Friday, May 10, 2013

ITC Clears Apple Yet Again 12:05 PM ET JURIST Guest Columnists Rodney R. Sweetland, III and Michael G. McManus, both of Duane Morris, discuss the recent ITC decision in the Apple-Motorola patent dispute... In a Section 337 case before the US International Trade Commission (ITC) with a tortuous history, the ITC has once again spared Apple from an exclusion order. Apple's record of success as a respondent at the ITC remains perfect, having succeeded in all nine cases it defended to conclusion. Background This case arose from Motorola's suit against Apple for direct and indirect infringement of method and apparatus claims of wireless communication systems technology. These included US Patent Nos. 6,272,333, 6,246,697, 5,636,223, 6,246,862, 5,359,317 and 7,751,826. Motorola accused the full panoply of Apple's product lines, including mobile phones, tablets, personal computing devices and other computer products. Among Apple's affirmative defenses was unenforceability through unclean hands. The gravamen of Apple's unclean hands defense was the contention that Motorola failed to timely disclose one of the asserted patents to a European Standard Setting Organization (SSO), thereby inducing it to adopt a standard that practiced the Motorola patents. See, e.g., Hynix Semiconductor, Inc. v. Rambus, Inc. and Qualcomm Inc. v. Broadcom Corp.. Apple also pleaded purely RAND-related affirmative defenses in its answer to the complaint. The typical RAND (reasonable and non-discriminatory) defenses arise under the doctrines of contract, equitable estoppel, implied/actual license and waiver. Apple's answer intermingled the substance of these theories in the same individually designated affirmative defense. For whatever tactical reason, Apple withdrew its purely RAND-based defenses during the case, memorializing that decision in a letter to counsel. It also withdrew its proposed expert on the issue of whether or not Motorola had made a RAND offer. The Office of Unfair Import Investigations (the Staff) withdrew from participation in the case specifically because the RAND-based defenses had been dropped. Apple did, however, file RAND counterclaims against Apple late in the case. In the ITC, counterclaims are not tried with the case. Rather, under 19 U.S.C. § 1337(c), the respondent filing them must simultaneously remove the counterclaims to a US District Court for adjudication. Apple removed its RAND counterclaims to the Western District of Wisconsin. First Initial Determination Motorola terminated the investigation in part by withdrawing the '317 and '826 patents. In his Initial Determination (ID), Administrative Law Judge (ALJ) David P. Shaw rejected Apple's unclean-hands defense. He found a violation of Section 337 as to the '697 patent and recommended an exclusion order for Apple's products, including its iconic iPhones and iPads. He found no violation as to the '223, '333 and '862 patents. The Commission voted [PDF] to review the ALJ's ID. Several of the issues under review were typical: claim construction, validity, infringement and domestic industry. In addition, however, the Commission called for the parties to the investigation to brief certain RAND-related issues. It also invited comments on these issues from interested government agencies, the Staff and any other interested parties. The Commission requested briefing on the theories in law, equity and public interest (19 U.S.C. § 337(d)(1)) that might preclude issuance of an exclusion order under various factual scenarios. These permutations included [PDF]: where the record lacks evidence to support a RAND-based affirmative defense (e.g., equitable estoppel, implied license, waiver, etc.); whether the mere existence of a RAND obligation precludes issuance of an exclusion order; where a patent owner refused to offer a license to a named respondent in a Section 337 proceeding; where a patent owner has refused to offer a license on a RAND-obligated patent to some other entity, regardless of whether that entity is a named respondent in a Section 337 proceeding; where a patent owner has refused to negotiate a license on RAND terms with a named respondent; where a patent owner has refused to negotiate a license on RAND terms with some other entity, regardless of whether that entity is a named respondent; and where a patent owner who has offered a RAND license that the named respondent in a proceeding has rejected. The Commission also asked the parties to address whether Apple waived its RAND defenses. Public Interest Submissions and Arguments Under 19 U.S.C. § 1337, there is an exception for Section 337 remedies where the ITC, after considering the public health and welfare, competitive conditions in the US economy, the production of like or directly competitive articles in the US, and US. consumers, finds that infringing articles should not be excluded. These are often referred to as the "public interest factors." The ITC seeks input on public interest factor considerations before a case is instituted and after the ALJ issues the ID. The Staff raised three arguments in response to the Commission's invitation for public interest submissions. First, it opined that Apple waived its RAND defenses. Second, it stated that the mere existence of a RAND obligation does not preclude relief at the ITC. To hold otherwise would undermine the ITC's ability to protect domestic industries from unfair acts by foreign importers. Third, the Staff noted that whether a particular RAND commitment, or breach thereof, bars relief in any particular ITC case will depend on the facts and circumstances in the case, including the products and industries. The response to the Commission's invitation for comments was substantial, generating the greatest interest in an ITC case over the past five years. Certain Baseband Processor Chips and Chipsets, Inv. No. 337-TA-543 generated such a high degree of interest that the ITC held a public Commission hearing, the first in a Section 337 case in recent history. Several major companies weighed in. Some, including Hewlett-Packard, Microsoft and Verizon, were against the availability of an exclusion order in virtually any RAND scenario, arguing that it is against the public interest. Other comments from Ericsson, Nokia, RIM, Samsung and others were more nuanced; they argued that the availability of an exclusion order should depend on the facts and circumstances of the RAND obligations and facts of the case. One company, Qualcomm, opined that exclusion orders generally should be available. Three trade associations — the Association for Competitive Technology, Business Software Alliance and Retail Industry Leaders Association — voiced their opinions that exclusion orders should generally not be available. Conversely, Innovation Alliance said that they should. Commentary was not restricted to those with commercial interests. The Federal Trade Commission was against the availability of exclusion orders where there was a RAND obligation except in extreme and unusual cases, positing that otherwise there would be a significant risk of patent hold-up types of anticompetitive behavior by the patentee. 19 Economics and Law Professors signed a letter largely against the availability of an exclusion order. Moreover, six US Senators — Conryn, Hoever, Kohl, Lee and Risch — also spoke out essentially against the relief afforded by an exclusion order where there were RAND commitments. The parties adopted predictably parochial positions. Apple asserted that it had not waived its RAND arguments because there is a substantive difference between an affirmative defense during the case before the ALJ, and a public interest statement to the Commission under 19 U.S.C. § 1337(d)(1). It then argued in favor of a per se rule precluding exclusion orders where there was a RAND commitment, irrespective of sufficiency of evidence for affirmative defenses. Motorola argued that precluding exclusion orders would create disincentives to licensing and would chill standard-setting participation. It also pointed out that Congress amended § 1337 in 1988 to eliminate the injury requirement, reasoning that whether or not one may be adequately compensated by money damages is not relevant in a Section 337 case. eBay Inc. v. MercExchange, L.L.C. does not apply at the ITC for precisely that reason. Accordingly, Apple's attempt to circumscribe the availability of an exclusion order where there are RAND obligations would impermissibly reintroduce the injury requirement. Commission's Remand, Remand and Final Determination After having ignited a firestorm of interest, the Commission completely ignored [PDF] the public interest statements it solicited, leaving for another day the viability of RAND defenses at the ITC. The Commission reversed the finding of a violation as to the '697 patent, affirmed findings of no violation as to the '333 and '223 patents. The Commission remanded the finding of no violation of the '862 having reversed the ALJ's finding that it was invalid as indefinite. Upon remand, the ALJ found the '862 patent infringed, but invalid as anticipated. Having voted to review the Remand Initial Determination, the Commission held that the '862 is invalid as obvious (reversing the ALJ's finding of anticipation). Conclusion Some ITC commentators have observed an apparent hesitancy on the part of the Commission to issue an exclusion order covering Apple's products. Whether this is coincidence remains to be seen. The ITC is under considerable political pressure, having been the subject of three Congressional hearings in the past year to which it was not even invited. Excluding a flourishing American brand such as the iPhone could evoke a political backlash against the ITC, resulting in modifications to its enabling statute. Public interest and RAND defenses as applied to Apple are set for determination by the ITC on May 31, 2013. In Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers, 337-TA-794, the Commission has asked for briefing on these issues. Perhaps this will be the case in which the Commission finally clarifies whether public interest and RAND defenses place the products of certain US companies beyond relief at the ITC. Rodney R. Sweetland, III and Michael G. McManus are co-chairs of the ITC Section 337 practice of Duane Morris LLP and partners in its Washington, D.C. office. Suggested citation: Rodney R. Sweetland, III and Michael G. McManus, ITC Clears Apple Yet Again, JURIST - Hotline, May 9, 2013, http://jurist.org/hotline/2013/05/sweetland-mcmanus-ITC-clears-Apple.php. This article was prepared for publication by Michael Muha, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Wednesday, May 01, 2013

