SCOTUSblog

First detainee plea to come to U.S.

2008-07-25T14:34:06Z

In the first effort to win release into the U.S. — to the Washington, D.C., area — of a Guantanamo Bay detainee, lawyers for a member of a Chinese Muslim minority have asked a federal judge to order the Pentagon to free him immediately. The individual is Huzaifa Parhat, whose case is the furthest along of any of more than 200 Guantanamo prisoners who are challenging their detention.

Last month, the D.C. Circuit Court, in the first ruling of its kind, decided that the Pentagon had failed to justify continuing to hold Parhat. (A post describing the ruling can be read here) It said that he had the option of seeking his release in District Court, but did not itself order that. In fact, it did not decide directly that it had the power to order him freed, but it said a District Court judge had that authority, It also said that, among other reactions to its rulings, the government might seek to transfer Parhat to another country, or might try to hold a new Pentagon review to offer any new evidence it might have to continue holding him.

Parhat’s attorneys did not wait for the Pentagon to take the first step, moving instead on Wednesday to obtain a prompt hearing on his plea that he is legally entitled to release, and then to order him freed under “such conditions for reporting and monitoring as are reasonable in the circumstances.” Parhat should be brought to the court for that hearing, his lawyers asserted.

The documents were cleared by a court security officer for release Thursday. The motion for release, with a supporting legal memorandum, can be found here. A separate motion for a final ruling on his habeas application, seeking release, was filed, along with a legal memorandum.

His lawyers said in one of the filings that they expect the government “to vigorously oppose” the plea for an immediate ruling on his right to be released. They also said that they expected it would be “time-consuming” for a District judge to rule, followed by “potential appeals.” But they explicitly asked that he be released while his challenge goes forward in court, as a form of “interim relief.”

By coincidence, the papers were filed two days after Attorney General Michael B. Mukasey, in a major speech on detainees, urged Congress to pass a new law barring any judge from issuing an order “that an alien captured and deained abroad during wartime be admitted and released into the United States.” (It does not appear that Congress will act quickly on that request.)

Parhat’s attorneys said that there is a community of about 250 individuals of Chinese ethnic Uighurs — like Parhat — living in the Washington area, and is in a position to help him “negotiate the linguistic and practical challenges” of being in America, and help him understand his obligation to meet any conditions imposed on him while he awaits a ruling on his legal challenge. The attorneys said the judge may want to order regular reporting to various government agencies, and to impose restrictions on his travel.

Attached to the papers were sworn statements by Uighurs who live in the Virginia suburbs of Washington, D.C. One was by Rebiya Kadeer, whowas jailed in China for years, including two years in solitary confinement. She was released in March 2005, and now has refugee status in the U.S. She has founded the International Uyghur Human Rights and Democracy Foundation. Another filing was by Alim Seytoff, general secretary of the Uyghur American Association, who is a permanent resident alien.

Although the Circuit Court, in ruling that Parhat was not legally designated an “enemy combatant,” had said the Pentagon might want to reopen a new Combatant Status Review Tribunal on that question, Parhat’s lawyers said that he has been cleared for years for release from Guantanamo, but has not left — after more than six years — because “no safe country has been found to take him.” Because he is a Uighur, a persecuted minority in China, he cannot be sent there, his lawyers noted.

“The government has not shown that it can overcome the [Circuit Court’s] non-combatant determination,” the motion for release said. “It cannot, for the simple reason that Huzaifa Parhat has never himself been, nor affiliated himself with this Nation’s enemies.”

The motion for a final ruling granting his habeas plea said that “all other potential remedies for Parhat’s grinding and illegal imprisonment were exhausted years ago. He is entitled to relief, and there is no relief — except an order that he be released into the continental United States.”

In seeking immediate release into the U.S. as a temporary measure, his lawyers stressed that they were not asking that he be formally admitted under immigration law, but rather be “paroled” into the country (an interim measure) to await the outcome of his habeas case.

Parhat is one of 17 Uighurs who now have habeas challenges pending in District Court in Washington. They are all assigned to Judge Ricardo M. Urbina, but are also included among some 200 cases in which Senior Judge Thomas F. Hogan is coordinating the cases for processing. The new motions by Parhat’s lawyers were filed with both judges, but presumably will be acted upon by Judge Urbina.

It is possible that the outcome of Parhat’s release plea could affect the fate of the other 16 Uighur detainees, most or all of whom have been held on the same basis as Parhat: the government claim that they had ties to an organization considered to be terrorists. The Circuit Court found the claims were not supported by the government’s evidence.

