The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.

On Monday, the military commission trial of Salim Ahmed Hamdan, Osama bin Laden’s former driver, is scheduled to begin at Guantanamo Bay, Cuba.

Monday also is the deadline to seek rehearing in Kennedy v. Louisiana (07-343), though there has been no indication the state of Louisiana will seek rehearing over the omission of a federal statute in the Court’s survey of legislation that authorizes the death penalty for child rape.

By Friday, both sides in the Guantanamo Bay detainee case must file legal briefs on a series of issues about the shape the District Court’s habeas review will take during and after the coordinating phase for more than 240 cases.

No petitioners’ merits briefs are due this week. The respondent’s merits brief is due Monday in Arizona v. Gant (07-542).

It is good to be back writing on the blog. I hope to post some thoughts about some of the cases from the past Term in the next several weeks, including a belated analysis of an under-discussed aspect of the Boumediene opinion. In the meantime, here is a sampling of some of the best articles about the Supreme Court from the past couple of months:

Michael W. Schwartz (Wachtell, Lipton, Rosen & Katz) wrote a very interesting and highly readable piece for the Policy Review entitled “Our Fractured Supreme Court: The Benefit of Unanimity and the Vanity of Dissent,” see here. The piece discusses the practice of dissenting from the Court’s opinions (both historically and institutionally) in the broader context of Chief Justice Roberts’s expressed preference for unanimity in the Court’s decisions. I find this piece fascinating because of the interesting ideas that it raises, some of which I have examined in my own scholarship: that the increasing number of dissents and concurrences may be a key factor in the Court’s decreasing plenary docket and that the rise in the number of law clerks after the early 1970s (from 2 to 4) may have contributed to the increasing number of dissents from members of the Court. There are some slight factual inaccuracies in the piece: for example, Congress has not eliminated all (nearly all to be sure) of the Court’s mandatory appellate jurisdiction and the Judge’s Bill left much of the Court’s mandatory appellate jurisdiction intact, but the inaccuracies do not take away from the thoughtfulness of the piece.

The May 2008 issue of the Yale Law Journal contained a nice essay by Daniel Richman (Columbia Law School) entitled “Federal Sentencing in 2007: The Supreme Court Holds–The Center Doesn’t,” see here. For those interested in recent developments surrounding federal sentencing, this is worth a read. Although the main thrust of the paper is on the Executive Branch side of sentencing–that is, the relationship between “main Justice” and U.S. Attorney’s Offices–Part IV of the paper does contain an extensive discussion of the potential impact of the Gall, Kimbrough, and Rita decisions on federal sentencing policy. One interesting aspect of the trio of sentencing decisions from last Term is that the jury, which was the basis for this whole line of cases, has “pretty much fallen out of the picture” according to Professor Richman. Although a number of articles have been written over the past three or four years assessing the Court’s doctrinal turn in these Sixth Amendment cases, I hope that we will begin to see some empirical papers that assess the impact of the now-discretionary nature of federal sentencing if and when the relevant data becomes available.

Lawyers for a class of fisherman and other Alaskans affected by the Exxon Valdez oil spill submitted what is likely their last request earlier today for the Court to award some $488 million in interest on the punitive damage award authorized in the recent decision in Exxon v. Baker (07-219). The reply, filed less than two weeks after the plaintiffs initially asked the Justices to resolve the question, stressed the financial injustice of limiting the punitive award to the same amount – $507.5 million – originally approved by an Alaskan federal judge more than a decade ago.

“The practical effect of granting Exxon’s request,” the reply said, would be to reduce the punitive award allowed by this Court to $257.5 million in 1996 dollars, or roughly one-half of the $507.5 million this Court held the jury was entitled to award them.”  By comparison, the filing said, Exxon has earned a net $3.9 billion on the amount of the punitive award – and $3 billion since 2005 alone – when measured as the difference between the rate of interest under federal law to which the plaintiffs would be entitled (5.9 percent) and the oil giant’s own internal rate of return.

