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WASHINGTON — With one terrorism-related case already on its docket, the Supreme Court is poised to add two more, setting the stage for a term dominated by issues of civil liberties in the time of war. At its private conference on Friday, the court will consider, among dozens of other cases, Hamdi v. Rumsfeld, No. 03-6696, which tests the rights of an American citizen captured overseas and held in the United States as an enemy combatant. The justices could also decide whether to review Center for National Security Studies v. Department of Justice, No. 03-472. That case asks if the government can continue to withhold the names of people detained after the terror attacks of Sept. 11, 2001, without violating the First Amendment or the Freedom of Information Act. The Supreme Court could announce as soon as Jan. 12 whether it will consider the cases. If so, they would likely be argued in April, the final argument session of the current term. “Before we are done, there may be five or six very strong cases coming to the court in this area,” says University of Maryland School of Law professor Michael Greenberger. “The question is: How many will the Supreme Court take?” In November, the court granted review in Rasul v. Bush, No. 03-334, and Al Odah v. United States, No. 03-343, which deal with the habeas corpus rights of aliens detained at the U.S. base in Guantanamo Bay, Cuba. Though Hamdi poses constitutional issues the high court may find irresistible, recent developments may affect the timing and handling of the case. Yaser Esam Hamdi, a U.S. citizen born in Louisiana and raised in Saudi Arabia, was captured in Afghanistan and accused of aiding the Taliban. From April 2002 until last summer, he was imprisoned in a Navy brig in Virginia without access to a lawyer and without being charged. His father, acting on his behalf, challenged the detention and sought access for a lawyer. A district court sided with Hamdi, but the Fourth Circuit U.S. Court of Appeals reversed, ruling that the detention was a valid and unchallengeable exercise of the president’s war powers because Hamdi was captured in a foreign combat zone. Federal Public Defender Frank Dunham of Alexandria, Va., in his petition to the Supreme Court, said the Fourth Circuit ruling “works a radical change in the balance between the three branches of government by condoning an open-ended executive power to imprison American citizens at the expense of constitutionally protected liberties and congressional authority.” In December, just before the U.S. Department of Justice was set to file its brief replying to Dunham, government officials announced that Hamdi would, in fact, be allowed to see a lawyer. But the government’s brief — while arguing that the court should not grant review — states in a footnote that the permission was given as “a matter of discretion and military policy” that did not alter the government’s opposition to Hamdi’s appeal. “The fact that the DOD has determined in accordance with its policy that Hamdi may be permitted access to counsel does not affect the correctness of the court of appeals’ decision in this case,” wrote Solicitor General Theodore Olson. In reply, Dunham told the Supreme Court that Hamdi still warrants review. The decision to allow Hamdi to see a lawyer shows that his pending petition “has had a salutary effect on the executive’s conduct,” Dunham wrote. “Unless this court accepts review of this case, however, that effect will vanish — along with any prospect of a judicious and reasoned determination as to the propriety” of the Defense Department’s decision to detain Hamdi. Hamdi’s appeal may also be affected by a Dec. 18 ruling by the Second Circuit U.S. Court of Appeals in the case of Padilla v. Rumsfeld. Jose Padilla, like Hamdi, is a U.S. citizen held as an enemy combatant. But Padilla –who the government says was plotting to set off a bomb — was arrested while he was on U.S. soil. A Second Circuit panel ruled 2-1 that Padilla’s detention violated the little-known Non-Detention Act of 1971, which says that no citizens may be held by the federal government “except pursuant to an act of Congress.” The Justice Department plans an appeal in Padilla, and it is conceivable that the Supreme Court could withhold action on Hamdi until the Padilla appeal arrives at the court. Though the issues are somewhat different, Maryland professor Greenberger calls them “two parts of the same puzzle” that the court could want to weigh together. In an unusual amicus curiae brief before the high court, Hamdi has won the support of Fred Korematsu, whose name captions the 1944 Supreme Court case that upheld the World War II detention of Japanese-Americans. The Korematsu brief was filed by University of Chicago law professor David Strauss. “It may be that it is essential in some circumstances to compromise civil liberties in order to meet the necessities of wartime,” it states, “but history teaches that we tend too quickly to sacrifice those liberties in the face of overbroad claims of military necessity.” In the separate First Amendment case before the Supreme