[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Friday upheld [PDF text] the Federal Communication Commission's ability to require broadband Internet companies and Internet phone service providers to comply with the Communications Assistance for Law Enforcement Act (CALEA) [text; FCC materials], which requires telecommunications companies to allow law enforcement officials access to their networks. CALEA applies only to "telecommunications carriers," and the FCC has historically classified broadband Internet as an "information service." In the 2-1 opinion, however, the federal appeals court said that the intent of CALEA was to provide security officials access to communications networks, and so the FCC may classify broadband providers differently for CALEA purposes than for other purposes.

The new rules [PDF] were challenged [JURIST report] by a coalition of privacy and technology groups. The government argued [JURIST report] for expanding the scope of CALEA to cover broadband providers so that terrorists will be prevented from shielding their communications by using broadband Internet phone providers instead of traditional landlines. The new rules [PDF] took effect [JURIST report] in November and require broadband Internet companies to modify their systems to permit wiretaps by June 2007. Reuters has more.

[JURIST] Oklahoma Governor Brad Henry [official website] on Friday signed SB 1800 [RTF text], a law which enlarges the scope of the death penalty to cover a second or subsequent sexual offense against a child under the age of 14. Similar child molestation statutes have been enacted by Florida, Louisiana and Montana, and the South Carolina governor signed a similar bill [Charlotte Observer report] on Thursday. The death penalty provision applies to anyone convicted of a second offense of lewd molestation, rape, or sodomy against someone under age 14.

Some constitutional experts say such statutes conflict with recent US Supreme Court rulings that restrict the application of capital punishment [JURIST news archive]. Last year, the Court struck down the death penalty as applied to juveniles [JURIST report; opinion text]. No sex offenders have been executed since the death penalty was reinstated in 1977, though a Louisiana inmate is currently on death row for raping an 8-year-old girl. AP has more.

[JURIST] The Vatican [official website] has filed an appeal with the US Court of Appeals for the Ninth Circuit seeking to overturn this week's decision by a district court judge to allow a clergy abuse lawsuit to proceed [JURIST report] that names the Holy See as a defendant. US District Judge Michael Mosman refused to dismiss a clergy sex abuse [JURIST news archive] lawsuit naming the Vatican as the defendant, despite the Foreign Sovereign Immunities Act [text] which generally protects nations from being sued in the US. Mosman ruled that Rev. Andrew Ronan, the priest involved in the lawsuit, was an employee of the Vatican under Oregon law and noted that under exceptions to FSIA, states are not protected when they engage in commercial or certain harmful activities in the United States. Other federal courts have refused to allow suits against the Vatican and the Pope to proceed - a federal court in Kentucky dismissed a sex abuse lawsuit against the Vatican [JURIST report] last October, ruling that the Holy See is a foreign state entitled to immunity protections under the act, and, in December, a federal judge in Texas held that the Pope enjoys immunity as the head of the Vatican [JURIST report].

The lawsuit [complaint, PDF] alleges that the Vatican, the Archdiocese of Portland and the archbishop of Chicago conspired to transfer Ronan from Ireland to Chicago to Portland with the knowledge that he had a history of sexual abuse. The plaintiff claims he was molested by Ronan as a teenager while Ronan was located in Portland. AP has more.

[JURIST] Republican Governor Ernie Fletcher [official website] of Kentucky pleaded not guilty Friday to charges [indictment, PDF; JURIST report] of criminal conspiracy, official misconduct and political discrimination stemming from an investigation into the governor's hiring practices [timeline]. Fletcher's attorney entered the not guilty plea on behalf of Fletcher while he vacationed in Florida. Franklin District Judge David Melcher set a tentative trial date of Nov. 8.

The indictment alleges that Fletcher and other members of his administration delved into past political affiliations and contributions of government job candidates, rather than basing hiring practices on merit as the law requires. Possible penalties for Fletcher range from six months to a year in jail and a $500 fine. AP has more. From Louisville, the Courier-Journal has local coverage.

