[JURIST] Mexican leftist presidential candidate Andres Manuel Lopez Obrador [campaign website] filed a criminal complaint against the Federal Electoral Institute [official website] Tuesday, alleging that it should have blocked campaign ads funded by private companies that he alleges broke election regulations. Obrador has claimed that the commercials contained subliminal messages [JURIST report].

Obrador lost the July 2 presidential election [JURIST report] by 0.6 percent of the vote to conservative Felipe Calderon [campaign website] and has filed 225 charges of election fraud [JURIST report] with Mexico's Federal Election Tribunal (TRIFE) [official website] to force a manual recount of the votes. Last week, Obrador supporters called for "peaceful civil resistance" [JURIST report] to protest the results, while the Mexican government has urged respect for the law [JURIST report] as TRIFE continues to evaluate the results of the elections. BBC News has more.

[JURIST] A federal judge in Manhattan ruled [opinion text, PDF] Wednesday that statements made by two partners at accountancy firm KPMG [corporate website] cannot be used in their upcoming trial because federal prosecutors coerced the two defendants into cooperating with the ongoing criminal tax shelters case [JURIST report] by using excessive financial pressure over the two men. US District Judge Lewis Kaplan also ruled that economic pressure led KPMG Vice Chairman Richard Smith and former KPMG partner Mark Watson to waive their Fifth Amendment rights to remain silent in the absence of an attorney, and that federal prosecutors also coerced KPMG into threatening to fire employees that did not cooperate with the investigation. Kaplan wrote:

Having considered the evidence, the Court is persuaded that the government is responsible for the pressure that KPMG put on its employees. It threatened KPMG with the corporate equivalent of capital punishment. KPMG took the only course open to it...It exerted substantial pressure on its employees to waive their constitutional rights.

[JURIST] China's Supreme People's Procuratorate (SPP) [official website, in Chinese; Wikipedia backgrounder], the country's highest criminal prosecution body, has issued new regulations outlining 42 offenses constituting abuses of authority in a bid to prevent torture of criminal suspects and other malfeasance. The regulations are meant to provide criteria for prosecuting authorities to follow when launching investigations. The offenses include divulging state secrets, releasing detainees without authority to do so, failing to properly collect taxes, selling land-use rights below value, and obtaining criminal confessions through torture, violent means or abuse.

According to SPP Vice President Wang Zhenchuan [China Vitae profile], the SPP did not have clear criteria to follow when determining if a public official was abusing their power. Previously, the SPP prohibited law enforcement from using "brutal means" to obtain a confession, and defined "brutal means" as an action that caused "serious results," without any guidelines. The new regulations clearly define torture as beating, binding, freezing, starving, exposing suspects to severe weather, severe injury, and ordering others to use torture. Xinhua has more. In 2005, the Chinese parliament passed a bill that mandates punishment for police who torture detainees during interrogation [JURIST report], but a UN mission to China earlier this year found that torture is still widespread [JURIST report], although China insists it is banned.

[JURIST] A Texas jury Wednesday found Andrea Yates [Chronicle coverage] not guilty by reason of insanity of drowning her five children in 2001. Yates will now be committed to a Texas mental hospital and will undergo periodic hearings to determine whether she will be eligible for release. Yates' attorney argued that she suffered from severe postpartum psychosis [backgrounder], believing that Satan was inside her, and drowned her children to save them from going to hell.

Yates was convicted by another jury in 2002, but received a retrial when the Texas First Court of Appeals ruled [JURIST report] that false testimony by a state expert witness could have affected the judgment of the jury. AP has more. The Houston Chronicle has local coverage.

