How Appealing

Wednesday, December 5, 2007

“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

“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 6:44 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 4:13 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 3:30 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 3:20 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 2:30 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 2:20 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 2:00 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 1:53 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 1:37 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 1:00 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