Wednesday, September 05, 2007
Jousting over timing of first DTA review
10:17 PM | Lyle Denniston | Comments (0)
The two sides in the first court review of military decisions to keep detainees confined at Guatanamo Bay, Cuba, continued this week to dispute how rapidly that first test case should move in the D.C. Circuit Court. Lawyers for the detainee involved, Saifullah Paracha, on Tuesday urged the Court to deny a Justice Department request for more time to file documents seeking to justify Paracha's continued imprisonment. On Wednesday, the Department responded, arguing that it simply cannot meet a court-imposed filing deadline.
The case involving Paracha, a Pakistani national who holds a permanent U.S. resident visa and plans to return to the U.S., is the initial test of whether the Circuit Court will seriously second-guess the actions of Combatant Status Review Tribunals in deciding to keep prisoners at Guantanamo. (The case is Paracha v. Gates, 06-1038).
His lawyers reminded the Circuit Court that he has been held at Guantanamo for three full years, and still may have to wait another year for that Court to decide whether the military has properly classified him as an "enemy combatant." If the case ultimately goes to the Supreme Court, his lawyers said, his fate may not be determined until sometime in 2009. They said the Justice Department has a desire for "unending delay," arguing that it was "high time to put Paracha's convenience above that of the government."
Answering, the Justice Department said that it will file on Friday sworn statements from the directors of the Central Intelligence Agency and the National Security Agency, as well as the No. 2 civilian official at the Pentagon, demonstrating the "extraordinary burdens and the national security risks" if the Pentagon has to submit a broad file of information about Paracha by the court-imposed deadline of Sept. 13. The deadline, it said, "is simply not feasible." It asked for at least a 30-day postponement.
The statements supporting its complaint will be filed on Friday, as part of the Justice Department's request that the Circuit Court rehear en banc the decision enlarging the Pentagon's duty to supply combatant status information. That decision came in the combined cases of Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397)
The Paracha opposition to any further delay can be found here, and the Justice Department answer to that is here..
Upcoming Events: Celebrating Lewis Powell
03:44 PM | Jason Harrow | Comments (0)
September 19, 2007 marks the 100th anniversary of the birth of Supreme Court Justice Lewis F. Powell, and Washington and Lee University (his alma mater) will celebrate this milestone with a symposium and two lectures exploring Justice Powell’s judicial legacy. All of these events are free and open to the public.
Events include a symposium on Monday, September 17; a lecture by Linda Greenhouse on Wednesday, September 19; and a lecture by Judge J. Harvie Wilkinson III on Friday, September 21. More details can be found after the jump or at http://law.wlu.edu/powell.
Continue reading "Upcoming Events: Celebrating Lewis Powell" »
Final Briefs in Danforth v. Minnesota
01:15 AM | Ben Winograd | Comments (5)
Below are the final top and bottom side briefs in Danforth v. Minnesota (06-8273) -- a case examining state courts' authority to expand retroactivity of Supreme Court criminal procedure rulings -- which is scheduled for argument on October 31.
Click here to read the petitioner's brief, filed by the Minnesota Public Defender's office, and here to read the respondent's brief.
Click here and here for amicus briefs from the American Civil Liberties Union and the National Association of Criminal Defense Lawyers in support of the petitioner; here for an amicus brief from Alaska and ten other states in support of the respondent; and here for an amicus brief from Kansas in support of neither party.
Tuesday, September 04, 2007
New Assistants to the SG
10:11 PM | Marty Lederman | Comments (2)
At least four new attorneys have been hired as Assistants to the Solicitor General:
Curtis Gannon, from Gibson, Dunn & Crutcher.
Toby Heytens, from the University of Virginia Law School
Leondra Kruger, from the University of Chicago Law School (and recently of WilmerHale)
and
Anthony Yang, from the Civil Appellate Division.
My understanding is that there are at least two other openings still to be filled.
Round-Up: The D.C. Guns Appeal, Twombly Analysis
03:32 PM | Adam Chandler | Comments (0)
The District of Columbia filed its petition to the Supreme Court today for review of the D.C. Circuit’s decision that its gun control law violated the Second Amendment. For Lyle’s coverage and analysis of the petition, along with links to the relevant documents, click here.