Recent Cert. Petition on Aggravated Identity Theft

2008-07-24T16:02:58Z

On Tuesday, we filed this cert. petition in Flores-Figueroa v. United States. The petition asks the Court to resolve a 3-3 circuit split over the mens rea requirement of the federal “aggravated identity theft” statute, 18 U.S.C. § 1028A(a)(1). That statute provides a mandatory 2 year sentence upon anyone who, during and in relation to certain enumberated felonies, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The question is whether the “knowingly” requirement extends through the entire clause, requiring the Government to show that the defendant knew that the identification he used belonged to another person. The question arises frequently in immigration cases, when defendants acquire or make up false social security numbers having no idea whether the fabricated number belongs to another person or is simply invalid.

Coincidentally, this morning NPR had a story on the federal government’s increased use of this, and other, criminal charges against undocumented workers. The piece includes an interview with our co-counsel in Flores-Figueroa, Gary Koos.

The petition was filed by Howe & Russell, along with Mr. Koos, Akin Gump, and the Stanford Supreme Court Litigation Clinic, with assistance from Howe & Russell summer intern and Stanford student Josh Friedman.

SCOTUSwiki Preview: Bell v. Kelly

2008-07-24T13:54:42Z

Below, Karen Williams previews next term’s Bell v. Kelly (No. 07-1223). Karen is a summer associate at Akin Gump and a third-year at American University, Washington College of Law. Please note that the Bell SCOTUSwiki page, here, will continue to be updated throughout the upcoming term.

28 U.S.C. § 2254(d) provides that:

“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Pursuant to Section 2254(d), a federal court, therefore, does not determine if the state court’s determination was wrong but whether it was unreasonable, which is a higher threshold. The question before the Court is whether the Fourth Circuit erroneously applied Section 2254(d)’s deferential standard to a claim based on new evidence – not considered by the state court – that the habeas petitioner was prejudiced by the ineffective assistance of his counsel.

I. Background

This case stems from Edward N. Bell’s conviction in 2001 for capital murder for the death of Richard Timbrook, a police officer. On October 29, 1999, Officer Timbrook and two probation officers came across two men in a high-crime area of Winchester, Virginia. After one man ran, Timbrook pursued him on foot. During the chase, the fleeing man turned and shot Timbrook in the head. When Bell was found the next morning, hiding in the basement of a house near the shooting, he had gunshot residue on his hands. The murder weapon was found near that house, and forensic tests could not exclude Bell as a possible user of the weapon.
After interviewing Bell, his sisters, and his mother, defense counsel concluded that there was little evidence to mitigate the case against Bell. Defense counsel, comprised of two attorneys, did not interview Bell’s wife, past girlfriends, or children, nor did they inquire into Bell’s education or mental capacity. They also did not investigate the prosecution’s evidence of aggravation.

Virginia’s capital punishment statute permitted a jury to return a death sentence only if at least one of two aggravating conditions – that the defendant posed a risk of future dangerousness or that the crime was “wantonly vile” – was present. Because the trial court ruled that Officer Timbrook’s murder was not “wantonly vile,” Bell could be sentenced to death only if the jury determined that he was likely to commit future acts of violence. Thus, during the penalty phase, the government introduced evidence of alleged prior bad acts, such as assaults and altercations involving Bell, to prove Bell’s dangerousness. Because of their failure to adequately investigate and prepare, Bell’s counsel was unprepared to cross-examine the government’s witnesses effectively. Officer Timbrook’s family provided victim impact statements; Bell provided none. Defense counsel called only Bell’s sister and father but elicited harmful testimony from both witnesses. After finding that Bell continued to pose a serious danger, the jury sentenced Bell to death for the capital murder.

On direct appeal, Bell argued that Virginia’s lethal injection procedures were unconstitutional, but the Supreme Court of Virginia affirmed, reasoning Bell could choose between lethal injection and electrocution. The Supreme Court of the United States denied Bell’s petition for writ of certiorari.

Bell then filed a state habeas petition, arguing that he was denied effective assistance of counsel because his counsel failed to investigate and present mitigating evidence during the penalty phase. In 2004, the Supreme Court of Virginia denied Bell’s habeas corpus petition on the ground that Bell was unable to satisfy either prong of Strickland v. Washington – viz., that (1) his counsel’s performance fell below an objective standard of reasonableness; and (2) there was a reasonable probability of prejudice as a result of his counsel’s inadequate performance. Furthermore, the state supreme court held that his counsel’s failure to present the evidence on which Bell now sought to rely did not render his counsel ineffective because a jury could consider that evidence to be “cross-purpose” – that is, evidence that had characteristics of both aggravating and mitigating evidence.

Bell raised several challenges in a federal habeas petition, including ineffective assistance of counsel and the constitutionality of Virginia’s lethal injection procedures. Dismissing all other claims, the district court ordered an evidentiary hearing on Bell’s claim that his trial attorneys were constitutionally ineffective in their investigation and presentation of mitigating evidence at sentencing. After the two-day hearing, the district court found that Bell was not entitled to relief. Although the district court agreed with Bell that his defense counsel’s performance at trial had been ineffective – and therefore the Supreme Court of Virginia’s contrary finding was unreasonable – it deemed the state supreme court’s finding of no prejudice, the second prong of Strickland, reasonable. After reviewing the testimony of the witnesses that Bell claimed should have testified at trial, the district court concluded that the evidence of aggravation outweighed the mitigation evidence presented at trial and on state and federal habeas and thus found no prejudice. Nonetheless, the district court granted a certificate of appealability limited to the ineffective counsel claim.

