The executive summary of a new report on how to close the military prison at Guantanamo Bay opens, "The process for closing Guantanamo has not gone as smoothly as the Obama administration had hoped." Indeed.

But hope is not lost for advocates of closing the infamous facility. The report, by Ken Gude of the Center for American Progress, charts the path from today to a day when there will be no prisoners remaining at Guantanamo.

CAP summarizes Gude's recommendations as follows:

* Push back the closure deadline to July 2010.
* Prosecute 9/11 conspirators in federal court and limit military commissions to battlefield crimes.
* Limit military detention only to enemy fighters captured in combat zones and use criminal law to prosecute detainees captured far from any battlefield.
* Incarcerate detainees convicted in U.S. criminal courts in maximum-security U.S. prisons and transfer those who will remain in military custody to Bagram prison in Afghanistan.

You can read more and download the full report here.

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Here are my thoughts on the Bilski v. Kappos oral argument held yesterday, which is better informed by also having watched Pamela Samuelson, John Duffy, Kevin Collins, and John Whealan discuss the argument late yesterday afternoon at George Washington University. The argument was fascinating, and the Justices were very well prepared and were a very hot bench (particularly Justice Sotomayor).

Surprisingly, but from my perspective happily, Justice Scalia focused very early into the Petitioner's argument on the "useful arts" language from the Constitution (or on similar language from early patentable subject matter statutes -- "new and useful art" -- as Justice Scalia did not explicitly reference the Constitution) and whether patent eligible inventions must fall within manufacturing and similar industries. Michael Jakes did a very good job responding - and holding his ground when pushed under substantial questioning from many Justices to define a limit to what qualifies as patent eligible - by adverting to examples of patentable business inventions from his brief and reasons why "technologies" have and should continue to be viewed broadly and why the patent system is not limited to traditional industrial inventions. Jakes to his credit (and as a testament to zealous advocacy on behalf of a client with a possibly losing position) also refused to provide any helpful response to the Justices when pressed to offer a fall-back position in case his basic position was rejected. This was particularly notable in his responses to Justice Breyer's repeated requests for more guidance, after Justice Breyer clearly signaled that the Court might not agree that patentable subject matter is as broad as Jakes was arguing. Justice Roberts also pressed Jakes on the issue of why Claim 1 was not merely an abstract idea, and Justice Stevens pressed Jakes on the difference of the claim at issue from that in Diehr (particularly in regard to its physicality). Jakes made clear why he believed his clients' claim was both practical and physical, focusing in particular on the step of entering into transactions. He also articulated why his clients are entitled to have their claim reviewed on the other patentability criteria, although some of the Justices may believe that the claim also may not be new or at least is obvious. Although his clients' invention provided little in the way of physicality like that of traditional industrial processes, Jakes nevertheless presented a strong (maximalist) approach to patentable subject matter to justify treating the invention as potentially eligible, the scope of which appeared to be limited only by the Court's historic, articulated exclusions for science, nature, and abstract ideas (understood narrowly but applied to all four categories of statutory subject matter, i.e., processes, machines, manufactures, and compositions of matter). Thus, when pressed by Chief Justice Roberts, Jakes argued that an alphabet could be patented, which led to an unproductive exchange with Justice Sotomayor about Morse's code claim, which was in fact found patentable as Jakes articulated but which raises unanswered questions of claim interpretation regarding how closely "tethered" that claim was to Morse's apparatus. This argument may not have been the best strategic choice by Jakes, as his clients' position could readily have been sustained without trying to uphold alphabet patents. Curiously, Jakes also argued that the Bell telephone patent would not pass the Federal Circuit's transformation test, which led to an unproductive exchange with Justice Scalia about whether the Bell telephone patent involved a physical transformation (of sound into electrical signals and back again). Jakes also conceded (at no cost to his clients' position) that mental processes and data (by itself), literature and fine arts are not patentable subject matter.

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Applications are now being accepted for the 2010 ACS David Carliner Public Interest Award. The award recognizes outstanding mid-career public interest lawyers whose work best exemplifies its namesake's legacy of fearless, uncompromising and creative advocacy on behalf of marginalized people, with a $10,000 cash prize and an award presented at ACS's National Convention in Washington, D.C.