D.C. mayor Adrian Fenty and attorney general Linda Singer had this column, “Fighting for Our Handgun Ban,” in today’s Washington Post. They write that the Circuit Court’s decision “threatens public safety and is wrong on the law…[s]o we will fight.” Also in the Washington Post is Bob Barnes and David Nakamura’s report on today’s filing, here.
Tony Mauro has a post on the case at the Legal Times blog (the BLT), which reports that Alan Morrison will be arguing the case for the city, should the Justices decide to hear it. Morrison has previously argued 16 cases at the Court while working for the Public Citizen Litigation Group. The Associated Press story on the appeal is available here, via the Wall Street Journal Online.
Also, not related to District of Columbia v. Heller, Gregory P. Joseph (bio here) has prepared this article, “Supreme Court Rewrites Pleading Rules,” which analyzes the landmark case Bell Atlantic Corp. v. Twombly, decided in May 2007.
Second Amendment case reaches Court; cross-appeal coming
10:32 AM | Lyle Denniston | Comments (10)
UPDATE Wednesday p.m.
The Court has now docketed District of Columbia v. Heller as 07-290.Analysis
(The petition can be downloaded here, and the appendix is here. It will be assigned a docket number shortly. A news release discussing the filing can be found here.)
Relying upon strong rhetoric and the argument that access to handguns is a direct threat to peoples' lives in the Nation's capital, the District of Columbia government urged the Supreme Court on Tuesday to spare the city's gun control law from nullification under the Second Amendment. "Having a handgun, whether in the home or outside it, comes at the expense of the safety of those who may be victims," the petition for review argued. "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."
The local residents who successfully challenged the local handgun law have already said they will join in urging the Supreme Court to hear and decide the case. The case is being filed early enough that, if granted, it could be decided in the current Term. Absent extensions of time, briefing on the issue of granting or denying review could be completed by mid-October.
UPDATE 11:50 a.m. Five of the six D.C. residents who filed the original challenge, and whose "standing" to sue was denied by the D.C. Circuit Court, plan to file a cross-appeal to the Supreme Court later this week, seeking to revive their right to have brought the case, according to one of their counsel, Robert A. Levy, senior fellow in constitutional studies at the Cato Institute. One of the six, Dick Anthony Heller, was found to have "standing."
Tuesday's appeal in District of Columbia v. Heller challenges a March 9 ruling by the D.C. Circuit Court, striking down the Washington, D.C., law adopted in 1976 that generally bars the registration of any handgun. Thus, the law does not allow anyone to possess a handgun for private, personal use, in any setting, including a private home. Although the Circuit Court's 2-1 ruling suggested that the District might be able to adopt some "reasonable" form of gun control, the sweeping language of the opinion appeared to mean that the Second Amendment would stand in the way of any regulation of any weapon that qualifies as a firearm. The Amendment's "right to keep and bear arms" protects a right to have a gun in one's own home for personal use, the Circuit majority ruled.
The petition raises a single question: "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns."
Worded that way, the question appears to offer the Justices an option of deciding the case on narrow grounds, limited to the urban setting of a single city with a history of handgun-related violence, with citizens still able to have some other kinds of guns for self-defense in case of need.
But the reasoning spread through the petition would also seem to offer the Court a chance, if it wished to take it, to speak broadly on the meaning of the Second Amendment -- including defining the scope of the Amendment's restriction on actions by Congress and what that means to states' power to enact gun control laws or protect gun owners' rights without federal interference. The Court has never ruled that the Second Amendment operates directly against state governments so as to limit their legislative power to regulate access to guns. The petition suggests an interpretation that would have the Second Amendment insulate the states from congressional second-guessing about gun rights that the states choose to recognize or to limit.
The Supreme Court has not ruled on the scope of the Second Amendment in 68 years -- not since U.S. v. Miller in 1939.
Continue reading " Second Amendment case reaches Court; cross-appeal coming" »
The Week Ahead
09:06 AM | Ben Winograd | Comments (0)
Wednesday is the deadline for the District of Columbia to file a petition for review in the Second Amendment gun rights case, District of Columbia v. Heller, though it's widely expected that DC will release details of its case at this morning's press conference (see details here). The D.C. Circuit struck down the city's handgun control law, one of the strictest in the nation. The blog will post the petition as soon as it becomes available.
