JURIST - Paper Chase

[JURIST] An anonymous source inside the US State Department said Monday that President Barack Obama [official websites] is appointing attorney Clifford Sloan [professional profile] to be the new envoy in charge of closing the detention center at Guantanamo Bay [JURIST backgrounder]. Clifford, who has served in all three federal branches, is now a privately practicing attorney and an informal adviser to Secretary of State John Kerry [official website] and has served under both Democrat and Republican leadership. The American Civil Liberties Union (ACLU) [advocacy website], a supporter of the closure of Guantanamo Bay, welcomed the appointment [press release] and urged quick action:

The president now has ordered the restart of transfers out of Guantanamo, lifted the moratorium on transfers to Yemen, and appointed top officials at the White House and State Department to get it done. Once President Obama makes the necessary appointment at the Pentagon to begin transferring detainees out of Guantanamo, he should immediately begin doing so. With more than half of the detainees already cleared for transfer or release, and dozens more being held without ever being charged or tried, it's time to start sending these men home.

On Sunday, the Pentagon Prosecutor at Guantanamo announced that only seven more captives are expected to be charged [AP report] at Guantanamo. Six are accused of death-penalty crimes related to the 9/11 attacks [JURIST backgrounder].

Earlier this month the House Armed Services Committee [official website] approved [JURIST report] the 2014 National Defense Authorization Act (NDAA) [HR 1960, PDF], which would keep the detention center at Guantanamo Bay open despite Obama's statements that he will close it. According to the official summary [text, PDF], the bill allocates over 200 million dollars to restore dilapidated facilities, as well as improve staff facilities. Last month Obama renewed his pledge to make an effort to close the detention center [JURIST report]. Also in May JURIST Guest Columnist David Frakt of the University of Pittsburgh School of Law argued that the Obama administration should release those detainees [JURIST op-ed] held at Guantanamo Bay who have already been declared to not be a danger to the US. In April UN High Commissioner for Human Rights Navi Pillay [official profile] called for US authorities to close down the Guantanamo prison camp [JURIST report], emphasizing the continued indefinite incarcerations of many detainees as a clear violation of international law.

[JURIST] Outgoing Iranian President Mahmoud Ahmadinejad [official website; BBC profile] was summoned to a criminal court on Monday. Although the charges were not specified, this may be the continuation of a longstanding political battle [JURIST news archive] between Ahmadinejad and Parliament Speaker Ali Larijani [official website, in Persian], who recently filed a complaint against him. While Larijani, a conservative leader, has repeatedly criticized the president, Ahmadinejad has returned in kind by attempting to publicize incriminating evidence against Larijani's son in recent months. When Ahmadinejad played an audio recording of alleged evidence [AP report] against Larijani's son in parliament, it was incomprehensible, and Larijani quickly asked the president to leave. Retaliatory actions ensued, and it is believed that the criminal charges will be revealed to be a part of this ongoing confrontation.

This summons comes only three days after the candidate Ahmadinejad supported failed to meet the threshold amount of support to make Friday's presidential ballot [Guardian report]. Ahmadinejad, who has already completed two terms, was constitutionally barred [text] from running for office a third time. Hassan Rouhani [BBC backgrounder], a moderate and former chief nuclear negotiator, won the election and has vowed to move towards more peaceful negotiations with the west regarding international nuclear arms and human rights issues [JURIST news archive].

[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 7-2 Monday in Arizona v. Inter Tribal Council [SCOTUSblog backgrounder] that Arizona's law requiring that proof of citizenship be provided in order to register to vote is preempted by federal law. The court found that Proposition 200 [text] is preempted by the National Voter Registration Act (NVRA) [official website], which requires states to use the federal voter registration form. The NVRA was passed in 1993 with the purpose of increasing voter registration by removing state imposed barriers. Justice Antonin Scalia delivered the opinion of the court: "We hold that 42 USC §1973gg-4 precludes Arizona from requiring a Federal Form applicant to submit information beyond that required by the form itself." The opinion preserved states' rights to ultimately control who may vote, by stating that "Arizona may, however, request anew that the [Election Assistance Commission] include such a requirement among the Federal Form's state-specific instructions, and may seek judicial review of the EAC's decision under the Administrative Procedure Act."

Justices Clarence Thomas and Samuel Alito dissented separately, and Justice Anthony Kennedy wrote a concurring opinion. Thomas based his dissent on his interpretation of the Constitution, in which "The States, not the Federal Government, have the exclusive right to define the 'Qualifications requisite for Electors,' ... which includes the corresponding power to verify that those qualifications have been met." Alito, in his dissent, wrote that "Properly interpreted, the NVRA permits Arizona to require applicants for federal voter registration to provide proof of eligibility." The court heard oral arguments in the case in March, and granted certiorari [JURIST reports] in October. The Ninth Circuit struck down [JURIST report] the proof of citizenship requirement last year while upholding a provision requiring voters to present photo ID at the polls.