Arms Trade Treaty Shows Remarkable Progress 11:05 AM ET JURIST Guest Columnist Clare da Silva of Amnesty International argues that the new Arms Trade Treaty shows remarkable progress in the international regulation of arms transactions... On April 2, 2013, the United Nations General Assembly voted overwhelmingly in favor of a global treaty that applies international legal standards to govern transfers of conventional weapons across borders. Of 193 member states, only three voted to reject the treaty: North Korea, Syria, and Iran. Despite the huge margin, the adoption of an Arms Trade Treaty to regulate the international trade in conventional arms was far from a given. It took a series of shocking crises—including the wars in the Persian Gulf and in the former Yugoslavia, the 1994 Rwanda genocide, and conflicts in Africa's Great Lakes region, West Africa, Afghanistan, and in Central America—before the international community could no longer ignore the repercussions of untrammeled and irresponsible arms transfers, and began to move forward with attempts to control the global trade in conventional weapons. Interested governments and nongovernmental organizations including Amnesty International worked for more than twenty years, seven of them under the aegis of the UN, to reach this historic climax. The goal was winning near-universal support for a treaty with the potential to save countless lives and revolutionize the 70 billion USD global trade in conventional weapons. Understanding this watershed moment and what the treaty itself means requires a closer look at both the United Nations process and the substance of the treaty itself. The process at the United Nations began in the UN's First Committee, rather than in the largely dysfunctional Conference on Disarmament. In 2006, seven co-authoring states, (Finland, Japan, Kenya, Argentina, Costa Rica, United Kingdom, Australia) kick-started the process by introducing a draft resolution that 153 states voted to adopt; 24 countries abstained, but only the US, under the Bush Administration, voted against the measure. Fast-forward seven years, and it is clearly apparent that the General Assembly vote to adopt the final Arms Trade Treaty text largely reflected the same voting pattern: 155 states in favor, 23 abstentions, and 3 opposed. Clearly, those states that were committed at the beginning of the process to achieve a treaty on regulating the trade in conventional weapons remained so. The US reversed its position after the inauguration of President Barack Obama in January 2009. In the final vote on the treaty in April 2013, the US not only voted yes but also co-authored the resolution that brought the final treaty text to a vote in the General Assembly. Another important procedural point is that the Arms Trade Treaty remained on the agenda of the General Assembly from the outset. Two conferences on the Arms Trade Treaty (July 2012 and March 2013) made it clear that the aim was to negotiate a treaty that would be accepted by consensus; but as the General Assembly remained seized of the issue throughout, it was always a possibility that a State or group of States could request a vote on a treaty text by Member States. And so in the end, the text adopted by the General Assembly was the same that would have been adopted unanimously by the negotiating conference but for the opposition of Syria, North Korea and Iran. Negotiating on the basis of consensus ensured that a number of key exporters and importers of conventional arms participated actively in engineering the substance of the treaty's text. Keeping these key states engaged in the process was fundamental to finalizing a text that would have credibility and increase the probability that it would be widely ratified by parliaments and governments. Treaties negotiated by all the countries of the world are always going to be complex and subject to often tedious processes of compromises and arm-twisting. The Arms Trade Treaty's negotiating process was no different and the final text is far from perfect. But despite the compromises and what might be seen as shortcomings, the treaty itself is nothing short of remarkable. This is significant because it is the first multilateral treaty in which states have agreed to be bound by international legal principles to regulate a variety of activities related to the international trade in conventional arms—including exports, imports, brokering, and transit shipments. International human rights and humanitarian law are at the top of the list of such criteria—something unthinkable even half a decade ago. Article 6 of the treaty provides a clear standard for those instances when a transfer of conventional arms is absolutely prohibited. This article reflects existing international law by including prohibitions in cases when an international arms embargo is in place and where a transfer would violate a state's obligations under international agreements to which it is a party. But, importantly, it also extends existing international law by establishing an absolute prohibition of the transfer of conventional arms if a state party "has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party." Article 7 requires a state party to conduct a rigorous risk assessment to determine whether a proposed export of conventional arms could be used to commit or facilitate serious violations of international humanitarian law or international human rights law, as well as acts of terrorism or transnational organized crime. Where there is an "overriding risk" of any of these outcomes, a state party shall not authorize the export. State parties are also required to take into account the possible risk of the conventional arms being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children. The treaty's definition of "conventional arms" is outlined in Article 2. This definition encompasses the major categories of conventional arms from the United Nations Register on Conventional Arms as well as small arms and light weapons. The inclusion of small arms and light weapons was something that the Peoples Republic of China and a number of other states resisted for many years; it was a significant victory to have them included in the array of arms whose trade is to be regulated. Although the categories of arms are extremely limited, the reality is that any state implementing the treaty in good faith will apply its obligations under the Arms Trade Treaty - especially under Articles 6 and 7 - to all items on their export control lists, which in practice is much more comprehensive that the categories of the Register. The treaty sets out basic obligations on states parties to regulate their imports, the brokering activities within their jurisdiction, and the transit and transhipment of conventional weapons. Many of these obligations are ambiguous and left to governments to implement "as appropriate". But since the treaty can be amended and has many strong rules, it provides a firm foundation on which to construct an international system to curb the flow of arms to those persons who would commit atrocities, both in war and in peacetime. And because it builds upon and complements the existing obligations states have accepted under international law, it will become a fundamental part of the legitimate trade in conventional weapons and munitions in years to come. The Arms Trade Treaty will be opened for signatures and ratification on June 3, 2013, at the United Nations General Assembly, and will enter into force shortly after it has been ratified by 50 states. Clare da Silva is an independent legal consultant who provided legal and policy advice to Amnesty International on the Arms Trade Treaty for over seven years. Suggested citation: Clare da Silva, Arms Trade Treaty Shows Remarkable Progress, JURIST - Hotline, May 1, 2013, http://jurist.org/hotline/2013/05/clare-da-silva-arms-trade.php This article was prepared for publication by Sean Gallagher, the Section Head of JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Monday, April 15, 2013

How International Drone Policy Shapes Domestic Drone Use 1:04 PM ET JURIST Guest Columnist Samar Warsi of the Muslim Civil Liberties Union argues that the international drone policy sets the tone for domestic drone policy decisions... For laws to be effective, they must have ascertainable limits. Clear limits are determined by definitions contained within laws and the meanings we attribute to words within those definitions. If international law can be violated through manipulating key conflict definitions, constitutional parameters can be similarly manipulated to encroach on the civil liberties of Americans right here at home. To think that the drone policy overseas has no impact on local policies is misguided, as the "permanent 'war on terror' sets precedents that slowly find their way to be used domestically for largely the same reasons they are deployed abroad." When it comes to foreign policy, the entire drone narrative has been fraught with ambiguous language, making it difficult for the American public to pin down President Obama's policy. For example, a few weeks ago, the Obama Administration heeded the bi-partisan demand for more information and released a statement [PDF] saying that the president does not have the authority to kill "an American not engaged in combat on American soil." However, what does "not engaged in" truly mean? Then there were the targeted killing "white papers" [PDF]; a thicket of flimsy and ill-defined terms intended to obfuscate any legal criticism of the president's actions. The document raised more questions than it answered: what does it mean to be a "senior" al Qaeda