On Friday, the Justice Department will file a petition for rehearing en banc in the D.C. Circuit Court in the combined cases of Bismullah v. Gates and Parhat v. Gates -- cases in which the Circuit Court laid down the basic procedural rules for judicial review of "enemy combatant" rulings for Guantanamo Bay detainees.
Top side briefs are due Wednesday in Snyder v. Louisiana (06-10119). (Click here for prior coverage of the case.)
No bottom side briefs are due this week.
Monday, September 03, 2007
Government opposes release of secret court orders
05:41 PM | Lyle Denniston | Comments (1)
The Justice Department has urged the special secret court that oversees global electronic eavesdropping to refuse a request that it open to the public any version of its orders authorizing the current wiretapping program. In a 23-page brief, filed Friday with the U.S. Foreign Intelligence Surveillance Court, the Department contended that any release of even censored versions of such orders would threaten national security. The ACLU has provided a link to the document at its website, here.
The materials being sought by the American Civil Liberties Union, the brief argued, "are properly classified in their entirety. The public disclosure of the documents that ACLU requests would seriously compromise sensitive sources and methods relating to the collection of intelligence necessary for the Government to conduct counterterrorism activities." Even if the FIS Court were to release unclassified summaries of its orders, the most that they could say, the brief said, was that the orders "authorize the United States to conduct foreign surveillance, and specifically, to target for collection international communications where there is probable cause to believe that one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization." That general information, of course, has been stated publicly numerous times by public officials, including President Bush.
Moreover, the Department said, the law creating this Court does not allow any outsider to file a "free-standing motion" about that Court's business, and the First Amendment does not compel release of any of the orders or of government legal briefs filed with the Court seeking approval for its global wiretapping program.
The ACLU on Aug. 8 filed a formal motion with the FIS Court requesting public release of orders on the scope of international eavesdropping authority. The Court then asked the Justice Department to respond, saying the issue "warrants further briefing." The ACLU has until Sept. 14 to respond to the government's opposition.
In challenging the ACLU request, the Justice Department conceded that there is "significant and legitimate public interest in the ongoing debate over Government surveillance of foreign terrorist and intelligence targets." It said it contributed to that debate with the disclosure in January that the FIS Court had authorized a surveillance program. And, it said, it has shared the Court's orders and Government legal briefs with congressional committees and has given members of Congress "numerous briefings."
But, in the wake of the ACLU motion, it added, it has considered the balance of interests anew, and has "concluded that the substantial risk of harm that disclosure would pose to the Nation's security currently outweighs any public benefit."
Even individuals or organizations that claim to have been aggrieved by FIS Court-approved eavesdropping have always been denied access "to any part of orders authorizing surveillance." It added: "It would be strange indeed if the ACLU, asserting a generalized desire to know, could obtain the relief it seeks while an aggrieved person could not."
The brief also noted that the ACLU tried, without success, to get access to the FIS Court orders in a lawsuit it is now pursuing in regular federal courts. Since its request have been turned down in litigation where it is a party, the brief said, "it is even more clear that the ACLU's free-standing non-party motion should be denied here."
If the ACLU should now try to get access to the documents from the government by moving under the Freedom of Information Act, the Department said, it would oppose that, too.
The brief also reiterated the government argument that the Executive Branch, alone, has the authority to classify and control access to information bearing on national security.
In asking the Justice Department to respond to the ACLU request, the Court allowed government officials to include secret material, and then to provide the ACLU with a censored version. But the government said that, since it believes the ACLU has no basis even for making its motion, it had chosen not to provide any classified material with its brief.
Mayor to discuss gun law appeal
12:10 PM | Lyle Denniston | Comments (0)
District of Columbia Mayor Adrian M. Fenty and other local officials will discuss the city's appeal to the Supreme Court to try to revive the District's handgun ban at a press conference Tuesday morning, the Mayor's office announced. Here is the press release about the event.
Under an extension of time granted by Chief Justice John G. Roberts, Jr., the District's petition for review in the Second Amendment case is due no later than Wednesday. The D.C. Circuit Court, relying on that Amendment, struck down the city's strict handgun control law.
