[JURIST] A proposed constitutional amendment [SJ Res 12 text, PDF] to prohibit physical desecration of the American flag failed by one vote late Tuesday to get the two-thirds Senate approval necessary to send it on to the states for ratification. Senators voted 66 in favor, and 34 against [roll call]. The US House of Representatives passed the amendment [JURIST report] last summer. The last attempt to pass the amendment in the Senate failed by four votes in 2000. While supporters of the provision defended it as fundamentally patriotic and a restoration of a public right eroded by recent court rulings [Senator Orrin Hatch floor statement], opponents insisted that it would unduly limit free speech [Senator Patrick Leahy floor statement]. The US Supreme Court ruled in 1989 in Texas v. Johnson [opinion text] that flag burning is protected under the First Amendment.

The legislatures of every state save Vermont have at some point passed resolutions encouraging Congress to pass the amendment. On the other hand, a 2005 First Amendment Center survey [PDF text] found that 63% of those polled opposed amending the constitution to prohibit flag burning.

After the vote, amendment sponsor Senator Orrin Hatch (R-UT) said:

This amendment would give back to Congress the power the Supreme Court usurped from it 17 years ago when five unelected justices rejected 200 years of statutes that protected Old Glory. This amendment wouldn’t change the Constitution, it would restore it to what it was before the Supreme Court altered it.

While banning flag desecration is important to the majority of Americans, this amendment is about more than the flag. It’s a message to activist judges that enough is enough. This amendment is a way for Congress to stand up and say to the Supreme Court we won’t sit idly by when you to usurp the power of the people.

This is a setback, but it’s not a final defeat. For protecting the Stars and Stripes, I will not give up and I will not surrender.

[JURIST] A federal judge in Manhattan ruled [opinion, PDF] Tuesday that the US government violated the constitutional rights of 16 former employees of KPMG [corporate website] by pressuring the professional services firm to stop paying the employees' defense costs in an ongoing criminal tax shelters case [JURIST report]. US District Judge Lewis A. Kaplan [official profile] found that the tactic violated the defendants' rights to a fair trial and the effective assistance of counsel under the Fifth and Sixth amendments [text], and he criticized prosecutors for trying to gain an "unfair advantage" in the case. He wrote:

Justice is not done when the government uses the threat of indictment – a matter of life and death to many companies and therefore a matter that threatens the jobs and security of blameless employees – to coerce companies into depriving their present and even former employees of the means of defending themselves against criminal charges in a court of law. If those whom the government suspects are culpable in fact are guilty, they should pay the price. But the determination of guilt or innocence must be made fairly – not in a proceeding in which the government has obtained an unfair advantage long before the trial even has begun.

[JURIST] A Bosnian immigrant to the United States accused of concealing his role in the 1995 Srebrenica massacre [PBS backgrounder; JURIST news archive] to gain entry went on trial Tuesday in Boston, where survivors described their ordeals in court. Marko Boskic was charged in August 2004 [JURIST report] with five counts of making false declarations on US immigration applications and in an interview with federal agents, and he has pleaded not guilty [JURIST report]. Defense attorney Max Stern said Tuesday that Boskic had participated in the massacre only after an officer threatened to shoot him if he did not. Earlier this month, US District Judge Douglas P. Woodlock [official profile] issued an order [text, PDF] denying Boskic's motions to suppress statements he made to federal agents, as well as evidence seized from his home, and to dismiss one count of the indictment.

If convicted on all counts, Boskic faces a maximum sentence of more than 40 years in prison. He would also be deported to Bosnia-Herzegovina [JURIST news archive], where he may be tried for war crimes [JURIST report]. AP has more. The Boston Globe has local coverage.

