SCOTUSblog

Judge orders five detainees freed

2008-11-20T19:58:20Z

UPDATED to 2:57 p.m.

U.S. District Judge Richard J. Leon, in the first ruling in a full trial testing the Supreme Court’s June decision on detainees’ rights, on Thursday ordered the federal government to release five Guantanamo Bay detainees “forthwith.” The judge found, however, that the government had justified the continued imprisonment of a sixth detainee, Belkacem ben Sayah.

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners. While conceding that the government had a right to appeal that part of his ruling, Leon commented that he, too, had “a right to appeal” to leaders of the Justice Department, Central Intelligence Agency and other intelligence agencies, and his plea was that they look at the evidence regarding the five he was ordering released. “Seven years of waiting for our legal system to give them an answer to their legal question is enough,” he commented.

Senior leaders of the government, he went on, will have “more than enough opportunity” to test the novel issues at stake in defending against an appeal of his ruling in the case of ben Sayah. He said he was appealing to those leaders “to end this process” for the five.

Robert Kirsch, one of the detainees’ lawyers, said after the session that they would appeal the decision to continue the imprisonment of ben Sayah. Kirsch also told reporters that there have been diplomatic negotiations with Bosnian authorities, and they have indicated a willingness to take the five detainees once they are released. The six prisoners were captured in Bosnia, where they had been living, although they are all natives of Algeria.

The Justice Department said in a statement that it was “promptly reviewing the decision” on releasing the five captives. It did not indicate whether it would appeal that part of the ruling, although it said it disagreed with it. It also said that the ruling demonstrates “the need for Congress to enact” new procedures on court review of detention cases — a goal that Attorney General Michael B. Mukasey has sought.

In ruling against the government as to the five detainees, Judge Leon said that the Justice Department and intelligence agencies had relied solely on a classified document from an unnamed source, which he found was not persuasive on the government’s claim that the five had planned to travel to Afghanistan to join in hostile actions against the United States and allied forces. That secret document, which the judge said he could not evaluate for credibility or corroboration because the government had not given him information enabling him to do so, did not convince him that the five had a plan to fight against the U.S. or its allies, or even knew of such a plan. He said he could not be more specific in public, because of the classified nature of the information. (After announcing his ruling, Judge Leon met in private with lawyers for both sides to discuss the information he could not mention in open court.)

The judge said, however, that the government had persuaded him that ben Sayah was “an al Qaeda facilitator” who sought to arrange travel to Afghanistan by others to join in armed hostilities toward U.S. and coalition partners. Applying a “preponderance of the evidence” standard of proof, Leon said that the government had proved “that it was more likely than not that ben Sayah planned to take up arms against the United States, but also planned to facilitate travel of others to do the same.”

He added that there “can be no question that facilitating others to join the fight against the United States in Afghanistan constitutes direct support of al Qaeda in furtherance of its objectives, and that this support is within the definition of ‘enemy combatant’ ” on which the judge was relying.

Near the close of the oral announcement of his decision, the judge cautioned that observers should not interpret his ruling as a precedent for any other detainee case. “Few if any of the others will be factually like” the Bosnians’ case, he said, adding: “Nobody should be lulled into a false sense that all of the government’s cases will look like this one.”

The judge also noted that his ruling is not binding on any other judge, and added that “there comes a time when the desire to resolve novel legal questions…pales in comparison to effecting a just result based on the state of the record.”

It took nearly an hour for the judge to announce his ruling, because it was being translated, sentence by sentence, into arabic so that the six detainees could keep up with it via a telephone link with the U.S. Naval prison at Guatanamo Bay.

(Judge Leon said his ruling would be posted on the District Court website later in the morning or in the afternoon. The blog will link to it when it is available.)

Government files petition in ‘Janet Jackson case’

2008-11-20T15:30:04Z

The Solicitor General’s office on Tuesday filed this petition for certiorari in FCC v. CBS (08-653) — the case concerning the Super Bowl halftime incident in 2004 involving singers Janet Jackson and Justin Timberlake. In July, a unanimous Third Circuit panel struck down a $550,000 penalty levied against CBS and its affiliates for broadcasting what was later dubbed a “wardrobe malfunction.” The question presented by the petition is:

“Whether the court of appeals erred in holding that the Federal Communications Commission acted arbitrarily and capriciously under the Administrative Procedure Act, 5 U.S.C. 551 et seq., in determining that the most widely viewed broadcast of public nudity in television history fell within the federal prohibitions on broadcast indecency.”