Saturday, September 01, 2007
Government to seek Bismullah rehearing
08:04 AM | Lyle Denniston | Comments (0)
The Justice Department notified the D.C. Circuit Court on Friday that it will seek rehearing en banc in the combined cases laying out procedures for reviewing decisions by the military to keep detainees imprisoned at Guantanamo Bay, Cuba -- that is, cases being pursued under the Detainee Treatment Act of 2005. In a filing in the first of the DTA cases, the Department said it will file a rehearing petition by Sept. 7 in Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397).
The Department had strongly hinted that it would take this step in a filing on Aug. 20 in Paracha v. Gates (06-1038). That filing was discussed in this post. Friday's filing, also in the Paracha case, can be downloaded here.
In the coming rehearing petition, the Department said, it will ask the Circuit Court to provide "clear guidance" on just how extensive the file of documents must be in each detainee cases under DTA. This is a reference to the formal record that the Circuit Court will be reviewing as it decides the legality of detention decisions made by the military's Combatant Status Review Tribunals. The CSRTs are the mechanism the Pentagon uses to decide whether a Guantanamo prisoner is an "enemy combatant" and thus will not be released. Scores of such cases are in the Circuit Court or on their way there now.
In the Bismullah/Parhat ruling, issued on July 20, the Circuit Court spelled out a concept of the record requirement that is far more extensive than the Justice Department had expected or hoped it would be. "The record as defined by Bismullah is not simply a collection of papers sitting in a box at the Defense Department," the filing on Friday said. "It is a massive undertaking just to produce the record in this one case." Producing it by a court-ordered Sept. 13 deadline in Paracha "is not possible without potentially compromising the reliability of the production and without also fundamentally compromising the intelligence agencies' ability to redact sensitive national security material, as permitted by this Court's Bismullah decision."
It thus renewed its request for a postponement of the Sept. 13 production deadline. It said it needs a temporary stay of that deadline, at least while the Circuit Court considers the coming rehearing petition in Bismullah/Parhat. It sought a delay of 30 days beyond the Circuit Court's resolution of the en banc petition.
The Department also said it will be seeking similar delays of other record-filing deadlines in other DTA cases; the Circuit Court has set deadlines in seven other cases, running from Sept. 24 to Oct. 25.
Friday, August 31, 2007
Court issues final summer Orders List
10:08 AM | Lyle Denniston | Comments (0)
The Supreme Court on Friday released the third and final list of summer orders on pending matters. There were no grants of review in any new cases. The next orders, probably including grants, are expected on Sept. 24 or 25 after the opening Conference of the new Term.
Friday's Orders List can be found here. UPDATE: Later in the day, the Court issued a revised Orders List. The only change was the notation that Chief Justice John G. Roberts, Jr., had not taken part in the order denying the stay application in Scherer v . Merck & Co., 07A26.
Among the issues the Justices were to consider during the Summer recess was a plea by lawyers for Guantanamo detainee Salim Ahmed Hamdan for permission to file a rehearing petition in 06-1169 (Hamdan v. Gates) after the time for such a filing had passed. The Court took no action on that motion Friday. Hamdan also has filed a new petition for review (Hamdan v. Gates. 07-15), and has asked for expedited action on that petition. Those matters are now scheduled for consideration at the Sept. 24 Conference, according to the Court's electronic docket.
It is conceivable the Court may take no action on Hamdan's cases until it decides the granted detainee cases, Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). Hamdan's lawyers have filed an amicus brief in those cases, seeking to explain to the Court how his situation differs from those of the Boumediene/Al Odah detainees. That brief also argues that "this Court should resolve Boumediene in a manner that protects Hamdan's pre-trial access...to the [habeas] writ." Unlike most other Guantanamo detainees, Hamdan faces potential war crimes charges before a military commission.
Both his lawyers and Justice Department lawyers moved quickly on his new appeals, perhaps to have them argued along with Boumediene/Al Odah. That appears less and less likely as time passes with no action by the Justices.
Wednesday, August 29, 2007
November argument calendar -- day by day
05:38 PM | Lyle Denniston | Comments (0)
UPDATED 6:45 p.m.