The dispute has arisen over the parties’ conflicting interpretations of a Supreme Court rule (42.1) governing interest on damage awards.  The plaintiffs contend the rule only applies when the Court orders damages for the first time – unlike the present case, in which the Justices reduced the punitive award from $2.5 billion to $507.5 million, equal to the amount of compensatory damages originally found by the jury. Exxon maintains that because the Court’s ruling was silent on whether the plaintiffs were entitled to interest on the remaining amount, the rule entitles them to recover no more than the original judgment.

As of this afternoon, the Court had not given any indication as to when or whether the Justices would resolve the question. Click here for more background on the plaintiffs’ original submission, and here for more background on Exxon’s response.

UPDATE 2:15 p.m.  The judge’s refusal to delay the Hamdan trial starting Monday will not be challenged in a higher court.  Georgetown law professor Neal Katyal, one of the defense lawyers, said: “We have decided not to appeal Judge Robertson’s decision.”  If the detainee ultimately is convicted, he will have the option then to appeal.

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Saying that “the eyes of the world are on Guantanamo Bay,” a federal judge in Washington suggested Friday that the first war crimes trial opening there on Monday will have to deal with issues of “particular sensitivity.”  U.S. District Judge James Robertson commented: “Justice must be done there, and must be seen to be done there, fairly and impartially.”

But, the judge concluded, he would not intrude to postpone the start of the trial.  Neither would he rule, he said, on a host of constitutional issues raised before him in Hamdan v. Gates (04-1519).  Judges like himself, he added, “do not have a monopoly on justice or on constitutional learning.”

The judge at midday Friday issued an 18-page opinion explaining his oral denial Thursday of the plea by Salim Ahmed Hamdan to delay his trial before a military commission, formally opening in three days as the first such trial under a 2006 law. The opinion can be viewed here.

While the substance of Judge Robertson’s “memorandum order” closely tracked his oral announcement a day before, at several points he impliedly questioned some aspects of the trial process set up by Congress under the Military Commissions Act of 2006.

The judge commented, for example, that the MCA made “a startling” departure “from standards that would be applied in either U.S. criminal trials or [military] courts-martial’” — that is, “evidence obtained by ‘coercion’ may be used against the defendant so long as the military judge decides that its admission is in the interest of justice and that it has ’sufficient’ probative value.”  The judge noted that the Supreme Court in 1940, in Chambers v. Florida, had overturned a conviction and excluded evidence “obtained through five days of coercive interrogation.”

The judge, at the same time, seemed impressed by what he called “significant improvements” in the war crimes trial process under the 2006 law, compared to the process that the judge himself had struck down in 2004 in an earlier case involving Hamdan; that earlier process had been set up solely under Presidential order.  (The Supreme Court in 2006 nullified that earlier system, mostly agreeing with Judge Robertson.)

The judge indicated again, as he had Thursday, that the fact that the two other branches of government had combined to create the new system was a key factor in his ruling.  “Where both Congress and the President have expressly decided when Article III review is to occur, the courts should be wary of disturbing their judgment.”

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The constitutional challenge to the 25-year extension of a key provision of the Voting Rights Act, requiring some states and local governments to get pre-clearance for election law changes, will be filed in the Supreme Court by early September, lawyers involved said Friday.

On July 7, attorneys for a utility district in Austin, Texas, filed a formal notice of appeal of the May 30 ruling by a three-judge U.S. District Court upholding the extension.  That filing started the running of a 60-day period to file the appeal in the Supreme Court. By the calendar, that means the appeal is due by Sept. 8, and lawyers said they expect to file close to that date.

(The blog’s previous reports on the District Court ruling and the planned appeal are here and here.)

UPDATED 3:55 p.m.

