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Supreme Court Rules Immigrants Held In Detention Are Not Entitled To Bail Hearings


It was a busy day at the U.S. Supreme Court. There was a major immigration decision and arguments in a case that tests whether the government with a warrant can obtain emails stored in other countries. NPR legal affairs correspondent Nina Totenberg takes a look at both cases, starting with the immigration decision, which could factor in the Trump administration's aggressive deportation drive.

NINA TOTENBERG, BYLINE: The court ruled that immigrants held in detention for months and even years are not entitled to a bail hearing. Although such detentions number in the tens of thousands, they're not the usual deportation cases where the facts are cut-and-dry and the people are deported within a month or two of their detention. Rather, these cases involve people who are legal permanent residents in the U.S. and are subject to potential deportation because they've committed some relatively minor crime or people who've come to the U.S. to seek asylum and have passed the first level of screening.

When their cases are ultimately decided, 70 percent of the asylum-seekers and 40 percent of the legal U.S. residents win. But the average period of their detention is 13 months, according to the government, and some remain in detention for far longer. The 9th Circuit Court of Appeals ruled that under a federal law, people in these circumstances are entitled to a bail hearing every six months, and that if they can persuade a neutral judge that they're not a safety or a flight risk, they're entitled to temporary release if they post a money bond or agree to electronic monitoring or both.

But today the Supreme Court overturned that decision as an implausible reading of the federal statute. Writing for a splintered 5 to 3 majority, Justice Samuel Alito said that the statute does not allow for bail. The decision doesn't end the case, though. The court sent it back to the lower court with two questions unresolved. First, whether indefinite detention without a chance for bail is unconstitutional, and second, whether the challenge to that no-bail provision can be brought as a class action instead of in one-by-one individual cases.

Stanford Law professor Lucas Guttentag says that in practical terms, the class action question is enormously important since most of the 40,000 immigrants affected by today's decision don't have lawyers.

LUCAS GUTTENTAG: And if they're required to proceed individually, many of them will never be able to pursue their claims. The class action provides protection to everyone, not just to those who have a lawyer who can file a lawsuit.

TOTENBERG: For now, though, today's decision means that thousands of immigrants will be returned to or remain in detention. Justice Stephen Breyer, in a rare and passionate dissent from the bench, said the court should have decided the constitutional question instead of, as he put it, for the first time ever permitting long-term confinement without any chance for bail, a status that's usually reserved for those accused of serious crimes.

After Breyer's dissent, the court moved on today to one of the marquee cases of the term, a test of the government's power with a warrant to gain access to a suspect's email even if it's stored abroad. The case involves a federal drug trafficking investigation in which U.S. law enforcement authorities obtained a search warrant for all data associated with the suspect's Microsoft account. Microsoft refused to give the feds the email, which was stored in a data center in Ireland. The company argues that there's no legal authority for the U.S. warrant because it was issued under a law enacted by Congress in 1986, five full years before the World Wide Web was even created. Brad Smith is president and CEO of Microsoft.

BRAD SMITH: We've - have felt that this is fundamentally about whether people around the world can trust American technology.

TOTENBERG: Inside the court chamber today, the justices were less than fully sympathetic to Microsoft's arguments. Justices Ginsburg and Sotomayor both suggested that it might be better for the court to let Congress deal with these issues, and both noted that there's a bill currently before Congress that has the support of both the technology industry and the U.S. Justice Department. As Ginsburg put it, wouldn't it be wiser to say, let's leave things as they are? If Congress wants to regulate this brave, new world, it should do it. That view, of course, doesn't necessarily help Microsoft.

Several justices asked about the process for transferring the data stored in Ireland back to the U.S. Justice Kennedy - does a human being have to do this? Microsoft's lawyers said a human being in Redmond, Wash., tells a robot to transfer the material to the United States. At that the justices gawked. Said Justice Sotomayor, my imagination is running wild. But several justices, perhaps a majority, seemed to buy the government's argument that it is Microsoft's U.S. headquarters that controls the data.

Chief Justice Roberts - if I send an email to someone in the next block and it's stored in Ireland, under Microsoft's argument, that email is going to be protected from disclosure even when the government gets a court-approved warrant in the course of a criminal investigation. Added Justice Alito, it's a little difficult for me to see what Ireland's interest in this is. Of course, all the members of the court are over 50. But then again, so am I. Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF GLOBULDUB'S "FOREIGN EXCHANGE") Transcript provided by NPR, Copyright NPR.