[JURIST] The parliament of Egypt [JURIST news archive] has passed a bill that restricts the government's influence over the judiciary but falls short of the reforms demanded by some judges. Although the Judicial Authority Law approved Monday by the People's Assembly [official website] ends the justice minister's authority over the attorney general, it does not incorporate other changes proposed by reformist judges, such as elected members on the Supreme Judiciary Council. Members of the reform-oriented Judges Club [JURIST op-ed] and lawmakers in the opposition Muslim Brotherhood [party website; FAS backgrounder] said the bill does not guarantee the judiciary independence from the government of President Hosni Mubarak [official profile].

Earlier this month, three UN experts on judicial independence and freedom of expression expressed "grave concern" [JURIST report] about "recent attacks against the judiciary of Egypt" and about the detention of protesters [JURIST report] who supported reformist judges. Specifically, the experts condemned a disciplinary panel decision [JURIST report] to reprimand pro-reform judge Hisham Bastawisi for "exercising his right to freedom of expression" when he alleged widespread voting fraud in last year's parliamentary elections [JURIST rpeort]. AFP has more. BBC News has additional coverage, and Egypt's State Information Service has local coverage.

[JURIST] The Council of Europe Parliamentary Assembly [official website] on Tuesday passed a resolution [draft text] adopting the report [PDF text] of Swiss legislator Dick Marty accusing European countries of colluding with the US Central Intelligence Agency (CIA) in transporting terror suspects in a "global spider's web" [COE graphic] of secret prisons and rendition flights. The Assembly also called for "clear regulations" [press release] to govern the operation of foreign intelligence services in Europe, for member states to review their bilateral agreements with the US to ensure they comply with international human rights norms, and for "an international initiative, expressly involving the United States, to develop a common, truly global strategy to address the terrorist threat which conforms to democracy, human rights and the rule of law." Marty headed the Council of Europe's investigation into alleged secret detention centers [COE materials] and illegal rendition flights [JURIST news archive] operated by the CIA in Europe, and in his report, Marty said that 14 European countries collaborated with the CIA [JURIST report] by taking an active or passive role in a network of prisons and rendition flights.

Also at the COE Tuesday, EU Justice Commissioner Franco Frattini [official website] acknowledged that terror suspects had been transferred to US custody on European territory [VOA report], but said that he did not know whether those transfers were legal. Frattini said that European countries should conduct national investigations [AP report] into the allegations and said that legal safeguards to protect against illegal renditions need to be strengthened. BBC News has more.

[JURIST] East Timor [JURIST news archive] prosecutors have summoned former prime minister Mari Alkatiri [BBC profile] for questioning about allegations that he formed a hit squad to target opponents. Alkatiri resigned [BBC report] from office Monday amid public protests. The government lawyers said Alkatiri could be charged. A close associate of Alkatiri's, former Interior Minister Rogerio Lobato, is already facing charges that he supplied the group with weapons [JURIST report], and his testimony has reportedly implicated Alkatiri. In a national television interview broadcast last week, Alkatiri denied having provided weapons to anyone. His questioning is scheduled for Friday.

Secretary-General Kofi Annan's special envoy to East Timor, Ian Martin [official profile], meanwhile arrived in the capital of Dili on Tuesday [UN press release] to assess whether the UN needs to increase its presence in the Southeast Asian nation. Also on Tuesday, Annan's special representative in East Timor, Sukehiro Hasegawa [official profile], urged political leaders [UN press release] "to restrain their followers from engaging in any act of violence." The UN is investigating the violence [JURIST report] that has surged in East Timor since April. East Timor was a UN protectorate between 1999 and 2002 while the territory transitioned from an Indonesian possession to an independent state. Australia's ABC News has more. The Voice of America has additional coverage.

[JURIST] The European Court of Human Rights [official website] has rejected a request by three British bankers wanted in the US in connection with the Enron scandal [JURIST news archive] to stay their extradition. David Bermingham, Gary Mulgrew, and Giles Darby, formerly of NatWest [corporate website], will likely be extradited to the US in mid-July to face charges [indictment, PDF] that they aided Enron in an off-the-books partnership deal.

