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 Legal news from Thursday, May 1, 2008 |
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US House passes legislation to bar discrimination based on genetic testing
Mike Rosen-Molina on May 1, 2008 3:15 PM ET
[JURIST] The US House of Representatives voted 414-1 [roll call] on Thursday to pass the Genetic Information Nondiscrimination Act of 2008 (GINA) [HR 493 materials], a bill aimed at preventing employers and health insurers from discriminating against people who have a genetic predisposition to disease. Under the measure, employers would be barred from basing hiring and firing decisions on genetic risk or predisposition to disease, while health insurers would not be permitted to deny coverage based on genetic information. The US Senate passed [JURIST report] the bill last week. President George W. Bush is expected to sign the bill into law. AP has more.
Genetic nondiscrimination legislation was passed unanimously by the Senate in 2003 but failed in the House of Representatives. US Rep. Louise Slaughter (D-NY) [official website] reintroduced the latest bill in January 2007. If it becomes law, according to the bill's findings, the law will establish "a national and uniform basic standard ... necessary to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies."
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Upcoming Myanmar constitutional referendum 'sham': HRW
Mike Rosen-Molina on May 1, 2008 1:24 PM ET
[JURIST] A scheduled May 10 referendum [JURIST news archive] on a new constitution proposed by Myanmar's ruling junta is a "sham" designed to legitimize military rule, according to a report [text; press release] released Thursday by Human Rights Watch (HRW) [advocacy website]. HRW criticized the military government for arresting opposition activists and repressing media coverage in the lead-up to the referendum, saying: The environment in Burma prior to the referendum has been one of continuing intimidation of the political opposition and general populace, denial of basic freedoms of expression, association, and assembly, and arbitrary arrests and detention. Under such widespread repression and a pervasive climate of fear, no free and fair referendum can take place in Burma.
Since the military crackdown on monks and pro-democracy protesters in August-September 2007, foreign governments and intergovernmental bodies have responded in varying ways. International criticism may be partly responsible for the referendum being announced, in February 2008, but it will not ensure that the vote is conducted freely. Concerted public pressure and targeted sanctions by the military government’s international supporters as well as its detractors is needed if there is to be any hope that real democratic progress, rather than further constitutional travesties, can be achieved. Opposition groups such as the National League for Democracy (NLD) led by Aung San Suu Kyi [JURIST news archive] have urged citizens to reject [JURIST report] the proposed constitution put forth by the military government, themselves labeling the referendum a "sham". In April, UN Special Rapporteur on Myanmar Paulo Sergio Pinheiro [official profile] told Reuters in an interview that Myanmar is completely ill-prepared to hold a national constitutional referendum [JURIST report] as part of a democratic political transition. AFP has more.
In March, AP reported that the draft constitution reserves 25 percent of parliamentary seats for the military [JURIST report] and would also block pro-democracy leader Suu Kyi from seeking office. It is unclear whether the ruling junta will allow international observers of the referendum as requested by the opposition.
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Pakistan coalition leaders strike deal on restoring judges; Chaudhry to retire 'early'
Bernard Hibbitts on May 1, 2008 10:57 AM ET
[JURIST] The leaders of Pakistan's coalition government reached agreement in Dubai on Thursday on the details of a deal on restoring superior court judges removed in November under President Pervez Musharraf's declaration of emergency [JURIST report], according to local media reports. GEO-TV said that the agreement would be formally announced at a press conference Friday, as under the rules of the Dubai-hosted negotiations the visiting Pakistani party leaders are not allowed to openly engage in politics while in Dubai itself.
The deal as currently reported via JURIST's correspondent in Pakistan includes the following terms: - the ousted judges shall be restored within a couple of weeks through a simple majority resolution of Pakistan's parliament followed by an Executive Order making it possible for the deposed judges to resume their duties.
- a constitutional package will subsequently be presented requiring a two-thirds majority of the parliament, and the constitution shall stand amended accordingly.
- under the constitutional package, the position of Chief Justice shall be tenure-based and tenure is set for five years. The retirement age of the Chief Justice will be elevated to 68 instead of 65, although current judges shall retire at the age of 65. The Chief Justice shall retire at whatever comes first, i.e. either 68 years or after five years of service as Chief Justice. Ousted Chief Justice Iftikhar Mohammed Chaudhry [JURIST news archive] was appointed Chief Justice in June 2005, and under this arrangement his five-year tenure shall end in June 2010. Under the old rules setting 65 years as age of retirement, he was to retire in December 2013. He will now be required to retire three-and-a-half years earlier.
- The judges who took oaths under President Musharraf's emergency Provisional Constitution Order on November 3 and subsequently shall be retained.
JURIST's Pakistan correspondent says it is unclear if current PCO Chief Justice Abdul Hameed Dogar [official profile] will become Chief Justice again after Chaudhry retires. Dogar is already set to retire in March 2009, i.e. more than a year before Chaudhry. GEO-TV has more.
5/2/08 - JURIST's Pakistan correspondent says that, according to Friday news reports, the retirement age of all the judges of the Supreme Court will be raised to 68 years. Justice Dogar, who turns 68 in March 2012, would therefore become Chief Justice in June 2010 once Chief Justice Chaudhry retires after completing his current five-year term.
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DOJ to share interrogation opinions with Congressional intelligence panels
Jeannie Shawl on May 1, 2008 10:02 AM ET
[JURIST] The US Justice Department will share internal legal opinions authorizing the use of harsh interrogation tactics with members of the House and Senate Intelligence Committees, Deputy Assistant Attorney General John P. Elwood told a subcommittee of the Senate Judiciary Committee on Wednesday. Elwood's comments came during a subcommittee hearing on "Secret Law and the Threat to Democratic and Accountable Government" [hearing materials; recorded video]. Elwood, head of the DOJ's Office of Legal Counsel [official website], said that a decision has not yet been made about whether to share the documents with the House and Senate Judiciary Committees.