[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 5-4 Monday in Maracich v. Spears [SCOTUSblog backgrounder] that an attorney's solicitation of clients is not a permissible purpose covered by the litigation exception to the Driver's Privacy Protection Act (DPPA) [text]. Under the DPPA, disclosure of personal information contained in the records of state motor vehicle departments (DMVs) is prohibited except for a purpose permitted by an exception listed in 1 of 14 statutory subsections. Subsection (b)(4) permits obtaining personal information from a state DMV for use "in connection with" judicial and administrative proceedings, including "investigation in anticipation of litigation." Respondents obtained names and addresses of thousands of individuals from the South Carolina DMV in order to send letters to find plaintiffs for a lawsuit they had filed against car dealers for violations of South Carolina law. Petitioners, South Carolina residents whose information was obtained and used without their consent, sued respondents for violating the DPPA. Respondents claimed the solicitation letters were permitted under subsection (b)(4). In an opinion by Justice Anthony Kenned, the court disagreed: "In light of the text, structure, and purpose of the DPPA, the Court now holds that an attorney's solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception." Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justices Antonin Scalia, Sonia Sotomayor and Elena Kagan. Ginsburg concludes: "The Court today exposes lawyers whose conduct meets state ethical requirements to huge civil liability and potential criminal liability. It does so by adding to the DPPA's litigation exception a solicitation bar Congress did not place in that exception."

The court heard arguments [JURIST report] in this case in January. Counsel for the petitioners argued that the opposing lawyers were undertaking a solicitation of individuals as potential clients for their own commercial purpose and were not using the information in connection with litigation. They further argued that the primary purpose of the DPPA was to prevent such solicitations, thus all of the exceptions must be read in light of that primary purpose. Counsel for the respondents, argued that the "litigation" exception was extremely broad, authorizing any use of driver information "covering the litigation process from cradle to grave."

[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 5-4 Monday in Alleyne v. United States [SCOTUSblog backgrounder] that any fact that increases the mandatory minimum sentence is an "element" that must be submitted to the jury, overruling its 2002 decision in Harris v. United States [opinion]. Harris was a 5-4 splintered opinion that allowed a judge to be the fact-finder when increasing mandatory minimum sentences, as opposed to requiring the question to go to the jury. Monday's decision was also splintered with Justice Clarence Thomas delivering the opinion of the court:

Here, the sentencing range supported by the jury's verdict was five years' imprisonment to life. The District Court imposed the 7-year mandatory minimum sentence based on its finding by a preponderance of evidence that the firearm was "brandished." Because the finding of brandishing increased the penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt. The judge, rather than the jury, found brandishing, thus violating petitioner’s Sixth Amendment rights.

Justice Sonia Sotomayor filed a separate concurring opinion, joined by Justices Ruth Bader Ginsburg and Elena Kagan. Justice Stephen Breyer also filed an opinion concurring in part and concurring in the judgment. Chief Justice John Roberts filed a dissenting opinion, joined by Justices Antonin Scalia and Anthony Kennedy. Justice Samuel Alito filed a separate dissent.

Since Harris was decided, the court has gained three new members, and two in the majority, Chief Justice William Rehnquist and Justice Sandra Day O'Connor, have left the court. At oral arguments [JURIST report] in January, counsel for the defendant argued, "Any fact that entitles a prosecution by law to a sentence more severe than a judge could otherwise impose must be found by the jury beyond a reasonable doubt." Counsel for the US urged the court to adhere to its ruling in Harris, "because those decisions properly respected the fact that a mandatory minimum divests the defendant of the right to judicial leniency."

[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 5-3 Monday in Federal Trade Commission v. Actavis [SCOTUSblog backgrounder] that reverse payment settlements can sometimes violate antitrust laws. A reverse payment settlement, better known as a "pay to delay" settlement, is an agreement in which a patent holder pays a competitor to delay them from entering the market. The Federal Trade Commission (FTC) [official website] challenged one such agreement as a violation of antitrust laws, but the US Court of Appeals for the Eleventh Circuit dismissed the complaint [opinion], stating that a reverse payment settlement agreement generally is "immune from antitrust attack so long as its anticompetitive effects fall within the scope of the exclusionary potential of the patent." The Supreme Court reversed in an opinion by Justice Stephen Breyer:

In sum, a reverse payment, where large and unjustified, can bring with it the risk of significant anticompetitive effects; one who makes such a payment may be unable to explain and to justify it; such a firm or individual may well possess market power derived from the patent; a court, by examining the size of the payment, may well be able to assess its likely anticompetitive effects along with its potential justifications without litigating the validity of the patent; and parties may well find ways to settle patent disputes without the use of reverse payments. In our view, these considerations, taken together, outweigh the single strong consideration—the desirability of settlements—that led the Eleventh Circuit to provide near-automatic antitrust immunity to reverse payment settlements.

Chief Justice John Roberts filed a dissenting opinion, joined by Justices Antonin Scalia and Clarence Thomas. Justice Samuel Alito was recused from the case.

The court heard arguments [JURIST report] in the case in March. The FTC argued that reverse payment agreements are "paradigmatic antitrust trust violation[s]" because "they subvert the competitive process by giving generic manufacturers an incentive to accept a share of their rival's monopoly profits as a substitute for actual competition." Respondents, a group of pharmaceutical companies, argued that reverse-payment agreements are simply settlements. "You're not accepting infringement. What you're doing is recognizing there's a reasonable basis to assert the patent, a bona fide reasonable dispute, and the parties have the ability to settle the dispute. Just as if the party—if someone was entering into a license agreement with—with someone who had a product that they claimed did not infringe the patent, they sat down, negotiated a license and resolved it." The majority of reverse payment settlements arise in the context of pharmaceutical drug regulation.