The UK High Court [UK Court Service website] rejected a bid to stay their extradition [JURIST report] in February, ruling that the extradition was proper because the charges had a substantial connection to events and people in the US. The House of Lords declined to hear an appeal [Times report] of the ruling last week. The case was the first to be evaluated under the UK's new Extradition Act [text], an agreement between the US and UK that uses a lower evidentiary burden in evaluating extradition requests. The ruling prompted criticism over the incongruency of US and UK extradition laws because the US requires the UK to provide probable cause in order for the US to extradite a suspect, whereas the UK only requires prima facie evidence to extradite a suspect. BBC News has more.

[JURIST] President Bush on Tuesday again pressed the US Senate to pass a line-item veto bill [text, PDF; summary, PDF] that was approved by the House last week [JURIST report]. Speaking in Washington to members of the Manhattan Institute [think tank website], Bush emphasized [White House transcript] that the bill was crafted to pass constitutional muster:

We figured out that, obviously, any line-item veto would again be challenged to our highest court. And so we proposed the following type of legislation: When the President sees an earmark or spending provision that is wasteful or unnecessary, he can send it back to the Congress. And Congress is then required to hold a prompt up or down vote on whether to retain the targeted spending. In other words, the Congress is still in the process.

The line-item veto submitted would meet the Court's constitutional requirements. And that's important. Members of Congress need to know that we've thought carefully about this, and we've worked with them to make sure that that which is passed is constitutional.

[JURIST] The FBI [official website] on Monday dropped its investigation into the library records of a Connecticut library, concluding that the identity of patrons using a particular computer last February no longer posed a threat to national security. Four librarians mounted a challenge against the National Security Letter (NSL) [text, PDF; ACLU backgrounder] they received last year, refusing to turn over library records and protesting the government's insistence that the librarians not disclose the NSL. In a statement [press release] Monday, the FBI said that they determined through other means that patrons using the particular computer during a 45-minute time period last February did not pose a threat and ended the investigation. Though the FBI maintains that they successfully discounted the threat posed, the decision to drop the investigation prompted the American Civil Liberties Union (ACLU) [advocacy website] to call it a victory for the four librarians who refused to comply [press release].

The ACLU last year filed a lawsuit [JURIST report] on behalf of the library, and in September US District Judge Janet Hall lifted the gag order [JURIST report] restricting the four librarians from disclosing that they had received a NSL, ruling that it unfairly prevented librarians from participating in debate about the proper revision of the USA Patriot Act [JURIST news archive] before the government renewed [JURIST report] the Act in March. Federal prosecutors abandoned appeal efforts [JURIST report] in April 2006. The New York Times has more. The Connecticut Post has local coverage.

[JURIST] An investigative committee for Thailand's Attorney General's office on Tuesday unanimously recommended that five of Thailand's political parties be dissolved because of fraud surrounding an April general election [JURIST report]. The recommendation includes the ruling Thai Rak Thai [party website] led by Prime Minister Thaksin Shinawatra [official website; BBC profile], as well as the opposition Democrats [party website] and three smaller political parties. Prosecutors will now ask the Constitutional Court [official website] to make a final decision on disbanding the five political parties.

Thailand's Election Commission (EC) [official website] determined last week [JURIST report] that the Thai Rak Thai party broke two election laws [materials] by paying groups to run candidates in the annulled April parliamentary elections in order to meet election requirements after the main opposition parties boycotted the vote. The Constitutional Court annulled the elections [JURIST report] in early May, and Thailand's three principal courts have repeatedly called for the EC to resign [JURIST report] over the election problems. A new election [JURIST report] will take place in October. AP has more. Reuters has additional coverage. The Bangkok Post has local coverage.