The government says the petition should be held pending the Court’s decision in FCC v. Fox Television Stations (07-582) — the case involving the broadcast of fleeting expletives (as opposed to images) — and, depending on the result, either be remanded for further review or granted for full briefing and oral argument. According to the Court’s online docket (here), a response presently is due December 18, though the respondents may seek an extension. Click here for a prior post by Lyle discussing the Third Circuit’s opinion.

Today at the Supreme Court | 11.20.08

2008-11-20T05:00:59Z

No oral arguments are scheduled and no non-capital orders are expected to be released from the Court today. Oral arguments will resume December 1.

Primer on Boumediene’s week of reckoning

2008-11-19T20:11:13Z

Analysis

Five months and seven days after the Supreme Court’s path-breaking decision in Boumediene v. Bush — the most important so far of its four rulings on “war on terrorism” issues — a week that will test the scope and meaning of that ruling is about to open. It will involve all three levels of the federal judiciary, winding up next Tuesday in the Supreme Court.

But as judges in all of those courts and teams of lawyers wrestle earnestly with basic questions about government powers and Guantanamo Bay detainees’ rights, a certain air of unreality will hang over all of the proceedings. In 62 days, a new President will take over, having pledged to shut down Guantanamo altogether and to re-think the government’s entire policy of military detention and war crimes prosecution.

Judges and lawyers, however, have schedules to meet, and cannot wait to see what President-elect Barack Obama will do once in the White House. So, starting Thursday, and in sequence, a Circuit Court panel will hold a crucial hearing on civilian courts’ powers in reviewing military detention decisions; a District judge will decide the first of the contested Guantanamo habeas cases — a reprise of the very same Boumediene case that went to the Supreme Court and returned; a Circuit Court panel will hear government pleas to keep any detainees from being transferred to the U.S.; a District judge will try to sort out the links and conflicts between habeas, claims of torture and war crimes evidence, and the Supreme Court will get its first look at the first major sequel to Boumediene — a test of the President’s power to detain an individual who was lawfully in the U.S., was seized inside this country, and is now being held indefinitely and without charges in a military jail in South Carolina.

Each of those developments, in its own way, is a test of what the Supreme Court intended to happen when it ruled on June 12 that detainees have a constitutional right to bring habeas challenges to their confinement, while finding inadequate (but leaving intact) two other legal processes to weigh detention decisions by the military.

What follows below is a primer that simplifies and sorts out these developments, and shows how they mesh or clash.

Thursday at 9:30 a.m., U.S. Courthouse, Washington

Bismullah, et al., v. Gates, Circuit docket 06-1197.

A three-judge panel of the D.C. Circuit holds a 30-minute hearing on whether that Court has lost the authority to decide detainees’ challenges under the Detainee Treatment Act of 2005. Under DTA, Congress wiped out courts’ authority to hear detainee challenges under the federal habeas law, and substituted a review process before the Circuit Court. In Boumediene, the Supreme Court found that the DTA alternative was not an adequate substitute for constitutional habeas, but left the DTA process intact even as it authorized new habeas challenges. The Justice Department has since argued that the Boumediene decision, in legal effect, scuttled the DTA process altogether, so that detainees may only pursue one form of challenge — through habeas.

Significance: For more than a year, the Justice Department has been attempting to overturn a Circuit panel’s initial decision in July 2007 in the Bismullah case — a decision that laid down the basic ground rules for DTA review of military detention decisions. The Department has protested that the decision went too far to impose duties on the Pentagon and intelligence agencies to produce information to the Circuit Court, causing severe burdens and threatening national security. That challenge has failed. Since the Supreme Court decided Boumediene, the Department has been attempting to end the DTA process altogether. This case amounts to a showdown over the fate of the DTA system. If the government challenge succeeds, habeas will be the only process left to detainees.

The Circuit panel includes Judges Douglas H. Ginsburg and Judith W. Rogers, who supported the initial Bismullah ruling and have favored fairly robust DTA review, and Karen LeCraft Henderson, who has been opposed to the Bismullah decision and has suggested that the DTA process is probably dead now.

