Below, Jonathan Ross previews next term’s Summers v. EII (No. 07-463). Jonathan was an ‘08 summer associate at Akin Gump and is a student at Harvard Law School.  As always, the Summers SCOTUSwiki page, here, will continue to be updated throughout the upcoming term.

36 C.F.R. §§ 215.12(f) and 215.4(a) exclude certain Forest Service projects from statutory provisions that would otherwise require the Forest Service to make available administrative appeals and notice-and-comment procedures. In this case, the Court will consider the justiciability of challenges to the regulations, as well as whether the Ninth Circuit erred in affirming a nationwide injunction prohibiting the Forest Service from applying the regulations.

Background

In 1992, Congress enacted the Appeals Reform Act (ARA), which – among other things – required the U.S. Forest Service to provide both opportunities for notice and comments and an administrative appeals process for all land and resource management plans. In 2003, the Forest Service promulgated new regulations that carved out an exemption for the notice-and-comment and appeals requirements for two types of projects: fire rehabilitation activities on less than 4200 acres and salvage timber sales of 250 acres or less.

This litigation arose from the application of these new 2003 regulations to the Burnt Ridge Project, a project in the Sequoia National Forest that would have resulted in the logging of approximately 238 acres of burned forest for sale as timber. In September 2003, consistent with the exemptions of 36 C.F.R. §§ 215.12(f) and 215.4(a), the Forest Service approved the project without providing either formal notice-and-comment procedures or an appeals process.

In December 2003, respondent Earth Island Institute and several other environmental groups filed a complaint in federal district court against the Forest Service, challenging the legality of the Burnt Ridge Project and – both facially and as applied to the Project – the 2003 Forest Service regulations. After the District Court issued a preliminary injunction against the Burnt Ridge Project, the Forest Service eventually withdrew its decision to implement the Project. The parties entered into a settlement agreement in which the Forest Service agreed not to restart the Burnt Ridge timber sale without first conducting an Environmental Impact Statement and allowing for notice, comment, and administrative appeals; in exchange, the conservation groups agreed to dismiss with prejudice their six claims for relief challenging the legality of the Project.

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UPDATE 5:10 p.m.    Supreme Court Justice David H. Souter, in a brief order Wednesday afternoon, turned down a request that would have given an independent candidate in Maine for the U.S. Senate a place on the Nov. 4 ballot for that office.  Souter acted without referring the stay application to his colleagues.  There was no written opinion, just a simple denial order.  The Justice’s action appears to assure the state’s two major party candidates, incumbent Sen. Susan Collins, a Republican, and her Democratic challenger, Rep. Tom Allen, that they will not have to worry about an independent drawing votes away from them.  Sen. Collins is considered by political analysts to be one of the vulnerable GOP Senators seeking reelection.  Hoffman’s counsel could still go ahead with plans to file a full appeal on the ballot access issue, but Souter’s action probably reduces significantly the chances that such an appeal would succeed, or that a final ruling could come in time. Maine officials say the ballot must be finalized by Aug. 29.

An earlier post on this dispute follows:

Seeking to give the U.S. Supreme Court more time to ponder whether to intervene in an election dispute in Maine, that state’s highest court on Wednesday delayed for a week its ruling that would bar an independent U.S. Senate candidate from the ballot.  By a vote of 3-2, the Maine Supreme Judicial Court said it would not put its July 28 ruling into effect until next Wednesday.  It added that it would not approve any further delay, unless the Supreme Court steps in.  The order, and the dissent, can be found here.

The non-party candidate, Herbert J. Hoffman of Ogunquit, a retired psychologist, is seeking to be on the ballot for the Senate seat now held by Republican Susan Collins. Also vying for the seat is the Democratic nominee, Rep. Tom Allen.  Hoffman was cleared for the ballot by the Maine secretary of state, but a protest by the state Democratic chairman led to a state Supreme Court ruling overturning the secretary.

Hoffman has asked Justice David H. Souter to stay the Maine court’s ruling, until the Supreme Court can act on a planned appeal; the appeal, in a petition for certiorari, has not yet been filed, but the Maine court noted Wednesday that Hoffman’s counsel had said they planned to file an expedited petition. At this point, Justice Souter is considering only the stay application (08A138).

In granting a one-week delay in putting its ruling into effect, the state Supreme Judicial Court majority said it doubted that Hoffman could win in his appeal to the Supreme Court.   But, it said, it opted to “partially accommodate Hoffman’s request for a stay in order to allow him to determine whether the Supreme Court will intervene to stay our mandate.”