[JURIST] US Securities and Exchange Commission Chairman Christopher Cox [official profile] suggested that Congress may need to permit increased SEC oversight over hedge funds [prepared statement] to protect retail investors and prevent fraud, during a hearing [committee materials] held by the Senate Banking Committee Tuesday. Cox lamented a June decision [JURIST report] by a federal appeals court to invalidate the SEC hedge fund rule [PDF text; JURIST report], saying that it has forced the SEC "back to the drawing board to devise a workable means of acquiring even basic census data that would be necessary to monitor hedge fund activity in a way that could mitigate systemic risk." The rule required hedge fund advisors responsible for at least $30 million in assets to register with the SEC, thus subjecting them to legal scrutiny for potential fraud, and in a unanimous decision [PDF text] the appeals court held that hedge funds escape SEC regulation under the Investment Company Act of 1940 [PDF text] because "investment vehicles that remain private and available only to highly sophisticated private investors have historically been understood not to present the same dangers to public markets as more widely available public investment companies."

Cox further said:

The concerns about hedge funds that the SEC enunciated when we adopted our hedge fund rule in December 2004 remain the same today. The remarkable pace of hedge fund growth, which we noted at the time, has continued unabated. The potential for retail investors to be harmed by hedge fund risk remains as serious a concern now as then. And the growth in hedge fund fraud that we have seen accompany the growth in hedge funds implicates the very basic responsibility of the SEC to protect investors from fraud, unfair dealing and market manipulation.

And on that point, let me make very clear that notwithstanding the Goldstein decision, hedge funds today remain subject to SEC regulations and enforcement under the antifraud, civil liability, and other provisions of the federal securities laws. We will continue to vigorously enforce the federal securities laws against hedge funds and hedge fund advisers who violate those laws. Hedge funds are not, should not be, and will not be unregulated. The challenge for the SEC and the President's Working Group going forward is, rather, to what extent to add new regulations, particularly in light of the recent Court of Appeals ruling.

[JURIST] Australian Attorney-General Philip Ruddock [official website] Wednesday called on Australian states to ban books inciting terrorism in the wake of a recent Australian Classification Review Board (CRB) [official website] decision to ban two Islamic books that allegedly incited terror while allowing five others to circulate. An incitement ban would require changing the current legal test for prohibition, which goes to intent rather than effect. In an interview [transcript] ahead of a ministers meeting Thursday Ruddock said:

What I am asking...the ministers to look at...is whether the test which now goes to whether or not the publication incites or promotes terrorist activity as a crime, ought to be changed to a test of advocacy, which wouldn't require us to go into people's minds when they produce their publications, or their film or their video. It would be a simpler test and easier test of dealing with terrorist acts and I'm encouraging the state classification ministers to deal with this issue.

[JURIST] US Border Patrol [official website] Chief David Aguilar [official profile] said Tuesday that arrests of people trying to cross the border illegally have dropped by 45 percent [DHS press release] in the two months since President Bush announced a plan to send 6,000 National Guard troops [JURIST report] to aid in border security along the Mexican border. Aguilar said that increased resources and personnel, as well as the high level of publicity surrounding the National Guard [official website] deployment, contributed to the decreased numbers. Though the summer months usually see a drop in arrests, Aguilar said the arrest totals for the last two months are still far below the numbers from the summer months in 2004 and 2005, which generally decrease by 25 percent. In June, Arizona saw a 23 percent decrease [JURIST report] in illegal immigration [JURIST news archive], just one month after the National Guard announcement.

Over 4,500 National Guard troops have already arrived along the Mexican border, and they are on target to reach 6,000 by August 1. Cox News Service has more.

[JURIST] The US Court of Appeals for the DC Circuit [official website] granted an administrative injunction Wednesday in the case of US Rep. William Jefferson (D-LA) [official website], preventing FBI review of documents seized from Jefferson's congressional offices until after the court rules on the merits of Jefferson's appeal. Jefferson is appealing a district court ruling finding the search constitutional [JURIST report; PDF opinion], and has argued that documents recovered during the 18-hour search [JURIST report] are protected under the Speech or Debate Clause [text] of the US Constitution, and that the search violated the separation of powers principle and his Fourth Amendment rights.

Jefferson has not been charged, and has denied accusations that he took bribes from a Kentucky telecommunications company in exchange for brokering a deal with the government of Nigeria. The search sparked bipartisan criticism from the House of Representatives, including an accusation from House Speaker Dennis Hastert (R-IL) that the DOJ crossed the line of separation of powers [JURIST report]. Attorney General Alberto Gonzales, Deputy Attorney General Paul McNulty, and FBI Director Robert Mueller were among a host of government officials who said they would resign [JURIST report] if forced to hand back information gathered during the search, causing President Bush to order the documents to be sealed for 45 days [JURIST report] until the matter could be resolved. AP has more.