On appeal, the Fourth Circuit affirmed in an opinion that focused only on the prejudice prong of Strickland. Bell argued that because the state court did not consider mitigating evidence relevant to prejudice that was first introduced in the federal habeas petition, the prejudice issue should be reviewed de novo rather than under the deferential standard of 28 U.S.C. § 2254(d), which simply considers whether the lower court’s determination was reasonable. The Fourth Circuit rejected this argument. Instead, it limited its review to whether the Virginia Supreme Court’s determination was unreasonable – which, it concluded, it was not in light of the cross-purpose nature of the evidence. In particular, the court of appeals theorized, if witnesses had discussed Bell’s domestic relationships with his ex-wife, girlfriends, and children, the jury would likely have compared Bell to Officer Timbrook, casting more of a negative light upon Bell.

Bell filed a petition for certiorari in the Supreme Court on March 25, 2008.

II. Petition for Certiorari

Bell presented three issues to the Court for certiorari: (1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas; (2) whether the Fourth Circuit erred when it discounted mitigating evidence that could also have aggravating qualities; and (3) whether Virginia’s lethal injection procedures violate the Cruel and Unusual Punishment Clause.

Bell begins by arguing that the deferential Section 2254(d) standard does not apply to his ineffective assistance claim, which was not “adjudicated on the merits in State court proceedings” because some of the mitigating evidence was not presented to the state-level courts. Bell argues that Strickland instructs the reviewing court to “consider the totality of the evidence” to determine whether the defendant was prejudiced by the ineffective assistance of his counsel. Citing decisions of the Ninth and Tenth Circuits, Bell argues that once a defendant has qualified for an evidentiary hearing and additional evidence is introduced, any prior state adjudication can no longer be deemed to have been “on the merits,” and Section 2254(d) does not apply. By contrast, Bell notes, the Fifth, Sixth, and Seventh Circuits apply Section 2254(d)’s deferential standard even if new evidence has arisen on federal habeas. Finally, the Fourth Circuit, according to Bell, has employed a hybrid approach, applying the Ninth and Tenth Circuits’ standard to Brady challenges – in which the court considers whether evidence withheld from the defendant was material either to the defendant’s guilt or punishment - but applying the deferential standard of the Fifth, Sixth and Seventh Circuits to the prejudice prong of Strickland.

Second, Bell argues that the federal courts of appeals and the state supreme courts are divided on the weight to be given to evidence that has both mitigating and aggravating qualities. The Fourth and Fifth Circuits have, according to Bell, held that this cross-purpose evidence may be ignored or discounted; by contrast, he explains, the Third, Tenth, and Eleventh Circuits give weight to all mitigating evidence. Moreover, Bell asserts, had the court given the new mitigating evidence appropriate consideration, it would have concluded that the ineffective counsel prejudiced Bell’s case.

Third and finally, Bell sought to have the Court hold his case pending a decision in Baze v. Rees, a Kentucky lethal injection case that was still pending before the Court when Bell’s petition was filed. (The opinion in Baze was issued on April 16, eight days after the petition was filed.)
Opposing certiorari, the state advances three basic arguments. First, it asserts that the Court has no jurisdiction to review Bell’s lethal injection claim, pointing out that the courts below denied a certificate of appealability for the lethal injection claim and that the Fourth Circuit did not address this claim in its decision. Second, the state argues that although the Federal Rules of Appellate Procedure required him to indicate what standard of review applied to his claims, Bell did not raise the question whether the Section 2254(d) standard should apply until he filed for rehearing. Furthermore, the government disagrees that the Fourth Circuit has adopted a split standard for Brady claims and Strickland claims and disputes that new evidence was presented at the federal evidentiary hearing. Third, the state denies that the Fourth Circuit has adopted the categorical rule which Bell attributes to it on the cross-purpose (or, as the state calls it, “double-edged”) evidence question. Instead, the state argues, the Fourth Circuit merely concluded that the state supreme court’s decision weighing the cross-purpose mitigation evidence against the aggravating evidence was reasonable.

In his reply brief, Bell sought to demonstrate that he had properly preserved the Section 2254(d) standard question in his appellate briefs, reiterated that the circuits were indeed divided on the question, and clarified that he was seeking to vacate the Fourth Circuit decision denying the certificate of appealability and remand for proceedings not inconsistent with Baze.