[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 5-4 Monday in Salinas v. Texas [SCOTUSblog backgrounder] that the petitioner's Fifth Amendment [text] claim fails because he did not expressly revoke the privilege against self-incrimination. Genovevo Salinas was suspected of being involved in a murder. He consented to a search of his home, where police found a shotgun, and consented to questioning at the police station, but he was not arrested or given Miranda warnings [backgrounder]. An officer asked, "if the shotgun [his father had given them] would match the shells recovered at the scene of the murder." Salinas looked down and refused to answer the question. The state then offered the refusal to answer as a key piece of evidence against Salinas, which he contends was a violation of his right against self-incrimination. In an opinion by Justice Anthony Kennedy, the Supreme Court disagreed:

It has long been settled that the privilege [against self-incrimination] "generally is not self-executing" and that a witness who desires its protection "must claim it." Although "no ritualistic formula is necessary in order to invoke the privilege," ... a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner's Fifth Amendment claim is affirmed.

Justice Clarence Thomas filed a concurring opinion, joined by Justice Antonin Scalia. In Thomas' view, "Salinas' claim would fail even if he had invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony." Justice Stephen Breyer filed a dissenting opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. In Breyer's view, "the Fifth Amendment here prohibits the prosecution from commenting on the petitioner's silence in response to police questioning."

The Supreme Court heard oral arguments [JURIST report] in the case in April. The attorney for Salinas argued that using Salinas' silence in this way violates The Supreme Court's 1987 decision in Griffith v. Kentucky [opinion]. An assistant district attorney in Houston argued on behalf of Texas. He asserted that "absent invocation" of the right to silence, refusing to answer a question can be used as evidence against a defendant's innocence. The federal government supported this view, arguing that the court's 1983 decision in Minnesota v. Murphy [opinion] holds as "the general rule that the Fifth Amendment privilege is not self-executing and that a suspect must invoke it in order to claim its protection to a noncustodial interview in."

[JURIST] The US Supreme Court [official website] granted certiorari [order list, PDF] in four cases Monday. In Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. [docket; cert. petition, PDF] the court limited the grant to Question 1: "Are disparate impact claims cognizable under the Fair Housing Act?" The Fair Housing Act [text] makes it unlawful "[t]o refuse to sell or rent after the making of a bona fide offer ... or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." Petitioners sought to redevelop a blighted housing development that was disproportionately occupied by low and moderate income minorities. The redevelopment sought to replace the blighted housing with new market rate housing which was unaffordable to the current residents within the blighted area. Reversing the district court's decision, the US Court of Appeals for the Third Circuit found [opinion] that the respondents presented a prima facie case under the Fair Housing Act despite the fact that there was no evidence of discriminatory intent and no segregative effect.

In Air Wisconsin Airlines Corp. v. Hoeper [docket; cert. petition, PDF] the court limited the grant to the following question: "Whether Aviation and Transportation Security Act (ATSA) [text, PDF] immunity may be denied without a determination that the air carrier's disclosure was materially false." The ATSA requires airlines and their employees to report to the Transportation Security Administration (TSA) [official website] any and all potential security threats to the nation's air transportation system. To encourage such reports, the ATSA provides a broad grant of immunity from suit, shielding airlines and their employees from all liability, including liability for state-law defamation. The only exception to this immunity is for reports made "with actual knowledge that the disclosure was false, inaccurate, or misleading" or "with reckless disregard as to the truth or falsity of that disclosure." In this case William Hoeper was employed as a pilot by Air Wisconsin. An Air Wisconsin manager reported Hoeper to the TSA as a possible threat after Heoper became angry during a certification test. Hoeper brought a defamation suit against Air Wisconsin in Colorado Court. The Supreme Court of Colorado held [opinion] that Air Wisconsin was not entitled to immunity and that the statements were false.

In Ray Haluch Gravel Co. v. Central Pension Fund of the International Union of Operating Engineers and Participating Employers [docket; cert. petition, PDF] a federal district court ruled on a breach-of-contract claim for damages. Just over a month later, it ruled on a discrete contractual claim for damages pleaded in the same complaint, which (a) sought to recoup pre-litigation (as well as litigation) collection expenses and fees and (b) was not contingent on being a "prevailing party" in litigation. The question presented is whether the first order is a "final decision" that must be appealed separately under 28 USC § 1291 [text], or whether instead a notice of appeal filed within 30 days of the second order brings the entire case before the court of appeals. The US Court of Appeals for the First Circuit ruled [opinion] that an appeal filed within 30 days of the second ruling, but more than 30 days after the first ruling, was timely as to all issues.

Finally, in Law v. Siegel [docket; cert. petition, PDF] the court will decide whether the US Court of Appeals for the Ninth Circuit erred in allowing the bankruptcy trustee [opinion] to surcharge the debtor's constitutionally protected homestead property.

[JURIST] Texas Governor Rick Perry [official website] on Friday vetoed [press release] a bill [HB 950 text] intended to prevent payment discrimination and make it easier for women to obtain equal pay. The bill was passed by the Texas House on April 25 in a 79-50 vote, and by the Senate [official websites] on May 22 with a vote of 16-15. In a press release, Perry explained that he vetoed the proposed bill because it "duplicates federal law, which already allows employees who feel they have been discriminated against through compensation to file a claim with the US Equal Employment Opportunity Commission [official website]." Had the bill passed, it would have put Texas state laws in line with the federal Lily Ledbetter Fair Pay Act [S.181 materials]. Forty-two states have passed similar equal pay bills.