Applicants must have graduated from law school between May, 2000 and May, 2005; have demonstrated a passionate commitment to public interest law throughout their career and be employed at a nonprofit organization, government entity, or law firm whose mission supports and furthers the causes for which David Carliner (pictured) stood; and receive an annual salary of $110,000 or less. Applicants must submit a completed cover sheet accessible here; a resume or CV; an essay of no more than 1500 words double spaced setting forth their qualifications for the award and including a statement that the applicant's annual salary is $110,000 or less; and a letter of recommendation from a person familiar with the applicant's work and the criteria for the Award. Applications must be received by 6:00 p.m. Eastern Time, Monday, February 1, 2010.

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As the debate over health care reform continues, the question of whether an individual mandate to purchase health insurance is constitutional has been termed "the elephant in the room" by conservative pundits across the country. If so, this is definitely an elephant that has gotten significant attention. Bush administration attorneys, David Rivkin and Lee Casey, wrote not one, but two editorials in The Washington Post and The Wall Street Journal arguing that a health insurance mandate would exceed the power granted to Congress by the Constitution.

Opponents of the health care reform point to two main arguments for why such a mandate would be unconstitutional. First, they argue that Congress lacks constitutional authority to compel people to purchase health insurance. Second, they maintain that Congress lacks the power to levy a tax against those who do not purchase health insurance or that such a tax would be considered an "arbitrary and capricious taking under the Fifth Amendment."

But the opponents are wrong on both counts. Congress does have authority to pass a health insurance mandate under the Commerce Clause enumerated under Article 1, Section 8, of the Constitution. Since the 1930s, the Supreme Court has interpreted the Commerce Clause to mean that Congress has the authority to regulate activities that have a substantial effect on interstate commerce. "Substantial effect" can be found on individual decisions that, in the aggregate, would affect interstate commerce. In Wickard v. Filburn, Filburn had violated wheat production quotas because he was growing extra wheat for personal consumption. The Court found that his actions, though minimal, would affect interstate commerce because it would reduce the amount of wheat he would need to purchase on the open market. More recently in Gonzales v. Raich, the Supreme Court found that "Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce." 

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An attorney for Ali Saleh al-Marri (pictured) provided newly declassifid videos of al-Marri's six-year detention at a Charleston, S.C. military brig to The Post and Courier of Charleston, which are now available here.

"These videos show ... al-Marri[ ] struggling with his six years of solitary confinement, hiding under a metal bed without a mattress and circling his tiny windowless cell for hours," reports The Post and Courier. "Other videos later in al-Marri's incarceration show him bantering easily with brig staff as they place blackout goggles, earmuffs and chains on him before taking him out of his cell."

Adam Serwer highlighted this "kicker" from The Post and Courier's story:

A day after he took office, President Barack Obama reversed the Bush administration's enemy combatant stance and ordered al-Marri transferred from military custody to the courts. Before al-Marri agreed to plead guilty, al-Marri sat with investigators for hours, Savage said. In this less-threatening setting, al-Marri verified some of the government's accusations against him and steered the government away from errors in its intelligence.

"It was a lesson in building trust and having open communications is beneficial to the United States and al-Marri," he said. "In the interrogations, they got nothing."

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According to one judge, "Thou shall not tweet," is a prohibition properly inferred from Federal Rule of Criminal Procedure 53. And this is not an unconstitutional violation of the First Amendment, the judge determined.

Here's Rule 53 in its entirety:

Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.

District Judge Clay D. Land looked to Webster's Third New International Dictionary for the definition of "broadcast," which includes "casting or scattering in all directions" and "the act of making widely known."

Judge Land has yet to limit any ACS "broadcasts." Get the latest legal and policy news via Twitter from @ACSLaw.

(H/T: Volokh Conspiracy.)

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The Supreme Court heard oral argument in two Florida cases involving whether life sentences for juveniles, with no chance of parole, violate the Constitution's ban on cruel and unusual punishment. The Associated Press reports that the justices appear "sharply divided" over the issue. The news service notes that Justice Ruth Bader Ginsburg said that "because of immaturity, you can't really judge a teenager at the point of sentencing," but that Justice Samuel Alito seemed to side with Florida, which is arguing that that the juveniles' punishment does not raise constitutional concerns.

In analysis for SCOTUSblog, Lyle Denniston writes that Chief Justice John Roberts "made a strong - and repeated - effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence." Denniston explains that Roberts' "alternative would apparently be a declaration that the Constitution's Eighth Amendment ban on cruel and unusual punishment required judges to take the offender's youth into account in setting any sentence for term of years, then judge whether that sentence was ‘proportional' both for an offender of that age and for the particular crime."