Bowing to the President, Congress and a higher court, U.S. District Judge James Robertson in Washington refused on Thursday to delay the trial of a Yemeni national on war crimes charges — a trial, the first of its kind, scheduled to begin next Monday before a military commission at the U.S. Navy base at Guantanamo Bay, Cuba.

Speaking for eight minutes before a nearly-full courtroom, the judge issued an oral ruling after a two-hour morning hearing and said he would issue a written opinion — probably by tomorrow morning — so that either side could challenge it in the D.C. Circuit Court, if they wished.  Lawyers for the detainee, Salim Ahmed Hamdan, said they would study the ruling and decide later whether to appeal. Hamdan is now going through pre-trial proceedings at Guantanamo on charges of conspiracy and providing “material support” to terrorism.  He is often referred to publicly as the former driver for terrorist chief Osama bin Laden.

Judge Robertson based his ruling in part on the fact that Congress and the President had worked together to establish military trials of detainees in the Military Commissions Act of 2006, and had decided in that law that any review of the fairness of such a trial should occur after “final judgment” and not before. “A court should be reluctant to disturb their judgment,” the judge said.

He also relied on a recent ruling by the D.C. Circuit Court in another detainee’s case, saying that all of the challenges that are raised against military commission trials can be addressed once a trial is over. The Circuit Court ruled on June 20, in Khadr v. U.S., that it had no jurisdiction to hear the challenge of a Canadian detainee, Omar Ahmed Khadr, to his war crimes trial, because there was no “final judgment.”  (A post on that decision can be read here.)  Lawyers for Khadr had joined this week in supporting Hamdan’s plea to delay his trial; Khadr is to go on trial later at Guantanamo.

Judge Robertson commented that lawyers for Hamdan had raised “novel and complex” constitutional issues but concluded that he did not need to address those at this time. (Click the following links to read Hamdan’s request for a preliminary injunction, the government’s brief in opposition, and Hamdan’s reply brief.)

Hamdan’s military commission trial is to be the first of what may be about 80 such trials of detainees now at Guantanamo — including cases against so-called “high-value” detainees, some of whom are facing charges growing out of alleged roles in the 9/11 terrorist attacks. So far, 20 detainees have been charged with crimes.

Although Judge Robertson noted that his ruling allowing such a trial to proceed only applied to Hamdan, his decision was a setback to all of the detainees now awaiting prosecution on war crimes charges. First, Robertson was one of only a few judges on the District Court bench in Washington who might have been persuaded to delay such trials; he ruled once before that Hamdan could not be tried, under a system set up by President Bush (and later struck down by the Supreme Court and then replaced by the MCA system).  Second, another federal judge who is coordinating more than 240 detainee cases pending in District Courts has put at the end of the line, for processing, the habeas challenges of detainees facing military commission trials.  That could mean that the Justice Department and Pentagon do not even need to respond to those captives’ habeas challenges until months from now, if at all.

It was unclear Thursday whether Hamdan’s claim that he is being unlawfully detained — a claim that was closely intertwined with his constitutional challenges to the war crimes trials procedures — could now go forward before Judge Robertson simultaneously with the trial at Guantanamo.  Nothing in the judge’s oral ruling addressed that question, since it was limited to the plea for delay only.

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The Washington, D.C., city government on Wednesday made available the final versions of actions the City Council and the chief of police have taken on new handgun laws and regulations, responding to the Supreme Court’s decision in District of Columbia v. Heller (07-290) establishing a constitutional right to have a gun for self-defense in one’s own home.  The emergency law can be read here, the police regulations here, and the handgun amnesty provision here.

Lawyers for a Guantanamo Bay detainee due to go on trial before a military commission next Monday renewed his plea for a delay, accusing the Justice Department of trying to deny a right to “his day in court” — civilian court.  The argument came in a reply brief, filed Wednesday, a day before a federal judge is to hold a hearing on the postponement plea by lawyers for a Yemeni national, Salim Ahmed Hamdan.