In January 2009 US President Barack Obama signed into law [JURIST report] the Lilly Ledbetter Fair Pay Act of 2009, extending the deadline for employees to sue their employers for unequal pay discrimination under a disparate treatment theory. The law's "clarification" of equal pay protections effectively overturned the 2007 Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co [opinion, PDF; JURIST report], which held that "a pay-setting decision is a discrete act that occurs at a particular point in time" and that the statutory period for filing a discrimination claim with the EEOC begins when that discrete act occurs. The new law altered Title VII of the Civil Rights Act of 1964 [text] to clarify that the six-month statute of limitations controlling racial, gender, or national origin employment discrimination suits is applicable to each instance of a discriminatory practice, including the receipt of each paycheck, not only to the initial discriminatory act. The initial lawsuit was brought by Lilly Ledbetter, a Goodyear employee for 19 years, who alleged that she received less pay than male counterparts because of gender discrimination. The Supreme Court upheld the US Court of Appeals for the Eleventh Circuit's reversal [opinion, PDF] of a district court decision awarding Ledbetter $360,000 in damages.

[JURIST] Kuwait's Constitutional Court [JURIST news archive] on Sunday dissolved the nation's 50-member parliament due to flaws in election procedures. In doing so, the court invalidated the results of the December election, deeming them unconstitutional. The court also upheld [BBC news report] a controversial electoral law imposing a "one person, one vote" regulation on Kuwaitis, which overrode a previous regulation that allowed each individual to vote for multiple candidates. While the government states that this new system will prevent political blocs and put the country in line with many other nations around the world, opposition groups claim that the rule was implemented to weaken their voices. Kuwait is expected to set a new election date soon.

Kuwait's parliament and election laws have both been sources of controversy over recent years. In December, opposition groups boycotted [BBC news report] the parliamentary elections in protest of the electoral laws. In September the Constitutional Court upheld a controversial election law [JURIST report] passed in 2006 that divides the country into five voting constituencies. In August leaders of a political opposition in Kuwait criticized [JURIST report] the government's efforts to change the country's election law through the Constitutional Court, saying the government is attempting to seize power through the court in violation of the constitution. Also in August the government announced that they had asked the national Constitutional Court to review the legality of the country's election law. In June 2012 the Constitutional Court ruled that the 2012 election for the new parliament was unconstitutional [JURIST report] and the previous parliament of 2009 should be reinstated, thereby removing the opposition-controlled parliament, and restoring a more government-friendly body. Earlier that month Kuwait's ruler Sheikh Sabah al-Ahmad al-Sabah [BBC profile; JURIST news archive] suspended [NYT report] the parliament for a month in response to escalating tensions between the more liberal, western-backed lawmakers and the Islamist-led lawmakers. The tension grew when two cabinet ministers resigned under the pressure of the Islamist-led lawmakers who tried to gain more seats.

[JURIST] The Venice Commission [official website], a European rights commission, published a report [text; PDF] on Friday criticizing Hungary's recent amendments to its constitution. While the commission praised Hungary's efforts to strengthen it's rule of law, the report cited several concerns with the new constitution. The report criticized provisions of the constitution requiring a two-thirds super majority to pass many laws where a simple majority was the traditional standard, suggesting the increased standard will act as an impediment to the legislative process. The report also criticized the drafting process of the document, saying it was plagued by "lack of transparency, shortcomings in the dialogue between the majority and the opposition, ... insufficient opportunities for an adequate public debate, and a very tight [time frame]. " The Commission also expressed concern that the new constitution does not provide enough strong and specific protection for fundamental rights. The Venice Commission's report is not legally binding, but the commission works closely with the European Union.

Hungary has been heavily criticized [JURIST op-ed] for the recent changes to its constitution. In May Human Rights Watch (HRW) [advocacy website] published a report [JURIST report] stating that the new constitution undermined basic human rights. Other constitutional changes that have been subject to criticism include restrictions on the homeless [JURIST report], increased control of the media and a strict, narrow definition of family. The new laws were controversial even when they were passed [JURIST report], and have been subject to ongoing scrutiny. In February Hungary's Constitutional Court struck down [JURIST report] a law that outlines how churches are given official designation, finding that it was too political. In January the court struck down an electoral law [JURIST report] requiring voters to register to vote at least two weeks before elections in 2014.

[JURIST] The UN Human Rights Council [official website] on Friday passed a resolution the use of foreign fighters in the Syrian Civil War [JURIST backgrounder], responding to an influx of foreign militants on both sides of the conflict, including Lebanese Hezbollah militants supporting the Syrian government. The resolution did not call [Reuters report] for a stoppage of arms flow into Syria, merely a cessation on foreign troops involvement in the conflict. The rights council's decision to discourage such activity comes one day after the UN High Commissioner for Human Rights announced that the death toll in the Syrian conflict [JURIST report] had reached at least 93,000. That same day the US said it would beginproviding arms for Syrian rebels [WSJ report] after concluding that the regime of Syrian President Bashar al-Assad [official website] had used chemical weapons against the Syrian people.

Last Tuesday a panel of UN human rights experts issued their latest report on the conflict, detailing escalating war crimes [JURIST report] committed by both sides. The Syrian Civil War [JURIST news archive] has been ongoing since 2011 when opposition groups first began protesting the regime of Assad. UN Secretary-General Ban Ki-moon [official profile] released a statement two weeks ago on the increase in condemning the most recent violence [JURIST report] in Syria, and expressing concern over how it has been affecting the civilian population. Two weeks ago Navi Pillay condemned the recent violence in Qusayr [map] and criticized [JURIST reports] the broader human rights violations taking place in Syria. In May Pillay called for international action [JURIST report] after a series of massacres were carried out against Syrian civilians. Last month Human Rights Watch (HRW) [advocacy website] condemned the Syrian Air Force for deliberately targeting civilians [JURIST report] in air strikes in rebel-controlled areas. In March HRW accused Syria's military [JURIST report] of using widely-banned cluster bombs against civilians.