[JURIST] CIA Director Michael Hayden on Wednesday spoke against requiring the US government to show probable cause to obtain warrants to wiretap domestic conversations thought to involve al-Qaeda affiliates during a Senate Judiciary Committee hearing [committee materials] on adapting the Foreign Intelligence Surveillance Act (FISA) [text] to the threat of terrorism. Hayden argued that while FISA was appropriate for granting court orders to spy on the threats of the 1970s, which primarily included stable foreign regimes such as the USSR, it is ill-suited to dealing with today's terrorists, who are not defined by national borders and state affiliations. Hayden spoke favorably of Committee Chairman Arlen Specter's controversial compromise bill [JURIST report], now before the committee, that would allow the Foreign Intelligence Surveillance Court (FISC) to oversee the NSA's domestic surveillance program [JURIST news archive], require the attorney general to provide the FISC information on the NSA program, and expand the period where emergency wiretaps can be secured from the FISC from three to seven days.

Hayden noted that four factors now used by the Foreign Intelligence Surveillance Court [FJC backgrounder] are who are and where are the target of the surveillance, and how and where the communication is intercepted. Specter's proposal [PDF text], according to Hayden, would properly adjust the US response to terrorism by allowing the government more time to figure out who and where the surveillance targets are, by expanding the grace period from three to seven days, and that "technology neutral" provisions of the new bill would remove hurdles to obtaining cell phone conversations not contemplated by FISA's original drafters. Hayden further said that because the US serves as a routing station for international communications, "we are playing with a tremendous home field advantage and we need to exploit this edge" to permit wiretaps of phone calls through the US.

The Specter proposal met mixed reaction [JURIST report] during a Senate Intelligence Committee hearing last week, and has been slammed [JURIST report] by civil rights and privacy advocates. Reuters has more.

ALSO ON JURIST  Op-ed: No Compromise: Arlen Specter's Surveillance Bill

[JURIST] Missouri's revised plan for conducting executions by lethal injection [JURIST news archive] fails to ensure that executions do not cause unconstitutional pain and suffering, according to US District Judge Fernando Gaitan [official profile], who halted all executions in the state in June [JURIST report]. Gaitan wrote on Tuesday that the proposal was an improvement over existing procedures but still did not meet his demands. Gaitan specifically called for a board-certified anesthesiologist to make sure the lethal injections posed no unnecessary risk of pain. Missouri [JURIST news archive], however, could not find a certified anesthesiologist willing to monitor lethal injections and instead proposed another physician, nurse or pharmacist. After Gaitan's ruling in June, the president of the American Society of Anesthesiologists [professional website] sent a letter [text] to all of the group's members reminding them of their ethical obligations and warning them to "steer clear."

In June, 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. AP has more. The Columbia Missourian has local coverage.

[JURIST] The Washington Supreme Court ruled Wednesday morning that a statute prohibiting same-sex marriage [JURIST news archive] does not violate the state Constitution. The Supreme Court reversed a 2004 Superior Court ruling [opinion text, PDF] that the state's 1998 Defense of Marriage Act was unconstitutional because it was "not rationally related to any legitimate or compelling state interest and is certainly not narrowly tailored toward such an interest."

In the majority opinion [PDF text], Justice Barbara Madsen [official profile] wrote:

The two cases before us require us to decide whether the legislature has the power to limit marriage in Washington State to opposite-sex couples. The state constitution and controlling case law compel us to answer "yes," and we therefore reverse the trial courts.

In reaching this conclusion, we have engaged in an exhaustive constitutional inquiry and have deferred to the legislative branch as required by our tri-partite form of government. Our decision accords with the substantial weight of authority from courts considering similar constitutional claims. We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington. It is important to note that the court's role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be.