Court for possible review, civil liberties and immigration groups are challenging a decision by the D.C. Circuit that ruled the government could withhold the names of more than 1,100 people detained for questioning after the 2001 terrorist attacks. The groups had sought the names under the Freedom of Information Act. “The information petitioners seek is a vital prerequisite for the public to assess its government’s response to September 11,” the groups argue, in a brief by Jenner & Block D.C. partner Paul Smith. Reversing the D.C. Circuit, Smith writes, would “deter future deprivations of civil liberties.” A coalition of news media companies and organizations filed an amicus brief also urging the court to take the case. “Public scrutiny into the federal government’s treatment of persons it believes (or believed) are connected with terrorism is, if anything, more important than shedding light on the prosecution of more conventional, local crime,” wrote the coalition’s lawyer Laura Handman of the D.C. office of Davis Wright Tremaine. The U.S. government argues that withholding the names was valid under the FOIA exemption that protects documents relating to law enforcement proceedings from release. Revealing the names, the brief says, “would effectively provide terrorist organizations with a roadmap of the government’s terrorism investigation.” The brief also asserts that the First Amendment does not mandate a right of access to government information. OTHER CASES UP FOR REVIEWGreen Fire & Marine Insurance Co. v. M/ V Hyundai Liberty, No. 02-813. Forum selection in maritime law. � Norfolk Southern Railway Co. v. James Kirby Pty Ltd., No. 02-1028. Liability limits under the Carriage of Goods by Sea Act. � Cooper Industries Inc. v. Aviall Services Inc., No. 02-1192. Allocation of cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act. � Charter Communications v. Santa Cruz County, Calif., No. 02-1267. Whether a local government decision regarding cable franchise ownership is entitled to deference when it conflicts with Federal Communications Commission regulations. � Koons Buick Pontiac GMC Inc. v. Nigh, No. 03-377. Cap on damages under the Truth in Lending Act. � Perdomo-Padilla v. Ashcroft, No. 03-445. Can a Mexican citizen facing drug charges who has applied for U.S. citizenship and pledged allegiance to the United States be removed as an alien, or must he be treated as a U.S. national? � Smith v. McKenzie, No. 03-447. Treatment of successive habeas corpus petitions under Antiterrorism and Effective Death Penalty Act. � Consolidated Municipality of Carson City, Nev. v. Webb, No. 03-464. Whether deputy district attorneys are final policy-makers for purposes of being sued for constitutional violations under 42 U.S.C. Section 1983. � Stanford Hospital and Clinics v. National Labor Relations Board, No. 03-501. Whether hospitals may adopt rules preventing employees from approaching patients and families to discuss union organizing issues. � Environmental Protection Agency v. Sierra Club, No. 03-509. Award of attorney fees under the Clean Air Act. � United States v. Robinson, No. 03-547. Tax deductions for employer transfer of property to employee. � Top Rank Inc. v. Florida State Boxing Commission, No. 03-549. Whether a state tax on pay-per-view broadcast of boxing matches violates the First Amendment because it does not apply to any other type of broadcast. � United States ex rel. Kinney v. Stolz, No. 03-561. Conflicting interpretations of the meaning of “original source” under the False Claims Act. � Kodak Retirement Income Plan v. Burke, No. 03-565. Adequacy of summary plan description under the Employee Retirement Income Security Act, in a case involving domestic partner benefits. � Alliant Energy v. Bie, No. 03-569. Whether state laws affecting foreign ownership of utilities violate the Constitution’s commerce clause. � Bryant v. Aiken Regional Medical Centers Inc., No. 03-587. Punitive damages in employment discrimination cases. � WorldCom Inc. v. Wisconsin Bell Inc., No. 03-603. Whether state regulation of telephone company interconnection agreements is pre-empted by the 1996 Telecommunications Act. Protection of foreign trademarks under the Lanham Act. � Regal Cinemas v. Stewmon, No. 03-641. Whether “line of sight” regulations affecting movie theaters are mandated by the Americans With Disabilities Act. � Omnipoint Communications Enterprises LP v. Zoning Hearing Board of Easttown Township, Pa., No. 03-666. Extent to which the 1996 Telecommunications Act pre-empts local land use decisions regarding cellular phone towers. � Bricklayers and Allied Craftworkers Local 1 v. J& J Construction Co., No. 03-667. Whether statements disparaging a government contractor are protected under the petitions clause of First Amendment. � Las Vegas, Nevada v. American Civil Liberties Union of Nevada, No. 03-705. Whether a publicly owned pedestrian mall is traditional public forum. �Benitez v. Wallis, No. 03-7434. Indefinite detention of a Cuban-born felon until removal to Cuba is possible. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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