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Victory for U.S. on detainees

The Supreme Court voted on Monday to leave intact a lower court ruling that took away almost all of the power of federal judges to block, even temporarily, the transfer of detainees out of Guantanamo Bay.  The Court, in a brief order, denied review of the D.C. Circuit Court’s ruling in April in Kiyemba v. Obama (Supreme Court docket 09-581), now informally known as “Kiyemba II.”  This marked a significant victory for the federal government, enhancing its authority to decide when and where to send detainees that are cleared for release from confinement without interference by federal judges and without challenge by detainees’ lawyers.

The Justices, in simply refusing review, did not rule directly on the legal issue raised by four Chinese Muslim Uighurs, so there was no guarantee they agreed with the result.  But the practical effect of the denial may be about the same, with District Court judges now without power to delay any transfers to which a detainee or his lawyer objects.  The government has said repeatedly that it will follow a policy of not transferring a detainee to a country where it is likely that he would face torture, abuse or death.

While the Court granted review of four new cases on Monday, some of its most important actions came in denials of review.  With no recorded dissent, the Court refused to reopen the question of state and local governments’ power to stop anti-abortion protests outside of abortion clinics.  The Justices denied review of a Massachusetts case, McCullen, et al., v. Coakley (09-592). In that case, five anti-abortion demonstrators sought to challenge the constitutionality of a ten-year-old state law that sets up a “buffer zone” for 35 feet beyond any part of an abortion clinic entrance or driveway.

The Court, over the lone dissent of Justice Samuel A. Alito, Jr., the Court turned aside a case seeking to challenge the power of public school officials to bar the performance of religious-themed music at high school graduation ceremonies.  The case, Nurre v. Whitehead (09-571), involved school officials’ order forbidding a musical group from performing “Ave Maria” at a high school graduation ceremony in Everett, Wash.  In a six-page dissenting opinion, Justice Alito argued that, when public school officials allow students to express themselves, the officials “may not behave like puppet masters who create the illusion that students are engaging in personal expression when in fact the school administration is pulling the strings.”

The Justices also refused, without recorded dissent, a second request by the state of Michigan for an order to the federal government and others to take strong new measures to prevent migration of a destructive species of fish — Asian carp — into Lake Michigan.  The Court had turned down a similar plea for a preliminary injunction in January; the state renewed its offer, claiming new evidence of further migration of the carp.  The Court has yet to rule on a plea by the state of Michigan to reopen an old Original lawsuit in order to raise the Asian carp issue.  The cases are Original 1, 2 and 3, Wisconsin, et al., v. Illinois, et al.

The Court also rejected a renewed plea by former Panamanian dictator, Manuel Antonio Noriega, to bar his extradition to France for a trial on new criminal charges.  The petition for rehearing in Noriega v. Pastrana (09-35) was denied without comment.

The most significant of the newly granted cases is Connick, et al., v. Thompson (09-571).  The Court limited its review to the first question raised: whether a local government may be held legally to blame for a single incident of a prosecutor’s failure to hand over evidence that is favorable to the defense.  The case involved a New Orleans prosecutor’s decision to withhold from defense lawyers in a murder case significant blood chemistry evidence.  The tactic helped get a conviction of a New Orleans man, John Thompson, who was later found to be innocent of the crime — after he had spent more than 18 years in prison, including more than 14 years on Death Row.