Saying they had regrets, but without apologizing directly, the
federal government’s lawyers have admitted to the Supreme Court that the
partial victory they won in a case three years ago was based on flawed
information they had given to the Court. They filed
a letter Tuesday “in order to clarify and correct” that information. The Court need not do anything about it, the letter suggested.
The problem with the information, supplied in the 2009 case of
Nken v. Holder (docket
08-681), was not turned up by the government. Rather, it turned up in a
federal court in New York City when immigrants’ rights attorneys
demanded an explanation for a policy statement on which the Supreme
Court had relied in deciding the
Nken case. The policy that
the goverrment had told the Court existed apparently did not
exist. (This controversy over what the Justices had been told by the
government was discussed on this blog in
this post in February.)
In the new letter to the Court, Deputy Solicitor General Michael R.
Dreeben did not concede that the information provided in the government
brief in that case was actually wrong. Rather, it said, the information
was designed to “encapsulate” information gleaned within the government
as the brief was being prepared. “The government,” the letter said,
“should have provided a more complete and precise explanation.”
The
Nken decision came down three years ago this month.
Lately, the government had been resisting — in a federal District Court
in New York City — the forced disclosure of an exchange of e-mails that
supposedly was in the background of the information supplied to the
Justices in
Nken. The District judge had ordered the
government to hand over at least parts of those e-mails, and the
government earlier this month challenged that ruling in an appeal to the
Second Circuit Court.
Read more:
http://www.scotusblog.com/2012/04/regrets-but-no-apology/