The Supreme Court granted the petition for certiorari on May 12, 2008 on only the first of the three questions presented. The Court also stayed Bell’s execution pending its judgment in the case.

Analysis: Is Bismullah ruling a dead letter?

2008-07-22T20:45:26Z

Analysis

The Supreme Court, in a four-sentence order without explanation, and a few comments in an opinion in another case, has set off a sharp dispute about whether it has put an end to the two-year courthouse battle over Congress’ preferred method for civilian review of military detention decisions. The questions now arise: is the D.C. Circuit Court’s hard-fought ruling in Bismullah v. Gates a dead letter, and, has the Detainee Treatment Act of 2005 died along with it?

The Circuit Court may soon provide some answers. In the process, it may offer some significant interpretations of what the Supreme Court may have wanted to happen as lower courts continue to sort out detainees’ rights. (Because Congress is unlikely to act on Attorney General Michael B, Mukasey’s proposal to repeal the DTA, the courts will have the task of sorting this out.)

The underlying controversy goes back to 2005. After Congress had grown worried that the federal courts would be swamped with cases by Guantanamo Bay detainees testing their long-term captivity, it passed DTA that year (reinforced in 2006 by the Military Commissions Act). The idea was to scuttle all of the habeas cases, and set up an alternative mode of civilian court review, more limited than habeas, and assigned to the D.C. Circuit Court. Its task: judge the validity of detention rulings made by the Pentagon’s Combatant Status Review Tribunals.

Bismullah, originally filed at the Circuit Court in June 2006, was the case the Circuit Court chose, along with lawyers for both sides, for a thorough exploration of how rigorous that Court would be in reviewing some 190 cases growing out of CSRT decisions designating detainees as “enemy combatants.”

When the Supreme Court last year agreed to rule on the basic legal rights of Guantanamo detainees (in Boumediene v. Bush, 06-1195), it said it would be interested in what the Circuit Court did in the Bismullah case.

A three-judge panel of Circuit judges ruled a year ago that the Pentagon and other government agencies would have to produce a potentially wide array of information about detainees, to make the system of civilian review work as the panel thought Congress intended. It was not enough, the panel declared, to have before it only the material that a CSRT actually had considered.

That was a bitter blow to the government, and it produced sworn statements by the entire top rank of U.S. intelligence officials saying that the decision posed a serious threat to the war effort and to national security generally.

That ruling ultimately split the full Circuit Court 5-5 in February, when it denied en banc review, and the case then was swiftly appealed by the government to the Supreme Court (Gates v. Bismullah, 07-1054). The Court did not act on it, simply leaving it on its docket while it studied and then decided Boumediene, producing on June 12 a ruling that Guantanamo prisoners had a constitutional right to pursue habeas challenges to their continuing detention. The detainees need not wait for DTA review, the Court said, but it added that the Circuit Court’s DTA role remained “intact,” as did the Pentagon’s CSRT panels.

Eleven days later, the Court sent the Bismullah case back to the Circuit Court. The four-sentence order on June 23 refused to block the Circuit Court ruling, but, in another part of the order, it set aside that ruling — that is, it “vacated and remanded” it to the Circuit Court “for further consideration in light of Boumediene.”

The case is proceeding anew in Circuit Court (Circuit docket 06-1197), and dispute between the government’s and detainees’ lawyers has now resumed, giving the Circuit Court these conflicting options: put the Bismullah case on hold and let detainee habeas cases go first (in District Court), dismiss it but with a chance to refile it later, or reinstate it as a fully binding ruling so that the DTA review process can continue in the Circuit Court even while the detainees’ habeas cases unfold in U.S. District Court. Briefing on these options is continuing, so it is unclear when the Circuit Court will rule.

The Justice Department is keenly interested in having the DTA process put on hold. In fact, it did not wait for the Supreme Court to act on the Bismullah case before it returned to the Circuit Court and asked that the decision be “held in abeyance.” In its motion, filed soon after Boumediene was decided, argued that this would “avoid the duplicative proceedings and a waste of scarce judicial and governmental resources” if both DTA and habeas tracks proceeded simultaneously.

Relying on the Supreme Court’s Boumediene ruling, the Department said the Justices had mandated that the habeas cases “move forward now.” Since the Supreme Court in Boumediene had found the DTA regime an inadequate substitute for constitutional habeas, the motion said, “it makes sense” to hold some 190 DTA cases in abeyance rather than letting them continue even while more than 200 habeas cases continue in District Court.

The defense and intelligence “resources” of the government, the motion said, need now to be focused on preparing materials to respond to the habeas challenges. It would minimize “disruption to military operations” to allow only one track at a time to proceed, the Department asserted.

In a later brief, the Department argued — as it had in appealing Bismullah to the Supreme Court — that that decision was wrong and, in the wake of the Boumediene decision, the underlying rationale of Bismullah (that rigorous court review was necessary since Congress had taken away habeas rights) no longer has any force. The Department finds a number of comments in the Boumediene opinion supporting its view that Bismullah and Boumediene cannot be reconciled with each other.

