How Appealing

Wednesday, December 5, 2007

"Justices Ready to Answer Detainee Rights Question": Linda Greenhouse will have this article Thursday in The New York Times.
Posted at 10:58 PM by Howard Bashman

"Justices Appear Divided on Detainees' Rights; Guantanamo Prisoners Get New Supreme Court Hearing; Independent Review at Issue": Robert Barnes will have this article Thursday in The Washington Post.
Posted at 10:55 PM by Howard Bashman

Available online at Tony Mauro reports that "High Court Justices Clash on Detainee Rights."

And in other news, "11th Circuit Judge Hammers Coke Plaintiffs but Offers Sympathy, Too; In securities fraud arguments, Judge Carnes says he doesn't like the law, but that's the way it is."
Posted at 10:35 PM by Howard Bashman

"Supreme Court Hears Arguments in Case Testing Rights of Detainees": This segment (transcript with link to audio) featuring Marcia Coyle, Neal Katyal, and Lee Casey appeared on this evening's broadcast of the PBS program "The NewsHour with Jim Lehrer."
Posted at 09:05 PM by Howard Bashman

"It Was the Best of Habeas, It Was the Worst of Habeas: The Supreme Court gets a reality check in the Guantanamo cases." Dahlia Lithwick has this Supreme Court dispatch online at Slate.
Posted at 08:40 PM by Howard Bashman

The Associated Press is reporting: An article reports that "Inmate Loses Bid to Hang Aniston Photo." My earlier coverage of today's Seventh Circuit ruling appears at this link.

And in other news, "Judge Denies Access to Gitmo Detainees."
Posted at 07:42 PM by Howard Bashman

Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained an audio segment entitled "Detainee Lawyers Fight for U.S. Law at Guantanamo" featuring Nina Totenberg.

And today's broadcast of "Talk of the Nation" contained an audio segment entitled "Supreme Court Takes Up Guantanamo Case" featuring David G. Savage.

RealPlayer is required to launch these audio segments.
Posted at 07:02 PM by Howard Bashman

"Skeptical Supreme Court ponders major Guantanamo case": Michael Doyle of McClatchy Newspapers provides this report, along with an article headlined "What's next for Guantanamo prisoners?"
Posted at 06:54 PM by Howard Bashman

"Justices, Attorneys Spar Over Guantanamo Case; Detainees' Rights Debated Before Supreme Court as Part of Ongoing Legal Battle": Jan Crawford Greenburg and Ariane de Vogue have this written report at You can also access Jan's video preview of today's oral argument, filmed at Guantanamo, by clicking here.
Posted at 06:44 PM by Howard Bashman

"Guantanamo rights cases split justices": Patti Waldmeir of Financial Times provides this news update.
Posted at 04:30 PM by Howard Bashman

"Lafave saga takes new turn; The teacher-turned-felon is accused of violating probation in talks with a teen co-worker": This article appears today in The St. Petersburg Times.

And The Tampa Tribune reports today that "Chats With Teen Co-Worker Led To Lafave's Arrest."
Posted at 04:23 PM by Howard Bashman

"Part 2 of legal lovers' trial begins": Today's edition of The San Antonio Express-News contains an article that begins, "Lawyer Mary S. Roberts was an ignored, emotionally abused spouse whose marriage was on the rocks when she reached into cyberspace for love and lust with other men. Or, she was a conniving woman who cheated on her husband, also an attorney, then helped him shake down her lovers for thousands of dollars."
Posted at 04:13 PM by Howard Bashman

On today's broadcast of NPR's "Day to Day": The broadcast contained audio segments entitled "Supreme Court Hears Detainee-Rights Case" (featuring Dahlia Lithwick) and "Looking Back at Japanese Internment Camps."

RealPlayer is required to launch these audio segments.
Posted at 03:40 PM by Howard Bashman

"They're both from Trenton": At "The BLT: The Blog of Legal Times," Tony Mauro has a post that begins, "Deputy Solicitor General Gregory Garre is the latest advocate to get Justices Antonin Scalia and Samuel Alito Jr. mixed up during oral argument."
Posted at 03:30 PM by Howard Bashman

"Supreme Court hears detainee rights case...again": James Oliphant has this post at "The Swamp" blog of The Chicago Tribune.
Posted at 03:20 PM by Howard Bashman

"Supreme court hears case over rights of Guantanamo detainees": The Guardian (UK) provides this news update.
Posted at 02:52 PM by Howard Bashman

"Justices grill attorneys in Gitmo case hearings": Joan Biskupic of USA Today provides this news update.
Posted at 02:50 PM by Howard Bashman

Access online the transcript of today's U.S. Supreme Court oral argument in Boumediene v. Bush, No. 06-1195: The Court has posted the transcript at this link.
Posted at 02:45 PM by Howard Bashman

You can now access online the audio files of yesterday's two church-state oral arguments that Michael A. Newdow presented before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit: I previewed these oral arguments and identified the three judges on the panel in this detailed post from Saturday.

