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The Justice Department chose to bring its terrorism case against Zacarias Moussaoui in Alexandria, VA, precisely because it believed that venue would significantly enhance its chances of getting a conviction and a death sentence in the only case in the U.S. charging an individual with crimes related to the September 11, 2001, attacks. Now, the Department, determined to keep the Supreme Court from reviewing the case before a trial could start, is relying upon Moussaoui’s long-shot chance of being acquitted or, at least, of avoiding the death penalty. It is a predictable strategy in a pre-trial case, but it hardly reflects the government’s real expectations. Moussaoui “has not yet been tried or sentenced, and the course of proceedings below, let alone the outcome of his trial, cannot be definitively predicted,” the Department said in its just-released opposition to Moussaoui’s appeal. (The response was filed February 10, but its public release was held up while classified portions were being edited out.) Denial of review now, the government said, would not bar him from raising his claims after a trial, “if he is convicted on the charges against him.” It added that he ”has not been found eligible for the death penalty or received a death sentence.” It did not note that the government has strenuously resisted taking the death penalty off the table in the case. Alexandria’s federal courthouse has been good to the Bush Administration in the legal side of its war on terrorism, just as the government expected. The most sweeping victory there, of course, came last year, when three Muslim men were convicted of training for a “jihad” – holy war – over the long-simmering dispute over Kashmir between India and Pakistan. They were charged with planning to aid a Pakistani terrorist group. The case became famous because a key part of the prosecution’s evidence was that the men had played paintball games on the weekends in a Virginia park. Prosecutors said this was “paramilitary training.” The sentences ranged from eight years in prison to life. They were convicted in a bench trial and sentenced by the same judge who is to try Moussaoui -- U.S. District Judge Leonie M. Brinkema. (Brinkema protested the length of the sentences that she said the Sentencing Guidelines compelled – a situation that could be altered now that the Supreme Court has declared the Guidelines to be advisory, not mandatory.)

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Lingle v. Chevron USA, a regulatory takings case that will be argued on Tuesday, involves a Hawaiian statute limiting the rents that oil companies can charge gasoline retailers for the use of service stations. The Ninth Circuit struck down the statute as effecting an unconstitutional taking. Hawaii sought cert on two questions. First, it asked the Court to decide “[w]hether the Just Compensation Clause authorizes a court to invalidate and enjoin state economic regulation on the basis that the law effects a ‘taking’ because it does not ‘substantially advance a legitimate state interest’ without regard to whether the challenged legislation diminishes the economic value or usefulness of any property.” Hawaii contends that, by finding a taking based solely on the lack of a state interest, the Ninth Circuit conflated the question of whether a taking is for “public use” with the antecedent question of whether a regulation effects a taking at all. Second, Hawaii challenged the district court’s standard of review, asking “[w]hether, even if applicable in takings analysis, the ‘substantially advance a legitimate state interest’ inquiry authorizes a court to conduct a de novo trial to determine if challenged legislation will achieve its goals, or whether the court should instead apply a deferential standard of review equivalent to that traditionally applied in reviewing economic legislation under the Due Process and Equal Protection Clauses.” The state maintains instead that the district court (and the Ninth Circuit) should have deferred to the legislature’s evaluation of the efficacy of the rent control statute.

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