By putting off its ruling a week, the state court majority said, it would allow the secretary of state two full business days to act before the deadline for creating a final ballot.

Analysis

In the annals of the ongoing constitutional battle in America’s courts over the “war-on-terrorism,” Shafiq Rasul, Yaser Esam Hamdi, Salim Ahmed Hamdan and Lakhdar Boumediene already have made history — especially in the Supreme Court.  It now appears that Huzaifa Parhat could be the next detainee added to that list.

A member of a long-persecuted Chinese Muslim community, the Uighurs, Parhat is moving rapidly toward a courthouse showdown of major proportions.

 He is attempting to become the first Guantanamo Bay detainee to take the witness stand in a civilian courtroom inside the U.S., to make a personal case for freedom, and, more significantly, he is seeking actual release into the U.S. to live, at least temporarily, with a group of Uighurs in the Washington, D.C., area.

Both of those prospects are unsettling to the Bush Administration: Attorney General Michael B. Mukasey has made it very clear that the government will fight energetically against bringing any detainee into mainland U.S., for any purpose — a view that, among other consequences, has complicated the question of whether to close the Guantanamo prison operation entirely.

But something else of deep constitutional significance is lurking in Parhat’s court case.  The Justice and Defense Departments are using the case to test anew their theory that the U.S. government has very broad constitutional authority — beyond the reach of the courts — to “wind up” (or “wind down”) the process of detention in a way that would mean that individual detainees, even though found not to be enemies (Parhat’s situation), would remain for extended periods at Guantanamo in a kind of legal limbo.

That status also could await any detainees — Hamdan could be the first example – who get convicted of war crimes, but then finish out their sentences and then seek release.  (Pentagon officials already have signaled that they may hold Hamdan at Guantanamo when his sentence is completed early next year, and Hamdan’s lawyers have vowed to contest any such plan.  Hamdan’s fate, though, may not be settled before Parhat’s case has first tested the “wind up” argument.)

In response to the government’s argument that the Executive Branch has the sole constitutional authority to “wind up Parhat’s detention in an orderly fashion” (meaning, among other things, no release into the U.S. and perhaps a prolonged stay at Guantanamo), Parhat’s lawyers have mounted a sweeping constitutional claim of their own. They are arguing (in a filing last Friday, found here) that the government theory amounts to an unconstitutional suspension of the writ of habeas corpus. That is the same argument that led the Supreme Court, in Boumediene v. Bush on June 12, to grant the detainees a constitutional right to challenge in civilian court their captivity.

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UPDATE 6:05 p.m.

State officials in Maine told a Supreme Court Justice Tuesday that the state’s interests in running elections do not require “a sweeping remedy” that would have the effect of keeping an independent candidate for the U.S. Senate off the Nov. 4 election ballot.   Lawyers in the state attorney general’s office, representing the Secretary of State of Maine, added that the ballot exclusion sought by state Democratic leaders raises “a serious constitutional issue.”  If anything is done by the Supreme Court to keep the candidate on the ballot, it must be done by no later than Aug. 29, the officials said. The filing can be found here.

In contrast, the chair of the state’s Democratic Party said in a separate filing that Supreme Court intervention at this point would bring a “great intrusion on state sovereignty.”  Moreover, the chair, John Knutson, said the steps taken to exclude the non-party candidate from the general election ballot raise– at this stage — only state law issues, not federal constitutional questions.  The Maine law applied in this case, Knutson contended, “easily meets” the only legal test involved — “a test of reasonableness….This Court has repeatedly held that states have wide latittude to regulate the electoral process,” subject only to that test.

These documents were filed in response to an order last Friday by Justice David H. Souter, who is considering a plea by the independent Senate candidate, Herbert J. Hoffman, for a stay of a Maine Supreme Court ruling that would have the effect of keeping him off the ballot.

The following is a post from earlier in the day Tuesday:

Lawyers for an independent candidate for the U.S. Senate argued on Tuesday that a Supreme Court Justice has clear authority to order the state of Maine to put his name on the ballot for the Nov. 4 election, to compete with incumbent Republican Susan Collins and Democratic nominee Rep. Tom Allen.

In a response to an order last Friday by Justice David H. Souter (see this earlier post), attorneys for non-party challenger Herbert J. Hoffman said there are two ways that the Court has available that could assure him ballot access.  First, a stay of a July 28 Maine Supreme Court decision would put back into effect a ruling by the Maine Secretary of State that Hoffman has qualified for the ballot, the new filing said.  Second, it suggested, ballot access could be assured by a direct order to the Secretary of State to list Hoffman.