In opposing the request, the Justice Department on Monday had argued that, after the Supreme Court on June 12 ruled (in Boumediene v. Bush, 06-1195) that detainees were entitled to a prompt court review of their detention, Hamdan’s counsel were engaged in an ironic effort to delay his “day in court.”  That was a reference to the fact that a military court, the war crimes commission set to try Hamdan, was ready to move forward to judge his case.  The Department argued that it should be allowed to proceed, and that the proceeding was an adequate substitute for civilian court habeas review.

But Hamdan’s attorneys countered that what he was seeking at this point in U.S. District Court was a delay of the commission trial while he obtained “his day in court — this Court.” The brief added: “Hamdan should not be tried at Guantanamo until this Court has a full opportunity to consider the grave issues he presents on the merits..”

The government, the brief said, “opens and closes its brief with the remarkable claim that trial by a Guantanamo Bay military commission actually constitutes the ‘day in court’ to which Boumediene has just held Hamdan is entitled.” 

The attorneys also contended that government lawyers had engaged in “bait-and-switch litigation” because they had earlier successfully opposed his plea to have the Supreme Court hear his case alongside Boumediene and had said then that Boumediene would govern his claims, but now were arguing that Boumediene did not apply at all in the military commission setting.

U.S. District Judge James Robertson will hear the request for a delay of the war crimes proceedings at 10 a.m. Thursday. (This blog will provide coverage following the hearing.)

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Acting on a claim by Mexico’s government that the U.S. government has not done enough to assure the treaty rights of Mexican nationals facing execution for murders in the U.S., the World Court on Wednesday ordered the U.S. — by a 7-5 vote — to stop five imminent executions in Texas.

Leaving it up to the U.S. to choose the way to carry out the order, the international tribunal — formally, the International Court of Justice that sits in The Hague, Netherlands — told the U.S. only to “take all measures necessary to ensure” that Texas does not execute five individuals on its death row.

The World Court issued its order to assure that the Mexicans remain alive until the tribunal can resolve a new dispute over the global obligations of the U.S. government — a dispute that has already led to two decisions by the U.S. Supreme Court. 

 The text of the World Court decision (but not including three dissenting opinions) can be downloaded here.  A press release summarizing the 21-page majority ruling is here.

The U.S. member of the tribunal, Thomas Buergenthal, dissented on all points of Wednesday’s ruling.  On the key issue of the order to delay the Texas executions, Buergenthal was joined by judges from Japan, Slovakia, New Zealand and Russia.

Depending upon how the U.S. government and the state of Texas respond, the case could affect first the execution of Jose Ernesto Medellin Rojas, scheduled for August 5. It also is meant to apply to the executions of Cesar Roberto Fierro Reyna, who may have an execution date set with 30 days’ notice, and of Ruben Ramirez Cardenas, Humberto Leal Garcia and Roberto Moreno Ramos, who may have execution dates set on 90 days’ notice.

Mexico contends that those five were denied their rights under the Vienna Convention to be told, after their arrest and during their prosecution for murders in Texas, that they had a right to consult with a diplomat from their own country.  The U.S. government has admitted that their rights under the treaty were violated, but it has been unable up to now to stop their executions.

On March 25, in the case of one of these five (Medellin v. Texas, 06-984), the Supreme Court ruled by a 6-3 vote that a 2004 ruling by the World Court in favor of 51 Mexican nationals could not be enforced against Texas, either by direct action by President Bush or by the authority of the World Court itself.  That ruling led Mexico, on June 5, to return to the World Court to ask for further legal help to assure the Mexicans their treaty rights. (Mexico’s application to the World Court can be downloaded here.  At the same time, Mexico asked for an interim order to block the five executions; it is here. Those five death row inmates are the only ones who have completed all appeals.)