The Supreme Court on Wednesday released the calendar of oral arguments for the November sitting (which actually begins on Oct. 29). It can be downloaded here. On two of the six days, the Court will hear only a single case each. On other days, there will be two arguments.
Here are the scheduled dates, with a summary of issues involved:
Mon., Oct. 29
06-1265 -- Klein & Co. v. Board of Trade -- commodity commission merchants' right to sue for losses in trading
06-9130 -- Ali v. Federal Bureau of Prisons -- right to sue for loss of inmate's personal propertyTue., Oct. 30
06-694 -- U.S. v. Williams -- constitutionality of federal law against Internet-based child pornography
06-6911 -- Logan v. U.S. -- definition of predicate offenses for sentencing of "armed career criminal"Wed., Oct. 31
06-8273 -- Danforth v. Minnesota -- limits on state courts' authority to expand retroactivity of Supreme Court criminal procedure rulingsMon., Nov. 5
06-1287 -- CSX Transportation v. Georgia Board of Equalization -- valuation of railroad property for state tax purposes
06-666 -- Kentucky Department of Revenue v. Davis -- state power to tax residents' interest income on other states' bonds, if home-state bond interest is exemptTue., Nov. 6
06-1164 -- John R. Sand & Gravel v. U.S. -- time limits for filings claims against the U.S. government in the Court of Federal Claims
06-1322 -- Federal Express v. Holowecki -- scope of right to sue for age discrimination on the job; mode of filing initial discrimination chargeWed., Nov. 7
06-989 -- Hall Street Associates v. Mattel -- contracting parties' right to expand scope of judicial review of arbitration awards
Tuesday, August 28, 2007
Recent Invitation Brief Filed
04:17 PM | Amy Howe | Comments (2)
On Friday the Solicitor General filed this amicus brief expressing the government's view that cert. should be granted in No. 06-937, Quanta Computer, Inc. v. LG Electronics, Inc. The petition, which was filed by Maureen Mahoney of Latham & Watkins, presents the question whether "a patentee's federal patent rights are exhausted by a licensee's authorized sale of an essential component that has no reasonable use other than in practicing the patented invention, when the patentee has purported to retain in its licensing agreement the right to pursue patent infringement claims against those who purchase the component from the licensee and use it for its only reasonable use."
Recap of OT2006 Criminal Cases
02:45 PM | Amy Howe | Comments (1)
From Professor Rory Little at UC Hastings College of the Law:
I recently produced these Summaries of the Supreme Court’s Term, Criminal Cases, for the ABA’s Annual Meeting panel of the same name. (Note: Readers should feel free to reproduce the summaries, with attribution.) I do this panel every year for the Criminal Justice Section. We had some great panelists: U.S. District Judge Jeffrey White (who is handling the BALCO steroids contempt case); white-collar defense attorney Cristina Arguedas; well-known habeas and appellate litigator Dennis Riordan, and former federal prosecutor Haywood Gilliam of Bingham McCutcheon. The detailed “Summaries” of the 32 decisions I counted as “criminal law or related” present the facts and legal background of each case, as well as an account of every separate opinion issued by the Justices in each case. A list of cases in which cert. has been granted for the coming Term, and a chart of “Who Wrote What” showing the authors of all the various separate opinions, appear at the end of the Summaries.
A very brief overview: In sheer number, the habeas/capital cases dominated the Court’s criminal docket this past Term. In addition, Apprendi fallout continues (see Cunningham and Rita); and the Fourth Amendment provided, as always, entertaining (see Rettele and Scott v. Harris with the first-ever decision with a video weblink appendix) and nuanced (see Brendlin) facts. And a little-noticed decision in a Bivens/extortion lawsuit (Wilkie v. Robbins) might be said to provide the most interesting theoretical issues to chew on: why CAN the federal government engage in a lengthy campaign of harrassment, using some unlawful as well as lawful tactics, to pressure a land-owner to grant an easement, and not run afoul of federal constitutional or statutory provisions? Justice Souter explains his answer; Justice Ginsburg was unconvinced and cites Marbury v. Madison in support.
Monday, August 27, 2007
Clement and Garre: The chosen pair?
02:55 PM | Lyle Denniston | Comments (1)
Commentary UPDATED 6 p.m.