official? What constitutes "operational?" What is "imminent?" What establishes a "threat?" Who is considered a "high-level official" permitted to order the drone strike? What is the criterion for "feasible?" An imminent threat used to be someone who represented a clear and present danger. Now it is someone who appears dangerous. The new "imminent threat" of violence does not require the US to have clear evidence that an attack on the US will take place in the immediate future. Impendency can be decided on the whim of the president. While every definition has parameters, those parameters are usually ascertainable. Here, the definition of impendency is so broad the limits are essentially meaningless. Collateral damage used to be defined as anyone who was not a target — now it is only women and children. The narrowed definition of "collateral damage" renders "all military-age males in a strike zone as combatants ... unless there is explicit intelligence posthumously proving them innocent." In effect, we determine whether you were innocent after we kill you. There is justice, after all. In essence, there is a presumption of guilt attached to individuals in physical proximity of al Qaeda members. That the proximity could be due to a number of factors (rescue work, journalism, research and so on) other than involvement in terrorist activities seems to be an irrelevant detail to the administration. There is a power in the use of such partisan language that tends "to embed itself in everyday discourse and, thus, appear natural, neutral and objective. There are "good guys" and "bad guys"; there is "us" versus "them." Who would not want to kill the "bad guys?" Undoubtedly, there are some individuals that should be killed — but, the sweeping and dangerous generalizations occurring at the highest government level make it difficult to tell whom. The result is a fractured and ambiguous policy. A recently leaked White House document, acquired by McClatchy, reveals that "at least 265 of up to 482 people who the US intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaeda leaders but instead were 'assessed' as Afghan, Pakistani and unknown extremists." Americans must demand concrete definitions which provide us with ascertainable limits of the international drone program. While the establishment of concrete definitions would not eradicate all inconsistencies in how the US deals with terror threats, it would be a step towards transparency. Details would give the drone program a legitimacy it currently lacks. It would allow us to retroactively analyze how accurate our defense programs are, assess and address policy concerns, truthfully research how our relationships with other countries are developing as a result of such programs and allow families who have been wronged to seek redress and compensation. Without any determinable guidelines, there can be neither objective evaluation nor progress. Failing to ask for ascertainable limits of the international drone program sends one of two messages: 1) we are not paying attention to how the government is manipulating laws, or 2) we know, but we do not care. Either option sets the stage for the manipulation of laws at home. When it comes to the issue of domestic drones, the foreign drone policy sets the tone. In the context of criminal justice, specifically the "war on terror," the use of domestic drones can quickly strip away one's civil liberties under the guise of national security. The Fourth Amendment safeguards the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures" by the government. This means police need a warrant to search a person or their property, with a few exceptions. Whether government surveillance constitutes a "search" depends upon the reasonableness test set forth in Justice Harlan's concurrence in Katz v. US. The test considers whether the person has a subjective expectation of privacy in the area to be searched and whether society is prepared to deem that expectation reasonable. One's home always falls within the scope of protected areas under the Fourth Amendment. One exception to the Fourth Amendment warrant requirement, explained in National Treasury Employees Union v. Von Rabb, is the "special needs" doctrine which requires the government to demonstrate that the government interest outweighs the intrusion. The "special needs" exception could give law enforcement a free pass to monitor specific homes when looking for domestic terror threats. Without written guidelines, law enforcement could justify any number of surveillance initiatives under the pretext of fighting the "war on terror." In addition, given the political and social stigmatization of Islam, the potential for misuse of the "special needs" exception to disproportionately target American Muslims is great. Last year's unlawful surveillance of Muslims throughout New York by the New York Police Department is evidence of this risk. It is imperative to have clear and unambiguous written policies regarding the parameters of domestic drone use. As Noam Chomsky famously stated, we must engage in "intellectual self-defense" by staying informed. Specifically, we must scrutinize words, their meanings and their implications. Words create perceptions which form the basis for government policy, create narratives that contribute to public complacency and most importantly, dictate the scope of laws. Samar Warsi is a Senior Volunteer Attorney for the Muslim Civil Liberties Union. She holds a BA in Political Science from McMaster University and graduated with a JD from the Oklahoma City University School of Law. She is admitted to practice in the state bar of Texas. Suggested citation: Samar Warsi, How International Drone Plicy Shapes Domestic Drone Use, JURIST - Hotline, Apr. 15, 2013, http://jurist.org/hotline/2013/04/samar-warsi-drone-policy.php. This article was prepared for publication by John Paul Regan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Tuesday, April 02, 2013

US v. Windsor: Rational Basis Review Should Not Preclude Unconstitutionality 2:04 PM ET JURIST Guest Columnist Robert McNamara, an attorney for the Institute for Justice, argues that the standard of review that the US Supreme Court ultimately uses in deciding US v. Windsor should not be perceived as the determinative element in that case's eventual outcome... When the US Supreme Court heard oral arguments [PDF] on March 27, 2013, in US v. Windsor, a challenge to the federal Defense of Marriage Act (DOMA), a substantial amount of energy was devoted not to the complex question of DOMA's constitutionality, but to the simple issue of what standard of review the Court would use in evaluating DOMA. Arguing for the administration of US President Barack Obama, Solicitor General Donald Verrilli urged the Court to apply "heightened" scrutiny. Arguing in defense of DOMA for the Bipartisan Legal Advocacy Group (BLAG), Paul Clement insisted the Court could only apply "rational basis" review. Then, Roberta Kaplan, who represents the actual plaintiffs in the case, noted that the Court could strike DOMA down under any standard of review. However, the unmistakable focus of her argument was the process by which the Court would conduct its analysis, rather than what that analysis would show. As Justice Ruth Bader Ginsburg observed near the end of the argument, though, this focus is based on an unspoken — and false — assumption: that the only way citizens can ever prevail against the government is if they benefit from heightened scrutiny. But we know this not to be true. We know that citizens can prevail against the government without heightened because citizens do prevail. Once we reject the false assumption that heightened scrutiny is the only path to victory against government litigants, the analysis in Windsor becomes dramatically simpler. Of course, this unspoken assumption about heightened scrutiny is unsurprising, if only because it is the same assumption held by a seemingly huge swath of lawyers. "Strict scrutiny" is seen as code for "the government always loses," whereas "rational basis review" is seen as code for "the government always wins." Thus, the parties' approach is understandable: if the level of scrutiny determines the outcome, it makes sense to expend energy on arguing the level of scrutiny. The problem with this approach is that it does not accurately describe how the rational basis test works in fact. It is, of course, a truism that the rational basis test is extremely deferential to government, and any consitutional-law student worth her salt can point to sweeping dicta about how the test requires courts to avoid questioning "the wisdom, fairness, or logic of legislative choices" (as stated in FCC v. Beach Communications) and requires a plaintiff to "negative every conceivable basis" for a challenged law (as stated in as stated in Heller v. Doe). Such dicta undeniably exists; the problem with it is that it cannot be squared with the Court's actual decisions in rational basis cases. As described, the rational basis test embodied by this sweeping dicta imposes a literally impossible burden. A savvy attorney (or a savvy judge) will always be able to conceive of a rationale that isn't specifically "negative[d]" by a plaintiff's evidence. If that is how the test works, we should expect every single claim to fail, every single time. And yet they do not. In fact, rational basis plaintiffs have succeeded, again and again. They have succeeded in famous court decisions, like Lawrence v. Texas or Romer v. Evans, and they have succeeded in cases that many people have never heard of, like Williams v. Vermont (which dealt with automobile taxes) and Zobel v. Williams (which dealt with how Alaska distributed the funds from the state's oil revenues). Of the more than 100 cases since 1970 in which the Supreme Court has applied the rational basis test to answer a question, the Court has answered that question in the plaintiffs' favor more than 20 times. This alone tells us that characterizing the rational basis test as one where "the government always wins" is false. The test described in this sweeping dicta simply can't be squared with the many cases in which the Court has