The detainees’ lawyers are resisting that approach and the attempt to sdetrack Bismullah, along with DTA reviews, at least temporarily. The Supreme Court, they argued, made ckear in Boumediene that “both DTA and habeas actions are available to Guantanamo detainees.” The two different channels of review do not conflict, the attorneys argued. Moreover, since it is unclear just what future course each channel will take, they should be allowed to go forward without delay of either, the counsel contended.

The defense team also said that the Bismullah decision should proceed because it will have an impact on all other DTA cases, since it will again establish the scope of the government’s duty to reveal in civilian court what it knows about detainees, beyond what the Pentagon laid before the CSRT panels.

The detainees’ lawyers have not been content merely to resist the government plea to put Bismullah aside. They filed their own motion, asking the Circuit Court to put its July 2007 ruling back into effect, unchanged. Nothing in the Supreme Court’s Boumediene decision, the motion contended, resolved the core issue in Bismullah about the government’s duty to provide what it knows about detainees so that they are better able to challenge their designation as enemies.

Not all detainees want to pursue habeas, the lawyers contended, and even those who do should not have to forfeit their right, under DTA, to pursue a second line of challnege in the Circuit Court. “These men have been detained for many years without access to an impartial decision maker,” so both options for challenging continued captivity “should proceed quickly,” their attorneys said.

One more brief is due in the Circuit Court in this controversy, and then a decision — on one or both of the competing motions — will follow in coming weeks.

Hamdan Military Commission Coverage

2008-07-25T14:44:35Z

Due to reader interest in Salim Ahmed Hamdan, the military detainee who has admitted to formerly serving as a driver for Osama bin Laden, this post will provide links to coverage from designated major media outlets of his ongoing military commission trial from Guantanamo Bay, Cuba. Going forward, readers can access this post by clicking the SCOTUSblog logo at the top of the right sidebar.

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July 25

Los Angeles Times: “Hamdan Case is Built on His Own Words,” by Carol J. Williams (link)
Miami Herald: “US Released bi Laden’s Chief Bodyguard,” by Carol Rosenberg (link)

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July 24

Miami Herald: “Bin Laden’s Diver Evasive in Video,” by Carol Rosenberg (link)
Miami Herald: “Bin Laden’s driver walks out on terror trial,” by Carol Rosenberg (link)
Wall Street Journal: “U.S. Witness Doesn’t Link Bin Laden Driver to Attacks,” by Jess Bravin (link)
Washington Post: “Interrogator Testifies About Hamdan’s Work With Bin Laden,” by Jerry Markon (link)

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July 23

Los Angeles Times: “Bin Laden’s Driver Knew 9/11 Target, Lawyer Says,” by Carol Williams (link)
Miami Herald: “Conspiracy Idea Floated at War-Crimes Trial,” by Carol Rosenberg (link)
Miami Herald: “Sketch Artist Greeted with New Gitmo Obstacle,” by Carol Rosenberg (link)
New York Times: “Two Sides at Guantanamo Trial Paint Starkly Different Pictures of Defendant,” by William Glaberson (link)
USA Today: “Prosecutors Paint bin Laden Aide as Top al-Qaeda Insider,” by Alan Gomez (link)
Washington Post: “Witness: Hamdan Had 2 Missiles When Arrested,” by Jerry Markon (link)

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July 22

Miami Herald: “Trial arguments describe world of al Qaeda,” by Carol Rosenberg (link)
New York Times: “Military Trial Begins for Guantanamo Detainee,” by William Glaberson and Eric Lichtblau (link)
Washington Post: “Prosecutors Begin Arguments in Hamdan Case,” by Jerry Markon (link)

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Louisiana seeks change on death penalty

2008-07-22T13:15:33Z

The state of Louisiana on Monday asked the Supreme Court to reconsider its ruling a month ago striking down the death penalty for the crime of child rape. The rehearing petition, citing an omission in the Court’s opinion of any mention of a federal law on that issue, was filed late Monday afternoon. The petition in Kennedy v. Louisiana (07-343) can be found here.

Noting that the Court “almost never grants petitions for rehearing,” the state’s filing said this was “the rare exception.” It cited an 1875 ruling (Ambler v. Whipple), saying that an omission “material to the decision of the case” makes “a strong appeal for reargument.”

The petition said that either the rehearing should be granted, or the Court should “first seek the views” of the U.S. Solicitor General. Earlier, after the discovery of the omitted statute from the Court’s opinion, the Solicitor General’s office said that, if a rehearing plea were filed, it would examine it and “consider what steps are appropriate.”