[JURIST] Lawyers for David Hicks [JURIST news archive; advocacy website], an Australian held by the US at the Guantanamo Bay detention center [JURIST news archive], may seek judicial review of the UK Foreign Office's decision not to petition the US for his release [JURIST report]. Hicks' Australian lawyer, David McLeod, said that another approach being considered is to press the Australian government into working for his release. Hicks faces a military commission on charges [PDF] of conspiracy to commit war crimes and attempted murder, but proceedings have been delayed pending the US Supreme Court's decision in Hamdan v. Rumsfeld [Duke Law case backgrounder; JURIST news archive], a case challenging the use of military commissions to try foreign terrorism suspects. A ruling could come this week.

Hicks, who was captured in 2001 while allegedly fighting with the Taliban in Afghanistan and has been detained at Guantanamo since then, won a court ruling [JURIST report] earlier this year entitling him British citizenship based on his mother's nationality. The UK has already secured the release of several other British citizens and is negotiating for the release of noncitizen residents [JURIST report], but said Monday that it will not press for Hicks' release as he was an Australian citizen when he was taken into custody.

In other reaction to Monday's decision, Amnesty International [advocacy website] expressed disappointment that the UK would not push for Hicks' release and blamed the Australian government [ABC report] for not doing enough. Hicks' father, Terry, also lamented [ABC report] the Australian government's handling of the case. Australia's ABC News has more. The Sydney Morning Herald has additional coverage.

[JURIST] A lawyer for the US Department of Justice [official website] on Tuesday defended President Bush's frequent use of signing statements [Wikipedia backgrounder; 1993 DOJ backgrounder] to interpret legislation passed by Congress, in testimony before the US Senate Judiciary Committee [official website]. Deputy Assistant Attorney General Michelle E. Boardman testified during the committee's hearing on signing statements [committee materials] that presidents dating to James Monroe have used the statements to express constitutional concerns about legislation. President Bush's use of the technique is "indistinguishable" from that of previous presidents, according to Boardman's prepared remarks [text], and the number of statements Bush has issued "is in keeping with the number issued by every President during the past quarter century." She continued:

It is important to establish at the outset what presidential signing statements are not: an attempt to "cherry-pick" among the parts of a duly enacted law that the President will choose to follow, or an attempt unilaterally to redefine what the law is after its enactment. Presidential signing statements are, rather, a statement by the President explaining his interpretation of and responsibilities under the law, and they are therefore an essential part of the constitutional dialogue between the branches that has been a part of the etiquette of government since the early days of the Republic.

[JURIST] The Chinese government said Tuesday that a law imposing fines on media organizations reporting national emergencies without gaining local government approval could go into effect by October. The law, which has been sent to the Standing Committee of the National People's Congress [official website; government backgrounder], would fine media organizations up to $12,000 for reporting on emergencies such as riots or natural disasters. A spokesman for the State Council's legislative office said the draft law seeks to prevent the publication of "false or bias news reports," adding that reports lacking detailed information cause public concern. Journalists fear that the draft law will give the government broad powers to restrict coverage of social and political events that may embarrass the Chinese government.

The New York-based Committee to Protect Journalists [advocacy website] has condemned the proposed law [press release] and urged the Chinese government to abandon its plans to implement the law, saying "the proposal furthers attempts by the administration of Chinese President Hu Jintao to restrict reporting by China's increasingly market-driven press." AP has more. The New York Times has additional coverage.

[JURIST] A group of media organizations has asked a Canadian judge to consider vacating a media blackout in the cases of 17 men arrested in Ontario [JURIST report] earlier this month and charged with a terrorist plot. Under Canada's Criminal Code, a judge may order a publication ban [Department of Justice backgrounder] on details from court hearings in order to protect a suspect's right to a fair trial; Justice of the Peace Keith Currie has banned all media from reporting on the details [Bloomberg report; JURIST report] of court proceedings involving the 17 terror suspects in response to a request from prosecutors. The Associated Press, the New York Times, the Toronto Star and the Canadian Broadcasting Corporation met with Regional Senior Judge Bruce Durno Monday to try to set up a hearing to challenge the media ban. Meanwhile, nine of the suspects had bail hearings Monday, with two of the teenage suspects appeared for bail hearings [CBC report] on Tuesday.