applied the test and found the government wanting. If that description is false — and it is — only one question remains: why do plaintiffs win rational basis cases? The answer is clear: plaintiffs win these cases because, despite the sweeping commentary about how deferential the rational basis test is, the Court does not actually treat the test as a requirement that it abandon its basic judicial function. The Court looks to see whether a purported rational basis for a law can be squared with the real facts in the record. It looks to see whether there is a logical connection between what the government says its ends are and what the government is actually doing. It looks to see whether the government's ends are legitimate, and whether the government can actually be believed to be pursuing its stated ends (as opposed to other, illegitimate purposes). It is true, of course, that the Court is deferential when it applies the rational basis test, but it is not absent. It still demands both truth and logic from government litigants — and when one of the two does not support a challenged law, that law falls. This simple insight — that the rational basis test, in practice, is a test and not simply an excuse to rule in favor of the government — has significant implications for the Court's decision in Windsor. The crux of the plaintiff's argument in the case is that the government's stated objectives cannot be believed — that, as a matter of fact, it is implausible to believe that the federal government is achieving a legitimate federal purpose by refusing to recognize state-sanctioned same-sex marriages. This is a question that the Court can answer, and one it can answer without resort to abstract inquiries about the "level" of scrutiny it is allowed to apply. It can simply look at the facts and determine whether the government's asserted interests can be squared with the evidence of what the government is actually doing. It can, in a word, judge. The advantage to this approach is two-fold. First, it allows the Court to avoid the heightened-scrutiny question altogether. After decades of experimentation, the Court's attempt to fit the realities of American government into strict "tiers" of scrutiny has yielded a jurisprudence that is, at best, inconsistent and difficult to justify on principle. More through historical accident than consistent analysis, some characteristics (like whether one's parents were married) yield higher levels of judicial protection, while others (like one's level of educational attainment or simply one's level of political influence) do not. Delving back into the tiered-scrutiny thicket to decide whether one more subgroup of Americans is (or is not) entitled to meaningful judicial review is unlikely to improve matters. Second — and, for millions of Americans whose constitutional rights deserve equal protection, perhaps more importantly — this allows the Court to once and for all reject its most expansive dicta about the rational basis test and reaffirm a simple truth: the US Constitution requires judges to look at facts in all cases. There exists no standard of review under which the Court may simply disregard logic. There exists no standard under which the Court may disregard facts, nor one under which the Court will allow itself to be lied to about a law's real purposes or effects. Finally rejecting the aforementioned dicta and explicitly embracing an articulation of the rational basis test that accurately explains all of the Court's rational basis decisions (the ones where the government wins and the many where the government loses) will not just clarify the Court's jurisprudence. It will also be a bedrock victory for real judicial engagement by reassuring judges in lower courts that they are allowed to do their jobs — to look at evidence with their eyes open and their minds engaged — in all cases. Nothing could be simpler. But, for litigants across the country, nothing could be more important. Robert McNamara serves as an attorney with the Institute for Justice. He joined the Institute in August 2006 and litigates constitutional cases protecting First Amendment rights, property rights, economic liberties and other individual liberties in both federal and state courts. Suggested citation: Robert McNamara, US v. Windsor: Rational Basis Review Should Not Preclude Unconstitutionality, JURIST - Hotline, Apr. 2, 2013, http://jurist.org/hotline/2013/03/robert-mcnamara-rational-basis-windsor.php This article was prepared for publication by Michael Muha, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Thursday, March 28, 2013

The Evolving Nature of Universal Jurisdiction in Rwanda 10:03 AM ET JURIST Guest Columnist Eric Leonard, the Henkel Family Chair in International Affairs at Shenandoah University, argues that the ongoing pursuit of justice 19 years after the Rwandan genocide is a positive step for international criminal justice that should be praised, not dismissed... Around this time 19 years ago, two crucial events occurred in the tiny African nation-state of Rwanda. First, Human Rights Watch (HRW) posted a report [PDF] that detailed the continued arming of militias in Rwanda. This document, "Arming Rwanda," paints a clear picture of the situation on the ground and the possible consequences of illegally importing arms to Rwanda. Second, the UN general overseeing the peacekeeping operation in Rwanda, Romeo Dallaire, had his request to raid the arms cache denied by the UN. The result, as we are now well-aware, was a rapid decline into one of history's most horrific genocides. Beginning on April 6, 1994 and continuing for one hundred days after, genocide claimed the lives of at least 800,000 people in Rwanda. Today, Rwandans still cope with the aftermath of this egregious act. Recently, a Rwandan accused of complicity in the genocide was arrested in France, showing the conflict's continued effects. This also initiates discussion of how best to judicially cope with such situations, since the response to Rwanda was and remains multifaceted. Such an approach may represent the future of international criminal justice and the culmination in the battle to end impunity. On a globalized level, the UN Security Council (UNSC) established the International Criminal Tribunal for Rwanda (ICTR) in 1994. Having completed 72 cases, with one still in progress, the ICTR has been successful. However, it has not been void of criticism, as nine accused individuals remain at large. As the work of the court comes to a close, I am sure that a more detailed assessment of its work will occur. Presently, it appears that the court's mandate was fulfilled — albeit in a limited number of cases — and a piece of the "justice puzzle" has been put into place. Along with these international justice efforts, there was also a robust domestic response. Rwandans took justice into their own hands — a necessity given the sheer magnitude of the crimes and the number of alleged perpetrators. One of the more interesting methods in use are the gacaca courts. These localized forums of justice are more communal and less judicial. Their purpose focuses more on restorative justice than retribution, with an emphasis on healing the community through the proceedings. They are seen as a necessary means of bringing realistic justice in the wake of the 1994 genocide. A third method of pursuing justice in Rwanda derives from universal jurisdiction: the concept of prosecution by a state that has no direct territorial or personal relation to a case. In other words, the crime being prosecuted under universal jurisdiction is not committed on the territory of the prosecuting state, nor is the perpetrator or victim a national of the state. One such prosecution was the 2001 trial of the "Butare Four" in Belgium. On June 8, 2001, the Assize Court of Brussels found Alphonse Higaniro, Vincent Ntezimana, Sister Gertrude (Consolata Mukangano) and Sister Maria Kisito (Julienne Mukabutera) guilty of crimes committed during the 1994 Rwandan genocide. Although all of the accused were residing in Belgium at the time of their arrest, none of the Butare Four were Belgian citizens, none of the victims were Belgian citizens and none of the crimes were committed on Belgian soil. The trial and prosecution of the Butare Four appears to be a case of pure universal jurisdiction — one of the few in human rights' legal history. However, this is just one example of many cases in which universal jurisdiction has been cited as legal justification for prosecuting Rwandan citizens outside of Rwanda and the ICTR. The most recent occurred on February 14, 2013 in Norway, where the Oslo District Court found Sadi Bugingo guilty of complicity in the premeditated killings of at least 2,000 people — most of them Tutsi citizens. Enter the current case of France and its relationship to the 1994 genocide. The case under discussion involves the arrest and possible extradition of Rwandan citizen Innocent Musabyimana. Such extradition is not unprecedented; other cases pending in French courts indicate that the French government is willing to prosecute Rwandan citizens. However, Musabyimana would be the first Rwandan citizen that France actually prosecutes. Despite these developments, the Collectif des Parties Civiles pour le Rwanda (CPCR), an association that pursues genocide suspects living in France, insists that this marks only a small step in the effort to prosecute genocidaires living in France. Skepticism aside, these cases encapsulate the many means of achieving global justice and the necessary cooperation in the struggle to end impunity. France's arrest of these Rwandans, as well as their possible extradition, reinforces both the international nature of the crimes committed and France's increasing desire to assist Rwanda in its quest for justice. Given the somewhat cold relationship that these two countries have had since the 1994 genocide, this is a very positive diplomatic step. The situation also reveals the ever-evolving nature of addressing human rights violations on an international level, which should not be disregarded. International criminal justice is making strides in a variety of ways, and this should be applauded, rather than constantly criticized. Eric Leonard is the Henkel Family Chair in International Affairs at Shenandoah University. His primary areas of expertise are global politics, foreign policy, human rights, humanitarian law and political philosophy. He has published several articles and is the author of The Onset of Global Governance: International Relations Theory and the International Criminal Court. Suggested citation: Eric Leonard, The Evolving Nature of Universal Jurisdiction in Rwanda, JURIST - Hotline, Mar. 28, 2013, http://jurist.org/hotline/2013/03/eric-leonard-rwanda-justice.php This article was prepared for publication by Michael Muha, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Friday, March 22, 2013

