Obama Administration Takes On Transfers from Guantanamo:  Yesterday, Lyle Denniston reported on SCOTUSblog that the Obama Administration has filed a brief to address an issue in the D.C. Circuit case Kiyemba v. Obama (Circuit docket 05-5487).  Denniston writes the government's brief argues that under Munaf v. Green federal courts cannot interfere with Executive orders to transfer detainees out of Guantanamo based on claims that the detainees might suffer torture or other abuse in the countries where they were resettled.  The government argues that Munaf v. Green carries more weight in this case than the Supreme Court's other detainee case, Boumediene v. Bush.  This is consistent with what the District Court decided in April.  Lawyers for the detainees have apparently asked the district court to delay action until the Supreme Court acts on their petition. Lawyers for the detainees argue that Boumediene gives detainees the right to challenge their detentions if they can be put beyond a court's reach without any advance notice. They argue the federal court's decision interferes with the prisoners' habeas rights.  The Administration's new filing said that Munaf has already made it clear that Boumediene gives detainees no right to challenge transfers to other countries.  In its brief the government argues Munaf "did not include a right to an injunction to prevent transfer to a foreign country."

More Support To Cut Prison Population:  Doug Berman posts a link to an LA Times Op-Ed on Sentencing Law and Policy.  The Op-Ed, by Jaime Fellner of Human Rights Watch, supports the August 4th decision by a three judge panel to cut the state's prison population by 40,000 over two years, stating the decision comes at a "propitious moment" due to California's current budget crisis.  She believes "the fiscal imperative of cutting corrections expenditures thus dovetails with the constitutional imperative of reducing overcrowding[,]" and will free up resources to improve medical and mental healthcare.  Fellner comments that Atty. Gen. Jerry Brown should not appeal the federal court's decision.  Instead, "of pandering to the public's fears, Brown and other state officials should explain that the court order does not mean that dangerous murderers and rapists will be released. Instead, a smaller prison population will enhance community safety, as well as meet the dictates of the U.S. Constitution, common sense and fiscal responsibility." The tone of Fellner's article is all too typical of what we hear from the "let 'em out" crowd these days. Concerns about increased crime from released inmates is real and is based on solid data and years of experience. To call it "pandering" is condescending, implying that everyone who disagrees is ignorant. The tone of the debate would be enhanced if Fellner et al. recognize the very valid concerns of those who disagree with them.

"Erroneous Analysis of Computer Searches" from the Ninth:  At Volokh Conspiracy, Orin Kerr posts his thoughts on the Ninth Circuit's decision in United States v. Payton.  The decision, authored by Judge Canby, held that in executing a warrant to search for drugs, officers had unconstitutionally searched a computer and discovered child pornography.  In Payton, officers had reason to believe that Payton was selling drugs from his home, and they obtained a warrant to search his home for drugs, sales ledgers relating to drugs, and financial records for the person who lived in the home. The affidavit of probable cause specifically requested permission to search any computer located in the house.  While the officers were executing the warrant, an officer saw a computer in the bedroom with its screensaver up. The officer moved the mouse, removed the screen saver, and then clicked to open a file. He saw that it contained child pornography. Further investigation confirmed that Payton had other images of child pornography on his computer, leading to child pornography charges.  The Ninth Circuit suppressed the child pornography discovered in the computer reasoning that the warrant itself did not authorize the search of the computers.  Kerr believes this conclusion is wrong as "the Fourth Amendment makes clear, warrants must 'particularly describ[e] the place to be searched and the persons or things to be seized.'"  He writes, "[t]he Fourth Amendment requires a description of the things to be seized, not a description of containers that are searched during the hunt for the things to be seized."  Furthermore, Kerr argues that Payton is inconsistent with the case upon which the panel relies, United States v. Giberson.  He argues that Giberson involved a different legal issue - whether the police could seize computers onsite and take them away for later search pursuant to a second warrant when the initial warrant did not authorize search of computers - and the general language of the Fourth Amendment is more applicable here. In Payton, the panel relied Giberson to conclude there must be facts according to which the search and seizure of a computer with a warrant was unreasonable, and Payton was such a case.  Kerr disagrees because "whether the Fourth Amendment allows a seizure of an item not named in the warrant is very different from whether the warrant allows a search for evidence described in the warrant that happens to be on a computer."