(Washington, D.C.: Right Commentary): This coming monday begins the cycle of Supreme Court hearings for the 2008-09 term. Last year’s term was eventful, with multiple big cases having far reaching political consequences being heard by the Court. This term is shaping up to be equally important, with several cases scheduled before the Winter Recess. Briefly, here are two that caught my eye that the Court will be hearing in October-December timeframe.

The first case that I think will have significant impact on national security is the case of Winter, et al. v. Natural Resources Defense Council, Inc., et al. This case is essentially about the use of sonar by the US Navy in training exercises and the impact that sonar has on the oceanic environment. Although readers might think this is a “greenie weenie” case (and it is in some respects) the real crux of the argument in Winter  will once again be a judicial review of Presidential authority in time of war and the role of the Commander-In-Chief. Winter presents two questions on the scope of the president’s power: whether the Council on Environmental Quality, an executive branch agency that coordinates federal environmental efforts, permissibly interpreted its own regulations to determine that a court-ordered injunction can amount to “emergency circumstances”-and even if such circumstances did not exist, whether a district court properly awarded injunctive relief.

The case originates with the Navy’s scheduling of a series of training exercises in the waters off the coast of Southern California beginning in February 2007. Designed to prepare naval strike groups for active war deployment, the Navy intended to use a specific frequency of sonar believed to be the most effective method for detecting quiet-running enemy submarines.

A month after the training began, the National Resources Defense Council, along with other environmental groups, sued the Navy on grounds the exercises violated federal law, including the National Environmental Policy Act and the Coastal Zone Management Act, and asked the courts to enjoin the Navy’s use of sonar because it is harmful to marine life, particularly endangered beak whales.

I have no idea what beak whales are… so don’t ask.

After some litigation, the National Resources Defense Council successfully petitioned Judge Florence-Marie Cooper in January to issue a preliminary injunction placing conditions on the Navy’s sonar use. The conditions effectively killed the Navy’s ability to use sonar in a meaningful manner during the training exercises.

While the Navy appealed the injunction, the Council on Environmental Quality, after consultation with the Navy, authorized alternative arrangements for the Navy’s compliance with the law in relation to the training exercises. The council based its decision on its conclusion that the district court’s injunction amounted to “emergency circumstances” under federal regulations.

In the end - this case is about the Navy arguing that its inability to train effectively with sonar makes our fighting force less effective, and an executive branch agency agreeing with that assesment and promulgating enforcement rules to satisfy the court injunction. The Council on Environmental Quality interpreted the law and the Court ruling and determined a way forward for the Navy so they could train (consistent with the President’s authority). The National Resource Defense Council argues that the Council exceeded its authority and that the Navy should be further enjoined.

… if you’re totally confused now… again.. the case is really about executive authority. Who gets to decide how the Navy trains- the Secretary of the Navy and the Council on Enviromental Quality as agents of the President…. or the Courts, acting at the behest of the “greenie weenies.”

While it sounds uninteresting, the outcome could be significant given the political wranglings the US military has had in the past with training grounds and their environmental impact. The Military often runs into trouble with municipalities over the environmental “cost” of training. This case will address with some degree of finality who has the “right of way” in such cases.

The second case, again a case on national security, involves one of the detainees that were detained shortly after 9-11. Javaid Iqbal (not to be confused with the British/Paki detainee from Guantanamo, Asif Iqbal who is also suing US government officials) was detained as a part of the civil detentions that Attorney General Ashcroft ordered the FBI and immigration departments to do in the immediate aftermath of 9-11. As you may recall, thousands of immigrants were detained by the US government for any infraction of their visa or immigration status. In the wake of 9-11, the FBI and INS were engaged in massive manhunts for “people of interest” who could provide information on the terrorist attacks. In addition, the government repatriated thousands of individuals for visa/immigration violations, but several thousand were held in civil detention as part of the process before removal and repatriation.

Iqbal claims was held for months in solitary confinement in a maximum security wing of a detention prison; he alleges that he subject to gross mistreatment during this confinement. Following deportation to Pakistan, Iqbal filed a federal suit against FBI Director Robert Mueller and former Attorney General John Ashcroft-whom he claimed designed, or at least approved of, a policy of segregating Arab and Muslim detainees from the general prison population until individually cleared of suspicion by the FBI. It was during that segregation that Iqbal was maltreated, and he alleges that Mueller and Ashcroft sanctioned that maltreatment.

While the litigation in this case resulted in most of the claims against the government being dismissed, the claim that Director Muller and former Attorney General Ashcroft personally were aware and/or condoned Iqbal’s treatment continues to remain. The Government sought to have the case dismissed, arguing both that the accusations were insufficiently specific and that, as government officials, they were entitled to qualified immunity-the legal doctrine shielding officials from money damages over any conduct falling short of a clear constitutional violation. The Appeals court disagreed and the case continues. The Supreme Court will be reviewing that decision.

The ruling will undoubtedly be a landmark case because of the possibility of holding directly accountable public officials for the actions of their staff.

There are about 30 cases that have scheduled hearings going into December. About another 20 or so cases have been granted review without having had a date set. Should make for an interesting term.

Possibly Related Posts:

• Law and Politics: Where is the Supreme Court?
• Death is an appropriate sentence for the rape of a child…
• Supreme Court Grants Habeas Corpus to Detainees at GTMO
• Detainees and Guns - the two “shoes” to fall that remain this term…
• SCOTUSBlog.com: Al-Marri’s new challenge to detention