Under the Court’s rules, a rehearing petition is not subject to oral argument and will not be granted except by a majority of the Court “at the instance of a Justice who concurred in the judgment or decision.” The other side in a case is not allowed to file a response, unless the Court specifically asks it to do so. The Court’s rules add that, unless there are “extraordinary circumstances,” rehearing will not be granted unless a response is first requested.

The decision in the Louisiana case, issued on June 25, came on a vote of 5-4, with Justice Anthony M. Kennedy writing for the majority. One of those five would have to support rehearing, presumably along with the four dissenters, for that to happen.

The Court’s decision had two parts: a survey of laws and official actions, leading the Court to conclude that there was a consensus against the death penalty for child rape, and a separate expression of the Court’s own “independent judgment” about whether capital punishment should ever be available for a crime that did not result in the victim’s death — a point on which the Court said no.

In the first part, the Court noted the absence of any federal law imposing a death penalty for child rape. After the decision was issued, a military law expert noted that omission. The expert noted a 2006 law by Congress which, the expert said, authorized the death penalty for rape of a child under military law — the law that prescribes crimes and penalties for members of the military services.

A spate of publicity, beginning in The New York Times, led the U.S. Solicitor General’s office to notify the Court of the omission, and to offer to comment on it, if asked. The government was not a party in the case, but it said it should have noticed the fact of the federal law’s existence and told the Court.

Monday was the deadline for Louisiana to seek rehearing of the case. It did so in a petition signed by counsel of record, Georgetown law professor Neal K. Katyal.

The death row inmate involved in the case, Patrick Kennedy, was represented by Stanford law professor Jeffrey L. Fisher. On Monday, responding to media inquiries, Fisher issued a statement saying the 2006 provision could not have applied to a civilian like Kennedy, and, in any event, that provision may not even remain valid.

The rehearing plea said that the omission would bear not only on the Court’s discussion of a “national consensus” against the death penalty for child rape, but also would have an effect on the part of the ruling in which the Justices relied on “independent judgment.”

Louisiana conceded that the Court might reach the same decision again if it reheard the case, but said rehearing was warranted because that “protects the public’s trust that the Court has before it all relevant information before reaching a final decision,” it “safeguards the perception of fairness,” and it “ensures that the Court’s final decision accurately reflects the state of facts and the law.”

If the Court believes that its decision could stand alone on the exercise of “independent judgment,” that should still lead to rehearing, because, the petition argued, that would make the “national consensus” calculus less important in future cases on applying the death penalty.

A denial of rehearing, the petition argued, would sow confusion about which side of the Court’s calculus weighed the most.

New ruling on “indecency” broadcasts

2008-07-21T23:42:24Z

NOTE: The Supreme Court has agreed to hear, with argument this Fall, perhaps in November, an appeal by the Federal Communications Commission seeking to regain the power to ban the use of any single vulgar word on radio and TV broadcasts (FCC v. Fox Television, et al., 07-582). The potential impact of that case may have increased on Monday, with a ruling by a federal appeals court blocking an FCC policy penalizing a broadcaster for the use of any single “indecent” visual, non-verbal, image.

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Ruling on an incident that is widely familiar in popular culture — the “wardrobe malfunction” during a performance at a televised pro football Super Bowl game, the Third Circuit Court in Philadelphia on Monday struck down a government policy against TV broadcast of a single fleeting image. The case involved the exposure of one of singer Janet Jackson’s bare breasts (apparently done intentionally) during the halftime performance on Feb. 1, 2004.

The three-judge panel was unanimous in CBS Corp., et al., v. FCC (Circuit docket 06-3575) in nullifying a $550,000 penalty against the CBS network and its affiliates for an allegedly “indecent” broadcast. That part of the ruling found that the Commission had switched its policy from one of tolerance of fleeting ‘indecent” images to one of prohibition, without a genuine explanation for the shift. The ruling did not bar the FCC from adopting the same ban, if it acted anew, but that option may be clouded by the pending case in the Supreme Court on the agency’s power to outlaw brief incidents of vulgarity. CBS, though, could not be punished for the 2004 broadcast if the FCC did adopt the policy for future application.

The Circuit Court split 2-1 in sending the case back to the FCC to give it a new chance to find — but without any financial penalty or other punishment of CBS — that broadcasters may be held to blame in the future for such fleeting displays of an “indecent” image.

The Court acted in a 102-page opinion, including a three-page partial dissent. Chief Circuit Judge Anthony J. Scirica wrote the main opinion, joined by Circuit Judge Julio M. Fuentes. Circuit Judge Marjorie O. Rendell dissented on the part of the ruling sending the case back to FCC for another look. “We have held that the instant fine was improperly imposed,” Judge Rendell wrote. “There are no further proceedings necessary.”

CBS’ broadcast of the 2004 halftime show occurred about two months before the FCC announced that it was abandoning its long-standing policy of not penalizing broadcasters for isolated or fleeting use of vulgar words on the air. That timing factor was critical in the Circuit Court’s ruling. When it shifted its policy in early March 2004, the FCC made clear that broadcasters would not be held liable for fleeting “indecency” prior to that time.

