national security law in the Supreme Court’s upcoming term: Round-Up (I)

* 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.
Issue: 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.

08-1498

09-89

Docket: 08-1555
Title: Samantar v. Bashe Abdi Yousuf, et al.
Issue: . 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
Issue: 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. (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 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.

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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