The Justice Department moved on Friday to get a longer postponement of any move of Guantanamo Bay detainees to the U.S. mainland, saying that “could pose a danger to the public at large.”  It asked the D.C. Circuit Court to allow no such transfer until the Supreme Court has considered the delay issue.  The motion for a stay, and for an expedited appeals court review of the issue, can be found here.

U.S. District Judge Ricardo M. Urbina on Tuesday ordered the government to bring 17 Chinese Muslim Uighur detainees from Guantanamo to Washington, D.C., where they would be released, since the Pentagon no longer classifies them as “enemy combatants.”  The D.C. Circuit on Wednesday issued a temporary stay of the Urbina order, to give it time to consider a formal stay motion.  The government motion was filed Friday afternoon; the detainees are to respond by 4 p.m. Tuesday.

The transfer should be put off while the validity of the release order is tested, the Justice Department argued, because of the “extraordinary importance of the issue,” and since the government has at least a “substantial case” on the merits if not the better of the argument over Judge Urbina’s power to take such action.

Specifically, this is what the motion proposed: a stay of the Urbina order pending appeal, an expedited appeal on the merits of the order, a continuation of the temporary stay if a longer postponement is denied by the Circuit Court, and an extension of any temporary stay to allow the government, if it chooses, to go on to the Supreme Court so that there could be no transfer of detainees until after the Justices have ruled on any stay request.

It urged the Circuit Court to start a briefing schedule on the merits 14 days after it acts on the postponement question, with all briefing completed 21 days later, and with oral argument scheduled as soon as possible after that.

In arguing that there would be danger if the 17 detainees were to be released into the U.S., the Department said “virtually all” 17 had testified at Pentagon hearings or told government interviewers that they had gone to Afghanistan “to seek weapons training to fight the Chinese Government.”  Their training included the use of assault weapons, it added.

The motion contended that Judge Urbina’s finding that it is illegal to keep the 17 prisoners at Guantanamo flatly contradicts a 1953 Supreme Court ruling, Shaughnessy v. U.,S. ex rel. Mezei, and a 2005 decision by another District judge in Washington that the courts lacked authority to order release of Guantanamo detainees in the U.S.

The release order, it went on, “contravenes the basic principle that the decision whether to allow an alien into the United States rests exclusively with the political branches.  Here the political branches are in agreement: the Executive has determined that [the 17 prisoners] should not be allowed into the United States, and Congress itself, in the immigration statutes, has made a considered judgment that aliens who seek to engage in terrorist activities — broadly defined to include conduct admitted to by these [individuals] — are ineligible for admission.  The district court offered no sound basis for holding that statutory provision effectively unconstitutional as applied here.”

The Chinese Muslims will suffer only “modest harms” by the delay of an expedied appeal, the motion argued, because they are now being held “in largely unrestricted conditions” at Guantanamo.

Showing a clear interest in the Justice Department’s new plea to put an end to the second layer of civilian court review of military detention of suspected “enemy combatants,” the D.C. Circuit Court has moved quickly to get the reaction of lawyers for the detainees.  In a brief order Thursday, the Court, acting on its own, told the attorneys to file by Oct. 24 a response to the government’s petition for rehearing en banc of Bismullah v. Gates (06-1197).

The Circuit Court, leaving the impression that it could act quickly, said it would not accept a reply by the government to that detainees’ filing.  This is a dispute that almost certainly is going to wind up in the Supreme Court, where it has been once before.

On Monday, the Justice Department filed its rehearing petition, arguing that the Circuit Court no longer has any legal basis for continuing to review detention orders under authority that Congress had granted to that Court in the Detainee Treatment Act of 2005.  That grant of authority, the Department contended, ended when the Supreme Court in Boumediene v. Bush on June 12 gave Guantanamo detainees an alternative for their challenges — a constitutional right to pursue habeas relief.

The Circuit Court’s  Bismullah decision that the Department is newly challenging was first issued in July 2007. It interpreted the DTA as giving the Circuit Court a mandate for a wide-ranging review of military decisions to detain prisoners at Guantanamo Bay.  The Circuit Court said it would review not just the information considered by the Pentagon’s Combatant Review Status Tribunals, which made the detention decisions, but a much broader array of information from government files on individual detainees.