Thursday at 10 a.m., U.S. Courthouse

Boumediene, et al., v. Bush, et al., District Court docket 04-1166.

U.S. District Judge Richard J. Leon, who has cases involving two dozen of some 200 detainees with habeas cases pending in District Court, is to announce orally his first ruling. It will be in the Boumediene case, involving six detainees. The issues: Has the government, using both public and secret information, justified continued confinement of those captives? If not, what remedy will the judge impose?

Significance: Judge Leon has moved rapidly on his post-Boumediene habeas cases. Another District judge, Ricardo M. Urbina, on Oct. 7 ordered the release of 17 detainees into the U.S. — the first ruling on the merits in a new habeas case; in that case, however, the government no longer contended that the detainees were enemies justifying detention on that basis. Leon’s ruling thus will give the first glimpse in a contested case of whether constitutional habeas holds any promise for release of Guantanamo detainees, and whether the government’s case for detention is compelling, just sufficient, or wanting. It will not bind any other judge. The side losing the case is expected to appeal. (Judge Leon’s 2005 ruling in the first Boumediene proceeding was that detainees were not entitled to any relief under the federal habeas statute; that was upheld by the D.C. Circuit, but overturned by the Supreme Court’s constitutional ruling.)

Monday at 9:30 a.m., U.S. Courthouse

Kiyemba v. Bush (lead case of six), Circuit docket 08-5424.

A three-judge panel holds a hearing to review Judge Urbina’s decision (District Court docket 05-1509) requiring that 17 Chinese Muslim Uighur detainees be released and brought to the U.S., to live at least temporarily. As noted above in the entry on Judge Leon’s planned ruling, the Urbina decision came in a case in which the Pentagon no longer seeks to detain the Uighurs as “enemy combatants.” But the government insists that no detainee may be brought into the U.S., and that the Uighurs can be held at Guantanamo until they can be resettled in some other country than their native China, where they would face abuse or torture. This Kiyemba case is separate from another Circuit Court case with the same title and involving some of the same detainees (Circuit docket 05-5487), testing judges’ authority to limit the government’s power to transfer detainees out of Guantanamo. That other case was heard Sept. 25, and a decision is awaited.

Significance: The decision in this case, together with the coming ruling by the Circuit Court in the other Kiyemba case, likely will go far toward settling the scope of federal judges’ powers to regulate the transfer of detainees now at Guantanamo. The Justice Department contends that Congress has taken away entirely the judges’ power to oversee transfers and conditions at Guantanamo, and that the Boumediene decision did not disturb that court-stripping move. It also argues that, in any event, no judge has the authority to order any detainee to be brought into the U.S.; entry to the U.S., for any reason, is strictly within the powers of the Executive Branch, it asserts. If the government wins, that would strictly curb the range of remedies available in habeas cases or in other challenges to conditions at Guantanamo.

The Circuit panel includes Senior Judge A. Raymond Randolph, who has been the most sympathetic Circuit judge to the claims of Executive power over Guantanamo and the detainees, Judge Henderson, who has been a favorable vote for the government in detainee cases, and Judge Rogers, who supports a strong oversight role for the courts.

Three different Circuit judges — Douglas H. Ginsburg, Thomas B. Griffith and Brett M. Kavanaugh — are on the panel that heard the other Kiyemba case in September It is unclear how, if at all, the two rulings can or will be coordinated.

Monday at 2:30 p.m., U.S. Courthouse

Habashi, et al., v. Bush, et al. (District Court docket 05-765).

U.S. District Judge Emmet G. Sullivan holds a hearing in a case involving an Ethiopian-born former British resident, Binyam Mohamed al Habashi, captured in Pakistan, who claims that the Central Intelligence Agency sent him to Morocco where he was tortured. His lawyers contend that the government’s evidence to support continued detention is based on confessions he made under torture. He allegedly confessed to being a part of a terrorist plot to detonate a radioactive bomb attack in the U.S.

The government, however, has dropped war crimes charges against him, and the Justice Department has said it will no longer rely on that allegation as a basis for his detention. That has prompted Judge Sullivan to order the government to release to Mohamed’s lawyers all documents that may help him in his challenge to his enemy designation. Monday’s hearing is on Mohamed’s specific demand for the judge to compel the government to go further with disclosures. The government contends that it has sufficient evidence to justify detention without anything Mohamed said during interrogation.

