1. General Dynamics v. United States (Supreme Court grants cert. in a state secrets case)
The Supreme Court granted cert. yesterday in General Dynamics v. United States and Boeing v. United States, both arising out of the massive, long-running contract dispute associated with the cancellation of the A-12 Avenger II program. The question presented? As framed in General Dynamics: ”Whether the government can maintain its claim against a party when it invokes the state secrets privilege to completely deny that party a defense to the claim.” As framed in Boeing, it’s basically the same thing, but with specific reference to Fifth Amendment Due Process concerns.
While any Supreme Court decision on the state secrets privilege is newsworthy, and much rides on this one both for the immediate litigants and others who become embroiled in similar disputes, we should not expect this to have much impact on the far-more controversial state-secrets cases such as Mohamed v. Jeppessen Dataplan. At the end of the day, the controversy surrounding cases like Jeppessen stems in large part from the idea that the privilege can be used even when its effect is to prevent courts from considering claims of illegal government conduct. The A-12 litigation, in contrast, presents the issue whether the government can itself advance a claim against a private entity while simultaneously invoking the privilege to deprive that entity of a defense. Should a majority of the Court side with the General Dynamics and Boeing in this instance, anticipate that the decision will be written narrowly so as to avoid being seen to speak to the Jeppessen controversy. Of course, it remains possible that the Court also will grant cert. in Jeppessen itself, though I predict they won’t.
SCOTUSblog provides access to the cert petition and other papers here. The links to the decision below were not working just now, however, so for immediate decision below (from the Federal Circuit) try here, and for a related earlier Fed Circuit decision dealing with the same issue try here.
2. Al Odah v. United States (GTMO detainee files cert. petition challenging the hearsay rules and burden-of-proof used in the post-Boumediene litigation)
For about a year and a half after the Supreme Court’s 2008 ruling in Boumediene v. Bush, district judges were left to their own devices in grappling with the Guantanamo habeas litigation. Beginning in January this year, some of their resulting decisions began to percolate up to the D.C. Circuit Court of Appeals, and by summer’s end we had some half-dozen Circuit opinions to consider. More district and circuit opinions are on the way, of course, but in the meantime the question arises whether the Supreme Court might take one of the existing 2010 Circuit decisions for review this term. In hopes that the answer will be yes, a GTMO detainee named Fawzi Khalid Abdullah Fahad Al Odah–who lost on the merits in his bid for habeas relief both at the district court (before Judge Kollar-Kotelly) and at the circuit (before Chief Judge Sentelle and Judges Rogers and Garland)–has just filed a cert. petition presenting two questions:
1. Whether the Federal Rules of Evidence and 28 U.S.C. 2246 limit the admissibility of hearsay in a habeas corpus case challenging indefinite imprisonment, potentially for life.
2. Whether a preponderance of the evidence standard, rather than a clear and convincing evidence standard, is sufficient under the Due Process Clause of the Constitution and 28 U.S.C. 2241 to support a ruling in favor of indefinite imprisonment, potentially for life.
One thing worth noting about the hearsay argument: it is not an argument about what the Constitution requires, but rather an argument about what the Federal Rules of Evidence and the federal habeas statute require. Thus Al Odah writes that “[e]ither Congress or this Court could change the Federal Rules of Evidence to accomodate the particular circumstances of a class of habeas cases such as Petitioner’s.” (pet. at 16) If the Supreme Court were to grant cert. on this question, it is not hard to imagine it having quite a galvanizing effect on Congress, generating interest in legislation in quarters that otherwise might have been prepared to live with the status quo. And of course that legislation would not likely be limited to the hearsay issue. Ironically, then, al Odah’s petition if successful could ultimately result in the adoption of rules either entrenching the status quo or perhaps making it still-more strict. One wonders, too, if some Justices when considering whether to grant cert. might actually bank on such a legislative reaction…. In any event, Lyle Denniston of SCOTUSblog has more coverage here.