You can download the oral argument audio in the "In God We Trust" case via this link (7.76MB audio file).

And you can download the oral argument audio in the Pledge of Allegiance case via this link (8.60MB audio file).

Windows Media Player is required to launch these audio files.
Posted at 02:30 PM by Howard Bashman

"Passing of the Gavel Ceremony - Video": The U.S. Court of Appeals for the Ninth Circuit has today posted online this video clip (Windows Media Player required) of last Friday's ceremony. Unfortunately, at least as of this moment, the video clip concludes before the gavel is passed, ending instead smack in the midst of a U.S. District Judge's remarks.
Posted at 02:20 PM by Howard Bashman

Jennifer Aniston in state prison in Wisconsin? No, a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit holds today. At issue in today's decision, written by Circuit Judge Terence T. Evans, is the constitutionality of a Wisconsin Department of Corrections policy that prevents inmates from possessing individual, commercially published photographs.
Posted at 02:14 PM by Howard Bashman

"Fluke? Captive granted asylum interview." Carol Rosenberg of The Miami Herald provides a news update from Guantanamo that begins, "In a first, a captive held here in the war on terrorism has sufficiently filled out an asylum application to get an appointment with the Department of Homeland Security. There's only one problem: Algerian-born Ahmed Belbacha, 39, will be hard-pressed to make it to Washington for his interview because of his status as a detainee inside Camp Delta."
Posted at 02:00 PM by Howard Bashman

"Supreme Court Oral Arguments: Boumediene v. Bush & Al Odah v. United States." Access the audio of today's U.S. Supreme Court oral argument in the Guantanamo detainee cases on demand from C-SPAN, by clicking here (RealPlayer required).
Posted at 01:53 PM by Howard Bashman

"Court Appears Split on Rights of Guantanamo Detainees": Robert Barnes of The Washington Post provides this news update.
Posted at 01:51 PM by Howard Bashman

"Can constitutional issues be finessed?" Lyle Denniston has this oral argument report at "SCOTUSblog."
Posted at 01:50 PM by Howard Bashman

As the reward for announcing the first signed opinion of the new Term, we shall represent the first letter of your last name as "J" instead of "G": Because it took the U.S. Supreme Court seemingly forever yesterday to post its opinions to that Court's own web site, few may have noticed that this page on the Court's web site attributes the decision in Logan v. United States, No. 06-6911, to a Justice whose last name begins with a J.

I am reliably assured, however, that neither Justice Robert H. Jackson, nor Justice Howell Edmunds Jackson, nor Justice William Johnson, Jr., nor Justice Thomas Johnson, nor Chief Justice John Jay delivered the opinion. No, as the opinion itself reveals, the author of the decision was Justice Ruth Bader Jinsburg (sic).

Update: As was bound to happen, the Court has corrected this error. You can view the original uncorrected page by clicking here.
Posted at 01:37 PM by Howard Bashman

"Supreme Court weighs Guantanamo hearings": David G. Savage of The Los Angeles Times provides this news update.

Greg Stohr of Bloomberg News reports that "Guantanamo Inmate Rights Divide U.S. Supreme Court Justices."

Reuters reports that "High court probes Guantanamo prisoners' rights."

And some thoughts from Joan Biskupic appear in this USA Today blog post.
Posted at 01:05 PM by Howard Bashman

"Thoughts on the Oral Argument in Boumediene v. Bush": Orin Kerr has this post at "The Volokh Conspiracy."

At "SCOTUSblog," Marty Lederman has a post titled "Quick Reactions to Boumediene Oral Argument."

And "How Appealing" reader Alan R. Kabat emails:

Arrived at the Supreme Court at around 6:40 am, there were already at least 15 people ahead of me. This time, somebody had started a sign-up sheet which was invaluable in preventing line-skippers once we were inside the building – at 7:35. There were probably over 100 attorneys behind me in the bar members list. I couldn’t tell how many people had camped out overnight for the public line, but given the snow storm, probably most of the public waited until early morning to come. At 9:05 we were inside the SCT chambers.

