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Mention the D.C. Circuit these days, and practitioners are as likely to bring up the federal appellate court’s recent confirmation battles as they are its jurisprudence. But while political disputes over nominees Miguel Estrada and John Roberts Jr. have grabbed the headlines, the circuit’s constant stream of cases with national impact, many involving the powers and privileges of the federal government, hasn’t abated. Last month, the court, known as the nation’s second most important federal bench, finished hearing arguments for the 2002-03 term, and it expects to decide all these cases before beginning its 2003-04 session in September. Among the issues before the circuit from the 2002-03 term are the place of civil liberties in the war on terrorism, the rules of the road on the Internet, and the scope of executive privilege. Soon, the judges on the circuit will get some help. Although Estrada’s nomination continues to languish in a Senate filibuster, Roberts was confirmed by the Senate on May 8 and will become the first new judge on the U.S. Court of Appeals for the D.C. Circuit since Merrick Garland joined the court in 1997. Roberts brings to nine the number of active judges on a court authorized for 12. Roberts has not yet been placed on the court’s rotation of three-judge panels for September, but court sources indicate that as soon as he takes the oath of office, which is expected in a matter of days, the assignment lists will be revised to include him. He will also be able to vote immediately on pending petitions for en banc rehearings of cases that have been decided by a panel. Among the cases that still await decision by the circuit: Center for National Security Studies v. United States Department of Justice (Nos. 02-5254, 02-5300): Perhaps the most closely watched case from the D.C. Circuit’s 2002-03 term, this key national-security case was argued on Nov. 18. The Center for National Security Studies, a public interest group, and two dozen other liberal-oriented organizations are asking the circuit to uphold U.S. District Judge Gladys Kessler’s Aug. 2, 2002, ruling that the government must disclose the names and basic information about people who have been detained in the post-Sept. 11 investigations. The center contends that this disclosure is required under the Freedom of Information Act, the First Amendment, and the common law. The plaintiffs “seek the identity of hundreds of individuals who apparently have nothing to do with terrorism, but who apparently share the ethnic background, religion or national origin of the September 11 hijackers and have accordingly landed in jail on a variety of mostly petty charges,” the center’s brief declares. The government replies that disclosing the names of the detainees is not required by law and would harm the ongoing post-Sept. 11 investigations and thus endanger “the lives and safety of Americans threatened by possible future terrorist attacks.” The case was heard by Judges David Sentelle, Karen LeCraft Henderson, and David Tatel. Judicial Watch Inc. and Sierra Club v. Cheney (Nos. 01-1530, 02-631): These two cases are part of a major controversy about the energy policy task force set up in 2001 under the direction of Vice President Dick Cheney. In December 2002, U.S. District Judge John Bates threw out a case filed by the General Accounting Office seeking information about the task force. In February, the GAO decided not to appeal. But these two similar cases filed by Judicial Watch and the Sierra Club are very much alive. Both groups contend that the government is required to disclose information about the task force’s members and decision-making process. On July 11, 2002, U.S. District Judge Emmet Sullivan issued a ruling in their favor and ordered discovery about the task force. The Justice Department took the unusual step of going to the circuit and seeking an order blocking Sullivan’s ruling, claiming that the discovery itself violated the separation of powers doctrine. On April 17, Judges Harry Edwards, A. Raymond Randolph, and Tatel heard the argument. Edwards told Justice Department lawyer Gregory Katsas that “there’s not one single case anywhere that supports what you’re asking.” Randolph, for his part, asked Larry Klayman of Judicial Watch and Sanjay Narayan of the Sierra Club why they should be allowed to go “rummaging” through government files. Says the Sierra Club’s David Bookbinder: “The government is pushing a theory of the imperial presidency that hasn’t been seen since Nixon.” Charles Miller, a Justice Department spokesman, declines comment. Recording Industry Association of America v. Verizon Internet Services (Nos. 03-7015 and 03-7053): This case poses key questions for Internet, First Amendment, and copyright law. It grows out of a subpoena issued by the RIAA to Verizon, an Internet service provider, under the Digital Millennium Copyright Act (DMCA). The subpoena seeks the names of Verizon subscribers who were distributing copyrighted songs on the Internet through Napster-like programs. Verizon resisted the demand. It claimed that complying with it would chill its subscribers’ First Amendment rights and that the DMCA did not apply in this situation. In an April 24 opinion, Judge Bates rejected all of Verizon’s contentions. “Whatever marginal impact the DMCA subpoena authority may have on the expressive or anonymity rights of Internet users . . . is vastly outweighed by the extent of copyright infringement over the Internet through peer-to-peer file sharing,” Bates wrote. The appeal is scheduled to be argued in the D.C. Circuit on Sept. 16 before Chief Judge Douglas Ginsburg, Judge Sentelle, and Senior Judge Stephen Williams. Cobell v. Norton (No. 02-5374): This appeal involves one of the more dramatic aspects of the Indian trust case that has been pending before U.S. District Judge Royce Lamberth since 1996. On Sept. 17, 2002, Lamberth found Interior Secretary Gale Norton and then-Assistant Secretary Neal McCaleb in civil contempt, concluding that they had repeatedly misled the court about their efforts to clean up the trust’s accounting. The contempt citations were a key issue in an April 24, 2003, argument before Chief Judge Ginsburg and Judges Henderson and Randolph. Justice Department attorney Mark Stern argued that most of the actions in question occurred before Norton and McCaleb took office and that civil contempt is not an appropriate way to fix the trust’s problems. Elliott Levitas of Kilpatrick Stockton, arguing for the class of American Indian plaintiffs, told the court that civil contempt should be used “as a means of prodding the defendants in this case to do what [Lamberth] has ordered them to do, to do what the statute requires, to do an accounting.” Norton was not the first Cabinet officer held in contempt in the acrimonious case. Lamberth found her predecessor, Bruce Babbitt, and then-Treasury Secretary Robert Rubin in contempt in 1999. A trial on related issues is continuing before Lamberth. Kimberlin and Rice v. U.S. Department of Justice and Bureau of Prisons (No. 01-5387): This case, brought by former federal prisoner and frequent litigant Brett Kimberlin, was decided against Kimberlin on Feb. 11, 2003. But Judge Tatel wrote an impassioned dissent, and Kimberlin’s lawyers at the American Civil Liberties Union are seeking rehearing en banc. Kimberlin challenged, on First Amendment grounds, a Bureau of Prisons regulation banning inmates from possessing electronic musical instruments. Judge Sullivan of the District Court rejected the claim, as did the sharply divided appeals panel. Judges Sentelle and Henderson ruled that the ban on such instruments bears “a reasonable relationship to the legitimate interest of conserving correctional department funds” and thus upheld the prohibition. The court also noted that the prison system is not required to “fund the exercise of First Amendment rights.” Following Judge Tatel’s dissent, the ACLU’s petition says that the logic of the majority opinion could be used to uphold a ban on all First Amendment-type activity by prisoners, a result contrary to Supreme Court precedent. “While the particular constitutional claim asserted here . . . may not be one that tugs at the court’s heartstrings, this appeal also presents a question of exceptional importance” for prisoners’ constitutional rights, ACLU lawyer Arthur Spitzer wrote in his brief seeking reconsideration by the full court. The petition was filed on March 28 and is pending.

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