The 17 suspects - 12 adults and two teenagers - are suspected of being members of a terrorist cell that planned to attack targets in southern Ontario and Toronto, including the CN Tower and the Peace Tower on Parliament Hill in Ottawa. Also suspected of attending a terror training camp near Toronto, the 17 allegedly gathered three tons of common makeshift bomb ingredient ammonium nitrate fertilizer, three times the amount used in the 1995 Oklahoma City bombing that killed 168 people. The suspects have been charged under the terrorism provisions of Section 83 [text] of the Canadian Criminal Code. AP has more.

ALSO ON JURIST  Op-ed: Canadian Anti-Terror Law on Trial: The Toronto Terrorism Arrests

[JURIST] US District Judge Fernando Gaitan Jr. halted all executions in Missouri Monday until Missouri can ensure that inmates do not suffer when given a lethal injection. Gaitan gave the Missouri Department of Corrections [official website] until July 15 to find a new way to execute inmates, ruling in the case of death row inmate Michael Taylor. The US Supreme Court [official website] in February refused to vacate [JURIST report] a previous stay of execution for Taylor, but also denied certiorari in Taylor's case challenging lethal injection [JURIST news archive] as cruel and unusual punishment.

Missouri Corrections Director Larry Crawford [official profile] testified during Taylor's hearing that the sole surgeon responsible for mixing the drugs for lethal injections had previously given inmates a low dose of anesthesia that did not last through the last few minutes of their executions and the court also heard testimony that the doctor has dyslexia. Gaitan ordered that a board-certified anesthesiologist take over responsibility for mixing the drugs, adding that the anesthesiologist must administer the drugs or directly supervise another administrator to ensure the inmate is fully unconscious before receiving the final drugs to paralyze the inmate then stop the inmate's heart. AP has more. From St. Louis, the Post-Dispatch has local coverage.

[JURIST] Lawyers for two of the seven men indicted [JURIST report] last week on terrorism charges for allegedly conspiring to bomb the Sears Tower in Chicago and the FBI headquarters in Miami said Monday that their clients were entrapped by an FBI informant posing as an al Qaeda operative. Albert Levin, the court-appointed attorney for Patrick Abraham, told Bill O'Reilly [media website] of Fox News that the informant spoke to Abraham much more than Abraham spoke to the informant.

A federal grand jury returned a four-count indictment [PDF text; DOJ press release] last week charging the seven defendants with conspiring to provide material support to al Qaeda; conspiring to provide material support, training, and resources to terrorists; conspiring to maliciously damage and destroy by means of an explosive; and conspiring to levy war against the government of the United States. The indictment alleges that Narseal Batiste recruited the six other defendants to "organize and train for a mission to wage war against the United States government," and that they pledged an oath to al Qaeda in an attempt to secure financial and logistical backing. Reuters has more.

[JURIST] Saddam Hussein [JURIST news archive] and at least six co-defendants will face a second trial beginning August 21 for allegedly killing 100,000 Kurds during the so-called "Anfal" operation [HRW backgrounder] in northern Iraq in the 1980s, the Iraqi High Tribunal said Tuesday. The tribunal filed genocide and crimes against humanity charges [JURIST report] against Hussein and his co-defendants in April, though reports conflict on whether Hussein himself is charged with genocide. The Anfal trial will run concurrently with the Dujail trial if judges in the Dujail trial have not reached a verdict by August 21, though chief prosecutor Jaafar al-Moussawi believes the Dujail case will close before the start of the Anfal trial.

Hussein's defense team is preparing for July 10 closing arguments in the Dujail trial [JURIST news archive], where Hussein and seven co-defendants are accused of crimes against humanity [JURIST report] for killing, torturing and illegally detaining Dujail residents, including executing 148 Shiites [JURIST report], and for committing other inhumane acts in response to an alleged 1982 assassination attempt on Hussein's life. The prosecution called for the death penalty [JURIST report] for Hussein and some of his co-defendants during their closing arguments. If convicted, Hussein could be hanged before the Anfal trial finishes. Iraq President Jalal Talabani [BBC profile], however, has said that Hussein's life will likely be spared until the court completes separate trials for all of his alleged crimes. AP has more.