[JURIST] The Delaware Supreme Court [official website] has upheld [text, PDF] a lower court's ruling declaring Walt Disney Co. [corporate website] directors and two former executives not liable for the approval of a $130 million severance package [JURIST report] for former Disney president Michael Ovitz [Wikipedia backgrounder], after serving only 14 months as president. Several shareholders originally sued former CEO Michael Eisner [BBC profile; JURIST report], former general counsel Sanford Litvack and the Disney board, claiming that the board of directors serving when Disney hired Ovitz violated their fiduciary duties and wasted resources when they hired, and fired without cause, the former Hollywood agent in 1996. The 17 shareholders alleged [oral arguments recorded audio] that the directors should have fired Ovitz for cause, therefore depriving him of the severance package, and that the directors' decision to hire Ovitz represented "gross negligence."

The decision [text, PDF] from the State Court of Chancery [official website] and its subsequent appeal [JURIST report] to the state Supreme Court turned on the definition of bad faith. Justice Jack Jacobs of the Supreme Court noted that there was no well-defined theory in corporate fiduciary law for the definition of bad faith, adding that there was no substantive difference between two definitions outlined by the Court of Chancery last August because the two definitions outlined an "intermediate category of conduct." Jacobs' new definition of bad faith holds an executive board member accountable for violating their fiduciary duty to shareholders if they act with a conscious disregard instead of a deliberate intent. Rita Farrell of the New York Times has more.

[JURIST] Australian Attorney General Philip Ruddock [official website] said Friday that there is no evidence for allegations made in an Australian magazine that accused Taliban member David Hicks [JURIST news archive] has been tortured during his four-year detention at Guantanamo Bay, Cuba [JURIST news archive]. The allegations were made in an article in the Monthly Magazine by Alfred McCoy, a history professor at the University of Wisconsin–Madison. Ruddock said Hick's alleged eight-month solitary isolation [Brisbane Courier-Mail report], a prime focus of McCoy's article, is part of the normal course of detention. AAP has more.

Meanwhile Friday, members of the prestigious Law Council of Australia [profession website] called on the British government to quickly process Hick's claim for UK citizenship [press release] so that it can press directly for his release. The UK Court of Appeal has ruled that Hicks is entitled to UK citizenship [JURIST report] because his mother was British, and he hopes that the UK government will petition for his removal from Guantanamo Bay as they have done for 9 other UK citizens. Australia itself has refused to petition for Hick's release. AFP has more.

[JURIST] US Senate Judiciary Committee Chairman Arlen Specter (R-PA) introduced a new NSA oversight bill to the committee Thursday modifying his earlier proposal [JURIST report] to require the NSA to seek FISC approval before conducting surveillance. The new proposal, a compromise plan written with Sen. Jon Kyl (R-AZ), has three major features:

• in a major concession to the Bush administration, the bill cannot "be construed to limit the constitutional authority of the President to gather foreign intelligence information or monitor the activities and communications of any person reasonably believed to be associated with a foreign enemy of the United States;"
  
  
• no official acting under presidential authority can be held criminally liable for conducting warrantless surveillance if the NSA warrantless surveillance program [JURIST news archive] is eventually found unconstitutional;
  
  
• finally, the bill would consolidate the 29 cases before federal courts challenging the constitutionality of the NSA program, including the ACLU lawsuit against the big three phone companies [JURIST report], and would provide exclusive jurisdiction over the consolidated case to the Foreign Intelligence Surveillance Court [FJC backgrounder]. Any FISC decision would be subject to Supreme Court review and would bind future federal court decisions.