The Pentagon, plus all of the government’s intelligence agencies, have been deeply distrubed by that ruling ever since, claiming it poses a grave risk of disclosing highly secret government intelligence.  The Justice Department tried earlier to get en banc review of the Bismullah decision, but that failed on a 5-5 vote last February.  It then asked the Supreme Court to review the ruling, but the Justices instead vacated the Circuit Court ruling on June 23 (07-1054), and sent it back to consider the impact on it of the Boumediene decision.

The Circuit Court, at the request of detainees’ attorneys, on Aug. 25 reinstated its ruling mandating broad review — over the government’s objection.  The Justice Department then sought to get the decision put on hold, to allow the habeas challenges to go forward alone, in U.S. District Courts.  It signaled that it might ask for en banc review.  The Circuit Court has not acted on the postponement plea.

The government’s challenge continued to escalate with its rehearing petition this week.  It now is arguing that the Boumediene decision, while saying that the DTA review process remained “intact,” actually operated in practice to nullify DTA jurisdiction.

The Justices, it noted, struck down Congress’ 2006 law that took away habeas rights of the detainees.  The grant of DTA jurisdiction to the Circuit Court cannot be severed from the habeas provision that was struck down, the Department contended.

“There is no dispute,” the rehearing petition said, that Congress — in passing DTA in 2005 and the court-stripping Military Commissions Act in 2006 — “intended to limit judicial review for detainees held at Guantanamo Bay and to channel review into a single forum.  Congress’s intent was not to provide suspected enemy combatants with more review than habeas, and certainly not to provide two simultaneous and overlapping tiers of review.  Yet that would be the precise result if this Court allowed the DTA’s judicial review provisions to stand even after Boumediene.”

The Circuit Court has continued its DTA review proceedings.  In the first full-scale decision on a detention ruling by a Pentagon CSRT, the Court nullified the detention order for insufficient evidence of enemy activity.  (That ruling, in Parhat v. Gates, has led to an intense new controversy over release of non-enemy detainees into the U.S.)

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The Justices are scheduled to hold a private conference at 10 a.m., orders from which are expected to be released on Tuesday, following Columbus Day. To view our list of petitions to watch at today’s conference, click here.

Scott Street prepared the following in advance of yesterday’s argument in Winter v. NRDC (No. 07-1239). Scott is an associate in Akin Gump’s LA office. 

Attorneys for the Natural Resources Defense Council must have felt like they had a constitutional ace in their pockets when they went to the Supreme Court this week to argue the case of Winter v. Natural Resources Defense Council.

Since it is always easier to describe Supreme Court cases in shorthand—the “guns case” (District of Columbia v. Heller) being a recent example—let’s call Winter the “whale case.”  Whenever a federal agency does something that will “significantly affect[] the environment,” the National Environmental Policy Act requires the agency to issue an Environmental Impact Statement.  In 2007, the Navy scheduled a series of sonar training exercises off the coast of California.  The Navy considered the specific frequency used to be the best available for detecting modern, diesel-fueled submarines, which can move stealthily through open water.  The Navy chose not to go through the EIS process, however, even though it recognized that the frequency used could have a devastating effect on marine life, especially the endangered beak whale.

The NRDC and others sued the Navy, arguing primarily that the Navy’s failure to provide an EIS violated NEPA, and they sought to enjoin the Navy’s planned training exercises.  A federal district court in Los Angeles agreed, and in January it issued a preliminary injunction, although it allowed some of the Navy’s training exercises to proceed so long as the Navy followed certain mitigation measures to protect the marine environment.  Then things got interesting.  The Navy appealed the district court’s decision to the U.S. Court of Appeals for the Ninth Circuit.  But it also sought the support of the Council on Environmental Quality, an executive agency that helps administer NEPA.  Based on its conclusion that there were “urgent national security reasons” to exempt the Navy from NEPA’s typical procedural requirements, the CEQ approved “alternative arrangements” for the Navy to proceed with the exercises in compliance with the statute.

The NRDC is challenging the CEQ’s action on a number of grounds: (1) it was not authorized by the CEQ’s own regulations because CEQ has no adjudicative authority; (2) it violated Congress’s intent in enacting NEPA; and (3) it violated the Administrative Procedure Act because the CEQ made the decision without so much as notifying the NRDC.

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No oral arguments are scheduled and no non-capital orders are expected to be issued today at the Court.

UPDATED 7:05 p.m.