Smart, seasoned, energetic advocate of some of the Bush Administration's most controversial legal positions -- an apt description of U.S. Solicitor General Paul D. Clement, who takes over temporarily as Attorney General, and also of Deputy Solicitor Gregory G. Garre, who seems likely to assume at least temporarily the duties of Solicitor General. And, if as seems a real prospect, those two are nominated by President Bush to hold those positions in their own right, controversy almost surely would accompany them to the U.S. Senate but both, in the end, would probably be confirmed. Neither has stirred up the kind of unrelenting criticism that has dogged the now-resigned Attorney General, Alberto R. Gonzales: they are, in a phrase, Bush policy loyalists without the taint of Democratic hostility.
For the Solicitor General's office, and thus for the Administration's stance before the Supreme Court, the changes -- at least for the time being -- in the leadership of that office would mean little, if any, change in substance. Clement and Garre have been a team, and they would continue to be with Clement at the head of the entire Department. Clement is a slightly more animated advocate, and Garre is somewhat more deferential at the bar, but the substance of what they have been saying to the Court about government policy is indistinguishable. Moreover, much of the professional work of that office is done with special competence by long-term lawyers on the staff -- such as, for but one example, Michael R. Dreeben.
Even if Clement's assumption of Gonzales' office turns out to be only temporary, it certainly will last weeks and probably months into the new Supreme Court Term. The Democratic-controlled Senate would not move with dispatch on any nominee to succeed Gonzales; the progressive interest groups that have a pile of grievances against the Administration would no doubt emerge as at least visible, if not vociferous, challengers even of Clement. A nomination process for Clement would have to be a political show, no matter how it might come out in the end. However, Clement goes in with one advantage that Gonzales never enjoyed: he is thoroughly accustomed to verbal combat, on important public stages, and is considerably more articulate than Gonzales has been. Clement also does not have the personal identification with George Bush that has become such a liability for Gonzales.
That very lack of identification may help Clement with his most important challenge: creating a new image of an independent and professional Justice Department, a condition necessary to restore flagging morale in the career ranks there. The White House could help, too, by loosening its partisan grip on the Justice Department, a gesture that might well be more attainable with the imminent departure from the White House of its most committed partisan, Karl Rove.
Clement has been involved at a fundamental level in defending President Bush's "war-on-terrorism" initiatives in the federal courts. Lately, Garre has been joining in that effort -- as, for example, in defending the warrantless global wiretapping, purportedly to gather foreign intelligence. But those efforts for the most part have been performed in the courts, as legal advocates, and not behind the scenes as core policymakers in the way that Gonzales has been since 9/11.
In more recent weeks, however, Clement has been an architect of -- or at least a cheerleader for -- the claims of "executive privilege" that have been coming out of the Bush White House in the wake of aggressive Democratic oversight in Congress. He surely would have to defend that before the Senate Judiciary Committee if nominated to be Attorney General.
In passing, it should be noted that President Bush does not have to make a new nomination for either the Attorney General or Solicitor General positions, and, with only 17 months left in the Bush Presidency, it may be tempting to try to avoid a fight over such nominations. The two could serve in an Acting capacity, as others in those offices have done previously -- sometimes, expressly to avoid a fight in the Senate.
Would Clement be interested in the Attorney General's job? The answer is very likely a fervent "yes." He has achieved almost all of what a Solicitor General might have hoped for in his quite distinguished tenure in that seat, and it would be a definite boost for his professional future to have served as Attorney General. There has been talk, of course, that the President may want to reward Clement for his government service by nominating him for a federal judgeship. While Clement might be able to win Senate confirmation for a judgeship, as the Bush Presidency winds down, there will be less and less incentive for the Democratic Senate to fill many seats on the federal bench. That remains a possibility, though, if the President should decide not to nominate Clement for Attorney General by opting for a different candidate.
No one who follows the work of the Solicitor General's office in the Supreme Court should have any doubt about Gregory Garre's ability to carry on that job successfully. He had served in that office previously, headed the appellate practice group at a major law firm, and then returned to be the principal political Deputy to Clement. Examining even in a cursory way the issues that the Court will be reviewing in government cases in the Term that opens Oct. 1, one cannot discern a single case in which Garre might advocate a position different from what Clement had embraced. The transition would, in all likelihood, be smooth, indeed.