[JURIST] The US Court of Appeals for the Fourth Circuit [official website] ruled [opinion, PDF] on Friday that the National Labor Relations Board (NLRB) [official website] overstepped its authority by issuing a rule that would have required employers to post notices informing workers of their rights under federal labor law. The decision accords with the unanimous decision [opinion, PDF; JURIST report] by the US Court of Appeals for the District of Columbia Circuit [official website] in National Association of Manufacturers v. National Labor Relations Board. The Fourth Circuit agreed with the DC court that "the rulemaking function provided for in the National Labor Relations Act (NLRA) [text], by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice [ULP] charges and conducting representation elections upon request." The court stressed that "[a]lthough the Board is specifically empowered to 'prevent' unfair labor practices, the Board may not act until an unfair labor practice charge is filed alleging a violation of the Act." In holding that the Board was not empowered to promulgate the rule, the court reasoned, "Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so."

In 2011 the NLRB issued the regulation [JURIST report] requiring employers to post their employees' rights under the NLRA. These rights include the right to unionize, to bargain collectively and to refuse pressures to do either. The poster also gives some examples of unfair business and union practices and information on contacting the NLRB. The National Association of Manufacturers (NAM) [advocacy website] filed a challenge in the US District Court for the District of Columbia [official website], which upheld [opinion] the NLRB's requirement but ruled that failure to post could not be considered an unfair labor practice. A similar challenge to the rule was filed in the US District Court for the District of South Carolina [official website], which held [opinion] that the NLRB was incapable of enacting the new rules entirely because the NLRA neither required nor provided for such regulation. JURIST Guest Columnist Chris Schlag argued in favor of the rule [JURIST op-ed] last year, finding that open communication is the foundation of a healthy and fair employment environment.

[JURIST] The United Nations Special Rapporteur on the situation of human rights in the occupied Palestinian territories Richard Falk on Friday called on Israel [statement] to end its blockade of the Gaza Strip [BBC backgrounder]. The blockade, which restricts the flow of goods and people into the region through heavily-guarded border-crossings, has been devastating for the 1.75 million Palestinians living in the region. Falk stated [press release] that Israel should lift the blockade "entirely and immediately," calling it "a deliberate policy of collective punishment which is legally indefensible and morally reprehensible." The announcement followed Israel's approval of the delivery of $100 million in building materials for 1,200 homes and 18 schools for projects in Gaza run by the UN. Falk also commented on the public health situation in the region, stating that Gaza's health ministry has reported that the region is running desperately short on medical supplies and equipment. He urged Israel to act within its obligation under international law to maintain public order and civil life, including the delivery of health care.

Israel's policy in the Gaza Strip has been a subject of controversy. In December 2012, Falk called on Israel [JURIST report] to fully implement and continue to support the recent conflict-ending ceasefire agreement with Palestinians in Gaza. Israel was also urged [JURIST report] to end the blockade in June of that year. In 2008, the UN Human Rights Council [official website] designated Falk as the fifth Special Rapporteur on the situation of human rights on Palestinian territories occupied since 1967 [official website]. In June 2010, Israel agreed [JURIST report] to ease the blockade to allow access to more construction materials [Haaretz report] to repair damage from the 2008-2009 Operation Cast Lead [GlobalSecurity backgrounder; JURIST news archive].

[JURIST] The Wisconsin State Assembly [official website] approved a bill [SB 206] Friday that will require those women seeking abortions to review an ultrasound of the fetus before having the procedure. The technician would have to display an image of the fetus, as well as report its health status. Similar to other recent state abortion laws [JURIST news archive], it would require the practitioner to be admitted to practice at a hospital within 30 miles. According to Planned Parenthood [advocacy website], an abortion clinic in Appleton, Wisconsin, will have to close due to this requirement. The bill will have to pass the senate and the governor before it can go into effect, but the governor has already pledged to sign it.

The American Civil Liberties Union of Arizona (ACLU-AZ) [advocacy website] filed a lawsuit [complaint, PDF] in May in the US District Court for the District of Arizona [official website] seeking to permanently enjoin a state law [HB 2443, PDF] that penalizes doctors, not patients, who perform abortions when the patient's decision is based solely on the gender or race of the fetus. This lawsuit comes on the heels of several developments in controversial state abortion statutes. Earlier in May Arizona's ban on abortions after 20 weeks [JURIST report] was deemed to violate women's rights. Last month a judge for the US District Court for the Eastern District of Arkansas [official website] temporarily blocked enforcement of a law banning abortions 12 weeks into a pregnancy [JURIST report]. In December a state judge in Georgia enjoined a law [JURIST report] banning doctors from providing abortions for women more than 20 weeks into gestation. Montana voters in November passed a referendum [JURIST report] requiring notice to parents of minors before a planned abortion procedure. Planned Parenthood also sued Texas [JURIST report] in October claiming that its law preventing state funding from going to any clinics affiliated with providing abortions violates another state law.

