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National Security Law in the Upcoming Supreme Court Term

From Professor Bobby Chesney

National Security Law in the Upcoming Supreme Court Term

It remains to be seen whether the Court will take any major national security law cases for the upcoming term.  I list a few candidates below based on what already has been considered or is about to be considered by the Court during its cert. conferences. Please let me know if you have in mind some additional cases that have a reasonable chance of being heard this term, and I will circulate an updated roster.

Cert decision pending

One very interesting case came up for consideration at the Court’s June 25th Conference (the last conference of last year’s term), and we still do not know the result (the case involves the Uighur detainees at GTMO, and some have speculated that the delay has to do with the ongoing progress of diplomatic efforts to find appropriate locations to send them).  From SCOTUSBLOG’s summary:

Docket: 08-1234
Title: Kiyemba, et al.  v. Barack H. Obama, President of the United States, et al.
Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush has no power to order the release of prisoners held by the Executive for seven years, where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.

To be considered tomorrow at the opening cert. conference of the new term

Again, all of this is from SCOTUSblog [except the italicized parenthetical below]:

Docket: 08-1498 ; 09-89
Title: Holder, Attorney General v. Humanitarian Law Project ; Humanitarian Law Project v. Holder

Issue: Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization, is unconstitutionally vague; Whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(1) on the provision of “expert advice or assistance” “derived from scientific [or] technical … knowledge” and “personnel” are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations.



Docket: 08-1555
Title: Samantar v. Bashe Abdi Yousuf, et al.
. Whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state and whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual’s former capacity as an official acting on behalf of a foreign state.

Docket: 08-1569
Title: United States v. O’Brien and Burgess
Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.  [n.b., I included this one because it seemed to me that might have some bearing on the important but not widely-observed issue of how the terrorism sentencing enhancement is applied]

On the horizon

State Secrets Privilege

One high-profile case that has a good chance of getting to the Court this year is Mohamed, et al., v. Jeppesen Data Plan, et al.El-Masri ruling.  The government has sought en banc review in the Ninth Circuit.  SCOTUSblog has the details here. (Circuit docket 08-15693), which involved an assertion of the state secrets privilege in connection with a civil suit alleging a private company’s involvement in extraordinary rendition.  A Ninth Circuit panel already has ruled against the government—and it has done so in a manner that arguably is in tension with with the Fourth Circuit’s El-Masri ruling.  The government has sought en banc review in the Ninth Circuit.  SCOTUSblog has the details here.

Public disclosure of abuse-related photos

In U.S. Defense Department et al. v. American Civil Liberties Union et al. (09-160), the government asks “Whether Exemption 7(F) of the Freedom of Information Act, 5 U.S.C. 552(b)(7)(F), exempts from mandatory disclosure photographic records concerning allegations of abuse and mistreatment of detainees in United States custody when the government has demonstrated that the disclosure of those photographs could reasonably be expected to endanger the lives or physical safety of United States military and civilian personnel in Iraq and Afghanistan.”

The petition was filed in August.  SCOTUSblog notes that the case may become moot in light of possible legislative efforts to modify FOIA to address this situation.

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.