[JURIST] John Bellinger [official profile], the top legal adviser for the US State Department [official website], said Monday that the US would like to close its detention camp at Guantanamo Bay [JURIST news archive], but must first make sure that detainees will not pose a security risk or face torture when returned to their native countries. Bellinger added that several countries have blocked the return of their nationals, and the US has not been assured by other countries that transferred detainees will not face human rights violations after they leave US custody. So far the US has released some 310 detainees to other governments, including Albania, Afghanistan, Australia, Bahrain, Belgium, Denmark, France, Great Britain, Kuwait, Morocco, Pakistan, Russia, Saudi Arabia, Spain, Sweden and Uganda. Most recently, 14 Saudi Arabian detainees [JURIST report] were transferred into Saudi custody Saturday.

Last week, European Union leaders urged President Bush to close Guantanamo during a Vienna summit [JURIST report], echoing previous calls to close the prison. Meanwhile, the US has reportedly begun talks with the UK on returning eight UK residents [JURIST report] still held at Guantanamo, the first time the UK has sought the release of non-UK citizens. AP has more.

[JURIST] Iraq's council of ministers on Monday took the first steps to elaborate on Iraqi Prime Minister Nouri al-Maliki's national reconciliation initiative [text and press release], which he unveiled to parliament [JURIST report] Sunday. In a statement, the council said that government employees who had been detained would be reinstated to their positions and for purposes of promotion and retirement, their service would be considered uninterrupted. Detained students will also be allowed to return to schools, and will not be penalized for missing time during the school year. Al-Maliki's reconciliation plan sets out over 20 guiding principals and policies, including offering amnesty to detainees not involved in terrorist crimes, banning human rights violations, and improving prison conditions. The new initiative follows other reconciliation efforts, including the release of large numbers of detainees. The Iraqi Justice Ministry has said that US and Iraqi forces will release 453 additional detainees [VOI report] Tuesday in an ongoing campaign that has already seen over 2,000 detainees released [JURIST report].

The Sunni Endowment, a large Sunni Arab group led by cleric Ahmed Abdul Ghafour al-Samaraie, endorsed al-Maliki's reconciliation plan Tuesday but al-Samaraie urged officials to flesh out the details suggested that the plan include disbanding armed militias and releasing all prisoners that have not been convicted. Armed Shiite militias [CFR backgrounder] have created concern throughout Iraq, particularly after a Justice Ministry official said that militias control many of the Iraqi-run detention centers [JURIST report]. Several US senators have criticized the amnesty portion [JURIST report] of the plan as too liberal insofar as it might apply to individuals who have killed US troops, while recognizing Iraq's sovereignty and right to enforce it. AP has more.

[JURIST] Opening arguments began Tuesday in the fraud trial of Tongsun Park [personal website; Washington Post profile], who has been charged [JURIST report] with money laundering, conspiracy to commit wire fraud, and acting as an unregistered agent of the government of former Iraqi president Saddam Hussein in connection with the now-defunct UN oil-for-food program [JURIST news archive]. The prosecutor in the trial, the first federal trial in the US stemming from the oil-for-food scandal, promised to prove the South Korean lobbyist accepted large amounts of cash from Iraq for influencing the program while secretly lobbying on behalf of Hussein's government. The defense, however, insisted Park was merely "a middleman or facilitator" like many others. If convicted, Park faces up to five years in prison and a $250,000 fine.

In a separate case, Park was also charged last Wednesday with lying to the FBI [JURIST report] about his role in the adoption of the 1995 UN Security Council Resolution 986 [PDF text], which established the oil-for-food program. Reuters has more.