[JURIST] The Court of Cassation of Argentina, the highest criminal court, sentenced former Argentine President Carlos Menem [official websites] of selling illegal weapons to Croatia and Ecuador during his presidency. The now-Senator Menem pleaded innocence, claiming that the weapons were intended for Panama and Venezuela but were stolen and sold to parties that violated the country's peace agreements [text, PDF] and UN embargoes [summary]. The lower court initially acquitted Menem and 17 other defendants last year on a series of charges [JURIST report]. On appeal, however, the Court of Cassation sentenced 12 of those defendants to jail time and remanded the case in light of what is described as "overwhelming evidence." Menem, now 82, receives immunity as a public servant. The court urged his fellow representatives to strip him of this privilege, but recent scandals involving his colleagues may make it difficult for a majority of senators to establish that precedent. Furthermore, under Argentina law, all prisoners over 70 have the right to serve penal time at home [AP report]. Thus, even if the senate does relinquish Menem's immunity, he will most likely never serve time behind bars.

In 2011, Menem was also put on trial for crimes committed during his presidency. Menem was indicted [JURIST report] by the Federal Court in 2009 on corruption charges for overpaying members of his administration from 1988 to 1989. In October 2008 an Argentine court charged [JURIST report] Menem with allegedly covering up evidence related to the 1994 bombing of a Jewish community center in Buenos Aires. Menem, born in Argentina to Syrian immigrants, was accused of covering up the alleged involvement of Syrian-Argentine businessman Alberto Kanoore Edul. Numerous members of his administration [JURIST news archive] have also faced a variety of charges over the past decade, but few have been convicted.

[JURIST] Egypt's Court of Cassation [SIS backgrounder], its highest court, on Thursday overturned the jail sentence of former prime minister Ahmed Nazif [JURIST news archive] and ordered a retrial on charges of illicit gains. The court overturned [Daily News Egypt report] his sentence pursuant to Article 166 of Egypt's 2012 Constitution [text, PDF, JURIST report], which states that charges can only be brought against a prime minister in connection with his or her official conduct by the president, the prosecutor general or one-third of the members of the Council of Representatives. The court made this ruling despite the fact that the charges against Nazif were brought before that constitution was ratified. Nazif was sentenced [JURIST report] in September to three years in jail on charges of corruption for allegedly embezzilng $10.5 million during his time in office from 2004 to 2011. No date has been set for his retrial.

Nazif was one of many government officers who served under former president Hosni Mubarak [JURIST news archive] to have faced corruption charges since the Egyptian Revolution [JURIST backgrounder] led to his ousting. Mubarak himself is currently facing a retrial [JURIST report] on charges of complicity in the murder of more than 800 protesters during the revolution. In April an appeals court ordered that he be released [JURIST report] from prison while awaiting his retrial because he had already served the maximum two years in temporary detention. The former ministers of tourism and housing were acquitted [JURIST report] of corruption charges in March after having been charged with profiteering and illegally selling state-owned land. In 2012 another former prime minister, Ahmed Shafiq, was referred for trial [JURIST report] on charges of corruption while in office under Mubarak. Nazif was charged with corruption [JURIST report] in 2011, along with former finance minister Yousef Boutros and former interior minister Habib el Adly.

[JURIST] Zimbabwe President Robert Mugabe [BBC profile; JURIST news archive] on Thursday used a presidential decree to bypass parliament in order to make changes to electoral laws in compliance with the Constitutional Court's order to hold elections by July 31. The amended electoral laws [Reuters report] ensure that all political parties have access to the state broadcaster and that the results of elections will be posted outside polling centers, and the long-awaited poll date was officially set for July 31. However, Prime Minister Morgan Tsvangirai [BBC profile; JURIST news archive] promptly declared [Guardian report] Mugabe's action to be a "unilateral and flagrant breach of our constitution and the GPA [global political agreement]," which states that the president could only act in consultation with the prime minister in announcing election dates. Tsvangirai also alleges that Mugabe infringed on the voter-registration process, disenfranchising first-time voters and denying political parties and Zimbabweans the chance to inspect the much-criticized voters roll.

In May, Zimbabwe's Constitutional Court imposed [JURIST report] a July 31 election deadline and ordered Mugabe to announce a date soon. The order came just one week after Mugabe signed [JURIST report] the country's new constitution [text] into law. Mugabe, 89, has ruled Zimbabwe since its independence from the UK in 1980. After the country's disputed elections in 2008, Mugabe and his political rival Tsvangirai formed a coalition government and found a compromise to hold elections on the condition that a new constitution was enacted beforehand. Zimbabwe has been criticized for the state of its legislative and electoral environment. In a report [text, PDF] issued by Human Rights Watch [advocacy website], the organization said that the country must take adequate steps to ensure "credible, free and fair elections" in 2013.

[JURIST] The US House Judiciary Committee [official website] on Wednesday voted 20-12 [press release] in favor of legislation which would ban most abortions in the US after 20 weeks gestation. The Pain-Capable Unborn Child Protection Act [HR 1797, PDF] is based on the controversial premise that a fetus can feel pain by 20 weeks of gestation. As stated [text] by the subcommittee's Chairman Bob Goodlatte, "Congress has the power to acknowledge these developments by enacting HR 1797 and prohibiting abortions after the point at which scientific evidence shows the unborn can feel pain, with limited exceptions." A vote by the full House of Representatives [official website] could occur as early as next week [NYT report].