[JURIST] The Ohio Supreme Court [official website] ruled 7-0 Wednesday that a Cincinnati suburb may not use eminent domain [JURIST news archive] to take private property on the sole basis of economic benefit to the community. Several residents of Norwood held out on selling their homes to make way for a $125 million commercial development, and after a consulting firm found that the structures themselves did not qualify as blighted or deteriorated, which would satisfy the Ohio Constitution's "public use" requirement [text], the City Council voted to use eminent domain to take the properties. After an Ohio appeals court upheld the legality of the takings, the Ohio Supreme Court reversed [opinion text, PDF; summary], holding that the public use provision of the state Constitution is not satisfied when only economic factors inform the decision, and that the "deteriorating area" language of a state eminent domain statute is overly ambiguous and thus void.

Norwood v. Horney is the first eminent domain challenge decided by a state supreme court since the US Supreme Court ruled in Kelo v. New London [text] in June 2005 that local authorities may expropriate private land, homes and businesses for private redevelopment [JURIST report] under the "public use" clause of the US Constitution if the taking conferred community economic benefits, such as tax revenue and jobs. The decision ignited public protest [JURIST report] because of its apparent disregard for private property rights and prompted the legislatures of more than 25 states to consider measures that could limit the ability of city and county governments [JURIST report] to invoke eminent domain to take property for retail, office or residential development. The Ohio decision does not conflict with the Supreme Court precedent in Kelo as Norwood interprets the Ohio constitution and Kelo interpreted the US Constitution. AP has more.

[JURIST] Israel has denied using banned cluster munitions [FAS backgrounder; Cluster Munition Coalition advocacy website] in Lebanon. On Tuesday, Human Rights Watch accused Israel [HRW press release] of using the cluster grenades in an attack on a Hezbollah village in South Lebanon last week. Israeli Ambassador to Moscow Arkady Milman called told Russian media that "reports of the Israeli army using cluster munitions is an obvious propaganda of Hezbollah and other organizations who do not know what is actually going on", and he insisted that Israel is taking every precaution to avoid civilian casualties in the current Mideast conflict [JURIST news archive]. He added that Israeli forces drop leaflets into Lebanon several hours before Israel begins a bombing campaign over Lebanese territory.

Cluster munitions generally spread damage indiscriminately and many people consider the weapons illegal under multiple provisions of Protocol I of the Geneva Conventions (1977) [text]. MosNews has more.

[JURIST] UK Lord Chancellor Lord Falconer [official profile] issued a review [materials] of the implementation of the Human Rights Act [text] Tuesday indicating that the government will not support legislation to amend or appeal the Act but wants instead to dispel "myths" surrounding it so that public officials governed by the Act do not overbalance the rights of criminals against the rights of victims.

In the wake of several contentious High Court judgments earlier this year, Prime Minister Tony Blair [official profile] called for a review [JURIST report] of "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" and Falconer himself suggested that the Human Rights Act be amended [JURIST report] to include a public safety exception. Opposition Conservative Party leader David Cameron has also called for the Act to be repealed or revised [JURIST report]. The review [executive summary, PDF] published Tuesday found, however, that the Act has had no significant impact on criminal law, and that while the Act has had an impact on UK terrorism responses, that issue primarily arises not from the Act itself, but from how the European Court of Human Rights [official website] has interpreted provisions of the European Convention on Human Rights (ECHR) [PDF text] on which the UK Act is based. The Independent has more.

[JURIST] Saddam Hussein attended trial proceedings [JURIST news archive] Wednesday for the first time since the prosecution called for the death penalty [JURIST report] during closing arguments in June. In a statement to Presiding Judge Raouf Abdel-Rahman [BBC profile], Hussein asked to be executed by firing squad rather than hanging and complained that he had come to trial proceedings against his will. The trial resumed in Baghdad on Monday [JURIST report], though the former Iraqi leader was not in court because of his weekend hospitalization [JURIST report] after collapsing in jail [LA Times report]. He was on the 16th day of a hunger strike [JURIST report] protesting trial procedures and a lack of adequate security for defense lawyers. An appointed lawyer [JURIST report] delivered a summation for Hussein on Wednesday because several members of the defense team have pledged to boycott [Reuters report; JURIST report] trial proceedings until the Iraqi High Tribunal meets their demand for a fair trial and increases security measures for the defense team.