The D.C. Circuit Court blocked, for at least eight days, the entry of 17 Guantanamo Bay detainees into the U.S., putting on hold a federal judge’s order for their release.  In a three-paragraph order, the Circuit Court said it was issuing a stay only to give it more time to consider the Bush Administration’s not-yet-filed plea for a delay of the entry until it can pursue a full appeal.  The Court said its order “should not be construed in any way as a ruling on the merits” of the issue of a longer delay pending the appeal.

The Court, accepting a schedule suggested by the Justice Department when it sought a delay, set Friday as the deadline for the Department to file its “motion for stay pending appeal,” next Tuesday for the detainees’ response, and Thursday, Oct. 16, for the Department’s reply.

The stay order was issued by Circuit Judges Karen LeCraft Henderson, A. Raymond Randolph and Judith W. Rogers.

The following reports were posted at various points earlier Wednesday.

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The transcript of today’s argument in Winter, et al. v. Natural Resources Defense Council, Inc., et al. (07-1239) is now available here.

The transcript of today’s argument in Summers, et al. v. Earth Island Institute, et al. (07-463) is now available here.

The transcript of today’s argument in Crawford v. Metropolitan Government of Nashville (06-1595) is now available here.

 Yesterday, the Court heard oral argument in two Fourth Amendment cases involving the scope of the rules used to implement that provisions’ protection against unreasonable searches and seizures.  Although the cases involve quite distinct questions - one about the scope of the Fourth Amendment itself and the other about the scope of the exclusionary rule when the Amendment is violated - the arguments in both cases focused in large part on the traditional tensions between the need for rules that make sense in all of their application and desire to craft rules that are clear and easy to administer. 

The oral arguments were particularly interesting because the Government and the defendant were called upon to take different sides of the debate in the two cases: in Herring, the defendant argued the virtue of simplicity and clarity, while in Gant it was the Government that was insisting on the need for a bright-line rule.

A detailed description of the issues and briefing in both cases can be found on SCOTUSWiki (here for Herring and here for Gant).  And I should disclose that the Stanford Supreme Court Litigation Clinic represented the petitioner in Herring and filed an amicus brief supporting the respondent in Gant. Read the rest of this entry »

On October 20, the Georgetown University Law Center will host arguments in a hypothetical Supreme Court case over the upcoming presidential election. Walter Dellinger, former Acting Solicitor General, and Glen Nager, a former Assistant to the Solicitor General, will argue before a panel of three retired judges. For more information on the event, which is sponsored by the AEI-Brookings Election Reform Project and Ohio State University’s Election Law project, click here.

At 10 a.m, the Court will hear argument in Winter, et al. v. Natural Resources Defense Council, Inc., et al. (07-1239), on whether the Navy was improperly enjoined from conducting training exercises employing a type of sonar reportedly harmful to whales. Solicitor General Gregory Garre will argue for the petitioner, and Richard Kendal of Los Angeles will argue for the respondent.

At 11 a.m, the Court will hear argument in Summers, et al. v. Earth Island Institute, et al. (07-463), on whether the Forest Service was improperly enjoined from implementing various regulations, and whether the underlying challenge was ripe for judicial review. Deputy Solicitor General Edwin Kneedler will argue for the petitioner, and Matt Kenna of Durango, Colo., will argue for the respondent.

At 1 p.m, the Court will hear argument in Crawford v. Metropolitan Government of Nashville (06-1595), on whether Title VII bars retaliation against workers who cooperate as witnesses during an employer’s internal investigation of sexual harassment. Eric Schnapper of Seattle, Wash., and Lisa Blatt of the Solicitor General’s office will argue for the petitioner, and Francis Young of Nashville Metropolitan Attorney’s office will argue for the respondent.

We will provide links to the transcripts of the arguments as soon as they are available.

The Court could be drawn into the controversy over a federal judge’s order that 17 detainees at Guantanamo Bay, no longer considered enemies, be brought to the U.S.  (See the posts below.)  The blog will cover this controversy throughout the day.

NOTE: The following is an update of the post below describing the actions of Judge Ricardo M. Urbina earlier Tuesday in the case of 17 detainees at Guantanamo Bay.  The post below includes a link to Judge Urbina’s hearing transcript, including his oral ruling.

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The Justice Department, in an emergency filing Tuesday night, asked the D.C. Circuit Court to act by no later than tomorrow on its request for a temporary order blocking a judge’s order that 17 Chinese Muslim detainees at Guantanamo Bay be transported to Washington, D.C., this week.  The Department said action within the next day was necessary “in order for the government to seek an emergency stay from the Supreme Court, if necessary.”