Sullivan v. Florida involves the sentence of Joe Sullivan, who as 13 when the state sentenced him for life without parole for a sexual assault conviction. Graham v. Florida involves Terrance Graham who was sentenced at 17 after violating his probation. The Washington Post reports that nationwide more than 100 people "are serving life sentences without parole for crimes they committed as juveniles that did not result in a death ...."

In a guest post for ACSBlog, Harvard Law School Professor Charles Ogletree analyzed the cases and concluded, in part, that the Supreme Court should affirm its "reasoning put forth in Roper v. Simmons, which struck down capital punishment for juveniles. Roper established what every parent knows and what science confirms: adolescents are fundamentally different from adults in maturity and judgment." 

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The techtonic plates underlying Congress's system of incentives encouraging American ingenuity are rumbling at the U.S. Supreme Court this afternoon. As stated by IPWatchDog founder Gene Quinn, "the fate of much future innovation rests squarely on the Supreme Court getting this one right."

In Bilski v. Kappos, the Court faces the task of defining the scope of patentability under the U.S. Patent Act. Specifically, the issue is whether a process is patentable which is not tied to a machine and fails to physically transform some material.

The litigant's invention in Bilski is a business process permitting users to hedge against risks of price shocks in comodities markets. Here's one example of the invention's use provided by petitioners: "A school district with a fixed tax base and budget for heating or cooling requirements can be protected from yearly fluctuations in weather, while the suppliers are protected from the opposite effect of such fluctuations."

So, relying on a series of complex mathematical formulas, the process moderates the risk of price fluctuations for raw materials. The process is tied to no machine, however, and also fails to transform any tangible material -- requirements of patentable processes under the "machine-or-transformation" test applied by the U.S. Court of Appeals for the Federal Circuit.

Both sides agree that reverberations from the Court's Bilski decision will be considerable. Proponents for the petitioner, who is seeking to have his business process patented, argue that failing to permit patents for business processes ties patent law to the industrial age of machines and manufacturing and would discourage innovation in the digital age. Adherents to the machine-or-transformation test, however, assert that Bilski's invention is nothing more than an abstract idea like the Theory of Relativity -- a mere statement of fact or natural occurrence which cannot properly be the dominion of any one person.

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After providing a keynote address at a recent ACS event on privacy concerns in a digital age, Christopher N. Olsen, the assistant director in the Federal Trade Commission's Division of Privacy and Identity Protection, noted in an interview with ACSBlog that the agency plans several forums for hearing input on the tackling online privacy concerns. Watch Olsen's interview below or download a podcast of it here.

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Citing her religious beliefs, a Texas public school teacher is fighting a state law that requires teachers to be fingerprinted. Pam McLaurin, a kindergarten teacher in the Big Sandy Independent School District outside Houston, said that fingerprinting represents a sign of the best, a reference to the Bible's book of Revelation.

Revelation states that people who worship "the beast and his image and receives his mark on his forehead or on his right hand," shall draw God's wrath. McLaurin's attorney says the law, which could prompt the teacher's dismissal, violates her First Amendment free exercise of religion right. The attorney, Scott Skelton, told Wired that McLaurin firmly believes that computerized fingerprinting is the mark of the beast referenced in Revelation. "This law prohibits the free exercise of her religion," he told Wired.

The Texas Education Agency has told Big Sandy school officials that McLaurin would be barred from teaching if she doesn't get fingerprinted. Wired notes that McLaurin's lawsuit is similar to one lodged by a group of Michigan farmers against a state requirement to tag livestock with RFID chips. The group claims the tagging would represent a demonic mark.

George Washington University Law School professor Jonathan Turley lightly examines McLaurin's lawsuit on his blog. He notes:

Fingerprinting does not leave a mark on your hand or forehead. It leaves it on a piece of paper that is then digitized. Under this bizarre interpretation, any ink, lotion, or impression left by McLaurin's fingers could constitute a sign of the Beast. However, she is willing to take a photo and presumably a optic scanner or other imagining picture. Thus, what if the state simply takes a picture of her fingerprints directly on a digitized scanner? How is that different from asking her to take a high-resolution picture?