The court has now heard final statements from six of the eight defendants, who are accused of crimes against humanity [JURIST report] for allegedly killing, torturing and illegally detaining Dujail residents, including executing 148 Shiites [JURIST report], and for committing other inhumane acts after an alleged 1982 assassination attempt on Hussein's life. If Hussein is sentenced to death, the execution could be suspended until after several other trials relating to his former regime. A second trial, involving the so-called "Anfal" operation [HRW backgrounder] that killed 100,000 Kurds in northern Iraq in the 1980s, is scheduled to begin on August 21 [JURIST report]. AP has more.

[JURIST] The UK Court of Appeal ruled Wednesday that Military Families Against the War (MFAW) [advocacy website], a group of families with members who have died in Iraq, is entitled to apply for judicial review of the government's decision not to hold an independent inquiry into why the UK went to war. Reversing a High Court decision [JURIST report] in the case, Master of the Rolls Sir Anthony Clarke wrote [judgment text] that

In the light of all the information at present available it seems to us that, if it is otherwise appropriate to hold an inquiry, it is at least arguable that the question whether the invasion was lawful (or reasonably thought to have been lawful) as a matter of international law is worthy of investigation.

[JURIST] The Bush administration has begun circulating a draft bill to authorize military trials for terror detainees [JURIST news archive] at Guantanamo Bay [JURIST news archive], according to a report in Wednesday's New York Times. The draft bill, written by acting Assistant Attorney General Steven Bradbury [SourceWatch profile], would allow the use of reliable hearsay evidence and would permit the court to bar defendants from their own trials if they present a threat to national security. It would also prohibit suspects from filing future lawsuits alleging that their rights under the Geneva Conventions were violated. The legislation would, however, expand protections for the terror suspects, including a ban against the use of statements obtained through torture. The Bush administration agreed to work with Congress [JURIST report] to authorize military commissions for terror detainees after the US Supreme Court ruled in Hamdan v. Rumsfeld [opinion text] that military commissions as initially constituted lacked proper legal authorization [JURIST report].

The draft bill, however, will likely set up a debate between lawmakers [JURIST report] who supported the military tribunal procedures and those who want to model the trials after courts-martial, which grant more rights to defendants. Sen. Lindsey Graham (R-SC) [official website], a former Air Force lawyer, has led the campaign to give detainees more rights during their trials, while Sen. John McCain (R-AZ) [official website] wants to grant terror suspects even greater rights than court-martial proceedings, hoping to encourage better treatment of American troops captured overseas. Likewise, top military lawyers have pressed [JURIST report] the Senate Armed Services Committee to create legislation based on the Uniform Code of Military Justice [text] and the courts-martial system. While still drafting the bill, the Bush administration has circulated the proposal throughout the administration and to several military lawyers for recommendations. David Cloud and Sheryl Gay Stolberg of the New York Times have more.

[JURIST] United Nations relief coordinator Jan Egeland [official profile; JURIST news archive] said Tuesday that Israel had used "disproportionate" force in its military offensive against the Hamas-led Palestinian Authority in the Gaza Strip [JURIST news archive], but he added that both sides had violated international humanitarian law [JURIST report]. Touring Gaza, Egeland expressed dismay over Israel's destruction of Gaza's infrastructure [JURIST report], including a power plant that supplied 70 percent of Gaza's power to its 1.4 million residents, saying that international law clearly prohibits the destruction of civilian infrastructure. "This plant is more important for hospitals, for sewage, and for water of civilians than for any Hamas man," Egeland said.

Egeland also toured south Beirut over the weekend, where he said the damage to civilian areas caused by Israeli airstrikes [JURIST news archive] was worse than he had anticipated while emphasizing that attacking civilians was illegal under international norms [JURIST report]. Israel quickly defended itself [JURIST report], dismissing Egeland's comments as out of line with those made by other international figures, such as Secretary-General Kofi Annan and the UN Security Council. The UN News Centre has more. AFP has additional coverage.