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UPDATE 5:45 p.m.  The decision by the Fourth Circuit Court apparently is now headed for the Supreme Court. Lawyers for the detainee involved in the case said that, while still studying the ruling, they do expect to ask the Supreme Court to review the part of the decision upholding presidential detention power over those seized inside the U.S.  The Justice Department, although failing to get the case dismissed, seemed to indicate that it does not intend to challenge that part of the ruling in the Supreme Court. In a statement, a Department spokesman praised the overall decision, and said, as to the ruling’s assurance of a new chance to challenge the basis for the detention, that it “will respond to Mr. Al-Marri’s contentions on remand.”

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A federal appeals court on Tuesday upheld President Bush’s power to order the detention of a foreign student living in the U.S., based on claims he had terrorist links, but also ruled that the detainee must be given a new chance to challenge in court his designation as an “enemy combatant” — the basis for holding him.

The en banc 4th U.S. Circuit Court in Richmond, VA, split 5-4 on each of the two points in the case, Al-Marri v. Pucciarelli (06-6427), with Circuit Judge William B. Traxler, Jr., voting to make a majority on each. There are seven separate opinions, totaling 216 pages; they are available here.  (Circuit Judge Dennis W. Shedd did not take part.)

Because Judge Traxler’s vote was necessary to make a majority on each part of the ruling, and because he did not sign onto any opinion written by other judges on either part, his 35 pages of rationale generally will be considered the controlling justification for the entire decision.  The four judges who voted against presidential authority to order the detention said they would not have ruled on the detainee’s right to challenge his detention, but they nevertheless voted to support Traxler on that point “to give practical effect” to an order to govern further developments in District Court.

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Responding to a submission filed last week, lawyers for Exxon today asked the Court to declare that the recent decision in Exxon v. Baker (07-219) forbids the plaintiffs – a class of fisherman and other individuals affected by the Exxon Valdez oil spill – from collecting some $488 million in interest on top of the $507.5 million punitive damage award resulting from the Court’s opinion last month.

In its filing, Exxon agreed the issue should be resolved by the Supreme Court now rather than be subject to further litigation before the Ninth Circuit on remand.  But the oil giant argued that because the majority opinion failed to explicitly address whether the plaintiffs’ were entitled to interest, the Court’s own rules require that they can collect none.

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UPDATED 9:30 a.m.

Arguing that it is “far from clear” that Guantanamo Bay detainees have any constitutional rights when tried on war crimes charges, the Justice Department late Monday urged a federal judge not to delay the first trial — due to start in seven days.

In a 64-page brief in opposition, the Department said that Congress has taken away the authority of federal judges to intervene to review the military commission trial process before a conviction has resulted. It also contended that the commission process itself provides “unprecedented” legal protection for detainees but that, if there is any claimed flaw in the proceedings, that can be challenged in a civilian court reviewing any verdict.

The brief was filed in the case of Salim Ahmed Hamdan, a Yemeni national who is now due to go on trial July 21 in the first of what may be about 80 such trials of detainees now at Guantanamo — including cases against so-called “high-value” detainees, some of whom are facing charges growing out of alleged roles in the 9/11 terrorist attacks.

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UPDATE Tuesday 8 p.m.  The City Council of Washington, D.C., on Tuesday completed passage of the proposed new handgun control legislation.  The Council, by unanimous voice vote, approved the bill largely as outlined in the post below. The Council did vote to increase the gun registration fee from a proposed $13 to $25. It authorized the Police Chief to impose a fee for the required ballistics test. Mayor Adrian M. Fenty said in a statement: “None of us wanted this bill to be necessary. But I think we have struck the right balance between honoring the Supreme Court’s Heller decision and protecting the safety of our residents.  I especially want to thank Councilmember [Phil] Mendelson for his leadership and expertise as we worked to put together this legislation.”  The legislation was scheduled to go into effect immediately and remain in effect for no more than 90 days.  The Council is expected to take up permanent legislation in September.