'Too Little Justice': Misdemeanor Defendants in the US 1:03 PM ET JURIST Guest Columnist Alba Morales, a researcher with Human Rights Watch, argues that indigent defendants are not receiving proper instructions regarding their right to counsel, a problem leading to uneducated plea bargains... The day's business in the Midland County Court Court-at-Law #2 in Midland, Texas, begins promptly at 9 a.m. every day. Judge Marvin L. Moore addresses the crowded courtroom, as well as some defendants who are "attending" via videoconference from jail. He rattles off the defendants' rights at what seems like an auctioneer's pace ("You have the right to a trial, to be represented by an attorney at trial, to cross-examine witnesses..."), dispenses a few admonitions ("a DUI can cost you your license if you are under 21," if you are not a citizen "a plea can result in deportation") and concludes with a quick primer on court procedure — all inside of four minutes. Moore calls the first case. A prosecutor informs the defendant of the charges against him. The defendant confers with one of the half-dozen prosecutors in the courtroom, then enters a plea of guilty. It's 9:05 a.m. This pace rarely lags as the day wears on, and the routine varies little: the judge delivers his rapid-fire recitation; charges are read; defendant huddles with prosecutors to negotiate a plea deal; defendant pleads guilty. In fact, of the 50 defendants who appeared before the judge on this particular Thursday in February on charges ranging from shoplifting to assault, 36 entered pleas of guilty or no contest. Not a single defendant received a single word of defense advice (there are no defense attorneys in the courtroom, only prosecutors). Nor does Moore explain to defendants that they have the right to be appointed an attorney if they cannot afford one. And yet, every defendant who entered a plea that day gave up fundamental rights, was exposed to a possible term of imprisonment and, in many instances, received a criminal conviction. A misdemeanor conviction, which can carry a sentence ranging from a fine to a year in jail, can have far-reaching consequences that range from making people ineligible to hold certain jobs to affecting eligibility for student loans, public housing and food stamps. Fifty years ago this month, the US Supreme Court ruled in the landmark case of Gideon v. Wainwright that defendants charged with a felony have a constitutional right to counsel in criminal trials, even if they cannot afford one themselves. Nine years after Gideon, the Supreme Court expanded that right to misdemeanor cases in which defendants face possible jail time. I went to Midland because I had heard that poor people in this West Texas county, particularly those charged with misdemeanors, have a very difficult time enjoying their right to counsel. The numbers appear to bear this out: in Midland in 2012, defendants were appointed counsel in slightly more than 6 percent of misdemeanor cases, compared with almost 40 percent in the state of Texas as a whole. While nobody tracks nationwide data on the appointment of counsel, a 1996 survey of inmates in local jails [PDF] around the country found that over a quarter of misdemeanor defendants did not have an attorney. Thus, Midland represents one of the worst cases of an already bad situation nationwide. It is unclear why so few Midland defendants receive any legal advice prior to pleading guilty. Like most criminal courts in the country, the Midland court seems to prize efficiency. One private defense attorney I spoke with said that this emphasis on efficiency was certainly part of the attitude in Midland. He said that a defendant really had to push to get assigned counsel, and it was not something that judges agreed to easily or took the time to explain. Also, like most counties in Texas, Midland lacks a public defender office (only 91 of Texas' 254 counties have public defenders). This failure to protect the right to counsel runs counter to both the US Constitution and international human rights law. In 1992, the US became party to the International Covenant on Civil and Political Rights (ICCPR), which requires a defendant "to have legal assistance assigned to him, in any case where the interests of justice so require[.]" While the UN Human Rights Committee — the international expert body empowered to interpret this treaty — has mostly applied the ICCPR in the context of serious crimes, in one instance the committee did address the absence of counsel in a minor crime. It found that a defendant who had received ample due process protections, including access to his case file, and months to prepare his case, did not need assigned counsel. (It is relevant to note that the Committee described him as the operator of a "business firm" — perhaps indicating a lack of indigency). None of the defendants I met in Texas had similar due process protections. The European Court of Human Rights has recognized the importance of the right to appointed counsel for the poor even in non-criminal cases, such as divorce proceedings. While the interests at stake during divorce are certainly important, the possibility of incarceration and criminal sanctions faced by misdemeanor defendants are at least as important. The process I saw in Midland did not comport with these international standards, sacrificing "the interests of justice" and fair procedure to efficiency. Indeed, many of the defendants I spoke to on my visit were so perplexed by the rapid-fire procedures they were subjected to that they seemed to have little-to-no understanding of what was going on. One defendant who had just pleaded guilty to misdemeanor assault seemed baffled by what had just transpired. When I asked him why he did not insist on a lawyer, he told me that the prosecutor who had handled his plea agreement warned him that if he chose to retain legal representation, she would insist on the maximum penalty (a year in jail) rather than the $750 fine she was offering him under the plea agreement. "I can't do a year," he said. Another man told me from the county jail, where he had already spent a month incarcerated, that he entered a guilty plea to driving while intoxicated because he was afraid he would lose his job and be unable to pay child support if he were jailed any longer. He was unaware that he had a right to assigned counsel. Misdemeanor pleas are serious. They often result in defendants spending some time in jail and can have serious collateral consequences, such as deportation. Perhaps not every case requires appointment of counsel, but minimum improvements can be made in Texas and across the US, such as establishing clearer procedures to inform defendants of their rights and affirming a stronger commitment to increasing attorney appointment rates, including in misdemeanor cases. By some estimates [PDF], ten times as many misdemeanors as felonies are prosecuted in US courts. In 2012, Midland County prosecuted more than twice as many misdemeanor charges as felony charges. Texas as a whole has improved its indigent defense following the passage of the Fair Defense Act in 2001 [PDF], which provided additional funding and oversight for indigent defense services, but the majority of Texans charged with misdemeanors still plead guilty without the benefit of the advice of counsel. Fifty years after Gideon and its progeny, and two decades after the US became party to the applicable international treaty, the failure to make better progress is glaring. A justice system that denies fundamental rights to most of the people who come before it is handing down too little justice. Alba Morales is a US researcher at Human Rights Watch. Follow her on twitter @AlbaHRW. Suggested citation: Alba Morales, 'Too Little Justice': Misdemeanor Defendants in the US, JURIST - Hotline, March 22, 2013, http://jurist.org/hotline/2013/03/alba-morales-misdemeanor-defense.php This article was prepared for publication by Stephanie Kogut, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Thursday, March 21, 2013