Since there was only 1 argument today, there was only 1 row of counsel tables, which freed up additional space for another 20 or so chairs for the members of the bar. I don’t know if this scheduling was deliberate, but it did help provide more access to the court room.

Although I did not recognize anyone sitting the row that is ordinarily reserved for Members of Congress, I did see, to my surprise, Senior District Judge Joyce Hens Green in the row behind the congressional row. She, along with District Judge Richard Leon, had handled the two Guantanamo cases that are on appeal today. By way of comparison, I was reliably informed that during the Padilla oral arguments several years ago, then-Judge Mukasey (who originally had that case) was at the SCT, but as I did not then know what he looked like, I cannot verify that. Anyway, I did not see AG Mukasey today, and someone else was sitting in the AG’s chair.

Argument started promptly at 10:02. Waxman (compared with Clement) was able to say a lot more, with fewer interruptions. He emphasized that the DTA review process does not provide an adequate substitute for habeas. CJ Roberts had the first two questions, about the scope of habeas, Waxman’s response was that the detainees need a reasonable opportunity to counter the govt evidence. CJ asked is our judgment dependent on whether or not the procedures are adequate (i.e. is that the threshold issue for the SCT). Ginsburg then jumped in with several questions to counter the CJ, who then asked does habeas turn on where the person is held or captured, i.e., battlefield vs. Guantanamo.

At 10:10, Scalia jumps in, asking whether the new habeas statute makes clear what wasn’t under the old regime, i.e., aliens in Gitmo are in territory not under sovereign control, so that Rasul no longer applies? Other cases, Scalia says, were unambiguously on USA territory. CJ asks if an act of Congress says Gitmo base is not part of USA for the new statute, does that reject Waxman’s argument (so no need to consider anything else). The other justices start weighing in at this point. Alito ask if merely bringing someone here was sufficient for habeas. CJ asks if the court should defer to political branches in determining the scope of sovereignty. Scalia notes that during WWI, there were over 400k German prisoners of war in this country, yet nobody ever thought that they had any habeas right, even though some were civilians, not uniformed soldiers.

10:23, Kennedy asks his first question, about the scope of DTA -- Waxman’s quick, lengthy response that DTA has no prospect that any merits determination will ever be conducted, and that the record on review, either now or at the merits stage is too limited. He emphasizes the need for a hearing to introduce evidence to counter govt evidence, particularly the ex parte and in camera submissions. “Time for experimentation is over,” let’s go back to “experienced district judges” to handle these detainees. Breyer asks about Lord Masefield having issued a similar writ, which discussed sovereignty issues; Waxman noted that in 1777 and 1783 (?) habeas was extended to people on the high seas, even though they were not in any one country’s territory.

Scalia, “I’m still waiting for a single case” in which habeas was granted to aliens not on US soil, etc.

10:38, SG Clement takes over -- as usual, he has no notes, although he did bring up a sheet with an enlarged version of a statute (?). Souter quickly asks the first questions, about how due process fits in, Breyer asks for the basis for indefinite detention without charging, how can that be equivalent of habeas. Clement stresses need for geographical and temporal limits to scope of habeas. Stevens asks about how people who are captured, but not uniformed, could be treated under the law of war, since they could not be charged with war crimes, unlike uniformed troops, also asks about prisoners who were turned in by bounty hunters as opposed to actually captured in combat. Breyer emphasizes that habeas is supposed to be speedy, not 6 years. Clement then fumbles as to what should happen at the D.C. Circuit, under the statutory regime, and this is where I could tell that he seemed to lose Kennedy, who became disgusted with Clements’ response. Clement did admit that “we don’t have good answers as to what habeas looks like in context of enemy combatants.”

11:18, Waxman gets 5 minute rebuttal that seemed to last 10. Emphasizes that DTA review is not equivalent of habeas, need for detainee to be able to prove threshold issue, “I am not a combatant,” and DTA review will never address merits of the issues. DC Circuit review of the record needs to have evidence that is accurate, but the govt evidence includes hearsay, as well as ex parte, in camera submissions that cannot be rebutted, so issue of reliability of evidence. Waxman then notes that Judge Green’s unredacted opinion revealed the severe inadequacies of the due process review -- he starts discussing what came out with respect to Murat Kurnaz, who was subsequently released (this was in the Wash Post this morning!). Waxman notes that this new evidence would never have been considered in a DTA review, even though it is directly relevant to the issue of “I am not a combatant.”

11:25, case submitted.

I predict one opinion by either Souter or Ginsburg, the other opinion by CJ Roberts, with Kennedy’s vote up in the air. Scalia may do a separate opinion with a historical exegesis on the scope of habeas as applied to aliens and those not on sovereign territory.