[JURIST] Lord Lloyd of Berwick [BBC interview], the retired law lord whose 1996 report on British terrorism law underpinned the Labour Government's 2000 Terrorism Act [text], has condemned attempts by the government to amend the Human Rights Act 1998 [text] with exceptions as "sinister" and warned that parliament should be wary of deviating from the spirit of its underlying convention, the European Convention on Human Rights [text]. Lloyd said the 2000 statute provided adequate protection for both the security and civil liberties of UK and foreign citizens, and that the 2001 Anti-terrorism, Crime and Security Act 2001 [text], which permits the government to detain terrorism suspects indefinitely without trial, already pulled the UK away from compliance with the convention. Agreeing with a 2004 House of Lords ruling [JURIST report; PDF ruling] on the issue, Lloyd said that the indefinite detention clause of the 2001 statute is a "clear breach" of Article 5 [text] of the convention.

The government of Prime Minister Tony Blair expressed doubts [JURIST report] about the Human Rights Act after the High Court in May granted temporary asylum to nine Afghan nationals who hijacked a plane from Afghanistan to the UK in 2000. Blair has since asked [JURIST report] Home Secretary John Reid to look at "whether primary legislation is needed to address the issue of Court rulings which over-rule the Government in a way that is inconsistent with other EU countries interpretation of the European Convention on Human Rights." The Times has more. The Independent has additional coverage.

[JURIST] The US military has denied allegations of Guantanamo Bay soldiers desecrating copies of the Koran [JURIST report] during a May clash between prisoners and guards [JURIST report] after four prisoners attempted suicide. Military officials on Thursday stood by their original version of events [press release], saying that Joint Task Force troops were lured into a trap by staged suicide attempts, where they were ambushed by inmates brandishing homemade weapons. Furthermore, the statement claimed that inmates involved in the attack "have informed us that part of the ambush plan was to claim abuse of the Holy Koran to rally detainees to fight and as a cover story after the incident ended," and that no guard touched a Koran during the incident.

In a telephone press conference, Joint Task Force Guantanamo [official website; GlobalSecurity.org backgrounder] Commander Harry Harris said minimal force was used to quell the disturbance, which resulted in minor injuries to six inmates who were pacified with rubber bullets. A lawyer for one of the Guantanamo Bay [JURIST news archive] detainees involved in the incident said Wednesday that guards instigated the violence by handling the Korans of inmates during a search for contraband. AFP has more.

[JURIST] Texas Governor Rick Perry [official website] has said that he plans to create a virtual border watch program [press release], installing night-vision cameras along the Mexican border and streaming live video on the Internet to aid in the state's effort to crack down on illegal immigration [JURIST news archive]. The $5 million plan will make the images available to anyone with an Internet connection. Perry hopes that people watching the videos will spot illegal immigrants attempting to cross the border and alert authorities through a hotline that will be established. Dubbing it a new form of the age-old neighborhood watches throughout the country, Perry plans to pay for the camera installation through grant money Texas already has and would like the program to be in effect within one month.

Opponents of the plan, including the Mexican American Legal Defense and Educational Fund [advocacy website], fear that the cameras will lead to racial profiling and vigilantism [press release], as well overburden the Border Patrol agency. Opponents also argue that drug smugglers will easily figure out where the cameras are and adjust their route to avoid them because they too would have access to the live video on the Internet. Perry responded, however, that the state could easily move the cameras, which will be placed on the land of voluntary private landowners. As part of a sweeping immigration reform package, President Bush authorized the deployment of National Guard troops along the Mexican border [JURIST report] last month. AP has more. The El Paso Times has local coverage.

[JURIST] The US Senate [official website] on Thursday rejected a bill that would have given Native Hawaiians self-governance powers [JURIST report] in line with those accorded to Native Americans. The Native Hawaiian Government Reorganization Act [S 147 summary; Akaka backgrounder] was rejected by a margin of 56-41 [roll call] in a procedural vote Thursday, falling short of the necessary 60 votes to proceed with a final vote on the bill. The bill sponsor, Sen. Daniel Akaka (D-HI) [official website], promoted the bill for seven years and vowed to re-introduce the bill in another congressional session [Honolulu Advertiser report]. Akaka said the bill was meant to remedy the wrongs that have persisted since the 1893 US-backed overthrow of the Hawaiian monarchy [Wikipedia backgrounder], in the hopes that self-governance would help increase federal funding for more targeted services for Native Hawaiians. The bill would have allowed Native Hawaiians to form a body to negotiate with state and federal governments over issues relating to Hawaii, including historical grievances, and control of natural resources, land and assets. Though disappointed by the Senate rejection, Akaka expressed gratitude [press release] for the support the bill gained in the Senate vote.