The Government is Using al Bahlul v. US to Maintain the Political Status Quo 2:03 PM ET JURIST Guest Columnist Shane Kadidal of the Center for Constitutional Rights argues that even if the government's petition for en banc review of al Bahlul v. US fails, it will nonetheless succeed in maintaining the political status quo of the Obama administration... There are, basically, only two ways to leave Guantanamo today: in a coffin, or by pleading guilty in a military commission and serving out your sentence. Since this gives most detainees a shared incentive with the military prosecutors to arrange for plea-bargained convictions, it might surprise readers to hear that hardly any cases are moving forward in the commissions today. That is largely because of two rulings from the US Court of Appeals for the District of Columbia Circuit, Hamdan v. US (Hamdan II) and al Bahlul v. US. Those opinions reversed convictions for providing material support for terrorism (Hamdan II) and conspiracy (Bahlul) in the military commissions created by Congress in the Military Commissions Act of 2006 [PDF] (MCA). The Hamdan II court held that a material support prosecution under the 2006 statute for conduct that took place before 2006 would raise serious constitutional questions under the ex post facto clause prohibiting the government from retroactively criminalizing actions. Hamdan was detained, like nearly every Guantanamo detainee, well before 2006. Rather than deciding the constitutional question, the Hamdan II panel avoided the issue by basing their ruling on statutory grounds: Congress, the Court said, did not intend to retroactively criminalize anything that was not already a crime under the customary international law of war. Since material support was not an acknowledged crime under the international law of war (something even the government conceded), Hamdan's conviction had to be overturned. The government did not appeal, perhaps in part because Hamdan had already been released, having served out his sentence. Eventually, though, stories surfaced claiming a deep rift between the US Department of Justice (DOJ) (which supposedly wanted to appeal) and the military prosecutors (who, apparently, thought the DC Circuit was correct). A second opportunity arose when Ali al Bahlul's appeal came to the circuit court. Al Bahlul had been sentenced to life on conspiracy charges related to his role as a propagandist for al Qaeda. The government filed a curious brief [PDF] on appeal, noting that if Hamdan II were correct, then al Bahlul's conspiracy conviction must fall as well, since the Hamdan II panel decision was precedent binding all subsequent panels in the DC Circuit. Conspiracy, like material support, was also concededly not a violation of the international law of war. However, the government reserved the right to seek reconsideration of whether the Hamdan II panel was correct before the full DC Circuit, sitting en banc, and, perhaps, subsequently before the US Supreme Court as well. The panel in al Bahlul's appeal ultimately vacated his conviction. The impact of the decisions in Hamdan II and al Bahlul, should they stand, will be great: according to my informal count, material support or conspiracy have been included as charges in 28 of the 30 charge sheets filed in the military commissions since the MCA passed. Remove those generic offenses and it becomes increasingly difficult for the relatively non-culpable mass of detainees, not cleared for release by the Obama administration, to find something plausible to plead guilty to. Without something to plead guilty to, these detainees will simply sit indefinitely in detention, as it has become practically impossible [PDF] to win release through habeas corpus. Furthermore, the politics of bringing detainees to the US for trial have foreclosed federal criminal courts as a possible option. What is the government seeking to appeal in its petition [PDF] for en banc review in al Bahlul? Curiously, it's not the notion that conspiracy was a recognized war crime under international law. As with material support, the government does not even argue that conspiracy is an international war crime. Instead, the en banc petition argues that the Hamdan II panel was wrong to look exclusively to the international law of war. Instead, the DOJ claims there are domestic precedents for prosecuting conspiracy in military commissions, mostly during the US Civil War. While the petition states this "traditional practice is especially clear regarding conspiracy," one imagines there is no such early precedent for the relatively recent concept of material support. Perhaps, this provides intellectual consistency to the DOJ's decision to pursue en banc review in al Bahlul but not in Hamdan II. The question at issue is whether the courts should decide whether conspiracy was an established war crime under the customary international law of war, or whether it is enough to simply find that conspiracy was established as a war crime under the "domestic common law" of war — the past practices of only American military commissions. The Hamdan II panel gave only the briefest treatment to this question of international and domestic law because it thought the question conclusively decided in favor of international law by the Supreme Court in Hamdan v. Rumsfeld (Hamdan I). The issue certainly appeals to those in Congress who oppose all attempts by American courts to apply anything calling itself "international" law. Will it appeal to anyone in a black robe? For insight we need to turn to the distasteful business of counting votes. On the DC Circuit, we know that Judges Kavanaugh, Ginsburg and Sentelle — the panelists in Hamdan II — will not agree with the government. Justice Douglas Ginsburg was a senior judge when the panel sat and Sentelle has since taken senior status, removing him from the en banc voting pool. Their opinion will certainly carry weight with their colleagues. Judges Randolph and Silberman, who have written many vituperative opinions in Guantanamo cases since Boumediene, also have senior status and will not vote. Of the six remaining active-duty judges, two are liberals (Tatel, Rogers) and one a moderate Democrat (Garland). The DOJ would need to win one of their votes to get to an en banc hearing. This seems unlikely. It is worth noting that there are four vacancies on the court at the current time. However, all four are likely to remain open for some time. President Barack Obama has made only two nominations, one of whom (Caitlin Halligan) was successfully filibustered earlier this month. The Democrats are apparently unwilling to push back against the stonewalling, content to see what happens with the other nominee, Sri Srinivasan — a lawyer in President George W. Bush's solicitor general's office who appeared in many national security cases — rather than pushing a full complement of four nominees before the Senate. Even if Srinivasan could make it onto the bench in time, a 4-4 split would not be enough to give the government en banc review — a flat-out majority is required. What about the Supreme Court? Hamdan had an appeal go there already, in a case challenging the military commissions Bush created by executive order. In that 2006 decision, Hamdan I, the Court overturned the commissions system because it was not authorized by statute. Congress responded by passing the MCA which created the current commissions system. There was an additional issue that the Court almost decided — whether conspiracy was a traditional war crime triable by commission. Four of the eight justices voting in Hamdan I (there was one recusal, Chief Justice John Roberts) held that conspiracy was not a crime recognized under the relevant common law of war: common law of war offenses needed to have "clear and unequivocal" precedent and the international precedent was not there — most pointedly at Nuremburg. Even as to domestic past practice, the Court said that "[t]he crime of 'conspiracy' has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction" such as that originating with military governance of an area under martial law. Why, then, try to push the same issue before the Court now? Well, those four justices were Justices John Paul Stevens, David Souter, Stephen Breyer and Ginsburg and the former two are no longer on the Court. Their replacements — like every new justice since Stevens joined the court in 1975, except Ginsburg — have been more conservative than those they replaced. Nonetheless, it still seems unlikely that Justices Sonia Sotomayor or Elena Kagan will endorse the DOJ's position. That leaves Justice Anthony Kennedy. His concurrence in Hamdan I, the deciding fifth vote, found it premature to reach the issue of whether conspiracy was an offense under the common law of war. Writing only for himself in Part III of his concurrence in Hamdan I, he reserved the issue. Earlier in his opinion, Kennedy noted that the "law of war ... derives from 'rules and precepts of the law of nations'; it is the body of international law governing armed conflict." That's hardly hopeful language for the government on the one issue on appeal in al Bahlul: whether international or domestic common law is the touchstone for determining whether conspiracy was a recognized war crime. The only grounds for optimism for the government is that Kennedy, in refusing to reach the conspiracy issue, noted that "Congress may choose to provide further guidance" regarding the "validity of the conspiracy charge," and that "Congress, not the Court, is the branch in the better position" to make that determination. Perhaps the government is thinking Kennedy will find Congress' codification of conspiracy as an offense in the MCA (passed four months after the Hamdan I decision) adds weight to the government's position. Kennedy also said the task of establishing offenses left to Congress was a "sensitive task of establishing a principle not inconsistent with the national interest or international justice[,]" (emphasis added). Again, that hardly seems grounds to think Kennedy will find the "domestic common law of war" argument persuasive. The government's appellate strategy is a long shot. It was certainly not forced by the need to keep al Bahlul in custody. Al Bahlul has shown no inclination to work with lawyers so far. Nothing in the public record would lead observers to expect that he would pursue a habeas petition. He seems to be facing life detention at Guantanamo whether or not his conviction stands. The political status quo is furthered by taking such a long-shot appeal. By drawing this issue out through the appellate process, the administration will be able to continue asserting that commissions are a viable forum for trying Guantanamo detainees. Instead of bringing the political fight to the demagogues in Congress — and elsewhere — who opposed civilian court trials for Guantanamo detainees, the president can claim that he is waiting for the Supreme Court to change the Hamdan II ruling so that he can move cases forward offshore. Meanwhile, only the existing prosecutions of the 9/11 and Cole plotters will move forward — both cases involve charges other than material support and unadorned conspiracy — distracting from the fact that nothing is happening for the other 28 remaining detainees designated for prosecution. Maintaining the status quo has been the central principle of Obama's counterterrorism strategy. Unlikely as it is to succeed, the en banc petition in al Bahlul would fit that pattern. Shane Kadidal is senior managing attorney of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights in New York City. He is a graduate of the Yale Law School and currently works as an adjunct professor at the University of Michigan Law School. Suggested citation: Shane Kadidal The Government is Using al Bahlul v. US to Maintain the Political Status Quo, JURIST - Hotline, Mar. 21, 2013, http://jurist.org/hotline/2013/03/shane-kadidal-guantanamo-bahlul.php This article was prepared for publication by John Paul Regan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Sunday, March 17, 2013