Significance: This case may lead to a major ruling on how far judges may go to facilitate the constitutional habeas process that the Supreme Court’s Boumediene decision provided for detainees. It is likely to produce a fundamental ruling on the scope of detainees’ rights to demand information from the government that may help them contest their ongoing confinement by the military. It also may set a precedent on access to information to support claims of torture, arranged or tolerated by the U.S. government. The government contends that a 2004 Supreme Court decision (Hamdi v. Rumsfeld) limits the scope of court review of military detention decisions, and severely restricts the rights of “discovery” to aid detainees’ challenges. Mohamed’s lawyers have said that the government has come close to contempt of court by refusing to carry out its obligations to supply background information about this detainee.

Judge Sullivan, who has often demonstrated limited patience with government attorneys in cases before him, is considered one of the District judges most likely to rule in favor of broad detainees’ rights. He has become visibly upset in court over the government’s actions in the Mohamed case.

Tuesday morning, Supreme Court Building

Al-Marri v. Pucciarelli (Supreme Court docket 08-368).

At its closed-door Conference to consider new cases it may want to decide, the Court will confront a core issue of presidential “wartime” power: the authority — or lack of it — to order the detention in the U.S. and prolonged captivity of an individual suspected of terrorism, but who is not charged with any crimes. The case involves a Qatari national, Ali Saleh Kahlah al-Marri, who was arrested in his home in Peoria, Ill., where he was a graduate student. He is the only detainee seized in the U.S. under presidential order and still in military captivity inside the country. His lawyers have asked the Supreme Court to rule that no federal law and no part of the Constitution allows the President to order such detentions. The Justice Department has urged the Court not to consider the case at this stage, but to allow it to return to District Court in South Carolina for a fuller examination of the government’s reasons for holding al-Marri.

There is no doubt that al-Marri had a right in a habeas case to challenge his detention. He was legally in the U.S. at the time he was turned over to the military for detention. Thus, the key issue in Boumediene – did a habeas right remain — is not at issue. The appeal, however, is a major test of whether the Boumediene principle — substantial power in the U.S. courts to review military detention even to the point of second-guessing presidential actions amid what the government terms wartime — applies within the U.S. Boumediene, of course, involved foreign nationals held outside the U.S.

Significance: The outcome of the al-Marri case, if the Court steps in now or later, will settle a fundamental constitutional issue about presidential authority over terrorism suspects. Al-Marri’s appeal contends that the detention power claimed in his case could extend even to U.S. citizens, if the government decided to take them into captivity on terrorist suspicion (as it did in the famous case of Jose Padilla, who later was released from military custody and was tried and convicted in regular federeal court).

The government defends the seizure and detention of al-Marri as valid under the post-9/11 Resolution (AUMF) authorizing a presidential response to the 2001 terrorist attacks, and under the President’s power as commander-in-chief. But the government prefers to have the al-Marri case first go through another habeas review in District Court.

The Supreme Court may announce its reaction to al-Marri’s appeal as early as Tuesday afternoon, following its Conference. It has no obligation to do so, however.

The key to a grant of review at this point apparently would be the reaction of Justice Anthony M. Kennedy. If he would prefer (as he initially did in the Boumediene case) to let the lower courts proceed further, he presumably would not vote in favor of review now. There probably are four votes to grant review among the Court’s moderate and liberal Justices, but they very likely would not press the issue if Kennedy balked.

Another unknown factor, of course, is how President-elect Obama’s administration would react, if the case is granted. If it wished to do so, it could simply inform the Court that it no longer supports the detention authority at issue, and that probably would be the end of the case — in effect, a “confession of error.” If review is granted, briefing in the case would still be going forward when Sen. Obama takes office.

NOTE TO READERS: The foregoing does not take into account the developments that may be occurring with war crimes prosecutions at Guantanamo Bay in coming weeks, even though those may be influenced in greater or lesser ways by the Court’s Boumediene decision.

Neither does the foregoing consider what may happen this week or next in a new move by the Justice Department to narrow sharply the scope of habeas review in the wake of Boumediene. That maneuver is discussed in this post. The outcome of that challenge could have a decisive influence on the shape of habeas review. How it will play out, however, cannot be known at this early point.