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 Officials of the city government in Washington, D.C., on Monday proposed a new measure that would allow handguns to be in a ready-to-use condition only for prompt reactions to threats of “immediate harm” within the home.  In a planned response to the Supreme Court’s June 26 ruling in District of Columbia v. Heller (07-290), local officials released the text of a “Firearms Control Emergency Act of 2008.” The City Council plans to act on the bill during a legislative session Tuesday, on an emergency basis, officials said.

A news release describing the bill and a new set of police regulations on guns can be found here.  At the bottom of the release are links to a new amnesty proposal, the text of the proposed new gun law, and the text of proposed new regulations to implement that law when it is enacted by the City Council.

In the Supreme Court’s Heller decision, the Justices declared a new constitutional right to have a gun for self-defense in the home, and struck down a 1976 law so far as it barred possession of handguns in the home for self-defense. The Court also nullified a separate requirement that any gun kept in the home be unloaded and disassembled or have a trigger lock on.

Under the proposed new law for the city, handguns would have to be registered by anyone entitled to have such a gun. If the owner expects to use the gun for self-defense within the owner’s home, the owner would not need a separate license-to-carry for that purpose.

However, any gun kept in the owner’s home would have to be kept unloaded and disassembled or else disabled by a trigger lock. The only time that requirement is not in force, under the proposal law, would be when the gun was “being used to protect against a reasonably perceived threat of immediate harm to a person” within that person’s home.

That provision, officials told reporters, was meant to allow a handgun owner to get the gun and load it — for example, if a burglar were at the door.  It would not allow the gun to be loaded or assembled or unlocked at all times it remained in the home. 

Officials said they expected that this provision might be challenged in court by gun rights groups or individuals, on the theory that it is too restrictive and would not allow practical access to a working gun in an emergency.

Under the proposal, a handgun could be registered but only if it was submitted to police for a ballistics test, to determine whether it had been stolen or used in a crime.  Registration would be limited to one gun per individual during the first 90 days the law was in effect.

Outside the home, handguns would generally be banned, except that they could be used elsewhere “for lawful recreational purposes” or could be carried “for a lawful purpose” allowed by federal or District law.

Under District law, the emergency bill would go into effect immediately, and remain in effect for no more than 90 days.  The City Council will take up proposals for permanent legislation in September, it is understood.

The amnesty and police gun regulations disclosed Monday are designed to implement the new approach to gun control. The amnesty provision, in effect for six months, would mean that a person entitled to register a handgun would not be prosecuted for previously having an unregistered pistol.  There would be no amnesty for any crime committed using the gun.

In the recently concluded Supreme Court term, the Justices heard oral argument in 70 cases, the fewest in more than half a century. On this blog and elsewhere, journalists and commentators have floated numerous explanations for the Court’s steadily declining docket, from clerks’ reluctance to recommend grants, to fewer cases meeting the Justice’s criteria, to even the rise of a more specialized Supreme Court bar. Chief Justice Roberts has also tied the decrease to less activity in Congress and the lower courts.

Whatever reason lies behind the number of grants, Court-watchers have nonetheless remained befuddled over which cases the Justices have decided to add – or, more precisely, not to add – to the docket. The wonder extends to us here at SCOTUSblog, where we review the question presented in all paid cases and over the previous term flagged nearly 300 petitions as having at least a reasonable chance of being granted.  The list below presents the author’s own compilation — in no particular order –  of the most interesting and important petitions the Justices declined to grant during the previous term.