In Monday’s ruling, the Circuit Court rejected an argument by the FCC that it had always had a policy against fleeting “indecent” images, as opposed to words. The prior policy of tolerance, the Circuit Court said, never had an exception for vulgar images. “The balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images,” the Court noted.

In fact, the Court suggested in a footnote that the FCC might not have the authority, under federal law, to treat words and images differently. The law’s indecency provision, the Court noted, refers to utterances of language. If FCC wants to fit images into its authority, to reach “all varieties of indecent content,” it must “treat words and images interchangeably,” the opinion said.

Mukasey: Curb courts’ powers on detainees

2008-07-21T23:50:51Z

UPDATE 3:10 p.m. The Attorney General’s proposals drew three prompt responses. Chief Judge Royce C. Lambert of U.S. District Court, where the habeas cases are now, said in a statement that guidance from Congress was “always welcome,” but said that his Court was “on a fast track” so guidance would be better sooner rather than later. Senate Judiciary Committee Chairman Patrick Leahy, Vermont Democrat, issued a statement scolding the Attorney General for not consulting with or telling the Committee about his ideas before the speech, and said “with so little time left in this legislative session and the complexity of these issues, it may be an issue more responsibly addressed in the next Congress with a new President.” Similarly, the Senate Majority Leader, Democrat Harry Reid of Nevada, said in a statement that it would take time “to get this right” and added: “It is hard to imagine that Congress can give this complex issue the attention it deserves in the closing weeks of this legislative session.” The courts, he said, “are well equipped to handle this situation, and there is no danger that any detainee will be released in the meantime.”

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Reacting to the Supreme Court’s latest ruling on detainees’ rights, Attorney General Michael B. Mukasey on Monday urged Congress to take control of the captives’ court challenges and strictly limit judicial options. In a six-point plan of proposed legislation, the government’s highest legal officer said “the responsibility of moving forward rests with the Legislative and Executive Branches as much as it does with the judiciary.”

Mukasey, in remarks delivered at a midday forum at the American Enterprise Institute, a conservative think tank in Washington, made clear that the Bush Administration is opposed to allowing the detainees’ habeas challenges to play out in the courts alone. He said that the Supreme Court, in its June 12 ruling in Boumediene v. Bush (06-1195), had “left many significant questions open, and it is well within the historic role and competence of Congress and the Executive Branch to attempt to resolve them.”

With the Democrats now in control of Congress, and with only six months left in the Bush Administration’s tenure, the chances of a broad new legislative package on detainees becoming law appears to be less than predictable. When Congress in 2005 and 2006 passed new laws seeking to curb detainees’ rights, Congress was under Republican control.

The Mukasey plan of legislation, clearly based on fears about what the courts might do with the habeas cases filed by more than 200 detainees, involves these key points, in summary:

** Congress would bar the courts from ordering that any detainee be released into the U.S., or brought into the U.S. for legal proceedings.

** A new law should strictly curb any access by detainees (and perhaps their lawyers) to classified intelligence information about the captives.

** The proposed law should forbid the courts from reviewing any habeas challenge by a detainee facing war crimes trial, until any such trial was over.

** The measure should reaffirm the government’s power to hold foreign nationals as detainees as long as the “War on Terror” continues.

** Congress should require that only one District Court judge have exclusive authority over all detainee challenges, deciding “common legal issues…in a coordinated fashion.”

** A new law should restrict detainees solely to habeas challenges, repealing the power given in 2005 to the D.C. Circuit Court to conduct civilian review of military detention decisions. No other legal options but habeas should remain, under the plan.

The Attorney General, of course, did not suggest that Congress could stop the habeas proceedings now underway in reaction to the Court’s Boumediene decision. That ruling found a constitutional right to pursue habeas, and only a constitutional amendment could undo that part of the ruling; a new statute could not do so.

But the proposals reflected a judgment by Mukasey and his aides that Congress retains broad power to shape the use of that judicial authority.

In deciding the Boumediene litigation, the Court did acknowledge that a number of questions remained about the scope of habeas rights under the Constitution, but it appeared to expect that answers to those questions are, as it put it, “within the expertise and competence of the District Court to address in the first instance.”

The Attorney General, however, clearly suggested that providing answers was, at a minimum, to be a shared enterprise between the courts, the White House and Congress. And he treated the key questions he discussed as “policy choices in the first instance,” not legal questions. He said it was not “the most prudent course” to leave the questions to be answered in the courts, by litigation.

Among his half-dozen specific suggestions, Mukasey said the “most important” was a ban on any court order that a detainee should be brought into the U.S. to appear in any habeas proceeding. “To the extent detainees need to participate personally,” he suggested, “technology should enable them to do by video link from Guantanamo Bay, which is both remote and safe.”