Technological and Administrative Doubt: Kenya's 2013 Elections in Perspective 10:03 AM ET JURIST Guest Columnist George Kegoro of the International Commission of Jurists argues that the results of the 2013 presidential election in Kenya are unavoidably marred by technological failures and the shortcomings of the Independent Electoral and Boundaries Commissions... Now that Kenya has completed the general elections for 2013, which ended with the declaration of Uhuru Kenyatta as the fourth president of Kenya, it is useful to reflect on the whole electoral process in perspective. The country must be relieved that large-scale violence — a hallmark of the elections in 2007 and about which there was much fear — did not materialize this time round. However, there was still serious violence, most notably in the coastal regions of Kenya where alleged members of the Mombasa Republican Council (MRC) staged a series of daring attacks aimed at preventing voting. To their credit, the people of the coast bore the threat of violence with great stoicism and still voted in numbers. There is fear, however, that those numbers would have been larger if the violence had not happened. In retrospect, the government must review its approach in tackling this group. It should be remembered that in July 2012, the High Court of Kenya gave a breath of legality to the MRC by lifting a ban that had been imposed on the group by the Kenyan government, which regarded it as an "organized criminal group." At the time, the MRC was not known to espouse violence as a means of achieving its secessionist agenda. The attacks last week have changed all that and it will now be difficult for the MRC to justify their continued right to legal protection. The attacks last week must lead to a re-appraisal of the group with a view towards bringing about an end to its activities. The elections gave the Independent Electoral and Boundaries Commission (IEBC) its first chance to run an election. Formed only in 2010 in the place of the now-defunct Electoral Commission of Kenya, the IEBC has not had the opportunity to run elections before. While acknowledging that these elections were novel in many ways — as they gave rise to a situation in which the electorate was required to elect six offices in the place of the three traditional offices in Kenya — the IEBC did not meet the challenges particularly well. Two issues are worth noting in this regard. Not unexpectedly, voting was very slow as there were many elections in one. This led to massive queues around the country, the worst of which were in urban centers, particularly Nairobi. The violent attacks in Mombasa also led to a delayed start of polling in the affected areas. The effect of these delays was that the IEBC had completed the voting and started the announcement of results in some areas, while Kenyans in other areas were still standing in slow-moving queues, waiting to vote. This is highly undesirable, as the announcements probably affected the electoral choices of those that were involved. Not surprisingly, one of the participating political parties complained about this reporting problem in the immediate aftermath of the election. With better planning, the IEBC could have minimized these delays. In the future there should be a reporting deadline before which the transmission of election results cannot begin so as to allow those that are still waiting to vote to do so without the influence of rolling results. In these elections, the IEBC embraced technology to promote accountability. Without exception, all of that technology failed. Specifically, the biometric voter registration system (BVR) aimed at identifying voters and preventing ballot stuffing were scrapped by the IEBC in the run-up to the election. In most places, the failure of these systems were the result of the batteries of laptop computers running out of electricity — often within one hour of the start of the voting. Surely, it was foreseeable that computer batteries would need to be charged. IEBC's failure to prepare for this after the organization acquired the expensive BVR kits smacks of monumental incompetence. The IEBC must be held accountable. As a result of this technological failure, there will always be a difficult-to-dispel suspicion surrounding the election results. The Kriegler Commission, which identified the problem of the 2007 elections, dealt with the issue of improbably high voter turnouts and recommended [PDF] reforms. Based on the performance of the IEBC, Kenya is still far from achieving reforms against ballot stuffing and related malpractices. There was also a failure of the electronic results transmission system. In the face of this failure, the IEBC resorted to a manual tallying of results which has been criticized for its lack of transparency. In particular, the failure of the transmission system resulted in an inability on the part of the IEBC to declare results as and when they were available. Delayed declaration is regarded as prone to fraud. As part of this manual tabulation system, the IEBC used Form 36, which was used to collate polling-station-level election results. As a direct result of this failure, there will always be inherent doubt as to the integrity of these election results. Throughout these elections the media and other sectors of society — perhaps nervous about the failed elections of 2007 — shunned stories portraying problems with the management of the elections, in general, and the shortcomings of the IEBC in particular. In truth, the presidential elections of 2013, like those of 2007, have been a failure. The similarity is that, like Mwai Kibaki in 2007, Kenyatta has acquired a massive mandate without a commensurate amount of popular legitimacy. The difference is that the failure in 2007 produced violence. Fresh memories of such post-election violence no doubt helped this time around. The overall lesson from the 2013 elections is that Kenya is still a long way from carrying out credible national elections. In the coming months, these problems must be addressed; starting with an audit of the affairs of the IEBC including the expensive, but ultimately useless, gadgets acquired to run the elections. George Kegoro is the Executive Director of the Kenyan Section of the International Commission of Jurists. Suggested citation: George Kegoro, Technological and Administrative Doubt: Kenya's 2013 Elections in Perspective, JURIST - Hotline, Mar. 17, 2013, http://jurist.org/hotline/2013/03/george-kegoro-kenya-election.php. This article was prepared for publication by the staff of JURIST's professional commentary service. Please direct any questions or comments to them at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Thursday, March 14, 2013

Michigan's So-Called 'Right to Work' Laws Face Legal Challenges 9:03 AM ET JURIST Guest Columnist Karla Swift of the Michigan State AFL-CIO argues that the "right to work" laws enacted by the Michigan Legislature in 2012 are unconstitutional and were enacted in violation of Michigan's Open Meeting Act... The Michigan State AFL-CIO is currently pursuing two separate litigation paths challenging the so-called "right to work" laws, which were rushed through the Michigan Legislature and hastily signed by Governor Rick Snyder in December 2012. We firmly believe that, one way or another, these unjust laws will be overturned. As JURIST previously reported, the Michigan State AFL-CIO, together with the Change to Win Coalition and the Michigan State Building and Construction Trades Council, filed a lawsuit in US District Court for the Eastern District of Michigan challenging the constitutionality of Public Act 348 (PA 348) [PDF], the new right to work law covering private sector employers and workers. PA 348 violates the Supremacy Clause of the US Constitution by imposing state regulation in an area that is preempted exclusively by the National Labor Relations Act (NLRA). Specifically, PA 348 violates the Supremacy Clause by invading federally preempted regulation of private sector labor management relations it at least the following respects: It imposes penalties for violation, such as civil fines, criminal penalties, and a private right of action, which are not provided for under the NLRA; It regulates an employee's right to "refrain from" organizing, bargaining and other concerted workplace activities; It regulates conduct aimed at causing individuals to refrain or resign from union membership and union financial support; It restricts union-administered employment referral and "hiring hall" arrangements; It invalidates an entire collective bargaining agreement between an employer and workers if any provision violates 2012 PA 348. These unconstitutional provisions are not severable from the rest of the law and, therefore, our lawsuit calls on the court to permanently enjoin Michigan from enforcing right to work in the private sector. Our state's newly adopted right to work laws are also subject to challenge based on the unprecedented way in which they were enacted. The Michigan State AFL-CIO has joined with other union organizations, the American Civil Liberties Union (ACLU), legislators and journalists as plaintiffs in an action to challenge the new right to work laws on the grounds that they were passed in violation of Michigan's Open Meetings Act [PDF]. The case was filed in Ingham County Circuit Court and charges that government officials, in an unprecedented assault on democracy, deprived the public of their right to participate in and observe the legislative process, by locking citizens out of the Michigan State Capitol while crucial legislative action was taking place. Under Michigan's Open