While the Court’s Boumediene decision was arguably the most significant of the term, the Court also passed over two major post-September 11 cases involving an increasingly litigated issue: the scope of the “state secrets” privilege, an evidentiary doctrine the Court established in 1953 to protect from discovery materials whose very disclosure could threaten national security. In El-Masri v. United States (06-1613) (filings available here), the Court declined to consider a suit by a German citizen mistakenly abducted by U.S. intelligence officials and held for months at an Afghani prison. Following his release, El-Masri brought suit against former CIA Director George Tenet, three aviations companies, and numerous unnamed intelligence agents involved in his abduction. Citing the state secrets privilege, a Fourth Circuit panel upheld the outright dismissal of the suit, finding that litigating the case would require disclosure of details about the government’s “extraordinary rendition” program. El-Masri’s petition argued the privilege had “become unmoored from its evidentiary origins” and been transformed into an “immunity doctrine.” The government countered there was no point proceeding to discovery in cases that could not be resolved without the use of state secrets. The petition was denied October 9.

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According to the New York Times’ web site, outgoing Supreme Court correspondent Linda Greenhouse will be answering readers’ questions throughout the week. The announcement asks that questions be sent to askthetimes@nytimes.com. For more information, click here.

The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.

In Guantanamo habeas litigation, the Justice Department is scheduled to file on Monday a brief in the case of Hamdan v. Gates (District Court docket 04-1519) in response to the motion for a preliminary injunction to block the military commission trial of Salim Ahmed Hamdan.  The trial is presently scheduled to start at Guantanamo on July 21.  In other detainee litigation, Senior U.S. District Judge Thomas F. Hogan has asked both sides in about 125 cases to file initial reports by Friday explaining the status of each detainee.  The reports will include discussion of whether the government has agreed to supply to detainees’ lawyers unclassified evidence that may have been used to justify detention, but will not include discussion of specific legal issues.  U.S. District Judge Richard J. Leon also has asked lawyers on both sides to file status reports by Friday in each detainee’s case assigned to his chambers.

Petitioners’ merits briefs are due Monday in Entergy Corp. v. EPA (07-588) and Wednesday in United States v. Eurodif (07-1059). Respondents’ merits briefs are due Monday in 14 Penn Plaza LLC v. Pyett (07-581) and Thursday in Locke v. Karass (07-610). (Links above direct to case pages on SCOTUSwiki.)

The Justice Department has urged the D.C. Circuit Court to set up a fast schedule leading to a ruling that, the Department argued, should reject the power of federal courts to examine detainees’ complaints that they have been mistreated while being held at Guantanamo Bay.

Congress has taken away any such authority, the Department contended, and the Supreme Court did not second-guess that in its new ruling June 12 on detainees’ legal rights.  In a motion filed Thursday, and made available Friday in Paracha, et al., v. Bush, et al. (Circuit docket 05-5194 and others), the Department contended that no detainee has any right to contest his conditions of confinement at the military prison on the U.S. Navy base in Cuba.

Detainees, through their lawyers, have complained of inhumane or degrading treatment, sometimes reaching the level of torture, by military guards at Guantanamo.  In particular, they have said they were denied adequate medical care, were kept for long periods in solitary confinement, subjected to nudity as a way to punish them, and made to undergo humiliating body searches.  Their lawyers have contended that coercive tactics may have produced evidence against detainees.

The government’s opposition to civilian court review of such claims, based on a court-stripping law Congress passed in 2006, was one of a series of new developments as lower courts continued to be drawn further into issues stirred up by or left unanswered by the Supreme Court’s decision last month in Boumediene v. Bush (06-1195).

In other developments in recent days:

** Senior U.S. District Judge Thomas F. Hogan, working on arrangements to handle habeas challenges in scores of detainee cases, on Thursday ordered the Pentagon and State Department not to move any detainee out of Guantanamo without a month’s advance notice to his lawyers — at least in any case where the detainee’s lawyer seeks such a restriction, as they routinely have done. The order applies to 117 cases that involve detainees still at Guantanamo.  (The D.C. Circuit Court is now considering a government argument that federal courts have no power to bar transfers of detainees.)

** In a second order, Judge Hogan on Friday declined to order the government to come up by next week with its initial justification for designating detainees as “enemy combatants” who must remain confined. Instead, he basically accepted a Justice Department plea to allow those reports to be produced in batches of 50 a month. The filing of these initial “returns,” this order said, must be at a rate of “at least 50 a month” but the first reports are due by Aug. 29 — some days earlier than the government had requested.