Practice Pointer: Oral Argument in Pacific Bell v. linkLine Communications

2008-11-19T16:02:29Z

One of the more interesting orders on Monday’s order list came in No. 07-512, Pacific Bell v. linkLine Communications, which is set for oral argument on December 8. On Monday the Court granted the Solicitor General’s motion for divided argument, which was hardly surprising (it would only be news if the Court denied such a motion from the SG). More unexpected, however, was the next sentence: “The motion of American Antitrust Institute for leave to participate in oral argument as amicus curiae and for divided argument is granted and the time is to be divided as follows: 15 minutes for respondents, and 15 minutes for amicus curiae American Antitrust Institute.” Although motions like AAI’s are not uncommon, it’s fairly unusual for the Court to actually grant a private amicus argument time – much less more time than the ten minutes that AAI had requested. So what gives?

The answer can be found in AAI’s motion for divided argument. AAI explains that although the question presented in linkLine is whether Section 2 of the Sherman Act permits a “price squeeze” claim when the defendant has no duty to deal, “respondents have essentially conceded the question and abandoned their price-squeeze claim. They argue that the judgment below should be vacated and that they be permitted to amend their complaint to further develop their allegations that petitioners engaged in predatory pricing at the retail level.” AAI contends that if the case is not dismissed as moot (a step that AAI had urged the Court to take in its amicus brief), it “should be permitted to participate in oral argument because . . . the judgment of the Ninth Circuit will be undefended.” Such a result is particularly undesirable, AAI further explains, because the United States is likely to argue that “a price squeeze should be eliminated as an independent antitrust offense” – an issue that AAI “has vigorously contested . . . in its brief” but which respondents did not address.

More broadly, the disposition of AAI’s motion may serve as a useful practice pointer for other private amici seeking argument time. Although this case may be an extreme example in that the respondents have conceded that the judgment below can be vacated, it demonstrates that the best chance for private amici to get argument time may lie in identifying a gap that, for whatever reason, would otherwise be left unaddressed at oral argument; offering a “unique perspective” (which works for the U.S. and, generally, the states) is usually not enough.

Today at the Supreme Court | 11.19.08

2008-11-19T05:00:54Z

No oral arguments are scheduled and no non-capital orders are expected to be released from the Court today. Oral arguments will resume December 1.

Sweeping challenge to detainee process

2008-11-19T17:38:55Z

(NOTE TO READERS: Because the court filings described here are expansive and detailed, the following is an entirely new report, rather than a revision or updating of an earlier post, which can be found below.)

——————-

Arguing that it would “take months to fulfill” new duties imposed on the government in cases involving some 200 Guantanamo Bay detainees, and protesting orders to make “dramatic” new disclosures of government secrets, the Justice Department on Tuesday night urged a federal judge to cast aside major parts of a recent order laying out how those cases will be processed in court.

As an alternative — and apparently the preferred step — the Department suggested that the case be sent immediately to the D.C. Circuit Court to consider quickly the sweeping challenge.

If the 113 cases involving some 200 prisoners have to go forward first in District Court, the new filing said, that could produce an “entirely unwarranted” situation of reverses on appeal “months from now” and “only after volumes of classified information have been unnnecessarily disclosed.”

The multi-faceted attack on the system of District Court habeas review — being carried out under the Supreme Court’s ruling on detainees’ rights last June in Boumediene v. Bush — had a close parallel in the government’s attempts to pare down another form of civilian court review of detention decisions under the Detainee Treatment Act of 2005. The latter effort, however, has foundered, and now the government is seeking to shut down the DTA process altogether, leaving only the habeas cases. (The new filing recycled some of the documents submitted to courts during the challenges to the DTA system.)

The Department suggested that the procedures laid out for the habeas cases conflict in “important respects” with the Supreme Court’s call in a 2004 detainee decision for a “prudent and incremental process,” quoting Hamdi v. Rumsfeld.