Even “more critically,” he added, “no court should be able to order than an alien captured and detained abroad during wartime be admitted and released into the United States.” He made this point, he said, while acknowledging that “the Constitution may require generally that a habeas court have the authority to order release.” The Supreme Court in Boumediene did say that release — at least release under conditions — had to be an option in habeas.

Release, even a conditional release, would seem to be an option in the court cases only if the court first ruled that a detainee was being held illegally. Mukasey’s proposal was that, in that event, there still should be no entry into the U.S.

The Attorney General, aside from being concerned about security problems, appeared to be troubled at the prospect of differing habeas rulings by different District Court judges. “With so many cases,” he said, “there is a serious risk of inconsistent rulings and considerable uncertainty.” Congress, he said, needed to provide guidance to prevent that from happening. He spoke disapprovingly of another trip to the Supreme Court, saying that would be an intervention once again. (Four times, the Court has ruled against Bush Administration or Bush-plus-Congress initiatives on terrorism, and twice it has struck down acts of Congress.)

Some of the Attorney General’s ideas are being pursued by the Justice Department’s lawyers in the habeas cases themselves. For example, the Department has proposed that one judge decide common legal issues in the cases, and has promoted close coordination of the decisions in the cases. It also is resisting efforts by detainees’ lawyers to get access, at least for the lawyers, to classified information about their clients.

The Department’s attorneys have also advanced narrow interpretations of the Boumediene ruling, to try to limit the scope of habeas review.

The Attorney General seemed determined, though, to ensure that the Department’s views prevailed in court, by getting them mandated by Congress.

(NOTE: The Attorney General answered questions following his remarks. Here is a transcript of those exchanges, provided by the Justice Department.)

The Week Ahead

2008-07-20T21:39:44Z

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.

On Monday, the military commission trial of Salim Ahmed Hamdan, Osama bin Laden’s former driver, is scheduled to begin at Guantanamo Bay, Cuba.

Monday also is the deadline to seek rehearing in Kennedy v. Louisiana (07-343), though there has been no indication the state of Louisiana will seek rehearing over the omission of a federal statute in the Court’s survey of legislation that authorizes the death penalty for child rape.

By Friday, both sides in the Guantanamo Bay detainee cases must file legal briefs on a series of issues about the shape the District Court’s habeas review will take during and after the coordinating phase for more than 240 cases.

No petitioners’ merits briefs are due this week. The respondent’s merits brief is due Monday in Arizona v. Gant (07-542).

Academic Round-Up

2008-07-19T03:23:08Z

It is good to be back writing on the blog. I hope to post some thoughts about some of the cases from the past Term in the next several weeks, including a belated analysis of an under-discussed aspect of the Boumediene opinion. In the meantime, here is a sampling of some of the best articles about the Supreme Court from the past couple of months:

Michael W. Schwartz (Wachtell, Lipton, Rosen & Katz) wrote a very interesting and highly readable piece for the Policy Review entitled “Our Fractured Supreme Court: The Benefit of Unanimity and the Vanity of Dissent,” see here. The piece discusses the practice of dissenting from the Court’s opinions (both historically and institutionally) in the broader context of Chief Justice Roberts’s expressed preference for unanimity in the Court’s decisions. I find this piece fascinating because of the interesting ideas that it raises, some of which I have examined in my own scholarship: that the increasing number of dissents and concurrences may be a key factor in the Court’s decreasing plenary docket and that the rise in the number of law clerks after the early 1970s (from 2 to 4) may have contributed to the increasing number of dissents from members of the Court. There are some slight factual inaccuracies in the piece: for example, Congress has not eliminated all (nearly all to be sure) of the Court’s mandatory appellate jurisdiction and the Judge’s Bill left much of the Court’s mandatory appellate jurisdiction intact, but the inaccuracies do not take away from the thoughtfulness of the piece.

The May 2008 issue of the Yale Law Journal contained a nice essay by Daniel Richman (Columbia Law School) entitled “Federal Sentencing in 2007: The Supreme Court Holds–The Center Doesn’t,” see here. For those interested in recent developments surrounding federal sentencing, this is worth a read. Although the main thrust of the paper is on the Executive Branch side of sentencing–that is, the relationship between “main Justice” and U.S. Attorney’s Offices–Part IV of the paper does contain an extensive discussion of the potential impact of the Gall, Kimbrough, and Rita decisions on federal sentencing policy. One interesting aspect of the trio of sentencing decisions from last Term is that the jury, which was the basis for this whole line of cases, has “pretty much fallen out of the picture” according to Professor Richman. Although a number of articles have been written over the past three or four years assessing the Court’s doctrinal turn in these Sixth Amendment cases, I hope that we will begin to see some empirical papers that assess the impact of the now-discretionary nature of federal sentencing if and when the relevant data becomes available.