** That second order also required lawyers on both sides to file by July 21 status reports for each detainee still at Guantanamo, describing their current legal status. sorting out where each case stands procedurally, and indicating whether the government has agreed to share unclassified evidence it has not yet supplied to detainees’ lawyers in any form.  Further, this order set July 25 as the deadline for written briefs on a variety of legal issues, including standards to define what rights the detainees may pursue as their habeas cases proceed, how much authority detainees’ lawyers will have to demand more information from the government, what role hearsay evidence might play, and which side has the burden of proof on legal questions.

** A second District judge, Emmet G. Sullivan, decided to handle eight cases without the coordination efforts being made by Judge Hogan.  In an order issued Wednesday, Judge Sullivan recalled those cases, and ordered status reports in each to be filed by next Monday, July 14.  After that, the judge said, he would “promptly schedule status hearings.”  Among the detainees whose cases are in Sullivan’s Court are Ramzi Bin Al Shibh, considered by the government to be one of the “high-value detainees,” as it calls them, who allegedly were involved in planning the Sept. 11, 2001, terrorist attacks.

** Lawyers for detainees asked the D.C. Circuit Court to put back into effect a pair of rulings that require the Pentagon and Justice Department to produce significant amounts of information, to the Circuit Court and to detainees’ counsel, that bears on the legality of the Pentagon’s initial decisions to hold prisoners as “enemy combatants.” The Supreme Court on June 23 told the Circuit Court to reconsider those rulings (both in the case of Bismullah v. Gates) in the wake of the June 12 Boumediene decision on detainees’ rights. The information may be crucial to the Circuit Court’s review of initial detention decisions by the military. In the new motion, filed July 3, the prisoners’ lawyers said the Supreme Court said nothing on June 12 that would undercut the need for review of all of the government information that may bear on detainees’ status as enemy designees.

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Below, Brittani Head previews Arizona v. Gant, one of the cases to be heard by the Supreme Court next October. Brittani is a rising third year at the University of Virginia Law School and a summer associate at Akin Gump. Check the Arizona v. Gant SCOTUSwiki page throughout the summer for additional updates.

I. Background

United States v. Katz highlights the general parameters of searches under the fourth amendment. Warrantless searches are “per se unreasonable . . . subject only to a few specially established and well-delineated exceptions.” Since appearing in dictum in 1914 in Weeks v. United States, the warrantless search incident to arrest has been one such specially established exception.

The challenge of the next few decades was to make that exception well-delineated. Chimel v. California attempted to clarify several clashing precedents regarding the scope incident to arrest by focusing on the “twin rationales” for a search both of an arrestee and his or her “grab space”: (1) officer safety and (2) destruction of evidence. The twin rationales assume that an arrestee might hastily destroy evidence within his or her grab space or grab a weapon to threaten an officer and escape. Chimel specifically identifies these harms as the reason the exception exists and further insists that the scope of a search incident to arrest remain strictly tied to addressing these harms.

Three later cases expounded upon, and largely expanded, the scope of the search incident to arrest described in Chimel. United States v. Robinson held that the fact of lawful arrest alone establishes the right to conduct a search incident to arrest, even absent the possibility of the suspect reaching for a weapon or destroying evidence. In Robinson, the defendant was arrested for operating a motor vehicle without a license. A search incident to arrest produced heroin. The defendant argued that the crime for which he was arrested did not trigger the twin rationales since “persons arrested for [traffic offenses] are less likely to possess dangerous weapons than those arrested for other crimes.” In disagreeing with this argument, the Court did not discredit the Chimel rationales, but instead focused on the danger of forcing police officers to make ad hoc judgments about “what a court may later decide was the probability in a particular situation that weapons or evidence would in fact be found” in the possession of the arrestee.

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