The new filing came in four parts: first, a motion to clarify and reconsider key parts of a Nov. 6 “case management order” issued by Senior District Judge Thomas F. Hogan or, in the alternative, a motion to send the case to the Circuit Court along with a delay of specific parts of the Hogan order, second, a set of proposed orders; third, a series of sworn statements by Pentagon and intelligence officials on the risks to national security; and, fourth, a sworn statement on national security risks by FBI Director Robert S. Mueller. Also filed, but not made public, were secret statements from intelligence and military officials.

Judge Hogan has been working since July 2 to coordinate scores of Guantanamo habeas challenges, with the aim of working out procedures that would govern the cases as they returned to other District judges for actual decision on whether an individual’s continued detention was justified. After weeks of studying the issue, Hogan on Nov. 6 issued his most significant order, detailing the way the cases are to go forward. The order led detainees’ attorneys to expect that, five months after the Supreme Court decision, the habeas cases would start to move toward final rulings.

Since then, at least five other District judges have adopted all or major parts of Hogan’s order to govern how they will handle cases assigned to them for rulngs on the merits. The Justice Department protested on Tuesday that some of those other judges have gone considerably further than Hogan did in requiring the sharing of information with detainees and their attorneys.

The Justice Department, saying it was “mindful of the Supreme Court’s desire that ‘prompt’ habeas review be provided to the detainees,” and vowing to “mobilize” additional resources to try to satisfy the Hogan order, said it was troubled that the order is unclear and thus may “create obligations that realistically cannot be met” in the two-week time span set up by the order.

The plea for reconsideration and clarification targeted four main parts of the order.

First, it asked that obligations on the Pentagon and intelligence agencies to turn up and hand over information that might aid the detainees’ challenges should be modified to require disclose only of such information that has been reviewed by government lawyers preparing justifications for detention.

Second, it asked that Judge Hogan wipe out a requirement that the government hand over to detainees any documents or statements that relate to the justifications for detention, or, at least, to limit sharply that obligation.

Third, it requested that the judge reconsider requirements to share classified information or an “adequate substitute” with detainees and their lawyers, limiting those obligations significantly.

And, fourth, it asked the judge to modify the merits hearings, to give a stronger “presumption” in favor of the government’s evidence to justify detention, to allow more hearsay evidence to be used, and to relax a requirement for hearings on evidence so that it does not assure a hearing “in nearly every case.”

Added to those requests was a plea to stretch out some of the time deadlines Judge Hogan set. It objected to “simultaneous, unstaggered deadlines.”

While 32 of the 38 pages in the main new filing were devoted to a detailed discussion of the changes the government wants in the “case management orders” by Hogan and other judges, the document also argued energetically for the alternative of allowing an immediate appeal if the changes sought are not forthcoming.

While the management orders involve “procedural determinations,” the alternative discussion said, they amount to “controlling questions of law” that will “significantly impact” how all of the habeas cases are processed.

Without significant alteration, it added, the orders “will not only be tremendously burdensome but will require the arguably inappropriate disclosure of senstive classified information.”

The government, it commented, “should not be faced with the choice of providing sensitive classified information unnecessarily or continuing its detention of persons determined to be enemy combatants….Thousands of classified documents may be subject” to the disclosure requirements, it said.

Even the issue of deadlines, the motion said, is “a controlling question of law” because it amounts to a test of “whether the government is entitled to a meaningful opportunity to be heard in these cases.”

The filing said that all of the detainees’ lawyers contacted about the new maneuvers said they would oppose it or needed more information; it added that it did not hear from any counsel who was unopposed.

Detainees’ counsel presumably will have a chance to respond before Judge Hogan and other judges act. Because the Hogan order now does not stand alone, the Justice Department plea probably will have to be considered also by other judges who have changed or adopted that order.

“Sarbanes-Oxley” case on way to Court

2008-11-18T16:34:47Z

A major test case on the power of the President to appoint and remove government officials apparently is on its way to the Supreme Court. On Monday, the D.C. Circuit Court split 5-4 in denying en banc review of a case challenging the constitutionality of a key provision of the Sabanes-Oxley Act, passed in the wake of the Enron and Worldcom accounting scandals. Lawyers for those seeking en banc review had said earlier that, if that move failed, they would then appeal to the Supreme Court.

The close division in the Circuit Court probably enhances the chances that the Justices would agree to hear and decide the case.

The test case is Free Enterprise Fund, et al., v. Public Company Accounting Oversight Board, et al. (Circuit docket 07-5127).

The 2002 law at issue was designed to protect investors from scandals involving publicly traded companies by regulating the firms that do their accounting. The law created the Public Company Accounting Oversight Board, a private board exercising government power; its members are not appointed by the President, and cannot be removed by presidential action. The board members are appointed by the Securities and Exchange Commission, which has limited removal power.

The Circuit panel that decided the case in August split 2-1 on Monday in denying panel rehearing. In the en banc Court, Circuit Judges Janice Rogers Brown, Merrick B. Garland, Karen LeCraft Henderson, Judith W. Rogers, and David S. Tatel voted against rehearing. Chief Judge David B. Sentelle and Circuit Judges Douglas H. Ginsburg, Thomas B. Griffith and Brett M. Kavanaugh supported en banc review. (Only the Circuit Court’s active judges voted on the question.)

U.S. to challenge detainee case duties

2008-11-18T16:05:39Z

A legal gain for Guantanamo Bay detainees, clearing the way for judges to move forward with the captives’ court challenges, goes too far and must be rolled back, the Justice Department will argue in a new filing expected later Tuesday. (NOTE: This post will be expanded when the document is filed.)

The Department’s plan was outlined broadly late Monday in a report in three detainee cases pending before U.S. District Judge Ellen S. Huvelle (the lead case is Ameziane v. Bush, 05-392). The report was a joint one by attorneys for the government and for detainees, replying to a Nov. 7 order by Judge Huvelle seeking their views on the duties to be imposed on both sides and the procedures to be followed as the detainees’ habeas challenges go into the merits stage.

Judge Huvelle up to now has taken no action on the habeas cases before her, because those had been transferred temporarily to Senior Judge Thomas F. Hogan, who is coordinating some 200 cases pending before many of the District judges in Washington. On Nov. 6, Judge Hogan issue a “case management order” laying out the procedural framework for all the cases he is coordinating, leaving it up to individual “merits judges” to decide whether to modify it.

In response, the other judges have begun reacting to the Hogan order, with some embracing it as written and others making changes. For detainees and their lawyers, the Hogan order and the followup responses by the other judges cleared the way for the habeas challenges to go forward. Some detainees’ counsel had grown uneasy, since it has been five months since the Supreme Court in Boumediene v. Bush gave the detainees a constitutional right to challenge thier detentions anew. Most of the cases have been on hold during that time.

In the filing in Ameziane, the Justice Department’s part of the report said that its lawyers will file on Tuesday a plea for Judge Hogan to relax some parts of his order, or, if he does not do so, to set the stage for the Department to file an immediate appeal to the D.C. Circuit Court.

Changes in the order are needed, the Justice Department said, because the Hogan order, “if expansively construed, creates obligations that simply cannot be met within the timeframe given.” Some parts of the order, it added, “place tremendous and improper burdens on the government related both to resources and national security interests.

In addition, the filing said that Hogan had created a procedural regime that gives detainees more safeguards than the Supreme Court has intended in its rulings on detainees’ rights, including the Boumediene decision.

If Hogan keeps his order intact, the Department said, it wants a “highly expedited” review by the Circuit Court because the Hogan order “seems to require broad disclosure of sensitive classified information” and it “would be preferable for the scope of those requirements to be settled before such disclosures are ordered.”

The detainees’ part of the Monday filing said that they will ask Judge Huvelle to modify the Hogan order to provide added safeguards for the prisoners.

New Filing: Cert. Petition in Abbott v. Abbott

2008-11-18T15:21:03Z

On Friday we filed this cert. petition in No. 08-645, Abbott v. Abbott. At issue in the case is whether a ne exeat clause – which precludes a parent from taking his or her child out of the country without the other parent’s permission – is a “right of custody” for purposes of the Hague Convention on the Civil Aspects of International Child Abduction, thereby requiring the child’s return. The courts of appeals are divided on this question; moreover, the approach taken by the majority of circuits is at odds with the approach employed by the overwhelming majority of foreign courts that have considered the question.

In addition to Akin Gump and the Stanford Law School Supreme Court Litigation Clinic, our co-counsel on the brief is Adair Dyer of Austin, Texas. Stanford students Dan Matro, David Schwartz, and JP Schnapper-Casteras worked extensively on the case.