The Bush administration has repeatedly come under fire for failing to share information with Congress and Sen. Russ Feingold (D-MI), who chaired Wednesday's hearing, offered renewed criticism of the administration and the DOJ's practices. In his opening statement [text], Feingold said: More than any other Administration in recent history, this Administration has a penchant for secrecy. To an unprecedented degree, it has invoked executive privilege to thwart congressional oversight and the state secrets privilege to shut down lawsuits. It has relied increasingly on secret evidence and closed tribunals, not only in Guantanamo but here in the United States. And it has initiated secret programs involving surveillance, detention, and interrogation, some of the details of which remain unavailable today, even to Congress.
These examples are the topic of much discussion and concern, and appropriately so. But there is a particularly sinister trend that has gone relatively unnoticed – the increasing prevalence in our country of secret law. ...
In a democracy, the government must be accountable to the people, and that means the people must know what their government is doing. Through the classification system and the common law, we've carved out limited exceptions for highly sensitive factual information about military operations, intelligence sources and methods, nuclear programs, and the like. That is entirely appropriate and important to protecting our national security. But even in these areas, Congress and the courts must maintain some access to the information to ensure that the President is acting in accordance with the law and the Constitution. And when it comes to the law that governs the executive branch's actions, Congress, the courts, and the public have the right and the need to know what law is in effect. An executive branch that operates pursuant to secret law makes a mockery of the democratic principles and freedoms on which this country was based. In his own opening statement [text], Elwood defended the Office of Legal Counsel:I would like to address directly the concern that, by issuing confidential legal advice, OLC makes "secret law." It is true that, subject to the President's authority under the Constitution, OLC opinions are controlling within the Executive Branch on questions of law. However, OLC does not "make law" in the same sense that Congress or the courts do. While OLC's legal advice and analysis may inform the decisionmaking of its clients, the legal advice rarely, if ever, compels the adoption of any particular policy; rather, it remains up to policymakers to decide whether and how to act. OLC thus lacks the ability to affect private parties directly, and its legal views are not binding on the Legislative Branch, the courts, or members of the general public. If the Executive Branch adopts a policy that OLC has declared legally permissible, the policy will be public unless it is classified, and appropriate officials may be called upon to explain the policy, including its basis in law. (Classified activities are, of course, subject to review by the intelligence committees.) But effective policymaking is not possible if officials are inhibited by concerns that the advice they receive or their other internal, pre-decisional deliberations will be made public.
At the same time, OLC recognizes that many of its opinions address issues of interest to the government or to the public. It is our policy to publish such opinions whenever doing so is consistent with the legitimate confidentiality interests of the President and the Executive Branch, and this publication policy is sensitive to Congress's interests in understanding the legal reasoning relied upon by executive agencies. There has historically been a time lag between when an opinion is signed and when it is considered for publication, which reflects the need for confidentiality in the course of ongoing decisionmaking. ... The Office's current approach to publication is consistent with historical practice. The publication review process has largely been completed for opinions signed in the years 1993-2000 but is ongoing for opinions signed since 2001. As a result, fewer of these more recently signed opinions have been published at this time. But during my tenure at OLC, the rate of publication has increased, and the period of time between opinion signature and opinion publication has decreased. ...
In sum, OLC recognizes the value of openness in government, which promotes public confidence that the government is making its decisions through a process of careful and thoughtful reasoning. By publishing OLC opinions when appropriate, we ensure that Executive Branch views are part of the public conversation on topics for which the Executive possesses relevant expertise. As we work to balance the values of transparency, accountability, and the confidentiality essential to good governance, our publication decisions will continue to reflect our commitment to a basic policy of openness, as well as to the important constitutional function of congressional oversight. Also during Wednesday's hearing, US Sen. Sheldon Whitehouse (D-RI) criticized the administration for its practice of modifying existing executive orders without publicly disclosing the new interpretation. Elwood defended the practice, saying that DOJ legal opinions from the 1980s support the position that the president can change executive orders. The New York Times has more.
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Federal judge rejects challenge to Georgia lethal injection protocol
Jeannie Shawl on May 1, 2008 9:38 AM ET
[JURIST] US District Judge Beverly Martin on Wednesday rejected a challenge to Georgia's lethal injection protocol, ruling that the state's execution procedures were similar to Kentucky's method, determined by the Supreme Court to be constitutional [JURIST report]. Convicted murderer Jack Alderman had argued that the Georgia's lethal injection protocol is unconstitutional as it creates a substantial risk of pain, but Martin issued a ruling from the bench that Alderman's lawyers did not show that Georgia's methods allowed a higher risk of pain than that allowed last month in the Supreme Court's ruling in Baze v. Rees. Alderman's execution, originally scheduled to take place in October, was stayed [JURIST report] last year by the Georgia Supreme Court pending the outcome of the Supreme Court case. Another Georgia inmate, William Earl Lynd, is scheduled to be executed [JURIST report] on May 6. If the execution takes place as planned, it will be the first execution since the Supreme Court's ruling. The Atlanta Journal-Constitution has more.
In September 2007, the Supreme Court granted certiorari in Baze v. Rees [Duke Law case backgrounder], allowing it to consider whether the three-drug lethal injection cocktail [DPIC backgrounder] used in most states violates the Eighth Amendment's prohibition on cruel and unusual punishment. This led to an effective moratorium [JURIST report] on the death penalty in the United States as many federal courts, state courts, and state governors put executions on hold pending the high court's ruling. In addition to Georgia, several other US states have already announced that they will resume executions by lethal injection [JURIST report].
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