Several US states have recently enacted legislation barring abortions after 20 weeks. In April North Dakota Governor Jack Dalrymple [official website] signed into law [JURIST report] a measure banning abortions after 20 weeks gestation based on the premise of fetal pain. The North Dakota House of Representatives [official website] passed [JURIST report] the bill the Friday before, and it was approved by the North Dakota Senate in February. In March Judge Lynn Winmill of the US District Court for the District of Idaho [official website] struck down [JURIST report] Idaho's "fetal pain" statute, which banned most abortions after 20 weeks. Winmill struck down the law as placing an undue burden on a woman's right to an abortion and as unconstitutionally vague in its criminal sanctions. In April 2011 Kansas Governor Sam Brownback [official website] signed into law two pieces of legislation restricting abortions in the state: the Abortion Reporting Accuracy and Parental Rights Act [HB 2035, PDF], which requires unemancipated minors to obtain notarized parental signatures before an abortion may be performed; and the "fetal pain bill" [HB 2218, PDF], which restricts abortions beyond 22 weeks of pregnancy.

[JURIST] Human Rights Watch (HRW) [advocacy website] on Wednesday called on [press release] Cambodia's donors to oppose a land titling campaign created by Prime Minister Hun Sen, alleging that it lacks accountability and transparency and is prone to abuse. Hun Sen announced on Monday that the program will be suspended until after the country's national elections. HRW Asia Director Brad Adams stated that, while it is good that the program is being suspended, the suspension "demonstrates just how political the effort has been from the outset." Hun Sen has defended the program as an effort to provide documentation to 478,928 families to 1.8 million square meters of land. Adams, however, claims that it has in reality "amounted to a land grab by powerful interests" and that the "campaign is being conducted in a secretive and bullying manner." The national elections will be held on July 28.

Human rights groups have criticized Cambodia for corruption and human rights violations in various areas of its government in recent years. In March HRW accused Cambodia of misusing its judicial system [JURIST report] to suppress dissent and undermine justice. Last year the UN criticized Cambodia as one of many countries whose laws restricting non-governmental organizations curtailed freedom of association [JURIST report]. Earlier that year Cambodia faced criticism from the International Bar Association [official website], which questioned the legitimacy [JURIST report] of its Extraordinary Chambers in the Courts of Cambodia [official website], the court established to try top members of the Khmer Rouge [BBC profile] regime.

[JURIST] The US Supreme Court [official website] on Thursday issued a new regulation [text, DOC] barring any demonstration within the Supreme Court building or grounds, excluding the surrounding sidewalks, if the activity is "reasonably likely to draw a crowd or onlookers." In order to "maintain suitable order and decorum within the Supreme Court building and grounds," the Court passed the new regulation in reaction to a US District Court for the District of Columbia [official website] ruling [opinion, PDF] by Judge Beryl Howell that the statute banning public displays was unconstitutional and void as applied to the Supreme Court plaza. In striking down the statute [JURIST report], Howell called the legislation passed by Congress in 1949 "unreasonable" and "substantially overbroad."

The case was brought to the by Harold Hodge and the Rutherford Institute [advocacy website] after Hodge was arrested in January 2011 for wearing a sign protesting the treatment of minorities by law enforcement. The Rutherford institute applauded Howell's decision, stating [press release] that the decision "throws a lifeline to the First Amendment at a time when government officials are doing their best to censor, silence and restrict free speech activities." The former law read: "It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement." The Court itself previously ruled [opinion] on the constitutionality of the law governing protests or demonstrations at or near its building in a 1983 case, United States v. Grace. The justices then nullified only the law's ban on displays on the public sidewalks around the court building, refusing to strike down the entire law as written. The former law allowed the court's police force discretion to allow only two kinds of activity on its plaza: television crew interviews on days the court had held hearings, and taking photographs for commercial or professional purposes with the court's permission.

[JURIST] Activist attorney and former government prosecutor Larry Klayman filed a class action lawsuit [complaint, PDF] on Wednesday in the US District Court for the District of Columbia [official website], challenging the government's recently revealed phone data collection. Klayman, founder of the political advocacy group Freedom Watch [advocacy website], claims the surveillance practices violate citizens' reasonable expectation of privacy, their rights to free speech and freedom from unreasonable searches and seizures, due process rights, as well as certain common law claims. The complaint names the National Security Agency (NSA), the Department of Justice (DOJ) [official websites], US President Barack Obama, Attorney General Eric Holder and 12 communications and Internet companies as defendants and seeks $23 billion in damages.

The American Civil Liberties Union (ACLU), in conjunction with the New York Civil Liberties Union [advocacy websites] on Tuesday filed a similar suit [JURIST report] against the NSA. Klayman filed the first private suit [text, PDF] the day prior, in a separate lawsuit against Verizon and the Obama administration, requesting the same orders as his second suit in addition to $3 billion in damages. Although the president and top officials have defended the surveillance as a lawful counterterrorism measure, several US lawmakers have called [JURIST report] for a review of the government's surveillance activity in light of recent reports revealing phone and Internet monitoring. Lawmakers have also called for a criminal investigation into the activities of Edward Snowden, who came forward [Guardian report] on Sunday as the whistleblower in the NSA surveillance scandal. Snowden is a 29-year-old former CIA technical worker that accessed the surveillance files when he was contracted as a civilian to work on projects for the NSA. He stated in an interview with The Guardian that he released the material because he believed the surveillance violated the right to privacy. Congressman Peter King (R-NY) [official website] called [press release] for the arrest of Snowden, who is now seeking asylum and is allegedly missing in Hong Kong.

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] announced [press release] Thursday that the death toll in the Syrian conflict has now reached at least 93,000. According to the UN's data specialists, this estimate represents only recorded deaths where the name, location and date of death were reported. For those casualties lacking one or more identifying values, the information was excluded from the data set. The casualties were sourced from eight different reports, and potential duplicates were eliminated. Thus, the actual number of deaths is far greater than 93,000, but only that many have been recorded. Additionally, most of the casualties are not expected to be members of any armed organization. Pillay said:

This extremely high rate of killings, month after month, reflects the drastically deteriorating pattern of the conflict over the past year. ... As clearly indicated in the latest report by the Commission of Inquiry on Syria, civilians are bearing the brunt of widespread, violent and often indiscriminate attacks which are devastating whole swathes of major towns and cities, as well as outlying villages.