The supplemental filing can be read here.

Later today, the Maine Secretary of State and the state chairman of the Democratic Party are to file responses to the Souter order, discussing the same issues that Hoffman’s filing considered, plus replies to his argument that his constitutional rights and those of Maine voters would be violated if he is now kept off the ballot.  (The blog will post those replies as they become available.)

As of now, Justice Souter is considering the Hoffman stay application, but he has the option of sharing it with his colleagues.

As we mentioned here earlier, several panels at this year’s meeting of the American Bar Association looked back at the recently completed Supreme Court term. One of those panels looked back specifically at the OT 2007 criminal docket, a subject we’ve also previously looked into.

After the jump, the ABA panel’s summary of the criminal docket, including summaries of the opinions and rationales and some statistics. You can also download the document here.

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Last month, the Constitutional Sources Project and the Patton Boggs Foundation held a panel discussion on District of Columbia v. Heller and its ramifications. Walter Dellinger and Alan Gura, lead attorneys in that case, spoke on their strategies for argument, how the case became a “battle of the documents,” and the future of 2nd Amendment litigation in a post-Heller world.

You can see a video of the event here.

Supreme Court Justice David H. Souter has asked the state of Maine and the state Democratic Party chairman to supply their views on the right of an independent candidate for U.S. Senate to have his name on the November election ballot.  In an order issued Friday (found here), Souter — in his role as Circuit Justice for the area that includes Maine — sought responses to First Amendment issues raised by the non-party candidate, Herbert J. Hoffman, and told all of the lawyers involved to discuss what kind of legal remedy, if any, should be available to Hoffman. Those filings are due Tuesday.

Souter has the authority to act alone, but also may choose to share the issue with his colleagues.

In an application (08A138) filed Thursday seeking an order to block a Maine Supreme Court ruling of July 28, Hoffman contended that he has submitted 4,038 valid signatures on nominating petitions — over the 4,000 minimum required by state law.  But, because of the state court decision, throwing out three separate petitions that each included only a single invalid signature, he would wind up with a total of only 3, 929, and thus would be barred from the ballot.

The state ruling, Hoffman’s application argued, violates the First Amendment right of political expression of himself and voters who support him, the right to gather politically to support a candidate, and the actual right to vote.

The state Supreme Court, the application argued, “decided the weighty First Amendment issues at stake with a few conclusory sentences, two case citations, and a declaration that it need ‘not address the constitutional concern further.’…Significantly, Maine’s own Secretary of State — the state officer charged with enforcing state election law — advised the Maine Supreme Court that the nullification of Hoffman’s three petitions would be ‘draconian,’ ‘absurd’ and imposed an ‘undue burden’ on First Amendment rights.”  The state court’s review of the constitutional claim, the application added, “was not strict or even intermediate but perfunctory.”

Hoffman’s lawyers said that he had just learned that state officials intend to finalize the ballot by Aug. 29, and begin printing ballots by Sept. 2.  Actual design of the ballot will begin on Thursday of this week, the application said.

Under Maine law, 4,000 signatures are required to place a U.S. Senate candidate’s name on the ballot.  State law provides that “all of the signatures to the petition” must be made “in the circulator’s presence.”

Hoffman told Justice Souter in the application that he presented 355 nomination petitions, with a total of 4,112 names.  John Knutson of Brooklin, state Democratic chair, filed a challenge, contending that some of the petitions were invalid because of legal flaws.  A state hearing officer ruled that petitions with 71 signatures were invalid because they were made by unregistered voters, were duplicates, or the signers were ineligible.  That still left more than enough to qualify.

The Democratic chair, according to the application, challenged several petitions as invalid because they included signatures not put down in the circulator’s presence — that is, Hoffman’s presence.  The hearing officer concluded that it was not enough for Hoffman to be nearby; he had to actually witness the signing personally. 

Based on that approach, the officer rejected three specific signatures, one on each of three petitions; those petitions also contained a total of 90 valid signatures.  Still, the officer struck only the invalid signatures, not the entire petitions containing them, as Knutson had requested.  The bottom line was that Hoffman would wind up with 4,038 valid signatures.  Secretary of State Matthew Dunlap accepted that report, but Knutson then appealed to state courts, ultimately winning in the Maine Supreme Cour

The state’s highest court concluded that state law did require Hoffman to witness each signature, as the hearing officer and Secretary of State had ruled, but went on to rule that the three petitions which each contained one invalid signature had to be rejected. “Long-standing jurisprudence in Maine confirms that voiding  petitions that fail to comply with the statute falls well within acceptable constitutional parameters,” the state court concluded.

