Rasul v. Bush (03-334); Al Odah v. United States (03-343) and Intel Corp. v. Advanced Micro Devices, Inc. (02-572)

November 11, 2003 Supreme Court Update

Greetings Court fans!

Adding some excitement to this Term, the Court granted cert in two cases brought by prisoners currently being held at the Navy Base at Guantanamo Bay, Cuba. Rasul v. Bush (03-334); Al Odah v. United States (03-343). The prisoners want to challenge the legality of their continued confinement, but the first question -- and the only one the Court will consider -- is whether federal courts even have jurisdiction to hear their cases. The specific question presented, as drafted by the Court, is as follows: Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba. This case presents major constitutional questions about the scope of executive power during times of conflict and will likely have significant ramifications for other post-9/11 cases where the executive branch is claiming broad (and unreviewable) authority.

In less exciting news, the Court also granted cert in Intel Corp. v. Advanced Micro Devices, Inc. (02-572), a case that it had asked the Solicitor General to weigh in on in January of this year. (Not really clear why it took the SG 10 months to respond to the Court.) The questions, as phrased by the Solicitor General, all concern 28 USC 1782, which authorizes federal court discovery for proceedings in foreign tribunals: (1) Whether 1782 authorizes a district court to order production of materials, for use in a foreign tribunal, when the foreign tribunal itself would not compel production of the materials. (2) Whether 1782 authorizes production of materials for presentation in an anti-competitive practice investigation by the Commission of European Communities, on the theory that the investigation will lead to "a proceeding in a foreign or international tribunal." (3) Whether, for purposes of 1782, a party that files a complaint with the Commission of European Communities is an "interested person."

Since we're well into November, I'd expect the Court to issue its first opinion soon, possibly even tomorrow. Until then, I'll close with a thank you to all veterans out there, and with a special thank you to my father, who served our country in Vietnam. Happy Veterans Day everyone! Thanks for reading!

Sandy

From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at
www.wiggin.com.