Thanks much, Alan, for that thorough report!
Posted at 01:00 PM by Howard Bashman

"Judge Alex Kozinski Takes Ninth Circuit Helm; New Chief Shares Spotlight with Colleagues, Staff": The Public Information Office of the U.S. Court of Appeals for the Ninth Circuit issued this news release yesterday.
Posted at 12:10 PM by Howard Bashman

"The Evil at GTMO": ABC News correspondent Jan Crawford Greenburg has this post today at her "Legalities" blog.
Posted at 12:05 PM by Howard Bashman

C-SPAN3 has just begun to broadcast this morning's U.S. Supreme Court oral argument in the Guantanamo detainee cases: You can access online the live C-SPAN3 video feed in both RealPlayer and Windows Media Player formats (click on those links to launch the live feed). The oral argument apparently lasted for one hour and twenty minutes.
Posted at 11:44 AM by Howard Bashman

"U. of Colorado Settles Sex-Assault Suit": The Associated Press provides this report.

The article notes that "in September the 10th U.S. Circuit Court of Appeals revived the lawsuit, ruling there was evidence the alleged assaults were caused by the school's failure to adequately supervise players." My earlier coverage of that Tenth Circuit ruling can be accessed here.

In other coverage, The Denver Post provides a news update headlined "CU settles lawsuit sparked by alleged football party rape."

And The Boulder Daily Camera provides a news update headlined "CU settles Lisa Simpson lawsuit for $2.5 million; University president Hank Brown signed off on settlement." That newspaper has also posted online in two parts the plaintiff's deposition transcript (part one; part two).
Posted at 11:35 AM by Howard Bashman

"Chief Justice Ralph Cappy to Join Buchanan Ingersoll & Rooney": That law firm issued this news release today.

Chief Justice Cappy will not be the first former appellate group to head that law firm's appellate group. Former Third Circuit Judge Timothy K. Lewis previously headed the appellate group at Buchanan Ingersoll, PC. And, for the record, though I'm not a former appellate judge, I too chaired Buchanan Ingersoll's appellate group (see second item) after Judge Lewis but before Chief Justice Cappy.
Posted at 11:15 AM by Howard Bashman

"Supreme Court Hearing Guantanamo Cases": Mark Sherman of The Associated Press provides this updated report.
Posted at 11:08 AM by Howard Bashman

"Supreme Court Mulls Rights of Guantanamo Suspects": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on today's broadcast of NPR's "Morning Edition."
Posted at 10:17 AM by Howard Bashman

"Left Behind? Ossining, New York, was at the forefront of school integration; But as American law and public opinion turn against race-based programs, can the town continue to use racial targeting to close the achievement gap?" Dana Goldstein has this article online today at The American Prospect.
Posted at 10:14 AM by Howard Bashman

How to access online the first play-back of the audio of today's U.S. Supreme Court oral argument in the Guantanamo detainee cases: At C-SPAN's request, the Court has agreed to make available same-day audio of today's oral argument in the Guantanamo detainee cases.

C-SPAN anticipates that its first play-back of the audio will air on the C-SPAN3 network starting at 11:15 a.m. eastern time. The actual start time, of course, will depend on whether the oral argument is allowed to continue past the one hour allotted time and how quickly the Court makes the audio available for broadcast.

You can access online the live C-SPAN3 video feed in both RealPlayer and Windows Media Player formats (click on those links to launch the live feed).
Posted at 10:04 AM by Howard Bashman

"Hawaii lawyer opens bakery shop for dogs": The Honolulu Advertiser today contains an article that begins, "What does a local girl do after graduating from Punahou, UC-Berkeley and then the University of Hawai'i law school? She leaves her job at a big law firm and opens a bakery that caters to dogs, of course."
Posted at 09:30 AM by Howard Bashman

"Precursor of the Constitution Goes on Display in Queens": This article appears today in The New York Times. Perhaps Ann Althouse, now in neighboring Brooklyn, will pay the document a visit and provide some additional photos.
Posted at 09:28 AM by Howard Bashman

"Grand jury to probe abortion-clinic practices": The Washington Times today contains an article that begins, "An unprecedented investigation into abortion-clinic practices will commence soon in Kansas now that the state Supreme Court has cleared the way for a grand jury with subpoena powers to be convened."
Posted at 09:25 AM by Howard Bashman

"Murphy named to Court of Appeals; Court of Special Appeals chief judge known for experience, moderation": The Baltimore Sun today contains an article that begins, "Gov. Martin O'Malley nominated appellate Judge Joseph F. Murphy Jr. to Maryland's Court of Appeals yesterday, using his first opportunity to make over the state's highest court by choosing a jurist known for his depth of experience and moderate temperament."