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Alberto Gonazales Resigns; SG Paul Clement to be Acting AG
01:25 PM | Jason Harrow | Comments (0)
According to reports, current Solicitor General Paul Clement will replace Alberto Gonzales as Acting Attorney General when Gonzales leaves his post on September 17; CNBC is also reporting here that he is a frontrunner to be nominated by President Bush as Gonzales's official replacement.
More analysis on what this development means for both the Department of Justice and the Office of the Solicitor General will follow. In the meantime, a lengthy profile of General Clement, written in January by Tony Mauro, can be found here.
The Week Ahead
10:19 AM | Ben Winograd | Comments (0)
The Court will issue its third and final round of summer orders on Friday. The blog will post anything of interest that appears on the Orders List.
Top side briefs are due today in Riegel v. Medtronic (06-179). No bottom side briefs are due this week.
Friday, August 24, 2007
Petitioners' Briefs Filed in Detainee Cases
06:51 PM | Ben Winograd | Comments (1)
Lawyers for detainees at Guantanamo Bay filed merits briefs today in Boumediene v. Bush (06-1195) and Al Odah v. United States (06-1196).
The brief in Boumediene is here, and click here and here to read the petitioners' briefs in Al Odah. The Justice Department's briefs in both cases are due October 9.
One amicus brief filed today in support of the petitioners came from Salim Hamdan, available here. The Court has yet to take action on his two pending appeals, 06-1169 (rehearing petition) and 07-15 (cert before judgment).
At least 20 other amicus briefs were filed in support of the petitioners, with still another filed in support of reversal. They are listed and linked after the jump. See Marty's post below for his inital reaction to one of the amicus filings.
Continue reading "Petitioners' Briefs Filed in Detainee Cases" »
Boumediene/Al Odah Briefs
05:23 PM | Marty Lederman | Comments (7)
Today is the deadline for top-side briefs in the detainee cases. Mayer, Brown is very helpfully posting links to all of them here. [UPDATE: The brief in Boumediene is here. Note that the Boumediene case is not limited to the habeas question. The second question presented ("[w]hether Petitioners’ indefinite military imprisonment as 'enemy combatants' is unlawful, requiring the grant of habeas relief") is directed at the issue of identifying the category of persons who Congress has authorized the military to indefinitely detain.]
Having only glanced at them quickly, this amicus brief stood out as particularly noteworthy: It's filed on behalf of specialists in Israeli law, and it discusses the procedures and substantive rules that Israel uses in its detention practices. (The Israeli courts and legislature have considered these questions in considerable depth.) Particularly noteworthy is the discussion on pages 17-18 concerning the category of persons who are subject to military detention in Israel. The "substantive" issue of who Congress has authorized the U.S. military to detain indefinitely is the important second question presented in the Boumediene case (distinct from the question of whether petitioners have habeas rights and whether the MCA/DTA scheme is an adequate substitute for habeas)
Thursday, August 23, 2007
War crimes appeals court hearing Friday
05:30 PM | Lyle Denniston | Comments (0)
The U.S. Court of Military Commission Review, the tribunal set up by Congress to hear appeals in war crimes prosecutions, will hold its first hearing on its first case on Friday. The Court will borrow a courtroom from the U.S. Court of Appeals-Federal Circuit for its 10 a.m. hearing in U.S. v. Khadr (docket 07-001).
With 45 minutes each for prosecutors and defense counsel, the Court will be exploring three issues. The key one is whether a military judge correctly dismissed all charges against the young Canadian detainee, Omar Ahmed Khadr, because of a flaw in the Combatant Status Review Tribunals for Guantanamo Bay prisoners. (The Court's order setting the hearing and the issues can be found here.)
The other issues involve claims by the defense counsel that the Court itself is not a proper tribunal because of the mode of appointment of the judges, and that the judges named to the panel in Khadr's case were not validly appointed. The three military officers serving as judges on this first panel were reappointed by the Court's new Chief Judge, former U.S. Attorney General Griffin B. Bell on Aug. 20. That may have mooted the third issue.
