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Detention challenge denied

The Supreme Court turned aside on Monday an attempt to challenge the constitutionality of a 2011 law that sought to reinforce the president’s authority to order the capture and long-term detention of individuals suspected of ties to terrorism — including, potentially, U.S. citizens.  The Court made no comment as it denied review of Hedges v. Obama.

When Congress passed a defense-related bill three years ago, including new language on detentions, it could not agree on whether existing authority did or did not extend to U.S. citizens, so it simply opted to leave that issue in a kind of constitutional limbo.  A federal judge blocked its enforcement, finding that political activists — including two citizens — had a reasonable fear that the law would be enforced against them.  However, the U.S. Court of Appeals for the Second Circuit overturned that ruling, declaring that none of the challengers had a right to pursue their claim because they could not show that they were harmed by the new law.

The Court on Monday granted review in two new cases; both will be decided next Term.  One seeks clarification of what a home loan borrower must do in order to get out from under the mortgage because the lender allegedly failed to provide full disclosure of the loan terms (Jesinoski v. Countrywide Home Loans).

The second case raises a novel issue about how federal law treats fish as an object that cannot be destroyed because it may figure in a criminal investigation.  At issue in Yates v. United States is whether the Sarbanes-Oxley Act’s ban on destroying a “tangible object” includes only materials like documents or other records, or also includes a physical object like a fish.  A fisherman convicted of destroying undersized fish that he allegedly caught illegally in the Gulf of Mexico raised the question whether he had fair notice that the law applied to his action.  The Court limited its grant to the first question raised in the petition.

The ongoing mystery of what the Court is doing with an Arizona murder case — submitted to the Justices in twenty straight Conferences without word of any action — continued on Monday.  The case is Ryan v. Hurles, testing when a federal habeas court must defer to a state court that did not hold an evidentiary hearing on a claim that the judge was biased.

Presumably, that case will be listed again this week, for a twenty-first time.  It has been put before the Justices in every scheduled Conference since September.

The Court also took no action on the latest attempt to get the Court to expand the Second Amendment right to possess a gun so that it applies outside the home.  The case is Drake v. Jerejian, seeking to challenge a New Jersey law that requires an individual to obtain a permit to carry a handgun in public.  The law requires proof that an individual has a “justifiable need” to carry a gun in public for purposes of self-defense.

The Justices’ refusal to hear the case on presidential detention powers marked the latest example of the Court’s quite narrow view of the right to test new issues arising out of the ongoing “war on terrorism.”  The new case collapsed on the same basis as others have: a finding by lower courts that no challenger could show that he would be directly affected or harmed by government action to deal with terrorism — that is, no challenger had “standing” to sue.

This time, five U.S. citizens and two foreign nationals — a member of Iceland’s national parliament and a German anti-war activist — lost the right to challenge the validity of a sweeping provision in the National Defense Authorization Act, signed into law in late 2011 by President Obama.

Although the president, and some congressional supporters of the measure, had insisted that it did not add to existing power to detention terrorism suspects, the provision did add to the language of the Authorization for Use of Military Force that Congress had passed immediately after the 2001 terrorist attacks on the U.S.

Some members of Congress wanted the power to apply to U.S. citizens, while others argued against that.  Ultimately, a compromise, originating in the Senate, declared that the law did not change existing law on that question.  But the two sides could not agree on what existing law meant.  The challengers argued that, because of that uncertainty, and because they had sometimes had contact with terrorist groups or with individuals detained by the U.S. military, they were at risk of being detained at some point.

As a result, the challengers said, it interfered with their rights of free speech under the First Amendment.  They also contended that the provision was unconstitutional because its meaning was so vague.  While they won on both points in a federal district court in New York City, the Second Circuit ruled that the case could not proceed because there was no proof of a direct impact on the individuals involved.

The newly granted Jesinoski case on mortgage borrowers’ rights involved the scope of the Truth in Lending Act, a law first passed by Congress in 1968 to help consumers get full information about the financial terms of the loans they take out, so that they can more easily compare terms.  That law generally allows a borrower to back out of a mortgage within three days after the loan is settled, simply by filing a written notice of that with the lender.  But that time limit could be extended until the creditor delivered full disclosure of the loan terms.

A later amendment put an overall time limit on when such a loan could be rescinded by the borrower, specifying that the borrower must give notice of backing out of the loan no later than three years after the loan was settled, even though the lender at that time had still not provided the required information.

An Egan, Minnesota, couple, rebuffed in an attempt to nullifying a mortgage loan on their home, for alleged defaulted by the lender in providing full disclosure, asked the Court to clarify the time limit for rescission of a loan.  The lower courts are divided on the question.

In accepting review of the Yates case, the Court will be spelling out the scope of a law passed in the wake of the corporate scandals, particularly involving Enron Corp.  A provision of that law made it a crime to interfere with a federal investigation by destroying, hiding, or altering evidence.

The law forbids destroying, mutilating, altering, concealing, or falsifying “any record, document or tangible object,” with the intent to impede or obstruct a federal investigation.

The case involves John L. Yates, a Floridian who captained a commercial fishing vessel, Miss Katie, working the waters of the Gulf of Mexico.   An inspector boarded the vessel in 2000 to check for compliance with fishing regulations.  While on board, he saw several red grouper fish, which appeared to him to be smaller than the twenty-inch minimum size for taking that species.  He measured them, and found seventy-two that he deemed too small.

Yates and his crew were told to return to port, and not to disturb the catch.   Yates later was charged with violating the law against destroying evidence, for allegedly ordering a crew member to throw the undersized fish overboard.  The crew then replaced the discarded fish with other red grouper.

At his trial on criminal charges, including destroying evidence, Yates’s lawyers contended that the law against destroying evidence was designed only to deal with documentary evidence, and that its coverage of “tangible objects” meant to apply on to the same category.   That argument failed in the trial court, and Yates was convicted of violating that provision by ordering the casting overboard of the small red grouper.  The U.S. Court of Appeals for the Eleventh Circuit upheld his conviction, rejecting his challenge to the scope of the evidence law.



Recommended Citation: Lyle Denniston, Detention challenge denied, SCOTUSblog (Apr. 28, 2014, 9:52 AM),