And The Washington Post reports today that "Appellate Judge Picked for State's Top Court."
Posted at 09:10 AM by Howard Bashman

"Death row inmate's sentence upheld; The 9th Circuit rejects arguments that Kevin Cooper was framed in the 1983 murders of four people in Chino Hills": Henry Weinstein has this article today in The Los Angeles Times.

The Press-Enterprise of Riverside, California reports today that "Appeals panel upholds Kevin Cooper's conviction in Chino Hills killings in 1983."

And The Inland Valley Daily Bulletin of Chino, California reports that "Cooper's appeal fails; Judges reject convicted killer's claims."

My earlier coverage of yesterday's Ninth Circuit ruling appears at this link.
Posted at 09:02 AM by Howard Bashman

"High court hears Medtronic case; Justices asked hard questions in a lawsuit pitting the Minnesota medical device maker against the family of a New York patient": This article appears today in The Minneapolis Star Tribune.

Today in Financial Times, Patti Waldmeir reports that "Business in court tussle on safety regulation."

And Reuters reports that "US justices weigh medical-device makers' liability."
Posted at 08:33 AM by Howard Bashman

"Detainees challenge civil, military justice; President Bush's evolving enemy combatant policy is playing out in radically different venues": Carol Rosenberg has this article today in The Miami Herald.

Today in The Washington Post, Robert Barnes reports that "Justices Weigh Courts' Role in Detainee Cases." The newspaper also contains a front page article headlined "Evidence Of Innocence Rejected at Guantanamo."

In The Wall Street Journal, Jess Bravin has an article headlined "Grappling With Guantanamo: Supreme Court's Detainee-Rights Ruling Could Affect Bush Legacy."

At, Ariane de Vogue reports that "Detainees' Case Heads to Supreme Court; Justices to Weigh National Security Interests, Guantanamo Captives' Rights."

Reuters reports that "Guantanamo prisoners get day in high court."

BBC News reports that "Legal battle on Guantanamo looms; The US Supreme Court is set to hold a hearing in two cases that are being seen as a legal showdown over the Guantanamo Bay detention camp in Cuba." And a related item is headlined "Profiles: Odah and Boumediene."

The Harvard Crimson reports that "Students Stage Protest Kidnappings."

The New York Times contains an editorial entitled "A Key Moment for Justice."

The Los Angeles Times contains an editorial entitled "Gitmo inmates deserve protection: The Supreme Court should again reject an effort to deny alleged enemy combatants held at Guantanamo the protection of U.S. law."

And in The Austin American-Statesman, David Currie, Kari Erickson, Ariel Juarez and Anh-Thu Nguyen have an op-ed entitled "U.S. Supreme Court should support the foundation of our democracy."
Posted at 08:07 AM by Howard Bashman

"Supreme Court casts doubts on Jeff death row trial; Simpson reference, jury picks questioned": This article appears today in The Times-Picayune of New Orleans.

Today in The New York Times, Linda Greenhouse reports that "Supreme Court Reconsiders Pivotal Louisiana Case on Racial Selection of Juries."

In The Washington Post, Robert Barnes reports that "Court Hears La. Jury Bias Case; Prosecutor in '95 Trial Referenced O.J. Simpson, Excluded Blacks."

David G. Savage of The Los Angeles Times reports that "High court considers play of race card; At issue is a prosecutor who worked to exclude African Americans from a jury deciding the fate of a black defendant."

And Joan Biskupic of USA Today reports that "High court mulls racial bias in juror selection."
Posted at 08:00 AM by Howard Bashman

"Atheist has another go at banning pledge": Howard Mintz has this article today in The San Jose Mercury News.

Today in The New York Sun, Josh Gerstein reports that "God on Docket -- Yet Again -- in Coast Court." The newspaper also contains an editorial entitled "Faith-Based Currency."

And The Washington Times reports that "Appeals court considers 'God' in Pledge."

Once the U.S. Court of Appeals for the Ninth Circuit posts online the audio files of yesterday's oral arguments in these two appeals, I will link to them.
Posted at 07:52 AM by Howard Bashman

"What's at Stake in the Latest Guantanamo Bay Case?" Michael C. Dorf has this essay online today at FindLaw.
Posted at 07:45 AM by Howard Bashman

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