Opponents of the bill thought it created an unconstitutional race-based government entity, and would "discriminate on the basis of race of race or national origin and further subdivide the American people into discrete groups," according to a report [text] by the US Commission on Civil Rights [official website]. Sen. John Cornyn (R-TX) [official website] added that he could "not support a bill whose very purpose is to divide Americans based upon race," and the US Justice Department stated in a letter to Majority Leader Bill Frist (R-TN) [official website] Wednesday that the Bush administration "strongly opposes" [Hawaii Reporter text] the bill because it would create a race division. The Akaka bill was scheduled for debate last August, but was delayed at the last minute [JURIST report]. Insidebayarea.com has more.

[JURIST] Russia has extradited Dragan Zelenovic [ICTY case backgrounder], a Bosnian Serb wanted by the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] to Bosnia, according to the Bosnian war crimes court on Friday. Bosnia plans to transfer Zelenovic to the ICTY "immediately" [press release], possibly within 36 hours.

Russia handed Zelenovic, wanted for rape and torture during Bosnia's 1992-95 war, over to Bosnia on Thursday following statements made by ICTY chief prosecutor Carla Del Ponte [official profile] accusing Russia of failing to turn over suspected war criminals. In her speech [transcript; press release] to the UN Security Council [official website] Wednesday, Del Ponte said "The long and unexplained delays in the transfer of Zelenovic, who was detained in Russia since August 2005, do not allow for optimism in the future of the ICTYÂ?s co-operation with the Russian Federation." Zelenovic was indicted in 1996, along with Gojko Jankovic, who surrendered to the ICTY last year and pleaded not guilty [JURIST reports] to war crimes in March at the War Crimes Chamber of the Court of Bosnia and Herzegovina [JURIST report; HRW backgrounder]. Reuters has more.

[JURIST] The Supreme Court of Virginia [official website] has ordered [text, PDF; summary] a new trial for death row inmate Daryl Atkins, instructing the trial court to determine whether Atkins is mentally retarded and therefore ineligible for the death penalty [JURIST news archive] after the 2002 US Supreme Court ruling in Atkins v. Virginia [text] declaring capital punishment for the mentally retarded unconstitutional. Atkins had been sentenced to death for robbery and murder in 1996 when he was 18 years old, and the US Supreme Court remanded the case to determine if Atkins was mentally retarded, where a Virginia jury determined Atkins was not retarded [JURIST report] last year. Justice Cynthia D. Kinser of the Virginia Supreme Court on Thursday opined that the jury on remand had been improperly informed of Atkins' previous death sentence, which "prejudiced his right to a fair trial on the issue of mental retardation." Kinser added that one of the expert witnesses that testified in Atkins' second trial was not truly an expert witness because he had never administered one of the tests evaluating Atkins' mental status until he tried the test on Atkins.

After the US Supreme Court ruling, states were required to define mental retardation and Virginia defined mental retardation as an IQ of 70 or lower before the age of 18 with an inability to function in society, a definition in line with that of the American Association on Mental Retardation [official website]. Atkins had scored between 59 and 76 on four different IQ tests after the 1996 shooting, prompting the Virginia jury to determine he was not mentally retarded. Atkins had been scheduled for execution last December. Believing that Atkins is not mentally retarded, state prosecutors plan to go ahead with a new sentencing trial, instead of conceding that Atkins is mentally retarded. AP has more. The Virginian-Pilot has local coverage.