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A New Twist on Kiyemba:  On SCOTUSblog yesterday, Lyle Denniston wondered whether Supreme Court review of Kiyemba, et. al. v. Obama, et. al. (08-1234) was "going forward, or not?"  Denniston's question was prompted by the Obama Administration's decision to transfer some of the Guantanamo Bay prisoners to a newly acquired federal prison in Thomson, Illinois.  Denniston believes that the posture of the Kiyemba case could conceivably change even as the Court gets ready to examine it.  According to Denniston, the legal issues will depend on whether Congress goes along with the administration's plan. If Congress balks, then the case could go forward as argued (the administration's brief is due January 4), and the seven Chinese Uighurs might be released.  Denniston writes that if the government moves quickly, however, and is able to shift focus from habeas review to the prisoners' status under U.S. immigration laws, the government may be able to claim enhanced detention authority once the detainees are on U.S. soil.  For more thoughts on the legal issues surrounding the transfer of prisoners check out yesterday's post on the New York Times' Room for Debate blog (hat tip Kenneth Anderson at Volokh Conspiracy)

Sixth Circuit Allows Judicial Fact-Finding to Increase Minimum Sentence:
  Doug Berman reports on Sentencing Law and Policy that today the Sixth Circuit issued "an effective" decision on the application of "Blakely [v. Washington] to Ohio sentencing law."  The case, Arias v. Hudson, involved the habeas petition of a convicted kidnapper and rapist.  At the time of Arias' conviction, Ohio sentencing law allowed the trial court to make factual findings that produced a thirty year sentence.  State law also allowed the thirty-year fixed sentence to be converted to an indeterminate sentence with a minimum term of thirty years and a maximum term of life.  While Arias state court appeal was pending, the Supreme Court decided Blakely v. Washington, and Arias subsequently filed a habeas petition alleging the court had usurped the jury's role in sentencing by making its own findings of fact.  The district court conditionally granted his habeas petition, and today, the Sixth Circuit reversed.  Berman's post provides portions of the decision and discusses how certain sentencing precedent could be effected by the pending Supreme Court case United States v. O'Brien.

Ninth Circuit Tackles State Secrets in CIA Rendition Case:
  Over the past two days How Appealing's editor, Howard Bashman, has rounded up media and legal coverage of oral arguments in the Ninth Circuit case, Binyam Mohamed v. Jeppesen Dataplan.  On law.com Dan Levine reports that "[t]he breadth of the state secrets privilege will apparently hinge on 9th U.S. Circuit Court of Appeals Judges Raymond Fisher and Johnnie Rawlinson."  The ability of the two judges to decide the breadth of the state secrets privilege arises from a lawsuit against Boeing subsidiary Jeppesen Dataplan for its participation in the CIA's "extraordinary rendition" program. The men claim to have been abducted and flown by Jeppesen to countries where they were tortured. The government contends the suit can't go forward without revealing state secrets.  In an earlier panel decision, the court ruled that the CIA could not compel dismissal with a sealed declaration - judges need to make their own independent analysis of both public and classified evidence.  For links to the panel's decision and the government's petition for rehearing go to Christian Ehret's June post on JURIST- Paper Chase.   

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