Meetings Act, citizens have a stake in seeing that our government conducts business in a democratic and transparent way. No laws should be passed while citizens are locked out of their Capitol building. In addition to being illegal, the secretive conduct of the legislature was shameful. It's particularly disturbing that journalists were prevented from providing complete coverage of this historic lame duck session. The public has a right to know what their government is doing. These are the facts alleged in the complaint: On Dec. 6, 2012, the Michigan Capitol doors were locked to prevent additional people from coming to witness or engage their legislators while the controversial right to work bills were being debated on the House and Senate floors. The public, including some journalists, were locked out for more than four hours while legislators debated and voted on the bills. While individuals already in the Capitol could stay, people waiting outside were not allowed to enter. The galleries overlooking the House floor were intentionally packed with legislative staffers so that the public would not be allowed in. The lockout at the Capitol merely added to the legislators' attempts to swiftly pass these bills with little public input. The bills were abruptly introduced during the last days of the lame-duck legislative session, already a period of diminished public accountability. Rather than allowing the bills to go through the standard committee hearing process where the public would have been invited to comment, the right to work language was introduced for the first time on the House and Senate floors on the same day the bills were passed. As further evidence of the desire to prevent the public from holding their government accountable, the lawsuit also notes the appropriations provision that was added to make the legislation referendum-proof under the Constitution of Michigan. Like its private-sector counterpart, Public Act 349 (PA 349) — the so-called right-to-work amendment to the Public Employee Relations Act (PERA) [PDF] — was hastily enacted in a few days during the lame duck session in December 2012. Snyder and Attorney General Bill Schuette assert that PA 349 applies to Michigan's classified civil service, despite decades of case law reaffirming that the exclusive and plenary jurisdiction of the Michigan Supreme Court takes precedence over attempts by the legislature to regulate employment in the civil service. The application of PA 349 to the civil service not only would violate the Constitution of Michigan, it would exceed the legislature's powers and conflict with PERA itself. In an attempt to short-circuit the normal judicial process for deciding such questions, the governor has requested an advisory opinion from the Michigan Supreme Court as to whether the application of PA 349 is constitutional. We believe that the question should be given full due process in the lower courts and, therefore, the Michigan State AFL-CIO has filed an amicus brief urging the court to reject the governor's request. At the time this article was submitted, the Ingham County Circuit Court had dismissed the case against PA 349 on jurisdictional grounds; a similar suit was subsequently filed with the Michigan Court of Appeals. The Michigan Supreme Court has yet to respond to the governor's request for an advisory opinion. Without intervention, right to work laws for both public and private sector workers will go into effect on March 27, 2013. In the event that these policies are enacted temporarily, the Michigan State AFL-CIO will continue to pursue all legal and political avenues available to have these unreasonable collective bargaining restrictions reversed. Working people will continue to organize, and the labor movement will overcome this obstacle. Karla Swift is the President of the Michigan State AFL-CIO. Suggested citation: Karla Swift, Michigan's So-Called 'Right to Work' Laws Face Legal Challenges, JURIST - Hotline, Mar. 13, 2013, http://jurist.org/hotline/2013/03/karla-swift-michigan-right-to-work.php This article was prepared for publication by Theresa Donovan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Thursday, March 07, 2013

ICC Must Strengthen Sexual Violence Protections 1:03 PM ET JURIST Guest Columnists Chen Reis of the University of Denver and Lynn Lawry (pictured) of Brigham and Women's Hospital argue that unified action must be taken by parties other than the International Criminal Court in order to provide adequate and sustainable support for victims of sexual crimes during and post-conflict... The conflict in the Democratic Republic of Congo (DRC) has been marked by reports of human rights violations against civilians. Particular attention has been paid by media, activists and policy makers to the use of sexual violence by armed forces in the DRC as a "tactic of conflict." This form of violence has been associated with the government as well as those fighting against the regime of President Joseph Kabila. A population-based study conducted in conflict-affected areas in eastern DRC in 2010 (North and South Kivu Provinces and Ituri district) documented nearly two decades of violations committed by all parties to the conflict against civilians. Many of the reported abuses, including widespread sexual violence, likely constitute international crimes that fall under the remit of the International Criminal Court (ICC). Sexual violence as a "tactic of conflict" has gained attention in a number of key international fora and initiatives, with a particular focus on ending impunity for these crimes. In 2012, the UK announced a major initiative aimed at prevention of sexual violence in conflict. One particular focus of the initiative aims to improve investigations of sexual offenses in order to promote prosecutions. This topic of focus for Britain's presidency includes deployment of expert teams for investigation and evidence collection, as well as plans for new international protocols on the investigation and documentation of sexual violence in conflict. The UN Office of the Special Representative of the Secretary General on Sexual Violence in Conflict (SRSG), now on its second mandate holder, has included a focus on ending impunity in its agenda as of its inception in 2010. The UN Security Council (UNSC) has issued a number of resolutions specifically focused on sexual violence as part of their Women Peace and Security agenda, most recently establishing a monitoring and reporting mechanism to enable the naming and shaming of state and non-state armed forces found to be using sexual violence as a tactic of conflict. Lists of forces that use sexual violence as a tactic of armed conflict are issued in annual reports by the SRSG. The ICC is also considered a critical forum for ending impunity for sexual violence. Most of the cases before the ICC include sexual violence crimes in the indictment (crimes against humanity and/or war crimes). These cases relate to violence in Uganda, DRC, Darfur, Central African Republic (CAR), Kenya and Cote d'Ivoire. The jurisprudence of the court is still to be established, however, as the only two decisions handed down thus far are in the cases of The Prosecutor v. Germain Katanga and The Prosecutor v. Thomas Lubanga Dyilo. The ICC has also not yet proven itself to be particularly well suited for trying cases of sexual violence. The NGO Women's Initiatives for Gender Justice has written extensively about crimes of sexual violence and the ICC, and has issued annual "report cards" for the Court's handling of these crimes since 2005. In particular, they have documented [PDF] the difference between how gender-based crimes are treated by the ICC, in comparison to other crimes. When charges for gender-based crimes are actually brought, they are often dropped or re-characterized as other crimes. This occurs most often with charges that seek an arrest or a summons to appear. One major challenge concerns the lack of clarity as to what constitutes linkage evidence proving a connection between rapes committed by members of various combatant groups and the high level individuals who are the target of ICC indictments. Over the last six years, evidence for cases involving crimes against humanity relating to sexual violence brought before the ICC has been approached in new ways. The ICC is considering moving away from testimony evidence, and instead looking at other sources of data to clarify relevant details about these crimes. Working groups, expert panels and conferences have slowly defined what types of data may be useful for prosecutors and judges in these cases, and other international criminal tribunals have utilized this data successfully. However, given the lack of clarity as to what the ICC judges will consider as linkage evidence for sexual violence, the development of investigation protocol aimed at international prosecutions may be premature. There are costs and risks for survivors associated with traditional evidence collection, especially in settings where access to services is limited. More support in the national systems is needed, as the ICC neither has the jurisdiction or capacity to handle all of these cases. UNSC Resolution 1820 [PDF] explicitly recognizes the need for various parties, such as UN member states and financial institutions, to assist in the development and strengthening of national judicial systems. This support will enable nations to provide sustainable assistance to victims of sexual violence in armed conflict and post-conflict situations, and must be done while simultaneously supporting international criminal processes. Chen Reis is the Director of the Humanitarian Assistance Program for the University of Denver. Lynn Lawry is the Director of the Initiative in Global Women's Health for Brigham and Women's Hospital and Harvard Medical School. Suggested citation: Chen Reis and Lynn Lawry, Challenges for Justice in Democratic Republic of Congo for Human Rights Violations, JURIST - Hotline, Mar. 7, 2013, http://jurist.org/hotline/2013/03/reis-lawry-icc-sexual-violence.php This article was prepared for publication by Theresa Donovan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST