in order to protect court jurisdiction and potentially prevent threatening transfers, and second, the standard to be issued by a federal court in deciding whether to issue a court order barring or requiring some action under the All Writs Act.  The second issue now divides the lower courts, the petition said.

Centrally at issue in the new case is the meaning and scope of the Supreme Court’s decision in Munaf v. Geren — announced on the same day in June 2008 as the Boumediene ruling.  In Munaf, the Court said U.S. courts had no authority to bar the U.S. military in Iraq from handing over two American citizens to Iraq’s government to face prosecution for crimes committed in that country.

Challenging reliance on that ruling by the Circuit Court, the Kiyemba II petition said that, in Munaf, the two individuals involved “knew in advance that the government intended to transfer them to Iraqi authorities and had the opportunity to demonstrate that such a transfer would be unlawful.”  Thus, the petition added, there was no need for the Supreme Court in that case to consider whether notice was required to prevent an illegal transfer.

Moreover, the petition commented, “Munaf left open the possibility that a federal court might enjoin a transfer in the ‘extreme case’ in which the transfer would more likely than not result in torture….  This possibility requires that an individual have notice of a proposed transfer in the first instance.”

The petition took note of the Obama Administration’s plan to close Guantanamo and transfer out all remaining detainees — numbering 213 — and added that this “demonstrates that the question of whether a federal court may require notice of a proposed transfer will continue to be a pressing one.”

While there is no split in the lower courts on the first issue raised in Kiyemba II, because all Guantanamo cases must go to the courts in Washington, there have been conflicting rulings on the second — that is, the standards for an injunction under the All Writs Act.

That Act gives federal courts the power to issue orders necessary to aid their jurisdiction.  The Circuit Court ruled in this case that the Act provides no independent basis for the advance notice orders, and that any such order would have to satisfy other requirements, including a showing that the detainee was likely to prevail in a future challenge to a transfer.

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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.

In seeking to put off the Nov. 10 execution, Muhammad’s attorneys argued that “Virginia is alone in its practice of always setting an execution date just prior to the Supreme Court’s consideration of a petition for a writ of certiorari from an appeal of a first habeas petition.”  The application noted that Justices John Paul Stevens and Ruth Bader Ginsburg protested that practice two years ago.  That complaint is separate from the challenge to the federal district courts’ refusal, on first habeas petitions like Muhammad’s, to allow the full year to file that is specified under federal law.

Because the execution date would fall 20 days before Muhammad’s petition would even be due in the Supreme Court under normal scheduling, his lawyers filed it at the same time as their stay application.   The application argued that the Court should adopt as a routine practice the staying of all executions that a state schedules before the Supreme Court has a chance to complete review of a first federal habeas case.

Muhammad’s case has been at the Supreme Court once before.  Following his conviction, and initial review in Virginia’s state courts, the Supreme Court refused to hear his case on May 15, 2006.  After a failure of post-conviction challenges in state court, Muhammad’s attorneys turned to the federal courts.  His petition recites the history of that experience, showing that he at no time was allowed a full year to seek habeas relief.  The Fourth Circuit Court rejected that challenge, along with his incompetency claim.

The new petition asked the Supreme Court to review two issues.  Paraphrased, they are: whether the Fourth Circuit was wrong in the standard it used to analyze the performance of his lawyers on the incompetency issue, and whether Congress has set a one-year filing period for the first habeas plea and thus that period cannot be shortened by federal judges.

The first question is a mixture of an inquiry into counsel’s performance, and a question of the scope of prejudice that may result from a flawed performance regarding competency.  Muhammad’s petition contends that, in judging whether Muhammad’s case was harmed when his lawyers failed to bring forth evidence of his incompetence, when the judge was considering whether to let Muhammad act as his own lawyer, the test is whether there was a reasonable chance the accused would have been found incompetent to waive his rights.  The Fourth Circuit, it adds, erred in focusing only on whether there was a reasonable prospect that the trial would have ended differently if Muhammad had not been his own lawyer (for two days of the trial).

“Once counsel was aware of the compelling evidence of Muhammad’s incompetence, counsel were obligated to raise it; once the court was aware of the evidence, it was obligated to inquire into Muhammad’s competence to stand trial under both Virginia and constitutional law.”  The petition asserts that it did not take long, after the trial started, for Muhammad’s incompetence to be revealed, in “his impaired sense of reality” and “a delusional belief system,” caused in part by brain abnormalities.

The second issue focuses on what the petition says is a truly novel practice, under which federal district courts in Virginia routinely deny first-time habeas applicants a full year to prepare their habeas pleas.  Thus, the question raised is whether the one-year time provision in federal habeas law (enacted as part of the Antiterrorism and Effective Death Penalty Act) bars a federal judge from ordering an earlier filing.    Federal judges ordered Muhammad to proceed with plenty of time left in the one-year span, the petition says.

The Supreme Court, it adds, has many times ruled on the running of the one-year AEDPA filing period, but federal judges in Virginia “render all of those decisions irrelevant by artificially shortening the one year to file a first federal habeas petition…Why does it matter when the time begins to run, or what circumstances toll it, if the District Court can take it away at will?”

Among lawyers who practice in the federal courts in northern Virginia, the speedy processes in the District Courts has given rise to the name ”the rocket docket.”  Few other federal trial courts in the country match their speed.

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.

Basardh’s counsel contended that he is in the same situation as the detainees involved in the Kiyemba case — he cannot return safely to his home country, so release into the U.S. is the only available option.  While at Guantanamo, Basardh has actively cooperated with military authorities, providing information about other detainees; as a result, he and his family have received death threats. And, if he were sent back to Yemen, he and his counsel argue, he would be at risk of death.  In the Kiyemba case, the 13 Chinese Muslim (Uighur) detainees contend that, if returned to China, they would suffer persecution and torture as a religious minority.  They, too, are seeking release into the U.S.

Earlier, Basardh’s attorneys had urged the Court to grant review of his case if the Kiyemba case were to wash out because the Uighurs had been re-settled to another country.  That resettlement has not yet occurred.  In the new Basardh letter to the Court, his counsel cited the delay that has now occurred in his case at the Circuit Court, and used that as a new argument for the Justices to hear his plea for release.  The Circuit Court’s ruling that is at issue in Kiyemba prevents the release of any detainee into the U.S. by court order.   That, the letter contended, means “immediate harm” to Basardh because he is unable to obtain prompt release.

The Court has the option of agreeing to hear his case, or denying review (the option the Justice Department has suggested), or simply holding it until it rules in the Kiyemba case.  If it were to grant review now, presumably the case could be heard along with Kiyemba, oral argument in which is not expected until February or March.

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.

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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.

Washington Gov. Chris Gregoire on May 18 signed into law a bill to make the rights and obligations of couples who register with the state as “domestic partners” equal to those of married spouses.  Even before the law was signed, a group named Protect Marriage Washington began circulating a petition to put the law before the voters. Proposition 71 asks voters to either accept to reject the new law.  Under the Washington state constitution, voters have reserved the power to reject any law through the referendum process.

In September, U.S. District Judge Benjamin H. Settle temporarily barred state officials from releasing the identities of those who signed the referendum petitions.  The disclosure was sought by groups named WhoSigned.org, KnowThyNeighbor.org, and the Washington Coalition for Open Government; their plea was based on the state’s public records act.  Those groups have said the signers should be identified so that the public knows who is behind Referendum 71, and so that those supporters can be challenged personally.

Judge Settle’s temporary injunction was itself blocked last Thursday by the Ninth Circuit Court.   The Circuit Court panel said only that Judge Settle had relied on “an incorrect legal standard.” It said, however, that it would issue “expeditiously” an opinion explaining its action.

In asking Justice Kennedy to put back into effect the bar disclosure of the signers’ identities, Protect Marriage Washington argued that state officials have suddenly changed a long-standing practice of keeping confidential the identities of those who signed referendum petitions.  The group said the signers fear hostile confrontations, and noted that their campaign manager had received death threats.  The application contends that there is no compelling state interest in forcing the disclosure of these identities.

Justice Kennedy has the authority to act on the application himself, or to refer it to his colleagues for joint action.

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.

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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.

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.”

Until this past June, there were 17 Uighurs still at Guantanamo.  None of them was considered any longer to be an “enemy combatant,” and thus all were technically eligible to depart from the Navy prison facility.  Last October, a federal judge ordered their release to live in the U.S., finding that was the only option.  That was blocked by the D.C. Circuit Court, in a ruling now under challenge in the Supreme Court case.

Of the 17 originally involved in the Supreme Court case, only four have left Guantanamo; they were sent to Bermuda on June 11.

Twelve of the other 13 at Guantanamo received in late August offers of resettlement to Palau.  All 12 of those (along with Mahmud) are involved directly or indirectly in the pending Kiyemba petition (nine were among those who filed it in April, and three have said they want to be considered part of it).

The Solicitor General’s letter provided no names, but outlined this situation for the 12: The government notified Congress on Sept. 16 that eight of them will be transferred to Palau by Oct. 1 at the earliest, though only six of those have agreed to that transfer. Talks are ongoing with the other two.

“The U.,S. government,” Kagan wrote, “has every reason to believe that at least six of the petitioners shortly will be resettled in Palau, although it is impossible to be certain until they actually board the plane.”  The plane’s departure date, she added, is classified.

As to those six, then, the case will be moot, the letter added, since they will have received the relief they sought — release from U.S. custody.   She closed the letter by saying that “the United States is working diligently to find an appropriate place to resettle the remaining Uighur detainees.”  Presumably, that included Mahmud, although Kagan did not say so explicitly.

• 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]