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Camera-shy Justice David Souter is retired; Chief Justice John Roberts Jr. and Justice John Paul Stevens interviewed with ABC's "Primetime;" Justices Antonin Scalia and Clarence Thomas appeared on CBS's "60 Minutes;" Justice Ruth Bader Ginsburg showed up CBS News; Justice Stephen Breyer braved "Fox News Sunday;" every single justice spoke with C-SPAN for their recent documentary on the high court. So why aren't oral arguments before the Supreme Court televised or livestreamed?

This is the question that Sen. Arlen Specter posed yesterday, and not for the first time. Specter, a long-time advocate of televising Supreme Court sessions, again argued that the benefits of transparency at the Court outweigh the costs to the justices. Specter also applauded the recently formed Supreme Court of the United Kingdom for welcoming cameras into its proceedings. 

Specter used his recent speech to introduce a non-binding resolution on cameras in the Court, to determine "the sense of the Senate." "He so far has seven co-sponsors, including Sen. Dick Durbin, D-Ill., who is the Senate's No. 2 Democrat, and Sen. John Cornyn, R-Texas, a former state Supreme Court justice," The National Law Journal reports. "No vote on the resolution has been scheduled."

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Nine years after first being nominated to the U.S. Court of Appeal for the Fourth Circuit, and seven months after being re-nominated by President Obama, Judge Andre M. Davis (pictured below) may be on the verge of packing his bags for Richmond, Va.

Yesterday, on the Senate floor, Sen. Bob Casey procured a unanimous consent agreement advancing Davis's nomination to the Senate floor sans filibuster. Judge Davis's nomination to the Fourth Circuit has languished since the Senate Judiciary Committee heartily voiced its approval by a bi-partisan vote of 16-3 on June 4, 2009.

"Senate debate on Davis' nomination is scheduled to begin late Monday afternoon, with a confirmation vote expected the same day," reports The Baltimore Sun. "The exact timing could still slip--we're talking about the Senate here--but not the result: his confirmation is a foregone conclusion, once senators finally get to vote." 

Davis is one of President Obama's four nominations to the Fourth Circuit currently pending Senate confirmation. There are five vacancies on the historically conservative, 15-judge Fourth Circuit.

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Though a slim majority of the Wisconsin Supreme Court doesn't believe judicial campaign contributions should trigger judicial recusals, the state legislature is moving in a different direction. Today, the Wisconsin State Senate approved a bill to create a public financing system for state Supreme Court campaigns. The measure would allow taxpayers to opt for supporting the financing system by check-off on their tax returns. The Associated Press reports that eligible candidates would get up to $100,000 from the new fund for a primary and up to $300,000 for a general election. Earlier this week the Joint Finance Committee also approved the measure called the Impartial Justice Bill. Justice at Stake's GavelGrab blog reports that if the measure is signed into law, Wisconsin would join North Carolina and New Mexico in adopting public financing for high court elections. The blog also notes that recent polling shows strong support -- more than 60 percent -- for the proposal.

As noted yesterday, the Wisconsin Supreme Court recently adopted a new judicial conduct rule that states campaign contributions alone are not enough to force a judge from hearing a case.

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The Senate held a hearing on the Employment Non-Discrimination Act (ENDA) today, "which is a top priority of the Obama Administration and the Justice Department," according to the Justice Deparment's blog. ENDA would permit legal action against employers determined to have descriminated against an employee for their sexual orientation or gender identity.

At today's hearing before the Senate Committee on Health, Education, Labor and Pensions (HELP), Assistant Attorney General Thomas E. Perez of the Civil Right Division testified about the plight of "our lesbian, gay, bisexual and transgender brothers and sisters" in the workplace:

No American should be denied a job or the opportunity to earn promotions, pay raises and other benefits of employment because of his or her sexual orientation or gender identity, which have no bearing on work performance. No one should be fired because he or she is gay, lesbian, bisexual or transgender. Period. 

...

Protecting valued members of our workforce from discrimination should not be left to a patchwork of state and local laws that leaves large gaps in coverage. Discrimination in my home state of Maryland is just as wrong as discrimination in Montana.

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A.) The government will not appeal a federal court order to release Guantanamo detainee Fouad Rabia.

B.) A distinguished, bipartisan group is urging trials in federal court for detainees.

C.) The town of Amherst, Mass. passed a resolution welcoming "cleared" Guantanamo detainees.

D.) For a total of $1.26 million, the government settled a case with five men alleging abuse at a New York detention facility in the wake of 9/11.

(H/T to Daphne Eviatar at The Washington Independent for unearthing most of these stories.)

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