As time and the conflict continues, the UN will do its best to improve its records.

Last Tuesday a panel of UN human rights experts issued their latest report [text, PDF] on the conflict, detailing escalating war crimes [JURIST report] committed by both sides. Both France and the US have claimed to have found evidence regarding the limited use of Sarin [CNN report], a toxic gas, but it is not clear which side was using it in the conflict. The Syrian Civil War [JURIST news archive] has been ongoing since 2011 when opposition groups first began protesting the regime of Syrian President Bashar al-Assad [official website]. UN Secretary-General Ban Ki-moon [official profile] released a statement [text] two weeks ago on the increase in condemning the most recent violence [JURIST report] in Syria, and expressing concern over how it has been affecting the civilian population. Two weeks ago Navi Pillay condemned the recent violence in Qusayr [map] and criticized [JURIST reports] the broader human rights violations taking place in Syria. In May Pillay called for international action [JURIST report] after a series of massacres were carried out against Syrian civilians. Last month Human Rights Watch (HRW) [advocacy website] condemned the Syrian Air Force for deliberately targeting civilians [JURIST report] in air strikes in rebel-controlled areas. In March HRW accused Syria's military [JURIST report] of using widely-banned cluster bombs against civilians.

[JURIST] Judge Edward Korman of the US District Court for the Eastern District of New York [official website] on Wednesday approved [order, PDF ] the Food and Drug Administration (FDA) plan to make the Plan B [JURIST news archive] emergency contraceptive available over-the-counter to women of all ages. In an effort to comply with the judge's April ruling [JURIST report], the FDA has approved the brand name version of Plan-B OneStep [product website] for women of all ages without retail restrictions. However, opposing parties argued [letter, PDF] Wednesday that limiting the approval to the one-step version of the brand name hormone would increase pricing, thus limiting availability to women of lesser means. While Korman agreed that such a spike in price was theoretically possible, he maintained that the FDA has only to approve the same hormone produced by generic pharmaceutical companies in order to avoid the problem. He expressed a firm belief that the FDA would do so as quickly as possible. As for the two-pill alternative, the judge emphasized that making the two-pill option as readily available as its alternative was in the discretion of the FDA. On the other hand, the language of the ruling reiterated the court's dismay at the FDA's "unjustifiably political" history of restricting access to the drugs, evincing the judge's longstanding conviction [SCOTUSblog report] that access to emergency contraceptives should be as least-restrictive as possible.

In 2005 organizations and individuals concerned with women's health filed suit in the Eastern District of New York, in pursuit of expanded access to the drugs, including over-the-counter availability regardless of age. It was heard before Korman, who ruled in their favor, but in December 2011 the Secretary of the Department of Health and Human Services (HHS) [official website], Kathleen Sebelius [HHS profile], intervened to block the ruling as it related to minors, citing inadequate evidence concerning adverse health effects. In April Korman overruled Sebelius' "unprecedented," decision, calling the prior requirement for adolescents under age 16 "unjustified and burdensome." The US Department of Justice (DOJ) [official website] initially appealed [JURIST report] the decision in, stating that the judge had overstepped his legal authority. The DOJ announced that it would drop the appeal [JURIST report] on Monday.

[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Thursday in United States v. Davila [SCOTUSblog backgrounder] that judicial participation in plea negotiations does not automatically require vacatur of a defendant's guilty plea. Federal Rule of Criminal Procedure 11(c)(1) [text] provides that "[t]he court must not participate in [plea] discussions." Rule 11(h) states: "A variance from the requirements of this rule is harmless error if it does not affect substantial rights." Anthony Davila was charged with filing more than 130 false tax returns in the name of Florida inmates. He pleaded guilty after being advised by the judge that it was his best course of action. In an opinion by Justice Ruth Bader Ginsburg, the court held that this violation of Rule 11(c)(1) did not require automatic vacatur of the guilty plea because Rule 11(h) is controlling. The court vacated the decision [text] of the US Court of Appeals for the Eleventh Circuit and remanded for further proceedings. Justice Antonin Scalia filed a separate opinion, joined by Justice Clarence Thomas, concurring in part and concurring in the judgment.

At oral arguments [JURIST report] in April, some of the justices expressed concern that if Rule 11(c)(1) were applied maximally, then minor actions of the judge could be used as an argument that the judge was influencing the negotiations and therefore be a basis for voiding a guilty plea. Counsel for the US argued that significant violations of Rule 11(c)(1), such as a judge pressuring the government outside of the defendant's presence to offer a plea, must be distinguished from minor violations, such as a judge indicating too strongly what type of new plea deal he would be willing to accept after rejecting the initial plea deal. Counsel for the US further argued that applying the rule too rigidly would trap judges in a corner where they couldn't guard against later ineffective assistance of counsel claims by discussing plea deals with the defendants because it would risk automatic reversal as a Rule 11(c)(1) violation. Counsel for Davila argued that this was not a trivial matter and that the judge had "abandoned his role as neutral arbiter and fundamentally distorted the pretrial process." Because of the judge's unique position as a alleged neutral arbiter, any influence that he has on the plea negotiation process is magnified and it puts an incredible amount of pressure on defendants.