Challenging this result, Hoffman’s application contended that “a rule that requires the voiding of 90 valid signatures on three petitions on the ground that each petition contained one otherwised valid signature made in technical violation of the presence requirement — where there is no claim, evidenced, or finding of fraud — is not narrowly tailored to serve any legitimate state interest.”

The Supreme Court issued its second round of summer recess orders Monday, but no action was taken on a plea by the state of Louisiana to reconsider the June 25 decision in Kennedy v. Louisiana (07-343), striking down the death penalty for the crime of raping a child.  Although the Court could act at any time, the next scheduled release of summer orders will be on Friday, Sept. 5.

Monday’s orders can be found here.

Among the orders the Court did release on Monday, it refused to rehear its rulings in companion cases on June 12, barring U.S. courts from stopping the American military in Iraq from releasing two U.S. citizens to Iraqi authorities to answer for crimes allegedly committed in that country.  The decision came in Munaf v. Geren (06-1666), together with Geren v. Omar (07-394).  As is customary, there was no explanation for the denial.

In other orders, the Court allowed the federal government to take part in oral argument in three cases.  Acting Solicitor General Gregory G. Garre had sought permission for a lawyer from his office to join in the hearings Oct. 6 in Altria Group v. Good, et al. (07-562), on Oct. 14 in Pearson v. Callahan (07-751), and on Nov. 12 in Pleasant Grove City v. Summum (07-665).

The Altria Group case involves the right of individual smokers to sue tobacco companies under state law over the marketing of so-called “light” cigarettes.  The Altria appeal argues that such lawsuits are barred expressly by federal law, or at least by implication drawn from the Federal Trade Commission’s actions. The FTC and the Justice Department in the government brief address only the implied preemption argument, asserting that the Commission’s actions do not bar such lawsuits.

The Pearson case is a test of police authority to search a house without a warrant, if they enter right after an undercover agent has gone in.  In granting review, the Court asked the lawyers to argue whether it should overrule its 2001 decision in Saucier v. Katz, laying down a method for analyzing whether officials accused of violating someone’s constitutional rights have limited immunity to lawsuits for their actions. The two-step inquiry first asks whether a constitutional right is at stake, and, if so, whether it was clearly established at the time of the incident involved.  The U.S. government, in its brief in the case, urged the Court to relax the requirement that the constitutional question be answered first, allowing lower courts to focus, at least in some cases, on whether an arguable right exsisted clearly at the time. That brief also argued that there was no Fourth Amendment violation in the police entry without a warrant under the circumstances here.

In the Pleasant Grove City case, the issue is the scope of the right of a private group to display a permanent religious monument on government property, including a public park, if the government entity responsible has accepted other objects donated by other private individuals or groups.  The U.S. government brief filed in the case argued that what is at stake is “government speech,” so the First Amendment does not require the acceptance of monuments that convey messages that the government entity does not embrace.

The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.

The petitioner’s merits brief is due Thursday in Peake. v. Sanders (07-1209) and Friday in Fitzgerald, et vir v. Barnstable School Committee, et al. (07-1125). The respondent’s merits brief is due Monday in Carcieri v. Kempthorne (07-526) and Wednesday in Waddington v. Sarausad (07-772).

The Supreme Court refused on Tuesday to decide whether the fishermen and others who sued over the Exxon Valdez oil spill are entitled to collect interest on the punitive damages award they won — an award that was sharply reduced by the Court.  Instead, the Court sent the issue back to the Ninth Circuit Court to consider, “without prejudice” to either side’s argument on the issue. The Court’s judgment is here.

The Court’s action came in the form of a final judgment, putting into effect its ruling on June 25 in Exxon Shipping, et al., v. Baker, et al. (07-219).  In that ruling, the Court reduced the punitives award from $2.5 billion to the same level as the previous award of compensatory damages — $507.5 million.  The Court said then that, at least in the maritime law field, a punitive award for such an incident should be at most on the same level as the compensatory award — that is, 1 to1.

In that ruling, the Court did not discuss the issue of whether those who sued Exxon Shipping Co. and its parent, Exxon Mobil Corp., for the 1989 oil spill into Prince William Sound in Alaska were entitled to interest on the punitive verdict. Two weeks later, those who sued asked the Court to “make clear in its judgment” either that they were entitled to interest, or else that a Court rule dealing with interest issues did not apply

They are seeking interest at a rate of 5.9 percent from Sept. 24, 1996 — leading, according to their lawyers, to an award of $488 million. The date chosen is keyed to the final ruling of a U.S. District Court awarding punitive damages (at that time, $4.5 billion) and requiring Exxon to pay interest on it.

Their July 8 filing said they were concerned that, if the Court’s judgment in the case did not mention interest, “then Exxon may argue on remand that this Court’s opinion and judgment deprive [those who sued] of their right to interest on the new punitive judgment that will be entered, despite the district court’s prior and unappealed ruling on this issue.”

In response, Exxon on July 15 urged the Court to decide the interest issue itself. If the Court did not do so, it contended, “no interest is allowed” under the Court’s Rule 42.1.  The Court should rule, it suggested, “to forestall further litigation.”

The big oil company and its shipping subsidiary said there was no “sound basis” to award “approximately $488 miliion over and above the $507.5 million that this Court determined was the legally proper amount to punish and deter.”

The Court, now in summer recess, has been pondering the issue since July 18, when those who sued filed the final paper in the dispute, their reply.  At midday Tuesday, the Court issued its formal judgment.

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In a ruling that is going to be challenged, perhaps in the Supreme Court soon, the D.C. Circuit Court on Tuesday denied any remedy to a former Central Intelligence Agency officer and her husband in the famous leak case against Vice President Dick Cheney and two former top White House aides — Karl Rove and I. Lewis Libby. The ruling left open the possibility of an apparently narrow claim against former Deputy Secretary of State Richard L. Armitage.  The 2-1 ruling can be read here.

Erwin Chemerinsky, the University of California-Irvine law dean and professor who is representing the former clandestine officer, Valerie Plame Wilson, and her husband, former ambassador Joseph C. Wilson IV, said after the ruling: “We are going forward.  We will either seek en banc review [from the Circuit Court] or proceed directly to the Supreme Court; we talked over all the options, and we want to think about it another day.”

The Circuit Court decided that neither Mrs. Wilson nor Mr. Wilson could pursue any constitutional claims over the disclosure by top officials — including Cheney — of Mrs. Wilson’s CIA role, thus allegedly destroying her career, and the claimed retalation against Mr. Wilson for publicly refuting a Bush Administration story about weapons of mass destruction in Iraq before the U.S. invasion in 2003.

The Wilsons’ lawsuit contended that Cheney and the others spoke to the press, identifying Mrs. Wilson’s secret position, in order to dilute former ambassador Wilson’s public criticism of the Bush Administration’s handling of intelligence in the run-up to the Iraq invasion.

The Court said a series of constitutional challenges fail because the official conduct involved would be covered, if at all, only by the federal Privacy Act.  And that Act, the Court concluded, does not apply to the Vice President or aides to the President or Vice President — Rove was the chief staff aide to President Bush, and Libby was Cheney’s chief of staff.

As to Armitage, the Court said, Mrs. Wilson may have a Privacy Act claim, but Mr. Wilson does not.

Allowing the Wilsons’ lawsuit to go forward, the Court said, would lead the courts into an inquiry of the job risks and responsibility of covert CIA agents, and that is not warranted.

Moreover, the majority concluded that neither Mrs. Wilson nor Mr. Wilson can pursue a claim under federal tort law — the Federal Employees Liability Reform and Tort Compensation Act.  That law, the Court found, does not apply to actions by government officials within the “scope of their employment,” and discussions of the role of Mrs. Wilson or Mr. Wilson ”were of the type that the defendants were employed to perform.”

Chief Judge David B. Sentelle wrote the majority opinion, joined by Circuit Judge Karen LeCraft Henderson.  Circuit Judge Judith W. Rogers dissented in part.  She disagreed with the majority view that none of the constitutional claims could go forward because they had been displaced by the Privacy Act.  She agreed that the Wilsons’ tort claim could not proceed.

All three members of the Court found that they had jurisdiction to hear the Wilsons’ appeal from a District Court ruling dismissing their case; the judges rejected Vice President Cheney’s claim that the dispute involved only a “political question,” beyond the authority of the courts to decide.

The Court also did not rule on the Vice President’s claim that he had “absolute immunity” because of the position he holds.

The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.

Petitioners’ merits briefs are due Monday in Knowles v. Mirzayance (07-1315), Wednesday in Philip Morris USA, Inc. v. Williams (07-1216), and Thursday in Haywood v. Drown (07-10374). Respondents’ merits briefs are due Monday in Bartlett v. Strickland (07-689) and Friday in Negusie v. Mukasey (07-499) and Pleasant Grove City, UT v. Summum (07-665).

Faced with the prospect of losing control — even temporarily — over the fate of detainees at Guantanamo Bay, the Justice Department on Friday started the process on a new appeal to the D.C. Circuit Court — its second appeal in the detainee cases in the past two weeks. While most of the activity in the detainee cases since the Supreme Court’s June 12 ruling on detainees’ rights has come in District Courts, the two appeals seek an early resolution of the power of District Court judges to issue any orders that relate to the potential transfer of prisoners out of Guantanamo.  The government contends that the judges have no such power and, in fact, that Congress has explicitly denied them that authority.

The first appeal, filed on July 25, aimed at an order on July 10 by Senior District Judge Thomas F. Hogan affecting 117 detainees’ cases, requiring the government to give 30 days’ notice to a detainee’s lawyer before that individual is moved from Guantanamo, if the lawyer seeks it. It is unclear whether notice orders have yet been issued in every one of those cases.

In the government’s second appeal, filed Friday, it focused on a June 13 order by District Judge Rosemary M. Collyer temporarily barring any transfer of an individual detainee, Ahmed Belbacha, to his home country of Algeria, where he fears torture. Judge Collyer said the order would remain in effect while lawyers brief and argue his habeas challenge to detention at Guantanamo.  She first barred any transfer on June 10, before the Supreme Court’s June 12 ruling requiring courts to hear detainees’ habeas claims.  She issued a further bar a day after that ruling.

In a number of disputes now in the lower courts, the Justice Department has been strongly resisting any judicial intervention on the transfer question — whether a judge acts specifically for or against a transfer, or simple acts on a requirement of advanced notice of a transfer.

It has made two basic arguments.

First, it has contended that Congress in 2006 took away the courts’ power to interfere with detainee transfers in any situation, and that the Supreme Court did not disturb that part of the 2006 law in its June 12 ruling in Boumediene v. Bush.

Second, it has argued that, even without that law, courts have no authority to intrude on the power of the President and other Executive Branch officials to control the conduct of detainee affairs other than examining the basis for original detention.

Although the two new appeals have just been started, the D.C. Circuit Court already has two groups of cases pending before it testing judges’ power to issue the 30-day transfer notice orders.  A three-judge panel is scheduled to hear the first of those cases (Kiyemba, et al., v. Bush, docket 05-5487) on Sept. 25.

Analysis

The Supreme Court, in moving in June to clarify the legal rights of Guantanamo Bay detainees, made this explicit comment in the main opinion in Boumediene v. Bush (06-1195): “The only law we identify as unconstitutional is MCA Sec. 7, 28 USCA 2241(e)(Supp. 2007).” The MCA is the Military Commissions Act of 2006, and Section 7(e) is the so-called “court-stripping” provision — Congress’s now partially failed effort to scuttle all habeas rights of the detainees.

 There are, however, two parts to Section 7(e). As lower court judges move to apply Boumediene, they are discovering what one judge on Thursday described as an “ambiguity” in that ruling.

This is no small matter.  Much of the Justice Department’s effort — in District Courts and in the D.C. Circuit Court — to limit the Guantanamo detainees’ legal challenges is based upon the second, not the first, part of Section 7(e). And the judge who has just spoken out on the subject, District Judge Ricardo M. Urbina, came close to concluding that that part of the law remains intact.

There is no doubt that the Court struck down the first part of the MCA section.  That sought to take away any right of detainees to file habeas challenges to their detention as “enemy combatants.”  The Court said the Constitution gives the detainees that right, so Congress had acted unconstitutionally in suspending that right.

The second part of Section 7 sought to take away from federal courts any power to consider “any other” claim by a detainee challenging “any aspect of the detention, transfer, treatment, or conditions of confinement” of “enemy combatants.”

As the habeas cases have unfolded in the wake of Boumediene, that provision is at issue in disputes over judges’ power to examine the actual conditions of prisoner life at Guantanamo, to limit the Pentagon’s power to transfer detainees out of the prison camp to places they do not want to go, perhaps even to require the Pentagon to release some cleared detainees to live inside the U.S., to order the Pentagon to give detainees’ lawyers more access to them and under better working conditions, or to compel the Pentagon to share more “protected” (that is, classified) information with detainees’ lawyers.

Judge Urbina was faced with one of these issues on Thursday: a plea by six Chinese Muslims, each of whom expects soon to be relieved of the designation of “enemy combatant,” to require the military to transfer them from a restrictive part of Guantanamo — Camp 6, referred to by prisoners as ”the tomb above the ground” — to the more accommodating Camp 4.

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Salim Ahmed Hamdan, the Yemeni national convicted on Wednesday by a military commission on charges of providing support to terrorism, was sentenced by the same jury on Thursday to 66 months in a detention facility at Guantanamo Bay, according to news accounts.

Here is the initial report from the Miami Herald.  The story notes that the military judge had decided to credit Hamdan with about five years of time he had been at Guantanamo, thus apparently limiting his detention based on the sentence to perhaps five months.  The conviction and sentence are subject to review on appeal in military and civilian courts.

Hamdan, however, has been designated an “enemy combatant” by the Pentagon, and as long as that remains in effect, he would stay confined at Guantanamo, though not in the separate facility set aside for those convicted of war crimes by commissions.  He is challenging his detention and continued imprisonment in a habeas case in U.S. District Court (04-1519); the case has been temporarily assigned, for coordination with other habeas cases, to Senior Judge Thomas F. Hogan.  Otherwise, it remains pending before District Judge James Robertson.

UPDATE 4:30 p.m.  Without recorded dissent, the Supreme Court on Thursday afternoon refused to delay the execution in Texas of a Honduran for a 2001 murder in Arlington, Texas. The Court’s order (found here) also denied review of Heliberto Chi’s appeal. Justice Antonin Scalia, as Circuit Justice, referred the case to the full Court.  There was no written opinion.  The execution is scheduled for 6 p.m. Central time.  (FURTHER UPDATE: The Houston Chronicle, reporting later in the evening on the process, said that “Chi was pronounced dead nine minutes later at 6:25 p.m. CDT.”)

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A Honduran national, scheduled to be executed Thursday evening in Texas, asked the Supreme Court Thursday morning to delay that process and hear his claim that Texas violated a U.S.-Honduran treaty in his case.  The challenge by lawyers for Heliberto Chi (petition 08-5652, stay application 08A112) came two days after the Supreme Court allowed Texas to execute another foreign national, Mexican Jose Ernesto Medellin.  Texas’ opposition brief in Chi’s case can be found here.

The cases are similar, in that both Chi and Medellin contend that they were denied access to diplomatic officers from their country as their criminal cases went forward in Texas.  Chi’s challenge is not based on the Vienna Convention on Consular Relations — the treaty at issue in the Medellin case — but rather on a consular rights treaty between the U.S. and Honduras, dating from 1927.  His appeal contends that this bilateral agreement is “self-executing,” unlike the Vienna Convention, and thus is binding within the U.S. and on Texas.

Chi, like Medellin, had sought to rely in part on the Vienna Convention. But, his lawyers told the Court, that part of his challenge was “foreclosed” by the Court’s action on Tuesday in the Medellin case. Chi “relies solely on the claims arising under the bilateral Consular Rights Treaty as the basis for review in this Court.”

The plea for a postponement of the scheduled execution explicitly asks the Court to ask for the views of the U.S. Solicitor General on the Honduran treaty — a move the Court did not make in the Medellin case, although four Justices suggested it; the Court did do so, though, in a 1998 case involving the Vienna Convention. The views of the government of Honduras should also be consulted, Chi’s application argued.

The state of Texas, in response, argued that the Honduran treaty does not guarantee Chi the rights he claims, that it is not self-executing and thus does not apply in the U.S., that the Court has no jurisdiction to act because state courts relied solely on state law in rejecting his claim, that his claim in any event has been rejected on the merits, and that he has waited for almost four years to rely on the Honduran treaty.

Chi’s plea was filed with Justice Antonin Scalia in his role as Circuit Justice, but he is likely to share it with his colleagues, as he did with the Medellin case on Tuesday.

As in Medellin’s case, the Texas Court of Criminal Appeals rejected Chi’s challenge to execution on the basis that he had not filed his claim when the case was in Texas courts, and thus had forfeited it for post-conviction challenge.  In its order Wednesday, it dismissed his “subsequent application” for procedural flaw.  (The order and other materials, including the bilateral treaty, are included in the appendices with the petition, linked above.)

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The six-year running battle over the admissions policy of a highly regarded trio of private schools in Hawaii — the Kamehameha Schools — is back in the courts, with one side specifically aiming for an ultimate test in the Supreme Court.   An earlier case, testing whether an 1866 civil rights law still bars the use of race in private school admissions, reached the Court last year, but was settled before the Justices took final action on it.

A new lawsuit, raising the same challenge, was filed Wednesday in U.S. District Court in Hawaii — with the same name (Doe v. Kamemameha Schools), but with new individuals suing (docket 08-359).  Also on Wednesday, the Schools filed a separate lawsuit in state court in Hawaii, claiming a violation of the 2007 settlement agreement because one of the attorneys involved had disclosed the confidential terms of the deal, including, the attorney said, a payment of $7 million to the youth who had sued.  The Schools’ trustees are seeking return of the money, and other money damages.  (The Feb. 8, 2008, Honolulu Advertiser news story revealing the settlement terms can be read here.)

The new Doe lawsuit in federal court notes that the earlier challenge to the admissions policy, preferring students of “Hawaiian ancestry,” had failed in both the District Court and in the en banc Ninth Circuit Court. The two lawsuits, it says, are “virtually identical,” but it indicates that the four youths and their parents who sued “intend by this action to have that [Ninth Circuit] ruling overturned in the Supreme Court of the United States.”

The first lawsuit against the Schools’ admission policy was filed by a youth identified only as “John Doe”, who sued in June 2003 after being denied admission four times. He is a lifelong resident of Hawaii, but is not “Native Hawaiian” in a racial sense, his challenge noted.  As a minor, he was joined in the lawsuit by his mother, identified only as “Jane Doe.”  The Kamehameha Schools are three kindergarten-through-twelfth-grade private schools on three of Hawaii’s islands.

A press release describing the new civil rights claim can be found here (it includes a link to the text of the complaint).  A press release by Kamehameha Schools announcing its state court lawsuit over the settlement disclosure is here.   The text of the school trustees’ complaint can be found here.

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In the first trial by a U.S. military commission in more than 60 years, a jury of six officers on Wednesday reached a split verdict of guilty and acquittal in the case of Salim Ahmed Hamdan, according to news accounts from Guantanamo Bay.  The case is almost certainly going to be appealed, first through a military review system then through civilian courts, perhaps ultimately to the Supreme Court.

Although the war crimes system used in Hamdan’s case has been in existence for nearly two years, its constitutionality has never been decided by either a military or civilian court.  Efforts by Hamdan and another detainee to stop the commission trials because of their claims of constitutional defects have been rebuffed in federal court.

It also has not yet been settled what constitutional rights a detainee has before a military commission; in Hamdan’s case, many of his lawyers’ constitutional challenges were rejected by the trial judge.

The New York Times reported Wednesday morning that “the commission acquitted Mr. Hamdan of a consiracy charge, arguably the more serious of two charges he faced, but convicted him of a separate charge of providing material support for terrorism.”   The Times said sentencing would be decided at a separate proceeding beginning later in the day Wednesday.  The maximum sentence is life, which Hamdan would serve at a facility on the U.S. Navy base at Guantanamo.

Hamdan is a Yemeni national who had served as a driver for terrorist network chief Osama bin Laden.  The military first attempted to prosecute him under a system set up by President Bush, but the Supreme Court struck that down in 2006 (Hamdan v. Rumsfeld). Congress then passed the Military Commissions Act of 2006, creating a new war crimes system.  Hamdan is the first to be tried by such a tribunal.

Under the MCA, a verdict and sentence are first reviewed by a Pentagon official known as the “Convening Authority.”  That official has the “sole discretion and prerogative” to modify the verdict and the sentence imposed, but may not increase the sentence.

Beyond that official, there is a right to an automatic appeal if the commission and the Convening Authority have agreed on a guilty verdict. The appeal goes to a special military court, the U.S. Court of Military Commission Review.  Only after those two steps have been followed may a case then go to a civilian court — initially, the D.C. Circuit Court.

From there, a case may go to the Supreme Court on certiorari, with the Justices having the authority to grant or deny review.

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Meanwhile, in the ongoing legal controversy in U.S. District Court in Washington over the rights of detainees to challenge their captivity, the Justice Department on Tuesday made a new move to stop the release into the U.S. of any Guantanamo detainee, including one no longer designated an “enemy combatant.”

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