The emergency motion for a stay can be found here.  The Department said that Judge Urbina’s order “raises legal questions of the highest magnitude,” in addition to being a “short-circuit” of a diplomatic process that has been seeking to place the Uighurs in another country.

“The order directly conflicts with the basic principle that the decision whether to admit an alien into the United States rests exclusively with the Executive,” the motion said.  “Furthermore, the district court’s order of release into the United States contravenes the considered judgment of Congress that aliens who, like the detainees, have sought to wage terror on a sovereign government — even one other than the United States — are ineligible for admission into this country.”

While asserting that these detainees have “sought to wage terror,” and repeating the contention that they were, when captured, ”fleeing a military training camp in Afghanistan” where they had received weapons training, the government has concluded and told U.S. courts that it no longer considers them to be “enemy combatants.” That last fact was a key to Judge Urbina’s release order.

The Department told the Circuit Court that, if it gets an emergency stay, it plans to file “a full motion for a stay” pending appeal by Friday of this week, seeking a response from detainees’ lawyers by Tuesday and a government reply by next Thursday, Oct. 16.

“If a stay is granted,” the motion said, “the appeal could proceed on a highly expedited schedule.  The Government proposes that the opening merits brief on appeal be due fourteen days from the date of the Court’s ruling on the Government’s motion for a stay pending appeal; that the response brief be due fourteen days later, and that the reply brief be due seven days after that date.”

The government, it said, “should not be forced to take the extraordinary step of bringing 17 aliens trained for armed insurrection against their home country to be released in Washington, D.C., without the opportunity for this Court’s full appellate review of the crucial and novel legal questions presented.  Furthermore, and crucially for purposes of this [emergency] motion, the Government should be given a meaningful opportunity to present its case for a stay pending appeal — and the petitioners’ counsel be given a meaningful opportunity to respond — under a time frame less compressed than the one-day period that currently exists before steps must be taken to transport the detainees from Guantanamo to the United States.”

Judge Urbina has refused to stay his order, and has refused to issue a short administrative stay to allow the Justice Department to pursue its appeal.

The transcript of today’s argument in Herring v. United States (07-513) is now available here.

The transcript of today’s argument in Arizona v. Gant (07-542) is now available here.

The transcript of today’s argument in Kennedy v. Plan Adm. for Dupont Savings (07-636) is now available here.

FURTHER UPDATE 10:40

The transcript of Tuesday’s hearing, including Judge Urbina’s oral ruling, can be found here.  The government’s appeal focuses on the oral decision and on the minute entry summarizing that order. Judge Urbina, however, promised that “a formal opinion” would follow.

UPDATE 5:50 p.m.

The White House filed a swift appeal of the judge’s release order, and said it would seek “emergency relief” from the D.C. Circuit Court tonight. White House Press Secretary Dana Perino said the order, “if allowed to stand, could be used as precedent for other detainees held at Guantanamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country.” Perino’s statement is here. A Justice Department statement is here. The notice of appeal is here.  Lawyers for the detainees filed papers to spell out the services that would be provided to detainees once they were in the U.S., treating them as refugees.  Those papers can be found by those with PACER accounts on the District Court’s website, under docket 05-1509, entry 178. The detainees’ lawyers also filed a proposed order, available here.

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A federal judge on Tuesday ordered the government to release a group of 17 Chinese Muslims held at Guantanamo Bay into the United States, and to present them in his courtroom at 10 a.m. this Friday for a handover to local caretakers.

At a hearing this morning in U.S. District Court in Washington, Judge Ricardo M. Urbina said whatever authority the government possessed to detain the Uighurs - whom the government has conceded are not enemy combatants but cannot be returned to China for fear of potential persecution - had “ceased.”

Urbina also ordered a subsequent hearing for October 16, at which members of the Department of Homeland Security could speak to the conditions they wish to apply to the Uighurs’ presence in the country.

With regard to Friday’s hearing, Urbina said he wanted to question the Uighurs himself, and asked lawyers for the detainees to bring the individuals expected to provide temporary shelter to the exchange.

In advance of the October 16 hearing, Urbina said immigration officials are to neither question nor detain any members of the group. “That is not how the three branches of government work together,” Urbina said. “Nothing will happen to these people.”

The ruling came in the case of Kiyemba, et al. v. Bush (05-1509). A copy of the minute order is available here.

Lawyers for the Uighurs had originally asked that Urbina “parole” them into the country, a temporary — and revocable — form of immigration relief frequently extended in humanitarian situations. Having instead granted the Uighurs outright release into the United States, Urbina said the request for parole was “moot.” It was not clear from Tuesday’s developments, however, what immigration status the Uighurs would possess upon their arrival in the country.

Delivering a summary of his ruling from the bench, Urbina said his order was based on the fact that the Uighurs’ detention had become effectively indefinite, that the government conceded they would not return to the battlefield, and that the government had provided no alternative grounds for detention. He noted the government’s “extensive diplomatic efforts” had yet to find a country willing to accept the Uighurs, and rejected the government’s argument that the Executive branched possessed authority to “wind-up” their detention.

Urbina denied a Justice Department lawyer’s request to stay the order for a week so that the government could review its options. In advance of Friday’s deadline, the government is expected to seek a stay of the order from the U.S. Court of Appeals for the D.C. Circuit. The case may ultimately end up before the Supreme Court, presenting a clash between the judiciary’s power to end unlawful government detention, and the power of the political branches to set admissions standards for aliens entering the country.

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At 10 a.m., the Court will hear argument in Herring v. United States (07-513), on whether courts must suppress evidence seized during an arrest made as a result of faulty information provided by another law enforcement agency. Pamela Karlan of Palo Alto, Calif., will argue for the petitioner, and Deputy Solicitor General Michael Dreeben will argue for the respondent.

At 11 a.m., the Court will hear argument in Arizona v. Gant (07-542), on whether police must show a threat to their safety or the preservation of evidence to conduct a warrantless search of a car whose occupant was recently arrested. Joseph Maziarz of the Arizona Attorney General’s office and Anthony Yang of the Solicitor General’s office will argue for the petitioner, and Thomas Jacobs of Tucson, Ariz., will argue for the respondent.

At 1 p.m., the Court will hear argument in Kennedy v. Plan Adm. for Dupont Savings (07-636), on whether a specific ERISA provision is the only way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under the Act. David Furlow of Houston will argue for the petitioner, Mark Levy of Washington, D.C., will argue for the respondent, and Leondra Krueger of the Solicitor General’s office will argue in support of neither party.

We will provide links to the transcripts of the arguments as soon as they are available.

UPDATE Tuesday morning

The Solicitor General was introduced to the Supreme Court in his new position by Deputy Attorney General Mark Filip at the opening of the public session Tuesday.  Chief Justice John G. Roberts, Jr., then remarked: “Mr. Solicitor General, the Court welcomes you to the performance of the important office that you have assumed, to represent the Government of the United States before this Court.  We wish you well in your office.”

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Gregory G. Garre, nominated four months ago to be U.S. Solicitor General, on Monday took the final steps to assume that role in his own right.  He has been the “Acting Solicitor General” since he was chosen in June to replace departing Paul D. Clement.  As late as Monday morning’s Supreme Court orders list, and the Court’s current hearing list for October, Garre still had the “Acting” label.

His first argument of the new Term will be Wednesday in Winter, Secretary of the Navy, et al., v. Natural Resources Defense Council, et al. (07-1239.  The case provides a test of the environmental impact of the Navy’s use of sonar in training exercises off the Pacific Coast, where marine mammals may be affected.

Earlier this afternoon, we filed this reply brief in Jimenez v. Quarterman (07-6984) in conjunction with the Stanford Law School Supreme Court Litigation Clinic, Howe & Russell, and Akin Gump’s office in Dallas. In addition to the attorneys listed on the cover, clinic members Lisa Enrlich, David Owens and Menaka Kalaskar helped in writing the brief.  For more on the case, involving a habeas petitioner from the state of Texas, click here.

The transcript of today’s argument in Altria Group v. Good (07-562) is now available here.

The transcript of today’s argument in Locke v. Karass (07-610) is now available here.

The transcript of today’s argument in Vaden v. Discover Bank (07-773) is now available here.

Supreme Court Justice Stephen G. Breyer is in the process of selling more of the stocks in which he and his wife have invested, in order to reduce the number of times in which he must disqualify himself from taking part in actions on pending cases.  This development is described in a story today by Greg Stohr of Bloomberg News. The story can be read here.  Among the present Justices, Breyer has recused more often because of his investments.